Court File and Parties

Court File No.: CR-24-106-AP Date: 2025-10-28

Ontario Superior Court of Justice Summary Conviction Appeal Court

Between:

His Majesty the King Respondent

- and -

Amandeep Singh Appellant

Counsel:

• Ryan Mullins, for the Respondent
• Nate Jackson, for the Appellant

Heard: September 25, 2025

Reasons for Judgment

[On appeal from the judgment of Justice Kastner, dated December 7, 2023 and February 1, 2024]

Dennison J.

Overview

[1] The appellant was charged with theft over $5,000, contrary to s. 334(a) of the Criminal Code. The matter proceeded in the Ontario Court of Justice summarily. On the day that the trial was scheduled to begin, on December 7, 2023, the appellant pleaded guilty with the assistance of counsel. On February 1, 2024, the trial judge sentenced the appellant to a suspended sentence and 12 months probation.

[2] On February 26, 2024, the appellant filed a notice of appeal against conviction and sentence. He abandoned the sentence appeal.

[3] The appellant appeals his conviction and seeks to withdraw his guilty plea because it was not informed. He submits that he was not aware that he would be deported with no right of appeal.

[4] Given the allegations on this appeal, the appellant filed an affidavit, and the Crown cross-examined him on it. Similarly, trial counsel provided an affidavit which he was cross-examined on. The parties both agree that this fresh evidence should be admitted on the appeal. I agree that the fresh evidence is highly relevant to the issues raised on the appeal and is admissible.

General Principles

[5] The decision to plead guilty is a deeply personal decision that includes subjective risk tolerances, priorities, family and employment circumstances, and individual idiosyncrasies: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 11.

[6] For a plea to be valid, it must be voluntary, unequivocal and informed: R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 85; R. v. Berhe, 2022 ONCA 853, 421 C.C.C. (3d) 491, at para. 67. The appellant submits that his guilty plea was not informed.

[7] For a plea to be informed, the accused must be aware of the "legally relevant collateral consequences. A legally relevant collateral consequence is a consequence that bears upon sufficiently serious legal interests of the accused": R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52, citing Wong, at para. 4. Immigration consequences are legally relevant collateral consequences of a guilty plea: Girn, at paras. 51-52, citing Wong, at para. 4.

[8] To find that the plea was uninformed, the appellant must establish two elements on a balance of probabilities:

1. That the appellant was misinformed or was not informed about a legally relevant collateral consequence of entering the plea prior to entering the plea; and

2. That the lack of information resulted in subjective prejudice to the appellant in the sense that there is a "'reasonable possibility that [he] would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions.'"

See R. v. Evans, 2022 ONCA 23, at para. 7, citing Wong, at para. 6. See also Girn, at para. 73; R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at paras. 4, 51.

[9] A two-stage process is used to determine if the appellant was sufficiently informed of the immigration consequences. First, the court must engage in a subjective inquiry and determine what the appellant actually knew. This requires the court to make factual findings. Second, the court must determine whether the accused was uninformed. This is assessed on an objective standard on a case-by-case basis: R. v. Johnson, 2024 SKCA 58, 438 C.C.C. (3d) 504, at para. 24; See also Wong, at para. 34.

[10] In assessing the prejudice component, the inquiry is subjective to the particular accused, "but allows for an objective assessment of contemporaneous evidence to determine the credibility of the accused's subjective claim": Girn, at para. 66, citing Wong, at para. 6. Such factors may include the strength of the Crown's case, whether the Crown was willing to participate in a joint position or reduce the charge to a lesser or included offence, any defence, and the strength of the connection of the guilty plea and the collateral consequence: Girn, at para. 70.

[11] In assessing whether the accused would have opted for a trial, it must be remembered that even where the prospect for acquittal is low that does not necessarily mean that an accused is not sincere in their claim that their plea would have been different: Girn, at paras. 67, 70, citing Wong, at paras. 26, 28.

[12] With respect to whether the accused would have pleaded guilty but on different conditions, the mere possibility of different conditions without more is not automatically sufficient. The credibility of the subjective view of the accused is assessed against objective circumstances.

Legislation Relevant to the Deportation

[13] The appellant submits that he is automatically deportable based on the legislative provisions in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") because he is a foreign national.

[14] Section 36(1)(a) of IRPA states:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

[15] The appeal provisions provide that:

64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

[16] The appellant submits that taken together, ss. 36(1)(a) and 64(1) of the IRPA render a foreign national, who is convicted of a Criminal Code offence that is punishable by a maximum term of imprisonment of at least ten years, inadmissible and therefore deportable without a right of appeal.

The Relevant Background Information

[17] There is no dispute that the appellant is an Indian citizen who came to Canada on a student visa in 2019. He then obtained a work visa which is set to expire in December 2025. He works as a long-haul trucker.

[18] The appellant was charged on February 7, 2022 with theft over $5,000, contrary to s. 334(a) of the Criminal Code.

[19] The matter was scheduled for trial on December 7, 2023. At that time, the appellant entered a guilty plea before Justice Kastner. The matter was adjourned to February 1, 2024 for sentencing, so that the appellant could provide full restitution in trust to his counsel.

[20] The facts that support the plea were that the appellant was an employee for Ingram Micro. The appellant was seen on video at work selecting iPhones and placing them in a box and then seen leaving the aisle, and then later, seen without the iPhones. These observations were made on January 8, 11, 12, and 14, 2022. The appellant spoke to the owner and admitted to stealing several iPhones. In total, he admitted to stealing 13 iPhones valued at $21,703.92.

[21] Prior to entering the plea, trial counsel told the court:

Mr. Engel: …So, your Honour, Mr. Amandeep Ghuman's [Singh] aware that he as a right to proceed with his trial today, but he's giving up his right to that trial, and his right to advance any defences he would've had in regards to it. He's pleading guilty voluntarily. It's his own choice; nobody's forcing him to do so. He's aware of the consequences that will flow from his entering a guilty plea. He doesn't have any status here in Canada, your Honour. He's here on a work permit, and he's aware that this will ultimately affect his ability to stay, perhaps, in Canada longer. It was his hope, perhaps one day, to become a permanent resident, even a citizen, and he's aware how that may impact. He's also aware how a criminal record, if that's what Your Honour sentences him to, he's aware how that will affect his mobility in terms of travelling, and in terms of getting future jobs. He's aware of the facts that would be read into the record to support that guilty plea, Your Honour, and he'll be acknowledging those facts are correct. He's further aware that the Crown and I are differing in terms of our position with respect to what the appropriate sentence is, and he's aware that your Honour will listen carefully to what both the Crown and I have to say in that regard, and that ultimately, your honour will sentence him as you see fit. Is that all correct, Mister…

Amandeep Singh: Yes, Your honour. [Emphasis added.]

[22] At the sentencing hearing, trial counsel confirmed that the appellant had paid full restitution which counsel held in trust. Trial counsel sought a conditional discharge and probation. The Crown sought a suspended sentence and probation. During sentencing submissions, Justice Kastner was advised that the appellant had come to Canada on a study visa and then he obtained a work permit which was due to expire in December 2025. Trial counsel stated that part of the reason that he was asking for the discharge was because:

Ultimately, it's his hope, and quite frankly his dream, to become a Canadian Citizen, Your Honour. He first gained employment and he's still there with Tyson Trucking Group…. certainly a conviction will preclude him from entering the States. He may still find himself having troubles even with a discharge, but it'll certainly go a long way to perhaps allowing him to cross border in terms of trucking. And that's not to say that it doesn't have further implications; obviously a conviction would hinder his possibility of becoming a citizen. A discharge will go a long way towards perhaps making that path easier towards that goal.

[23] Justice Kastner imposed a suspended sentence and 12 months probation. In her decision, Justice Kastner noted that the appellant was on a work permit that will be subject to renewal. Justice Kastner was of the view that it would be contrary to the public interest to impose a discharge given the aggravating facts in this case. She also noted that not long ago, anyone who stole from an employer would go to jail, however she agreed that because the appellant made full restitution and pleaded guilty, despite being on the day of trial, a jail sentence was not appropriate.

The Appellant's Evidence

[24] The appellant filed an affidavit. In that affidavit, he stated that:

a. After he was sentenced, he was contacted by the Canadian Border Services Agency and advised that he would be deported.

b. Prior to his guilty plea and during his sentencing, he was not aware that he would be deported if he was convicted.

c. His lawyer did not advise him that he could be deported because of his guilty plea.

d. His lawyer did not advise him to seek immigration advice from an immigration lawyer.

e. He did not know that he needed a "discharge" to avoid deportation. He did not know this devastating consequence was a real risk associated with his guilty plea. If he had known that he could be deported because of his guilty plea, he would not have pled guilty on December 7, 2023.

[25] The Crown cross-examined the appellant on his affidavit. The appellant agreed that on the day of his arrest, he contacted trial counsel and scheduled a meeting for February 12, 2022. The appellant agreed that at that meeting, he told trial counsel that he was in Canada on a study permit and that it was going to expire by March 31, 2022 and he intended to renew it. He agreed that he told trial counsel at the first meeting that he wanted to avoid jail and that that was his main concern. He also agreed that he told trial counsel that he was concerned about being deported back to India. He denied that trial counsel told him during this meeting that he should seek immigration legal advice.

[26] The appellant agreed that he was aware that the trial was set for December 7 and 8, 2023, and that he had a further meeting with trial counsel on October 22, 2023. The appellant agreed that trial counsel told him that if he paid back the money he stole, he would probably not go to jail if he pleaded guilty. He denied that trial counsel told him during this meeting that he should obtain immigration legal advice.

[27] The appellant agreed that he had another meeting with trial counsel on December 5, 2023. He remembered saying something like he was afraid of going to jail "so please save me or please ask the judge if you can." He denied that they had any discussion that it was his intention to plead guilty if the witnesses showed up for trial. The appellant denied that there was any discussion about how getting a sentence of anything other than a discharge would likely result in his deportation.

[28] The appellant agreed that on the day of the trial, trial counsel told him that the Crown would seek a non-jail sentence if he pleaded guilty and paid restitution. He also agreed that he wanted to avoid going to jail. The appellant stated that he found out about the suspended sentence after the judge sentenced him. He stated that trial counsel told the appellant that he would try his best to get the appellant a lesser sentence. The appellant denied that trial counsel told the appellant that he would ask for a discharge. The appellant denied that there was any conversation that a suspended sentence could result in the appellant's deportation.

[29] The appellant agreed that at the time of the plea, he understood that the Crown would ask for one sentence and the defence would ask for a different sentence, and it would be up to the judge to determine what sentence would be imposed. He also agreed that he was present for the plea when trial counsel said that "[h]e's here on a work permit, and he's aware that this will ultimately affect his ability to stay, perhaps, in Canada longer." The Crown suggested to the appellant that at the time he entered his plea, he knew it could impact his ability to stay in Canada just like trial counsel stated. The appellant responded:

I was unaware that because of this criminal charge, I may have some difficulty when applying for the PR status later on. Usually, the file can go through straight forward - in a very straight forward manner, but I may have to give more explanation, but I was not aware that because of this, I may even be deported from the country. [Emphasis added.]

[30] The appellant agreed that he answered in the affirmative when he was asked if what trial counsel said was correct in court. The appellant then stated:

As I said earlier, so I knew that I may have to - I may have to add more papers on the file going forward, but I was not - I did not know that I could be deported because of this thing. [Emphasis added.]

Trial Counsel's Evidence

[31] Trial counsel provided an affidavit in response to the allegations. He affirmed that on February 7, 2022, the appellant contacted him, and they scheduled an appointment for February 12, 2022.

[32] On February 12, 2022, they met and discussed the case and the appellant's personal status. The appellant advised that he came to Canada in November 2019 from India on a study permit and was enrolled at Alspha International Academy. The appellant told trial counsel that the study permit was to expire on March 31, 2022, but that the appellant would be renewing it as his studies would not finish until April 2022. At this meeting, the appellant made it clear that his primary concern was to avoid going to jail (which he wanted to avoid at all costs), and his secondary concern was his immigration status and the possibility of being deported to India. The appellant advised that he made a confession to his employer and asked how that would affect his case. They talked about going to trial versus pleading guilty. Trial counsel stated that he advised the appellant that he should seek legal advice from an immigration lawyer if he was going to plead guilty because trial counsel could not advise the appellant what the exact consequences would be if he pleaded guilty.

[33] On October 22, 2023, trial counsel met with the appellant to prepare for trial. They again talked about the option of pleading guilty and he advised the appellant to seek legal advice from an immigration lawyer as he could be deported if he pleaded guilty. Trial counsel said he told the appellant that such advice was extremely important given the appellant's desire to become a Canadian citizen. Trial counsel also told the appellant that if he made restitution, he would most likely not go to jail if he pleaded guilty.

[34] On December 5, 2023, trial counsel met with the appellant again. The appellant advised it was his intention to plead guilty if the witnesses showed up as he was terrified of going to jail. The appellant told trial counsel that he was aware that any sentence other than a discharge would most likely result in his deportation.

[35] On the morning of the trial, trial counsel advised the appellant that the Crown's position on a guilty plea with restitution was a suspended sentence which would result in a criminal record. The appellant instructed trial counsel to proceed with the guilty plea because the Crown was not seeking jail time. They talked about his immigration status, and notwithstanding the fact that he could receive a suspended sentence which could result in his deportation, he still wanted to plead guilty.

[36] In trial counsel's cross-examination, he agreed that he did not know if the appellant would in fact be deported, but he knew that it would likely result in him being deported if he received a conviction. Trial counsel explained, "I had thoughts of the matter but given that I wasn't one hundred percent certain, I advised him to seek independent legal advice from an immigration lawyer."

[37] Trial counsel stated that he told the appellant multiple times that he should seek independent legal advice from an immigration lawyer. Trial counsel stated that at every meeting with the appellant, there were two issues in the appellant's mind, number one was going to jail, and number two was his concern about how this matter would affect his immigration status. Trial counsel stated that the appellant made those two concerns very clear early on, and he advised the appellant to seek independent legal advice from an immigration lawyer.

[38] Trial counsel agreed that he never stated during the plea inquiry or during sentencing that he advised the appellant to obtain immigration advice. He stated that he did not need to tell the judge about private conversations that he had with the appellant. He did not believe that was relevant to the plea. Trial counsel stated that in terms of ensuring that the plea was informed about collateral consequences, "what is important is that the court is aware that the accused person has collateral consequences and is aware of those collateral consequences such as immigration status." He stated that it is then up to the judge to ask the accused whether he wants to speak with an immigration lawyer. Trial counsel stated that he had already done that, so he did not think there was a need to inform the court that he had advised the appellant to obtain immigration advice.

[39] Trial counsel stated that during their conversation from the morning of the trial, they talked about the appellant's immigration status and about the possibility of him getting a suspended sentence as opposed to a conditional discharge. He stated that he also knew they talked about the fact that if the appellant received a suspended sentence, he could be deported. Trial counsel agreed he did not have notes of this conversation or a note concerning whether the appellant had in fact spoke to an immigration lawyer. Trial counsel also agreed that he had no notation in his file confirming that the appellant was aware of the certainty that he would be deported if a conviction was registered.

[40] He also agreed that he had no written instructions confirming whether the appellant obtained immigration advice and no written waiver from the appellant waiving his right to obtain immigration advice. He agreed that he had no signed written instructions in this case.

[41] Trial counsel agreed that he never told Justice Kastner that the appellant would be deported if he was convicted. He stated that he did not let her Honour know this because he was not one hundred percent positive that the appellant would be deported, "but there's no doubt in my mind given Mr. Singh's concern that he was fully aware of the likelihood of that happening, which is why I told him probably more so than any other client that I've ever dealt within 30 years of my practise to speak to an immigration lawyer over and over again."

Analysis

[42] In the sections below, I will address the following issues that deal with the elements that the appellant must establish on the balance of probabilities to find that his guilty plea was uninformed.

1. What was the appellant aware of?
2. Whether the appellant was sufficiently informed of the immigration consequences.
3. Has the appellant established prejudice?

1: What was the appellant aware of?

[43] It is the appellant's onus to establish that he was unaware of the legally relevant collateral consequences at the time of the guilty plea.

[44] Given the nature of the appeal, the court must necessarily consider the credibility and reliability of the appellant and trial counsel's evidence to determine the relevant facts.

[45] Both trial counsel and the appellant are consistent in their evidence that trial counsel did not tell the appellant he would be deported. I accept this is a fact. As trial counsel explained, he did not know this for a certainty and that is why he told the appellant to seek immigration legal advice.

[46] I am not satisfied on a balance of probabilities that trial counsel failed to tell the appellant that he could be deported, and that trial counsel did not tell the appellant to seek immigration legal advice. For the following reasons, I prefer trial counsel's evidence that he told the appellant that he could be deported and that he should seek immigration legal advice.

[47] First, trial counsel was unshaken in his evidence that he warned the appellant that there could be immigration consequences and that he could be deported if he pleaded guilty to the offence.

[48] Second, trial counsel's evidence was corroborated on important issues when the Crown cross-examined the appellant. The appellant agreed that his primary concerns were not going to jail and being deported. The appellant also agreed that on October 22, 2023, he and trial counsel discussed the possibility of a guilty plea with upfront restitution which would likely eliminate the possibility of a jail sentence. He also agreed that prior to pleading guilty, he knew that the Crown was not seeking a jail sentence and that his lawyer would seek something less than what the Crown was seeking.

[49] Third, the appellant's denials that trial counsel never told him he could be deported or that he should seek immigration advice are not credible. The appellant agreed in cross-examination that he told trial counsel at the first meeting that he was concerned about being deported, yet he claims that there were no further conversations about the immigration consequences at any subsequent meetings or before he pleaded guilty. It does not accord with common sense that trial counsel, aware of the appellant's concerns about being deported, would not address those concerns at the first meeting or at any subsequent meetings, including prior to the plea being entered. Second, if counsel did not address the appellant's concerns about being deported, one would have expected that the appellant would have raised his concerns with trial counsel at one of the meetings or prior to him pleading guilty, but on the appellant's evidence he never raised this concern again which seems far fetched.

[50] Fourth, I reject the appellant's evidence that he denied telling counsel that he intended to plead guilty at trial if the witnesses showed up. That is exactly what happened. Had he wanted to plead guilty earlier, he could have done so. Trial counsel and the appellant talked about pleading guilty earlier, which would likely avoid jail time for the appellant, but that plea did not occur until the day of trial when the witnesses were present.

[51] Fifth, at the plea, trial counsel advised the court that the appellant was on a work visa and stated, "he's aware that this will ultimately affect his ability to stay, perhaps, in Canada longer…. and he's aware how that may impact". The appellant confirmed that this was correct. If the appellant had any uncertainty that he could be deported, he could have raised those concerns at that time. He did not.

[52] Counsel for the appellant submits that I should find that the plea inquiry conducted was not sufficient to find that the appellant was aware of the immigration consequences. Counsel submits that trial counsel was required to put on the record that the appellant was aware he would be deported and that he waived his right to speak to an immigration lawyer. I agree that trial counsel could have more clearly stated that the appellant was aware he could be deported. It would also have been helpful on this appeal had trial counsel confirmed on the record that the appellant was advised that he should speak to an immigration lawyer but declined to do so. I do not find however that these two points are an absolute requirement for a plea to be valid. What information is put on the record, or the lack thereof, is a relevant factor in determining what the appellant was aware of, but the failure to put that on the record does not automatically render the plea uninformed. The court must consider all the circumstances in determining what the accused was aware of.

[53] Finally, trial counsel's evidence that he told the appellant that he could be deported also accords with what was said at the sentencing hearing. In his sentencing submissions, trial counsel again pointed out that the appellant was in Canada on a work visa. Counsel submitted that a conviction would preclude him from entering the U.S. and "[h]e may still find himself having troubles even with a discharge, but it'll certainly go a long way to perhaps allowing him to cross [the] border in terms of trucking." Counsel also stated that a conviction would have other implications, including hindering his possibility of becoming a citizen.

[54] Counsel for the appellant submits that I should not accept trial counsel's evidence because trial counsel does not have notes that he advised the appellant that he could be deported. Counsel for the appellant relied on R. v. Trought, 2021 ONCA 379, 406 C.C.C. (3d) 135. I agree that a best practice is for counsel to obtain written instructions prior to an accused pleading guilty. In cases where there are immigration consequences, it is prudent for counsel to confirm whether the accused is aware of the possible immigration consequences and whether they have spoken to an immigration lawyer or do not wish to speak to one. As the Court of Appeal noted, a lawyer who fails to obtain written instructions "risks exposure to…allegations of unprofessionalism… [and it] makes it more difficult for an appellate court to adjudicate claims": Trought, at paras. 77-78. However, in this case, for the reasons outlined above, I am satisfied that trial counsel advised the appellant that he could be deported and should seek immigration legal advice prior to the appellant entering his guilty plea, despite the lack of notes in trial counsel's file.

2: Was the appellant sufficiently informed of the immigration consequences?

[55] Whether the information unknown to the appellant falls within the scope of what an appellant must know to enter an informed plea is assessed objectively: Wong, at para. 34; Johnson, at para. 24.

[56] The appellant submits that even if the appellant was aware that he could be deported, he was not sufficiently informed because he was not aware that he would in fact be deported and that he had no right of appeal.

[57] The respondent submits that the appellant was sufficiently informed because he knew that there was a possibility that he would be deported or in other words that his immigration status was in serious jeopardy.

[58] I disagree with the appellant's submission that the appellant's plea was not informed because he was not aware that he would be found inadmissible, would not be able to appeal that decision, and would be deported.

[59] The jurisprudence instructs judges that a case-by-case analysis must be taken in determining if an accused is sufficiently informed of the collateral consequences of a plea. The jurisprudence is consistent that the knowledge of the possibility of deportation is sufficient for a plea to be informed. The accused need not have knowledge of their appellate rights within the immigration process. In Girn, the Court of Appeal stated, at para. 75:

The authorities teach that where immigration consequences may ensue from a guilty plea, conviction and sentence, an accused must be aware of those consequences for his or her plea to be informed. Those immigration consequences include removal from Canada -- in a word, deportation. But the authorities have resisted imposition of a fixed quantum or standard of information necessary to characterize the plea as "informed". Instead, the jurisprudence counsels a case-by-case analysis consistent with both the subjective nature of guilty pleas and the level of understanding of the consequences of entry of guilty pleas generally. No trial. Conviction. Sentence. No case suggests that knowledge of "consequences" includes knowledge of appellate rights and their limitations. [Emphasis added.]

See also R. v. Coffey, 2017 BCCA 359, at paras. 50-51.

[60] More recently, in Johnson, at para. 26, the Saskatchewan Court of Appeal discussed the degree of information that is required to find a plea was informed:

That general tenet is that it is sufficient, for the purposes of an informed plea, for an accused to know of the possibility that a criminal conviction or sentence will place his or her immigration status in serious jeopardy. Two aspects of this approach warrant elaboration. First, the accused need not be certain, or even confident, that immigration consequences will follow collaterally from the particular guilty plea: see Tyler; R v Shiwprashad, 2015 ONCA 577, 328 CCC (3d) 191; and R v Kitawine, 2016 BCCA 161. Rather, the accused need only know that such immigration consequences are a possibility. Second, the accused need not know the details of those immigration consequences, but he or she must have a general understanding that they involve "serious jeopardy". In other words, proof that an accused knew of the possibility of removal or deportation is sufficient to refute the assertion that a plea was uninformed. [Bolded emphasis added.]

[61] Indeed, in cases such as this, where a person is inadmissible and there is no right of appeal, courts have not required that the accused have specific knowledge that they will be deported. See R. v. Tyler, 2007 BCCA 142, 218 C.C.C. (3d) 400, at para. 23; R. v. Shiwprashad, 2015 ONCA 577, 328 C.C.C. (3d) 191, at para. 3. As explained by the Court of Appeal at para. 24 of Tyler:

Does the ignorance of the automatic effect of the conviction vitiate the plea? If that were so, then pleas could be struck on the basis that the outcome was not precisely as anticipated. That kind of certainty is not to be expected of the criminal process, especially when judges are free to depart from bargains struck by counsel, within certain reasonable limits. See R. v. Hoang, 182 C.C.C. (3d) 69, 2003 ABCA 251 ¶ 36:

The requirement that the accused understand the nature and consequences of a guilty plea is not a requirement to canvas every conceivable consequence which may result or may be foregone. Such a requirement would be a practical impossibility. American jurisprudence has held the accused should be aware of the probable direct consequences of the plea: Parker v. Ross, 470 F.2d 1092 (4th Cir. 1972).

[62] There is good reason for requiring that an accused be aware of the possible immigration consequences because there cannot be certainty that a person will be deported. For example, there is the possibility that a conviction may not come to the attention of immigration officials, and if it does not, no report would be made to the Minister and no referral would be made to the Immigration Division for a removal order. See ss. 44(1) and 45 of the IRPA.

[63] Requiring that an accused person know that there is serious jeopardy to their status in Canada if they plead guilty is also consistent with the court's recognition that a plea may be informed when a person is willfully blind. Courts have held that it is not a miscarriage of justice to uphold a guilty plea where an accused is willfully blind to the fact that their immigration status will be placed in serious jeopardy and fails to exercise a certain degree of diligence to learn and consider the specific consequences. See Johnson, at paras. 31-35; Girn, at para. 79; Behran, at paras. 72-74.

[64] Each case turns on its facts. For the following reasons, I am satisfied that the appellant was aware that there was a real possibility that he would be deported if he was convicted and that his immigration status in Canada was in serious jeopardy.

[65] First, the appellant told trial counsel about his immigration status at their first meeting. He agreed that his primary concerns were not to go to jail and to not be deported. He was obviously concerned that he could be deported, or he would not have told trial counsel about his concerns.

[66] Second, I have already found as a matter of fact that trial counsel told the appellant that he could be deported on several occasions. I also find as a fact that trial counsel told him to seek immigration legal advice. As I noted, it makes no sense that despite the appellant raising his concerns about being deported, trial counsel ignored these concerns and said nothing about the fact that the appellant could be deported, when trial counsel believed that could be an outcome or that the appellant never raised his concern about being deported after the first meeting.

[67] Third, the appellant understood a conviction may significantly impact his immigration status in Canada. He admitted in cross-examination that he knew it could impact his ability to obtain permanent residency status. It defies common sense that he did not believe that his ability to continue to remain in Canada with his work permit that was required to be renewed would not be affected by a conviction, but it could impact his permanent residency.

[68] Fourth, this is not a case where the appellant received incorrect advice and believed he could not be deported as in Wong. Nor is this a case like R. v. Pineda, 2019 ONCA 935, where the trial lawyer agreed that while counsel told the accused that there could be immigration consequences, they did not specifically discuss deportation.

[69] Fifth, there is an element of wilful blindness in this case. I found that trial counsel told the appellant that he could be deported if he was convicted and that he should consult an immigration lawyer. It appears that the appellant did not do so. It would be condoning the appellant's willful blindness to hold that his ignorance of the precise immigration consequences he would face is sufficient to vitiation his guilty plea. See Girn, at para. 79 and Coffey, at paras. 47-51.

3. Has the appellant established prejudice?

[70] Given my finding that the appellant has not satisfied the first requirement, it is unnecessary to consider the second requirement, but nonetheless, I would find that the appellant has not established the prejudice component.

[71] This part of the test is subjective. However, that does not mean that the court must automatically accept an accused's claim. The court must assess the appellant's credibility and consider whether their subjective choice measured up against objectives circumstances: Wong, at para. 26; Girn, at para. 70.

[72] The appellant stated in his affidavit that if he had known that he would be deported, he would not have agreed to plead guilty but would have gone to trial. In submissions, counsel for the appellant stated that it was more likely that he would not have pleaded guilty to the conditions offered.

[73] The appellant has not discharged his onus on the second element. The appellant made it clear that is primary concern was not to go to jail. The best way to achieve that goal was to plead guilty once it was clear that the Crown was ready to proceed to trial. The appellant knew the Crown's position was not to seek a jail sentence if he pleaded guilty. The Crown was not prepared to accept a plea to a conditional discharge as demonstrated by the Crown's submissions. If the appellant did not agree to plead guilty, there was a very real risk that he would be sentenced to jail time, which the appellant wanted to avoid above all else. This was an overwhelming case. The appellant pleaded guilty to avoid jail and took the risk that he would not be deported. By pleading guilty, the appellant substantially reduced his risk of being incarcerated but voluntarily assumed the risk he could be deported; a potential consequence that I am satisfied he was entirely aware of.

Conclusion

[74] The appeal is dismissed.

Dennison J.

Released: October 28, 2025