



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sangs, 2017 ONCA 683

DATE: 20170905

DOCKET: C62230

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Carl Sangs

Appellant

Frank Bernhardt, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: August 30, 2017

On appeal from the conviction entered and the sentence
    imposed on June 2, 2014 by Justice Sally E. Marin of the Ontario Court of
    Justice.

REASONS FOR DECISION

[1]

The appellant pled guilty to a single count of trafficking cocaine over
    a six-week period. The plea was accepted and a conviction recorded after a
    complete plea comprehension inquiry by a very experienced judge of the Ontario
    Court of Justice. The sentence imposed, four months imprisonment, in light of
    credit of nine months for pre-disposition custody, to be followed by a term of
    probation for three years, was the subject of a joint submission by counsel.

[2]

On his appeal from conviction and sentence, the appellant seeks to set
    aside his plea of guilty and resultant conviction on the ground that his plea
    was uninformed. The appellant says that he was never informed of the
    immigration consequences of his plea and conviction, that as a permanent
    resident, he would be rendered inadmissible, ordered removed from Canada and
    have no right of appeal from the removal order. In the alternative, he asks
    that his sentence be varied to avoid the immigration consequences of which he
    complains.

[3]

The appellant was originally charged with 83 counts of trafficking in
    crack cocaine, each a discrete transaction alleged to have occurred on a
    specified day. Extensive pre-trial discussions took place with counsel and the
    trial judge in her capacity as a case management judge. In the end, the
    appellant agreed to plead guilty to a single count of trafficking, amended to
    encompass the entire timeframe during which the individual acts of trafficking
    occurred.

[4]

In making submissions as to sentence in support of the joint proposal,
    defence counsel described the appellant as a Canadian citizen. During his
    allocution, the appellant did not take issue with his counsels description of
    his status as a Canadian citizen.

[5]

Nearly two years later, the Immigration and Refugee Board notified the
    appellant of his removal under s. 36(1)(a) of the
Immigration Refugee
    Protection Act
,
S.C. 2001, c. 27, (
IRPA

)
. This
    provision deems inadmissible to Canada permanent residents sentenced to a term
    of imprisonment of six months or more, or convicted of an indictable offence
    punishable by a maximum term of imprisonment of at least 10 years. Under ss.
    64(1) and (2) of
IRPA
, a permanent resident has no right of appeal
    from a removal order if found inadmissible on the ground of serious criminality,
    which includes an offence punished by a term of at least six months of
    imprisonment.

[6]

The appellant seeks leave to introduce as fresh evidence his affidavit
    and the cross-examination that accompanies it. In it, among other things, he
    says that:

i.

he never told his lawyer that he was a Canadian citizen;

ii.

he was not sure of his citizenship status at the time he entered his
    plea;

iii.

he did not know that his citizenship status was relevant at sentencing;
    and

iv.

he would not have pleaded guilty had he known the immigration
    consequences of his plea and sentence.

[7]

We are satisfied that it is in the interests of justice to receive the
    appellants affidavit and accompanying cross-examination as fresh evidence on
    the hearing of the appeal. It is relevant to and admissible on the issue raised
    to set aside the plea of guilty, that is to say, that the plea of guilty was
    uninformed because he was unaware of the collateral immigration consequences of
    its entry.

[8]

Having admitted the fresh evidence, we are satisfied that the
    appellants plea of guilty was uninformed. It follows, in our respectful view,
    that the plea of guilty cannot stand as one of the legal requirements for it to
    be valid is lacking. It follows from its invalidity that it cannot form the
    basis of the conviction entered in the trial court.

[9]

In the result, we admit the fresh evidence, set aside the plea of guilty
    and consequent conviction, and order a new trial on all counts of the
    information.

"David Watt
    J.A."

"Grant Huscroft
    J.A."

"G.T.
    Trotter J.A."


