



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shiwprashad, 2015 ONCA 577

DATE: 20150820

DOCKET: C57684

Weiler, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kemchand Shiwprashad

Appellant

Najma Jamaldin, for the appellant

Stacey Young, for the respondent

Heard: June 2, 2015

On appeal from the conviction entered on March 8, 2015 by
    Justice Hugh K. Atwood of the Ontario Court of Justice.

Weiler J.A.:

[1]

The appellant, a permanent resident of Canada, pleaded guilty to the
    charge of robbery and was subsequently deported. One of the requirements for a
    court to accept a plea of guilty is that the accused understand the nature and
    consequences of his plea: s. 606(1.1)(b)(ii) of the
Criminal Code
.
    The appellant argues that he did not understand the consequences of his plea
    because he did not know he would be deported if he pleaded guilty. In this
    regard, the appellant alleges that there was a duty on the part of counsel to
    inform him of the immigration consequences of his plea prior to his pleading
    guilty and, since this was not done, he alleges ineffective assistance of
    counsel.

[2]

In addition, the appellant challenges the constitutionality of s.
    606(1.2) of the
Criminal Code,
which states: The failure of the court
    to fully inquire whether the conditions set out [for a valid plea] in
    subsection (1.1) are met does not affect the validity of the plea. The
    appellant alleges that this section violates ss. 7 and 15(1) of the
Charter
and is not saved under s. 1.

[3]

Having regard to the fresh evidence filed, I am satisfied the appellant
    knew that deportation was a potential consequence of his guilty plea although
    he may not have appreciated precisely how limited his options were to avoid
    that consequence. While the appellant may not have been aware of the precise
    extent of his jeopardy at the time he pleaded guilty, he knew that deportation
    was a possible consequence. Thus, even assuming that the appellants lawyer had
    a duty to advise him or to ensure that he obtained advice concerning the
    immigration consequences prior to his plea, on the facts of this case, the
    failure of counsel to do so did not result in a miscarriage of justice. The
    constitutional issue respecting s. 606(1.2) does not arise on these facts. Accordingly,
    I would dismiss the appeal.

A.

facts

(1)

Events Prior to the Plea

[4]

The appellant was born on August 16, 1970 in Guyana and is now almost 45
    years old. He came to Canada with his family as a young man and lived here as a
    permanent resident for approximately 23 years prior to his deportation on
    February 11, 2014.

[5]

Prior to his conviction for robbery, the appellant had 14 entries on his
    criminal record, including convictions for assault and threatening death.

[6]

His last conviction, entered on October 20, 2008, was for sexual interference
    and sexual exploitation in relation to an incident involving his 15-year-old
    stepdaughter, to which he pleaded guilty. On the conviction for sexual
    interference, the appellant received a 12 month conditional sentence, in
    addition to 100 days of pre-sentence custody. A 90-day intermittent sentence
    was imposed for the sexual exploitation conviction.

[7]

On July 8, 2009, as a result of the sexual interference conviction, the
    appellant was reported as inadmissible to Canada on the basis of serious
    criminality pursuant to s. 36(1) of the
Immigration and Refugee Protection
    Act,
S.C. 2001, c. 27 (
IRPA
).
[1]
A removal order was issued on November 23, 2009. The appellant appealed to the
    Immigration Appeal Division of the Immigration and Refugee Board of Canada.
[2]


[8]

On January 28, 2011, a four-year stay was granted on the removal order.

[9]

As part of the stay, the appellant was required to report to the
    Canadian Border Services Agency (the Agency) and do the following things,
    among others:

1)

Not commit any
    criminal offence;

2)

If charged with a
    criminal offence, immediately report that fact in writing to the Agency;

3)

If convicted of a
    criminal offence, immediately report that fact in writing to the Agency and the
    Immigration Appeal Division;

4)

Report to the Agency
    in person six months from the hearing and every six months thereafter and hand
    in a written report respecting employment and living conditions.

[10]

At
    the end of the stay order is the following warning:

IMPORTANT
    WARNING

This stay of removal is cancelled and your appeal is terminated
    by operation of law and you may be removed from Canada, if you are convicted of
    another offence referred to in subsection 36(1) of the
Immigration and
    Refugee Protection Act
(sentence of more than six months imposed or
    punishable by a term of imprisonment of at least ten years) before your case
    has been finally reconsidered.

[11]

The
    appellant, who is illiterate, had this warning read to him by his immigration
    consultant, Mr. Ramkissoon, and was warned he could not get into any trouble or
    the stay of his deportation would be cancelled.

[12]

The
    appellant attended every six months at Mr. Ramkissoons office following the
    hearing in order to have him prepare the paperwork for the written report the
    appellant handed in to the Agency. Each time, Mr. Ramkissoon asked him if he
    had been in any trouble with the law. The last date he reported prior to his
    conviction was January 3, 2013.

(2)

The Plea and Events Prior to Sentence

[13]

On
    February 5, 2013, the appellant was charged and arrested for robbery,
    threatening death and assault with a weapon. He was alleged to have threatened
    his mother at knifepoint for $40.

[14]

The
    appellant retained the same counsel who represented him on his sexual
    interference and sexual exploitation charges and instructed him to pursue
    discussions respecting a guilty plea.

[15]

The
    matter was pre-tried. The pre-trial judge indicated that a sentence of two
    years on a guilty plea would be appropriate. Defence counsel did not accept
    this recommendation.

[16]

On
    March 8, 2013, the appellant pleaded guilty to one count of robbery, with the
    understanding that the facts would be read in at a later date and the other
    charges would be withdrawn.
[3]
Defence counsel advised the court that he had reviewed the plea inquiry with
    the appellant and that the appellant was entering his plea voluntarily,
    waiving his right to a trial and understands [that the court is] not bound by
    anything we say.

[17]

Crown
    counsel indicated she would be seeking a three year sentence of imprisonment
    and would like to proceed on an agreed statement of fact. The matter was put
    over to allow Crown counsel to review a videotaped statement given by the
    appellants mother to police and to speak to the appellants mother and sister,
    both of whom provided letters of support on behalf of the appellant.

[18]

On
    March 28, 2013, the Crown outlined the allegations against the appellant
    including the aggravating circumstances that he had threatened to kill his
    mother, threatened his sister-in-law at the same time, and threatened to burn
    the house down. The appellant indicated that he was not prepared to acknowledge
    all of the facts as set out by the Crown. As such, the matter was adjourned to
    April 30, 2013 for a
Gardiner
hearing for the Crown to prove the
    aggravating circumstances. The appellant continued to be detained in custody
    pending the hearing and applied for bail.

(3)

The Bail Hearing

[19]

The
    bail hearing took place on April 22, 2013, and the sentencing judge heard
    almost a full day of evidence, including the evidence of the appellants mother
    on behalf of the defence.

[20]

In
    cross-examination, the Crown played the mothers videotaped statement to the
    police, which the mother adopted as true. In that videotaped statement, the
    appellants mother makes reference to her sons immigration status. She advised
    the police that the appellant had problems with his childs mother, and he
    had a little time to serve. She explained that he served his time, and now
    he has immigration problems. When the police asked for clarification, the
    appellants mother added: he has immigration problem  he will get deport  He
    is not a citizen, hes not landed, hes not a citizen.

[21]

The
    Crown also referred to the appellants immigration status in closing
    submissions, noting that [i]t would seem that there are people here who rely
    on [the appellant] and perhaps theres some concern of  him being in this
    situation and what effect, if any that might have on  his status in Canada.
    The Crown added: [The appellant] has children here, he certainly has roots
    here. Hes lived here for a long, long time, so I can understand their
    concern. Nonetheless, the Crown urged the court to deny bail on the basis that
    the appellants violence was escalating and he was likely to reoffend.

[22]

Defence
    counsel also made submissions at the bail hearing but he did not mention the
    appellants immigration problems. During the course of his submissions defence
    counsel stated that the appellant had a drug problem that would be addressed if
    he were released.

[23]

Although
    the sentencing judge was satisfied that there were some real benefits to the
    defence for release, including the appellants immigration issues, he ultimately
    accepted the Crowns submission that the appellant should be detained on the basis
    that he is likely to reoffend. Bail was denied.

[24]

After
    the sentencing judges ruling, defence counsel indicated that a
Gardiner
hearing
    would not be necessary. The court and counsel agreed to proceed with sentencing
    on April 30, 2013.

(4)

Sentence and Events Following Sentencing

[25]

On
    April 30, 2013, the appellant was sentenced to four months and 22 days
    imprisonment, in addition to credit for pre-trial custody, or a sentence
    equivalent to nine months imprisonment. Although no mention was made of
    immigration consequences at the time of sentencing, those present in court were
    also present during the bail hearing and had heard the appellants mother
    mention deportation in her videotaped statement. They could not help but be
    aware there would be immigration consequences to the appellant being found
    guilty of robbery.

[26]

On
    May 7, 2013, the appellant was reported inadmissible due to serious criminality
    pursuant to s. 36(1)(a) of the
IRPA,
and on June 4, 2013, the stay of
    the 2009 removal order was cancelled and the appellants appeal was terminated.
[4]
A warrant for the appellants arrest was executed on July 30, 2013, while he
    was in custody.

[27]

The
    appellant completed his sentence on August 3, 2013, but was placed on an immigration
    hold. Notice of the decision cancelling the stay, dated August 16, 2013, was
    given to the appellant. On September 24, 2014, the appellant filed a judicial
    review application. The application was unsuccessful. A further application to
    the Federal Court of Canada to stay the removal order was also unsuccessful.

[28]

The
    appellant was deported as scheduled on February 11, 2014.

B.

Issues

[29]

The
    following issues are raised on this appeal:

1)

Did the appellant receive ineffective assistance of counsel such that
    his guilty plea was uninformed?

2)

Does the plea inquiry in s. 606(1.2) of the
Criminal Code
violate
    ss. 7 and 15 of the
Charter?

C.

Analysis

[30]

On
    appeal, the appellant seeks to have his guilty plea set aside on the basis that
    he received ineffective assistance of counsel because he was not properly
    informed of the immigration consequences of the plea. He also argues that the
    plea inquiry in s. 606(1.2) of the
Criminal Code
violates ss. 7 and 15
    of the
Charter
because it does not require a sentencing judge to
    inquire whether or not the accused is aware of possible immigration
    consequences of the plea.

[31]

I
    will address the ineffective assistance claim first.

(1)

Ineffective Assistance of Counsel

(a)

The Test for Ineffective Assistance of Counsel

[32]

In
R. v. Joanisse
(1996)
,
102 C.C.C. (3d) 35 (Ont. C.A.), this
    court held at p. 59 that there are three components to a claim of ineffective
    assistance of counsel:

1.) The appellant must establish the facts on which the claim
    is based;

2.) The appellant must establish that the representation
    provided by trial counsel was incompetent; and,

3.) The appellant must establish that the incompetent
    representation resulted in a miscarriage of justice.

[33]

For
    the reasons that follow, it is my view that the appellant has failed to
    establish the facts on which his claim is based or that a miscarriage of
    justice has occurred.

(b)

The Facts

(i)

The appellants evidence

[34]

In
    his affidavit filed as fresh evidence on this appeal, the appellant
    acknowledges that after he received the stay of the removal order, he was told
    very clearly by Mr. Ramkissoon that [he] could not get into any more trouble or
    else [he] would be deported.

[35]

However,
    later in his affidavit, he deposes that after he was charged with robbery, he
    received conflicting advice from defence counsel about the consequences of his
    criminal activity. The appellant claims that defence counsel told him he would
    only receive 60-90 days on weekends on a sentence and that he was advised to
    take the deal so that [he] could get back to work. The appellant insists that
    he informed defence counsel of his immigration problems, but counsel advised
    him that if [he] received a sentence of less than six months jail, immigration
    could not bother [him].

[36]

The
    affidavit further deposes that the appellant entered the guilty plea because of
    defence counsels advice, and that he did not seek additional advice from his
    immigration lawyer because he believed defence counsel was better equipped to
    advise him on the consequences of the plea. He states:

On March 5, 2013 I entered a guilty plea. I pleaded guilty
    because of what [defence counsel] told me about getting 90 days to be served on
    weekends. I believed him when he told me that as long as I did not get more
    than six months I would not get deported. I did not call my immigration counsel
    to confirm this advice. I thought that my criminal lawyer would know better
    than my immigration lawyer what the consequences of my plea would be.

[37]

The
    Crown cross-examined the appellant on his affidavit and asked him when,
    exactly, he told defence counsel about his immigration issues and the
    requirement that he had to report to the Agency every six months. The appellant
    testified that he informed defence counsel about these issues sometime in 2009,
    after his conviction for sexual interference and sexual exploitation. However,
    when advised by the Crown that the removal order was dated January 2011, the
    appellant changed his answer to say that he told defence counsel about his
    immigration problems after the removal order was stayed.

[38]

The
    appellant admitted that he had a copy of the stay order and that Mr. Ramkissoon
    read him the whole order, including the warning that he could be deported if he
    committed further criminal offences. The appellant said he was able to
    communicate with Mr. Ramkissoon without any problems. The appellant further
    conceded that each time he went to Mr. Ramkissoons office to have him prepare
    the paperwork for the report to the Agency, Mr. Ramkissoon asked him if he had
    been in any trouble. The appellant had to have been aware that one of the
    important conditions of the stay was that he not receive further convictions.

[39]

The
    appellant also testified that defence counsel never talked to him about
    immigration prior to his plea on the robbery offence. He alleges defence
    counsel told him he would not have any difficulties with a sentence of 60-90
    days intermittent; promised him this was the sentence he would receive; never
    advised him to see an immigration lawyer; and told him that immigration would
    not bother him. He added, I go with what he said because I trust him as my
    attorney.

[40]

The
    appellant agreed that defence counsel told him he should only plead guilty if
    he was prepared to accept the allegations made by the Crown. The appellant also
    agreed that defence counsel told him he could go to trial, but he insisted that
    defence counsel also told him that if he went to trial, he would still receive
    a sentence of 60 to 90 days to be served on weekends. The appellant also said
    that defence counsel never explained to him that it was up to the sentencing judge
    to determine the sentence or that by pleading guilty he would not have a trial.

[41]

After
    this appeal was perfected, the appellant filed a further short affidavit in
    which he deposes: I would never have pleaded guilty to robbery in Brampton in
    March 2013, if I knew that I would be deported and lose my family and my job.

[42]

The
    Crown objects to the admissibility of this statement but declined to
    cross-examine the appellant further. For the purposes of this appeal, I will
    admit the evidence and consider what weight if any to give it in my analysis.

(ii)

Defence counsels evidence

[43]

Pursuant
    to the ineffective assistance of counsel protocol, the appellants defence
    counsel swore an affidavit dated August 22, 2014.

[44]

In
    his affidavit, defence counsel deposes that he never told the appellant he
    would not be deported if he received a sentence of less than six months. In
    fact, he insists that he was unaware an immigration issue arose after the
    appellants convictions for sexual interference and sexual exploitation. He
    states: Given [the appellants] roots [in the] country over the past 25 years
    (secure full-time employment, two Canadian born children) I had no reason to
    believe he required the assistance of an immigration lawyer.

[45]

In
    cross-examination on his affidavit, defence counsel acknowledged that, having
    represented the appellant previously, he knew the appellant was not a Canadian
    citizen. However, the appellant never told him that he lost his status after pleading
    guilty to the sexual interference charge, nor did he tell him about the removal
    order and stay.

[46]

Defence
    counsel admitted that a general thought about potential immigration
    consequences was triggered when the Crown put its position of a three year
    sentence on the record in response to the appellants guilty plea.

As such, he advised the appellant to seek
    advice from an immigration lawyer. He testified:

I know that a permanent resident certainly would have an
    immigration issue if theyre found guilty of this offense given the penalty for
    robbery  which is why I told him to seek immigration counsels advice if he
    had any concerns about that. I do not know if he did or didnt, but he came
    back to me and said that he wanted to proceed with it.

[47]

When
    defence counsel was reminded his affidavit said that he was unaware of any
    immigration issues, he explained that his affidavit referred only to his lack
    of awareness of the deportation issues that arose following the 2008
    convictions, and had he known about those issues, he would have set a date for
    trial.

(iii)

Findings on fresh evidence

[48]

I
    do not accept aspects of defence counsels evidence. He denies being aware of
    any immigration issues in the sense that the appellant was subject to
    deportation, yet he saw the appellants mothers videotaped statement in which
    she told police that the appellant was going to be deported. He also heard the
    Crowns comments at the bail hearing respecting the immigration concerns of the
    appellants family, and he was aware the sentencing judge referred to the
    appellants immigration status in his ruling on the bail application.

[49]

Defence
    counsel says that he had enough of a concern about the Crowns position
    concerning a three year sentence on the appellants immigration status to tell
    him to seek advice from an immigration lawyer. Yet he acknowledges he never
    followed up with the appellant and asked him whether he had sought immigration
    advice.

[50]

Quite
    apart from the Crowns position that a three year sentence was warranted when
    the appellant pleaded guilty on March 8, 2013, the appellants immigration
    status was a relevant consideration at his sentencing hearing. In
R. v. Pham,
2013 SCC 15, [2013] 1 S.C.R. 15, at paras. 6-24, the Supreme Court held
    that providing the sentence imposed is still fit, an appellate court can vary
    an otherwise fit sentence where the sentencing judge did not take account of
    immigration consequences having regard to the principles of individualization
    and the sentencing objective of assisting in rehabilitating offenders. The
    Courts judgment in
Pham
was given the same day the appeal was heard,
    on January 18, 2013, and the reasons were delivered March 14, 2013. The
    appellant was sentenced on April 30, 2013.

[51]

If
    defence counsel told the appellant to seek immigration advice, it would have
    made sense that he follow up and ask the appellant if he had obtained that
    advice in order to make what use he could of it on sentence. Defence counsel
    acknowledged that he did not do this.

[52]

I
    would also reject aspects of the appellants evidence, namely, that defence
    counsel promised him he would receive a sentence of 60 to 90 days and told him
    he would not be deported if he pleaded guilty and received a sentence of less
    than six months. There are four reasons for my conclusion.

[53]

First,
    counsel are not likely to make such promises especially when a joint submission
    as to sentence is not being made, the accused has a criminal record for other
    offences involving violence, and the offence to which the accused is pleading
    guilty is an escalation of violence.

[54]

Second,
    the appellant was not unfamiliar with the court system. He had pleaded guilty
    to each of his 14 prior convictions. In these circumstances it is difficult to
    understand how the appellant could not know that when he pleaded guilty to this
    robbery the sentencing judge was not bound by defence counsels submission as
    to sentence.

[55]

Third,
    defence counsel told the court, in the appellants presence, that the appellant
    knew the sentencing judge would not be bound by his submission as to sentence.
    The appellant does not allege that he did not hear defence counsel make this
    statement, nor does he suggest that he did not understand what was meant.

[56]

Fourth,
    I accept defence counsels evidence that it is not his practice to give
    immigration advice and that he did not do so on this occasion. Defence counsel
    consistently ignored the appellants immigration status. If defence counsel had,
    in fact, promised the appellant he would not be deported if he received a
    sentence of less than six months, he most certainly would have suggested the sentencing
    judge consider the appellants immigration status as a factor in sentencing,
    which he did not do.


[57]

Based
    on my analysis of the evidence above, the appellant has not established the
    facts on a balance of probabilities to support his claim that defence counsel
    made the promises he did.

(c)

Incompetence of Counsel

[58]

In
Joanisse,
at p. 61, this court stated:

[I]ncompetence is determined by a reasonableness standard
    measured by reference to counsels performance in the particular circumstances
    of the case from the point in time when counsel made the decisions challenged
    on appeal. The wisdom of hindsight has no place in this assessment. This
    approach recognizes that in many situations counsel will have a wide range of
    options any of which, if taken, will constitute competent representation. Appellate
    courts must give deference to choices made by counsel and the competence
    assessment must be informed by a presumption in favour of competence.

[59]

In
    this case, the appellant submits that the presumption of deference has been
    rebutted. Defence counsel had represented the appellant before the robbery and
    knew that he was not a Canadian citizen. The provisions of
IRPA
are
    clear and explicit in defining the removal consequence on the appellants
    conviction for an offence punishable by a sentence of ten years or more, and
    robbery, being an offence punishable by life imprisonment, is such an offence.
    While immigration law can be complex, in this case defence counsel could have
    determined that the appellants plea would make him eligible for deportation by
    reading the text of the statute. This provision is not recent. Thus, even if
    the appellants evidence is rejected, the appellant submits that defence
    counsels failure to provide any immigration advice
prior to his plea
amounts
    to ineffective assistance.

[60]

The
    Crown argues that immigration consequences, such as deportation, are a
    collateral, not direct, consequence of a guilty plea and have no bearing on the
    requirement that an accused understand the consequences of his guilty plea
    within the meaning of s. 606 (1.1)(b)(ii) of the
Criminal Code
.
    Immigration consequences are only a valid consideration on sentencing. The
    Crowns position is that because deportation is a collateral consequence of a
    guilty plea, current Canadian jurisprudence does not require counsel to give
    advice respecting the collateral consequences of a plea:
R. v. Tyler,
2007
    BCCA 142, 237 B.C.A.C. 312;
R. v. Hunt,
2004 ABCA 88, 346 A.R. 45;
R.
    c. Nersysyan,
2005 QCCA 606.

[61]

The
    appellant submits that the reasonableness standard for the level of competence for
    a criminal lawyer carries with it a duty to inform him of the consequences of a
    guilty plea on his immigration status prior to entering the plea. Counsel for
    the appellant urged this court to adopt the approach of the United States
    Supreme Court, which held in
Padilla v. Kentucky
, 559 U.S. 356 (2010),
    that the failure of criminal defence lawyers to advise noncitizen clients about
    the immigration consequences of guilty pleas constitutes ineffective assistance
    of counsel. Prior to this decision, defence counsel in the United States were not
    required to advise clients of the collateral consequences of a guilty plea such
    as loss of government benefits. Deportation was considered a collateral
    consequence.

[62]

In
Padilla,
Stevens J. for the majority acknowledged that immigration law
    can be complex and is a legal speciality of its own. He held that the duty on a
    defence counsel will vary depending on whether the law is clear or whether the
    consequences are unclear or uncertain. Where the impact of the law is not
    succinct and straightforward, the lawyer need do no more than advise a
    noncitizen client that pending criminal charges may carry a risk of adverse
    immigration consequences (footnotes omitted): at p. 369. However, where the
    law and deportation consequences are truly clear, criminal defence lawyers
    have a duty to inform clients that deportation will result from a conviction:
    p. 369. Thus, the court held at pp. 373-374 that, when dealing with a
    noncitizen who clearly faces a risk of deportation, counsel cannot remain
    silent:

The severity of deportation  the equivalent of banishment or
    exile  only underscores how critical it is for counsel to inform her
    noncitizen client that he faces a risk of deportation.

It is our responsibility under the Constitution to ensure that
    no criminal defendant  whether citizen or not  is left to the mercies of
    incompetent counsel. To satisfy this responsibility, we now hold that counsel
    must inform her client whether this plea carries a risk of deportation.
    [Citations omitted; footnotes omitted.]

[63]

Unlike
    in
Padilla,
where a wealth of evidence was filed by various
    organizations, in this case,

no affidavit evidence was filed from any defence
    counsel or association such as the Criminal Lawyers Association as to the
    standard of care expected of a criminal defence lawyer in Canada. However, as
    Gary R. Clewley, Paul G. McDermott and Rachel E. Young observe in their text
Sentencing:
    The Practitioners Guide,
looseleaf (Toronto: Canada Law Book, 2015), at
    para. 1.330, [a]wareness of immigration issues on the part of criminal lawyers
    is becoming more important for several reasons, namely the increasing number
    of new Canadians; the increasing number of self-represented or
    under-represented accused; the increasing number of sentences with minimum jail
    terms; and the amendments to immigration legislation reducing the length of
    sentence required to remove appeal rights of permanent residents from a removal
    order.

[64]

Perhaps
    in recognition of the increased importance of the intersection of criminal law
    and immigration consequences, LawPRO, the professional indemnity corporation
    for Ontario lawyers, has advised criminal lawyers to identify clients
    immigration status before entering plea and/or sentence negotiations in order
    to avoid exposure to possible claims.
[5]
Similarly, Mario D. Bellissimo, in his text, Immigration Criminality and
    Inadmissibility, looseleaf (2014), (Toronto: Carswell, 2014), at p. 10-46
    advises lawyers to obtain a written direction from a client prior to any guilty
    plea, and to reference the possible immigration consequences of a plea in that
    direction. Further, an article for the Criminal Justice Section of the Ontario
    Bar Association written in the wake of the
Pham
decision states that
    it is essential that counsel be aware of the immigration status of any
    client. The author suggests that counsel will well be advised to discuss the
    immigration consequences of matters with a member of the immigration bar and to
    refer clients accordingly.
[6]
Clewley, McDermott & Young also suggest that defence counsel make sure
    that accused people are aware of the immigration implications before they are
    arraigned at trial or enter guilty pleas.
[7]

[65]

In
    this case I do not have to determine whether the failure to ascertain the
    effect of a guilty plea on the clients immigration status prior to plea
    constitutes incompetence of counsel, and I do not propose to do so having
    regard to the lack of evidence as to the standard of care in Canada, and my
    conclusion explained below that even if there was ineffective assistance of
    counsel, there was no miscarriage of justice. As this court stated in
Joanisse,
at p. 62:

Counsels failure to meet competence standards does not
    automatically lead to a reversal of a conviction. The ultimate purpose of the
    appellate inquiry is not to grade counsels performance, but to determine
    whether a miscarriage of justice occurred. The third and final component of
    this courts approach to allegations of incompetent representation at trial
    presumes a finding of incompetence and looks to the effect of that incompetence
    on the fairness of the trial proceedings. This inquiry examines the nature and
    seriousness of counsels errors both from the perspective of the reliability of
    the verdict and the adjudicative fairness of the process leading to the
    verdict. If counsels incompetence rendered the verdict unreliable or the
    process unfair, then the appellant has demonstrated that he received
    ineffective assistance resulting in a denial of the right to a fair trial and a
    miscarriage of justice.

(d)

Miscarriage of Justice

(i)

The verdict was reliable

[66]

In
    the appeal before us, the appellant has raised, for the first time on appeal, a
    version of the facts that is completely at odds with the facts to which he pleaded
    guilty. It is submitted that the appellant was simply demanding his own money
    back and that he could not, therefore, commit the offence of robbery. This
    argument is not tenable in law. The appellant gave his mother $250 (either as
    rent he owed her or as a gift) and then demanded the money back. She returned
    $210, and he demanded the other $40. A gift requires three things: intention by
    the donor to make a gift; sufficient delivery of the gift; and acceptance by
    the donee:
McNamee v. McNamee,
2011 ONCA 533, 106 O.R. (3d) 401, at
    para. 24. Once these three things happen, the gift is complete, property in the
    gift passes to the donee, and the donor of the gift has no right to revoke it
    or take it back:
Berdette v. Berdette
(1991), 3 O.R. (3d) 513 (C.A.),
    p. 520, leave to appeal to S.C.C. refused, [1991] S.C.C.A. No. 306. The money
    was no longer the appellants money. Quite apart from the appellants pleading
    that he had a viable defence, defence counsel was never asked in
    cross-examination whether he should have explored such a potential defence with
    the appellant. Defence counsel did not fall below the reasonable standard
    required of counsel in this regard.

[67]

Moreover,
    the issue of the knife and the manner in which the appellant held it was
    thoroughly explored at the bail hearing and the
Gardiner
hearing was
    subsequently waived. The recast version of the facts on appeal, that the
    appellant was peeling vegetables and his mother misunderstood his gesture with
    the knife is simply not credible and ignores the threats the appellant made as
    well as his subsequent use of a cleaver in the presence of his mother and his
    sister-in-law.

[68]

There
    is no credible or reliable evidence to suggest that the appellant did not
    understand the nature of the charge against him or the facts to which he was
    pleading guilty. The verdict is reliable.

(ii)

The process was not unfair

[69]

Both
    the appellant and defence counsel swore that a plea of guilty would not have
    been entered had they known the appellant would be deported. Rather, the case
    would have gone to trial. As a result, the appellant submits that the plea was
    not informed and he did not understand the consequences of his plea.

[70]

In
    deciding whether the appellant understood the consequences of his guilty plea,
    the Supreme Court of Canadas decision in the oft-cited case of
R. v. Lyon
,

[1987] 2 S.C.R. 309, is instructive. In
Lyon
, the appellant, who
    was 16 years old at the time, elected to be tried by judge alone and then
    pleaded guilty to breaking and entering a dwelling house, using a weapon or
    imitation thereof in committing sexual assault, using a firearm while
    committing an indictable offence, and stealing property worth in excess of
    $200. Just before sentencing, the Crown told defence counsel that it might
    bring a dangerous offender application. The sentencing hearing was adjourned. The
    Crown brought its application, and the accused was found to be a dangerous
    offender and sentenced to a period of indeterminate detention. The Court of Appeal
    dismissed his appeal.

[71]

On
    appeal to the Supreme Court, one of the arguments was whether, given the
    serious consequences of a dangerous offender application, the Crown ought to
    have advised the appellant of its intention to bring the application prior to
    his election and plea so as to enable him to make an informed decision. The
    appellant argued that the Crowns failure to do so violated his rights under s.
    7 of the
Charter.
In dismissing this argument La Forest J., on behalf
    of the majority, explained that in order for a plea to be informed, the
    appellant needs to understand the potential consequences of a guilty plea,
    not the precise consequences of his plea which may be difficult to predict. He
    states at paras. 103, and 106-107:

It seems, therefore, that the only prejudice the appellant can
    claim to have suffered is that had he been forewarned of the Crowns intention
    to make a Part XXI [dangerous offender] application, he might have elected a trial
    by judge and jury rather than by judge alone, or might have pleaded not guilty
    rather than guilty to the charges against him. It seems to me, however, that
    there is a limit beyond which it would be unseemly for courts to inquire into
    or go beyond such decisions of accused persons. For example, I do not think
    it would be proper to inquire into whether and to what extent the absence of
    such notice impaired the ability of the accused to plea bargain effectively,
    for justice should not be, and should not be seen to be, something that can be
    purchased at the bargaining table. Nor do I think it proper to consider that
    an accused might elect a trial by jury in the hope that a jury would be less
    inclined to convict in circumstances where he or she was liable to
    indeterminate incarceration.



It seems to me to be difficult to articulate precisely in what
    sense the liberty interests of the appellant were infringed by the absence of
    notice earlier than is statutorily provided for. It is nowhere alleged, here or
    in the courts below (where this issue was not even addressed), that the
    appellant did not appreciate the
potential
consequences of his plea; indeed, Part XXI itself can be seen to provide
    notification that the dangerous offender provisions are invocable if
    "serious personal injury offences" are committed by an accused. Nor
    is it alleged, for example, that the accused was unfairly taken by surprise by
    the application, that he was not represented by competent counsel, or that
    counsel pressured him to plead guilty against his will, etc.  Rather, the
    complaint appears simply to be that the appellant did not know that the Crown
    was actually contemplating making a Part XXI application.
[Citations
    omitted.]

[72]

In
    this case, the appellant was already subject to deportation as a result of his
    prior plea and conviction on the charges of sexual exploitation and sexual
    interference. He had a copy of the order staying his deportation. He had had it
    read to him by his immigration counsel Mr. Ramkissoon. He had been told that if
    he was convicted of an offence punishable by imprisonment for ten years or more
    the stay order would be cancelled. Although he may not have appreciated that
    robbery is an offence punishable by imprisonment for ten years or more, he must
    be taken to know that robbery is a serious offence. He also knew that one of
    the conditions of his stay order was that he not receive a sentence of six
    months or more or the stay would be cancelled and he could be subject to
    deportation. By instructing defence counsel that he wished to plead guilty to
    the robbery charge, although he knew the Crown would be seeking a sentence of
    more than six months, the appellant chose to assume the risk that he would be
    deported.

[73]

In
    these circumstances, dissatisfaction with the result is not a basis for setting
    aside the appellants guilty plea. Cancellation of the order staying his deportation
    and his subsequent deportation was not an unfair surprise.

[74]

Accordingly,
    the plea was informed, and there was no miscarriage of justice.

D.

Conclusion

[75]

The
    appellant knew he was subject to deportation. He knew that the stay of his
    deportation order would be cancelled if he committed a further criminal offence
    which carries a penalty of ten years or more or if he received a sentence of
    six months or more and that he could be deported. In the circumstances,
    irrespective of whether the appellants counsel fell below the standard
    required of a criminal law defence counsel by not advising the appellant of the
    immigration consequences of his plea, or, by not following up with him if he
    referred him for immigration advice, the appellant understood deportation was a
    potential consequence of his plea, the process was not unfair, and there was no
    miscarriage of justice.

[76]

In
    the circumstances, I need not address the
Charter
argument raised by
    the appellant respecting s. 606(1.2) of the
Criminal Code
.

[77]

I
    would dismiss the appeal.

Released: August 20, 2015

(KMW)

K.M. Weiler J.A.

I
    agree M. Tulloch J.A.

I
    agree K. van Rensburg J.A.





[1]
The punishment for conviction of sexual interference is imprisonment for a
    term of not more than 10 years:
Criminal Code,
s. 151(a). Section 36(1)
    of the
IRPA
, reads in part, A permanent resident .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 



[2]
At the time, a person who had been sentenced to a term of imprisonment of less
    than two years could appeal a deportation order to the Immigration Appeal
    Division pursuant to s. 64(1) of the
IRPA
. Section 24 of the
Faster
    Removal of Foreign Criminals Act,
S.C. 2013, c. 16, which came into effect
    on June 19, 2013, and amended s. 64(2) of the
IRPA
,

lowered the
    threshold for loss of appeal rights to six months. Pre-trial custody is
    included in the calculation of a period of imprisonment:
Nguyen v. Canada
    (Minister of Citizenship and Immigration)
2010 F.C. 30 at para. 20.



[3]

Under s. 344(1)(b) of the
Criminal Code
robbery is
    punishable by imprisonment for life.



[4]
The changes to s. 64 of the
IRPA
brought by the
Faster Removal of
    Foreign Criminals Act
apply to those sentenced before June 19, 2013, so
    long as they have not already been referred to the Immigration Appeal Division (IAD).
    The appellant had already been referred to the IAD.



[5]
Katie James and Nora Rock, Can a criminal conviction make your client
    inadmissible for residency/citizenship?, online: LawPRO
<http://www.practicepro.ca/information/doc/conviction_inadmissible.pdf>



[6]
Paul Calarco, June 2013 Appeal Court Review -
R. v. Pham
: Immigration
    Consequences in Sentencing, online: Ontario Bar Association

<
    http://www.oba.org/en/pdf/sec_news_crim_jun13_cal_app.pdf>



[7]
Gary R. Clewley, Paul G. McDermott, Rachel E. Young,
Sentencing: The
    Practitioners Guide,
looseleaf (Toronto: Canada Law Book, 2015), at para.
    1.330.


