



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davis, 2020 ONCA 326

DATE: 20200528

DOCKET: C64420

Strathy
    C.J.O., Tulloch and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garth Davis

Appellant

Howard Rubel, for the appellant

Vanita Goela, for the respondent

Heard: In Writing

On appeal
    from the conviction entered on November 2, 2016 by Justice Michael Harpur of
    the Ontario Court of Justice.

REASONS
    FOR DECISION

A.

INTRODUCTION

[1]

The appellant is a permanent resident and has lived
    in Canada for over 21 years. A deportation order was issued against him on
    May 29, 2007, due to prior criminal convictions. However, the Immigration
    Appeal Division of the Immigration and Refugee Board (IAD) granted a stay of
    the order based on humanitarian and compassionate grounds. The IAD warned the
    appellant that further convictions for specific types of criminal offences
    would lift the stay and subject him to removal from Canada.

[2]

In April of 2014, the appellant was charged with
    33 offences that included drug offences and the unauthorized use of credit card
    data. The appellant retained counsel and he elected to contest the charges. He
    elected a trial in Superior Court by judge and jury and requested a preliminary
    hearing.

[3]

On November 2, 2016, the seventh day of his
    preliminary hearing, the Crown and the appellants trial counsel concluded plea
    negotiations. They agreed to propose a joint submission as to sentence if the
    appellant pleaded guilty to three offences. It is not disputed that the joint submission,
    a non-custodial sentence of probation with no reporting conditions, was
    lenient. The appellant decided to re-elect to be tried in the Ontario Court of
    Justice and pleaded guilty.

[4]

Prior to entering the plea, the trial judge
    conducted a plea inquiry, as required by s. 606(1.1) of the
Criminal Code
,
    R.S.C., 1985, c. C-46. During the inquiry, the appellant advised the trial
    judge that: (1) he was voluntarily entering pleas of guilty; (2) by pleading
    guilty, he was aware that he was giving up his right to a trial; and (3) he was
    aware that the trial judge was not bound by any joint submission as to sentence
    advanced by counsel. The trial judge then arraigned the appellant and he
    pleaded guilty to two drug offences (contrary to ss. 4 and 5 of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19) and one count of unauthorized
    use of credit card data (contrary to s. 342(3) of the
Criminal Code
).

[5]

On December 7, 2016, the appellant was sentenced
    to a period of probation for one year with conditions.

[6]

The appellant now seeks to introduce fresh
    evidence to support his claims that his guilty plea was uninformed and that he
    received ineffective assistance from his counsel, amounting to a miscarriage of
    justice. The fresh evidence consists of the appellants affidavit and
    accompanying cross-examination, affidavits from defence and Crown trial
    counsel, and a letter of opinion from the appellants immigration counsel.

[7]

According to the appellant, prior to entering
    his pleas of guilty, trial counsel told him that the resulting convictions and
    the proposed sentence would not lead to any immigration consequences. This
    advice played a significant role in his decision to plead guilty. However, on
    August 30, 2017, he was summoned to a hearing before the IAD. During that
    hearing, he discovered that the stay of deportation had been lifted because of
    the convictions, and he was now subject to removal from Canada.

[8]

The respondent does not oppose the introduction
    of the fresh evidence. However, the respondent contends that the appeal should
    be dismissed because the pleas of guilty were voluntary, informed, and
    unequivocal, and the appellant was fully aware that conviction of specific
    offences would affect his immigration status.

[9]

We would admit the fresh evidence because it is
    in the interests of justice to do so:
Criminal Code
, s. 683(1);
R. v.
    Sangs
, 2017 ONCA 683, at para. 7. After reviewing the fresh evidence, we
    are persuaded that the appellant was provided with erroneous information about
    the immigration consequences that would occur if he pleaded guilty. As a result
    of the convictions, the appellant has suffered prejudice. Therefore, we are allowing
    the appeal, setting aside the guilty pleas, and ordering a new trial on all
    counts of the information.

B.

ANALYSIS

[10]

A guilty plea must be voluntary, unequivocal,
    and informed:
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519.
    A plea is an informed one if the accused is aware of the effects and
    consequences of the plea. In this case, there are collateral consequences that
    bear upon serious legal interests of the accused, such as deportation:
R. v.
    Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 4;
R. v. Girn
, 2019
    ONCA 202, 373 C.C.C. (3d) 139, at para. 52.

[11]

To set aside his plea, the appellant must
    establish that: (i) he was unaware of a legally relevant consequence of the
    plea at the time of pleading guilty; and (ii) he suffered subjective
    prejudice:
Girn
, at paras. 65-66, citing
Wong
, at paras. 6,
    9, and 19.

[12]

In his affidavit and cross-examination, the
    appellant does not deny that he was aware that certain types of convictions
    would put his immigration status in jeopardy when he was charged. According to
    the appellant, he informed trial counsel that he was highly concerned about
    potential immigration consequences at the beginning of the retainer and
    throughout the proceedings. However, trial counsel assured him there was
    nothing to worry about because they could beat the charges. The appellant
    further asserts that, before he decided to plead guilty on November 2, 2016,
    trial counsel erroneously advised him that pleading guilty would not affect his
    immigration status. We accept this assertion.

[13]

Trial counsel, in his affidavit, acknowledges
    that the appellant raised his immigration status with him at the outset of the
    retainer, and that the appellant was concerned about the effect the charges
    could have on that status.

[14]

According to trial counsel, on November 2, 2016,
    the trial Crown took it upon herself to research the issue of immigration
    consequences. Trial counsel states that the trial Crown explained to him that
    the proposed sentence would not lead to any immigration consequences for the
    appellant, and since he did not practice immigration law, he accepted this
    representation. Trial counsel states that the appellant proceeded to plead
    guilty based on a misapprehension that there would be no immigration
    consequences.

[15]

The trial Crown denies that she researched any
    immigration issues or discussed immigration consequences with trial counsel.

[16]

We need not resolve this conflict in the
    evidence because, regardless of the source of the erroneous information, the
    evidence of trial counsel is that the appellant was under the misapprehension
    that he would suffer no immigration consequences by pleading guilty.

[17]

We do not accept the respondents argument that
    the appellant has provided inconsistent evidence about whether trial counsel
    advised him about immigration consequences. In his affidavit, the appellant
    stated that trial counsel advised him that pleading guilty would not impact his
    immigration status. The appellant was thoroughly cross-examined by the
    respondent on this point. A fair reading of his cross-examination discloses
    that he only decided to plead guilty after trial counsel advised him, on
    November 2, 2016, that there would be no immigration consequences.

[18]

The consequences of the appellants pleas of
    guilty are extremely serious. The appellant has received an opinion from his
    immigration lawyer that, as a result of the credit card data conviction, his
    stay of deportation will be cancelled by operation of law, his appeal will be
    terminated, and he will be removed from Canada.

[19]

In summary, on the basis of the fresh evidence,
    we are satisfied that trial counsel told the appellant that there would be no
    immigration consequences if he pleaded guilty. The appellant relied on this
    advice in coming to the decision to plead guilty. The advice was wrong. In
    fact, the opposite is true. We are satisfied that the appellant was not aware
    of the collateral consequences when he entered his pleas of guilty and the
    pleas were not informed.

[20]

We also accept that the appellant has
    demonstrated subjective prejudice. The appellant contends that, had he known
    the information he was being given was erroneous, he would have continued with
    his preliminary hearing and proceeded to trial. We must assess the veracity of
    his statement with objective contemporaneous evidence. In our view, the
    appellants claim is credible.

[21]

First, we note that the appellant has been
    living in Canada for at least 21 years and has three children. During the
    sentencing hearing, the trial judge was told that one of the children was
    living with him. It is clear that he has an interest in remaining in Canada. It
    is highly unlikely that he would have pleaded guilty knowing he would be
    deported.

[22]

Second, his pleas of guilty occurred in the
    middle of a preliminary hearing, a proceeding designed to test the strength of
    the Crowns case. A Crown witness was scheduled to provide evidence on the day
    he pleaded guilty. Although we have no evidence as to the strength of the
    Crowns case against the appellant, the timing of the plea suggests that, had
    he known that he would be removed from Canada by pleading guilty, he likely
    would not have done so. Instead, he likely would have continued with the
    preliminary hearing, and he may have taken the matter to trial in the Superior
    Court, if the preliminary hearing judge had committed him for trial.

[23]

On the basis of the fresh evidence, we are
    satisfied that the appellants guilty pleas should be set aside because the
    appellant was uninformed.

[24]

In light of our conclusion, it is not necessary
    to deal with the appellants second argument that his trial counsel provided
    ineffective assistance, resulting in a miscarriage of justice. However, we do
    have serious reservations about trial counsels conduct, given his position
    that he relied on the Crowns research about the appellants immigration
    consequences in assisting his client with the pleas of guilty. Neither the
    trial counsel or the trial Crown were cross-examined on their affidavits filed
    as fresh evidence on this appeal, and we do not have a sufficient record to
    make definitive findings on this issue. That said, assuming trial counsels
    affidavit is accurate, we are troubled by his position. It is trial counsel who
    had a duty to the appellant, and it was his responsibility to ensure the
    accuracy of any advice he gave to his client about immigration consequences.

[25]

In
Wong
, the Supreme Court of Canada
    recognized that it is a well-established matter of practice that defence
    counsel should inquire into a clients immigration status and advise the client
    of the immigration consequences of a guilty plea: at para. 73. Similarly, in
R.
    v. Shiwprashad
, 2015 ONCA 577, 328 C.C.C. (3d) 191, at para. 64, leave to
    appeal refused, [2017] S.C.C.A. No. 40, this court reviewed literature that
    suggests that if there are potential immigration issues, counsel should conduct
    their own research or discuss the immigration consequences of matters with a
    member of the immigration bar. Trial counsels own affidavit reveals that this
    was not done.

[26]

Finally, during the plea inquiry, the trial
    judge did not ask the appellant if he was aware of any collateral consequences
    that could occur if he pleaded guilty, such as immigration. In fairness to the
    trial judge, he did not have the benefit of the Supreme Court of Canadas
    decision in
Wong
or this courts decision in
Girn
. However, it is
    now beyond dispute that awareness of collateral immigration consequences forms
    part of an informed guilty plea:
Wong
, at para. 4;
Girn
, at para.
    51. Although there is no standard format for conducting a plea inquiry, in our
    view, it is good practice for trial judges to canvass with the accused during a
    plea inquiry if there are any potential immigration issues. By doing that,
    trial judges can direct the accused and counsel to turn their minds to the issue,
    and it will likely assist the judge in determining whether the plea of guilty
    is informed.

C.

DISPOSITION

[27]

For these reasons, we admit the fresh evidence,
    set aside the appellants pleas of guilty and consequent convictions, and order
    a new trial on all counts.

G.R.
    Strathy C.J.O.

M.
    Tulloch J.A.

S.
    Coroza J.A.


