



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pineda, 2019 ONCA 935

DATE: 20191127

DOCKET: C62380

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chris Denny Pineda

Appellant

Naomi M. Lutes, for the appellant

Caitlin Sharawy, for the respondent

Heard: September 12, 2019

On appeal from the conviction entered on May 22, 2013 by
    Justice Steve A. Coroza of the Ontario Court of Justice.

REASONS FOR DECISION

Background

[1]

The appellant seeks to set aside his guilty pleas on the basis that they
    were uninformed. Had he known the immigration consequences of his guilty pleas,
    he maintains that he would have instead proceeded to trial. For the reasons set
    out below, we allow the appeal, set aside the guilty pleas, and order a new
    trial on all counts of the information.

[2]

The appellant, an American national, came to Canada at age three and
    thereafter became a permanent resident. His four dependent children all reside
    in Canada, as do his mother and developmentally challenged brother. He conducted
    his business in Canada and considered himself Canadian. However, he never applied
    for, or received, Canadian citizenship.

[3]

On November 1, 2012, the appellant was charged with three firearm-related
    offences under the
Criminal Code
and one possession offence under the
Controlled
    Drugs and Substances Act
. He plead guilty to three of the offences  careless
    storage of a firearm, unlawful possession of a loaded prohibited firearm, and
    possession of cocaine  and a fourth charge was withdrawn. Pursuant to a joint
    submission he received a global sentence of 15 months incarceration less time
    spent in pre-trial custody, followed by 36 months probation. As a result of
    these convictions and sentences, he was stripped of his status as a permanent
    resident and ordered deported to the United States, with no right of appeal. He
    now resides in the U.S. and is not permitted re-entry into Canada where his
    children continue to reside.

[4]

The appellant now seeks to introduce fresh evidence to establish that his
    guilty pleas were uninformed because he was unaware of the serious immigration
    consequences of them.

Analysis

[5]

To be valid, a guilty plea must be voluntary and unequivocal. It must
    also be informed, in the sense that the accused must be aware of the
    allegations made against him, and of the effect and legally relevant
    collateral consequences of that plea:
R. v. Wong
, 2018 SCC 25, [2018]
    1 S.C.R. 696,

at paras. 3-4. Legally relevant collateral consequences
    include immigration consequences. To set aside a presumptively valid plea, the appellant
    must establish that: (i) he was unaware of a legally relevant consequence of
    the plea, assessed objectively; and (ii) he has suffered prejudice, in the
    sense that he would have acted differently had he been properly made aware of
    the consequences:
Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33.

[6]

In the fresh evidence, the appellant states that although he was advised
    by his lawyer that there might be immigration consequences to his guilty pleas,
    and that he should seek the advice of an immigration lawyer, he did not
    understand that deportation would be within the range of possible consequences.
    He had thought he might be subject to questioning by an immigration official,
    or subject to an immigration hold. He did not consult an immigration lawyer. Trial
    counsel, in his affidavit, did not contradict this evidence. Trial counsel agreed
    that although he had a conversation with the appellant and alerted him that
    there might be immigration consequences, he likely did not discuss any specific
    immigration consequences with the appellant. Trial counsels evidence, at its
    highest, was that the word deportation may have come up.

[7]

There was no plea comprehension inquiry conducted in court. The
    appellants counsel advised the trial judge that the plea inquiry had been
    conducted with the appellant in advance. The trial judge was not made aware of
    the appellants immigration status or that immigration consequences could flow
    to the appellant as a result of his convictions.

[8]

The respondent concedes that the fresh evidence should be admitted. We
    are satisfied that the fresh evidence meets the
Palmer
criteria, as
    modified to assess the validity of a guilty plea, and ought to be admitted:
R.
    v. Sangs
, 2017 ONCA 683, at para. 7.

[9]

It is the respondents position that, at a minimum, the appellant was
    wilfully blind as to the immigration consequences arising from his plea. The
    respondent argues that the appellant should not be permitted to rely upon his
    wilful blindness in support of the claim that his pleas were involuntary:
R.
    v. Girn
, 2019 ONCA 202 at 62-3, 79.

[10]

Based on the record before us, however, it seems clear that the
    appellant did not know the serious jeopardy he was in. While his lawyer told
    him that there may be serious immigration consequences arising from his guilty pleas,
    his lawyer admits that he did not get into the specifics. Rather, he told the
    appellant that he should seek the advice of an immigration lawyer. Knowing that
    the in-custody appellant had not done so, and did not know the specifics
    about the consequences of a guilty plea, the lawyer assisted the appellant with
    entering his plea.

[11]

The consequences were, of course, grave. Not only was the appellant
    deportable after the plea because of his permanent resident status, but the
    length of sentence meant that he would not have a right of appeal from such an order.

[12]

On the basis of the fresh evidence, we are satisfied that the appellant had
    not been informed by his counsel and was not otherwise aware of the potentially
    serious immigration consequences arising from his guilty pleas, specifically
    that he could be deported without a right of appeal.

[13]

With respect to prejudice, we accept that the appellant would have elected
    to stand trial if he had been aware of the immigration consequences of his pleas.
    In his reasons for sentence, the sentencing judge noted the Crowns case was
    circumstantial, there were triable issues including issues with respect to
    whether or not the Crown could prove beyond a reasonable doubt that he was in
    fact in possession of the item thats been exhibited. The consequences of
    deportation were devastating to the appellants relationship with his dependent
    children. The appellant states that had he known he would be facing deportation
    without a right of appeal, he would have taken all available steps in an effort
    to stay in Canada and keep his family together. One of those steps would have
    been pleading not guilty in the face of what he characterized as a weak Crown
    case.

DISPOSITION

[14]

We admit the fresh evidence, set aside the pleas of guilty and
    consequent convictions, and order a new trial on all counts in the information.

David Watt J.A.

B.W. Miller J.A.

Fairburn J.A.


