



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Girn, 2019 ONCA 202

DATE: 20190313

DOCKET: C63897

Hoy A.C.J.O., Watt J.A. and Then J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Yashpal Singh Girn

Appellant

Lakhwinder Sandhu, for the appellant

Andrew Hotke, for the respondent

Heard: September 12, 2018

On appeal from the convictions entered and from the
    sentence imposed by Justice Salvatore Merenda of the Ontario Court of Justice on
    March 24, 2016.

Watt J.A.:

[1]

On March 23, 2016, the appellant, Yashpal Singh Girn was in jail. That
    day he had a visitor. It was an officer from the Canadian Border Services
    Agency (CBSA). The officer brought some documents and explained them to the appellant.

[2]

The documents related to convictions entered against the appellant on
    two separate occasions in 2015 and advised him that, because of those
    convictions, there were reasonable grounds to believe that he was inadmissible
    to Canada. A decision whether to allow him to remain in Canada or to order his
    removal would be made in the near future after a complete review of his case.
    He was advised to complete some forms and submit them to the CBSA office.

[3]

The next day, the appellant pleaded guilty to eight further offences
    committed on two days in October 2015. His lawyer and the trial Crown made a
    joint submission on sentence to the presiding judge. They proposed a sentence
    of twelve months in custody, followed by probation for a term of three years.
    With credit of 247 days for 165 days of actual pre-disposition custody, the
    custodial component of the sentence imposed was four months. The judge acceded
    to the joint submission and imposed the proposed sentence.

[4]

About one year later, the Immigration Division of the Immigration and
    Refugee Board of Canada issued a deportation order directing the removal of the
    appellant from Canada on the grounds of serious criminality.

[5]

The appellant sought and obtained orders from judges of this court
    extending the time within which he could appeal his convictions and seek leave
    to appeal his sentence.

[6]

In the reasons that follow, I will explain why I have concluded that
    both appeals fail and should be dismissed.

The Background Facts

[7]

The grounds of appeal advanced do not require a detailed description of
    the circumstances of the offences to which the appellant pleaded guilty. But
    the procedural history of the prosecution and the removal proceedings are
    important to better understand the grounds of appeal advanced and their
    determination.

The Early History

[8]

As a result of three separate incidents with his spouse in the first
    half of 2015, the appellant pleaded guilty to and was convicted of two counts
    of assault, one count of assault with a weapon, two counts of failure to comply
    with a probation order and single counts of break and enter with intent and
    uttering threats. The dispositions included brief jail terms (taking into
    account time spent in pre-disposition custody) followed by periods of
    probation.

[9]

The terms of probation included requirements that the appellant keep the
    peace and be of good behaviour and that he not communicate in any way with the
    complainant.

The October Offences

[10]

As a
    result of three separate incidents occurring on two days in October 2015, about
    two months after he had been sentenced on prior similar offences, the appellant
    was charged with 26 counts involving offences against the person and property
    of his spouse and failures to comply with three separate probation orders. Some
    of the offences were punishable by terms of imprisonment of ten years or more.

[11]

The
    appellant was detained in custody.

The Immigration Notice

[12]

The
    appellant entered Canada when he was 14 years old in 1996. He is a permanent
    resident and has not applied for citizenship.

[13]

While
    in custody on March 23, 2016, an Immigration Enforcement Officer from the CBSA
    told the appellant that he may be deemed inadmissible to Canada as a result of
    his previous convictions for break and enter with intent and assault with a
    weapon. The officer explained that serious criminality referred to crimes
    committed in Canada that were punished by terms of imprisonment of at least six
    months. The officer also reminded the appellant of his obligation to make
    submissions about why he should remain in Canada. The letter provided to the
    appellant by the officer contained most of this information.

[14]

In
    cross-examination on his affidavit in support of his application to withdraw
    his guilty plea and advance his claim of ineffective assistance of counsel, the
    appellant confirmed that he understood from the officer that he could be
    subject to a removal or deportation order. He also appreciated that, because he
    had not received sentences of six months or more for his previous offences, he
    could appeal any removal order made against him. He was also made aware that
    any sentences of imprisonment exceeding six months which resulted in a removal
    order, left him without a right of appeal from that order.

The Pleas of Guilty

[15]

On
    March 24, 2016, the day following his meeting with the Immigration Enforcement
    Officer, the appellant appeared with counsel and pleaded guilty to 8 of the 26
    counts arising out of the incidents in October of 2015. Counsel had represented
    the appellant in prior proceedings in another jurisdiction and was the only
    lawyer the appellant had retained in connection with the charges from October
    2015.

[16]

In
    advance of his court appearance, the appellant met with his counsel who
    explained that he and the Crown would be making a joint submission for a
    sentence of 12 months in custody on all charges.

[17]

In
    the courtroom, the appellant pleaded guilty to all eight counts on which he was
    arraigned. Included were counts charging assault causing bodily harm and break
    and enter with intent, each of which carries a maximum punishment of
    imprisonment for at least ten years.

The Sentences Imposed

[18]

Where
    permitted to choose mode of procedure, the Crown proceeded by indictment.
    Counsel on both sides admitted that the sentence that should be imposed was 12
    months imprisonment, less credit of 247 days for 165 days of pre-disposition
    custody, to be followed by 3 years of probation with several proposed terms.
    Neither counsel suggested how to apportion the pre-disposition custody among
    the various convictions or how the individual sentences should be calculated or
    served to arrive at the proposed sentence of about four months.

[19]

The
    sentencing judges endorsements on the Information indicate that he attributed
    the custodial sentence and term of probation to the conviction of assault
    causing bodily harm. On the other counts, he suspended the passing of sentence,
    imposed periods of probation on the same terms as for the conviction of assault
    causing bodily harm, and directed that the sentences be served concurrently.

The Immigration Proceedings

[20]

On
    May 3, 2017, the Immigration Division of the Immigration and Refugee Board of
    Canada issued a removal order for the appellant as a result of his convictions
    and sentence for assault causing bodily harm.

[21]

On
    September 18, 2017, the Immigration Appeal Division dismissed the appellants
    appeal from the removal order for lack of jurisdiction. The appellant had no
    right of appeal because he was found to be inadmissible on grounds of serious
    criminality (the conviction of assault causing bodily harm), which had been
    punished by imprisonment of at least six months (four months plus credit of 247
    days for the pre-disposition custody).

The Appellate Proceedings

[22]

Judges
    of this court extended the time within which the appellant could appeal the
    convictions entered and sentence imposed on March 24, 2016.

The Grounds of Appeal

[23]

The
    appellant seeks to withdraw his guilty plea and have a new trial, or wants his
    sentence reduced so that he can appeal his removal order. He identifies two
    errors in the proceedings that he says resulted in his conviction and sentence:

i.

his plea
    of guilty was uninformed because he was not aware of the collateral immigration
    consequences of the joint submission on sentence; and

ii.

his trial counsel
    provided ineffective assistance in his representation.

[24]

The
    grounds are discrete, yet related. The sparse trial record has been
    supplemented by materials furnished in accordance with our protocol for claims
    of ineffective assistance of counsel. I would admit this material as fresh
    evidence because I consider it to be in the interests of justice to do so.

Ground #1: The Uninformed Plea of Guilty

[25]

An
    examination of the plea proceedings, as well as the information provided in
    connection with the claim of ineffective assistance of counsel, is essential to
    understanding this alleged error and its determination.

The Plea Proceedings

[26]

When
    the appellant entered his pleas of guilty, he was represented by counsel who
    had appeared on his behalf throughout these proceedings and had acted for him
    in a prior unrelated prosecution in another jurisdiction. Counsel had
    participated in resolution discussions with the Crown as well as pre-hearing
    conferences with the judge before whom the appellant pleaded guilty.

[27]

When
    the appellant was arraigned and entered his pleas of guilty, the presiding
    judge did not conduct a plea inquiry in accordance with s. 606(1.1) of the
Criminal Code of
    Canada
, R.S.C. 1985, c. C-46
.
    Defence counsel indicated that he had conducted a plea inquiry with the
    appellant and was satisfied that the appellant was familiar with the
    allegations made against him and wanted to plead guilty to the counts on which
    he would be arraigned. Defence counsel informed the judge that there would be a
    joint submission on sentence and that the appellant understood that the judge
    did not have to impose the sentence counsel recommended.

[28]

The
    appellant indicated that he was prepared to proceed in accordance with what
    defence counsel had said.

[29]

None
    of the participants inquired or said anything about the appellants immigration
    status in advance of entering the guilty pleas. During sentencing submissions,
    defence counsel told the trial judge that someone from Immigration had visited
    the appellant and told him that he was to report to Immigration on his release
    from custody after completing his sentence.

[30]

No
    one asked anything about the appellants immigration status after defence
    counsels mention of it during submissions. The appellant said nothing about
    immigration in his allocution.

The Further Evidence

[31]

In
    his affidavit filed in support of his ineffective assistance of counsel claim,
    the appellant acknowledged the visit of the Immigration Enforcement Officer and
    the officers instructions that he report to the Immigration Office on his
    release from custody. He told trial counsel about this visit. The lawyer never
    told him that he should contact an immigration lawyer, or that he would be
    deported after he had served his sentence and would not be able to appeal the
    deportation order. The appellant claimed that he never expected that his
    imminent removal from Canada would occur as a result of his guilty plea.

[32]

In
    cross-examination, the appellant agreed that the Immigration Enforcement
    Officer had spoken to him about his prior convictions in 2015 and had told him
    that, as a result, he may be inadmissible to Canada. The appellant understood
    that because the sentences imposed on those convictions were less than six
    months, he could appeal a deportation order. He also understood that receiving sentences
    of six months or more meant that he could not appeal any deportation order made
    as a result.

[33]

The
    appellant testified that he told his trial counsel that he was a permanent
    resident. He denied that trial counsel advised him about the seriousness of the
    charges he faced and the impact of his prior convictions. Before he pleaded
    guilty, trial counsel told him that he and the Crown would be (jointly)
    recommending a sentence of 12 months.

[34]

In
    further cross-examination, the appellant denied telling trial counsel that he
    had an inheritance in India and wished to return there. Trial counsel did not
    tell him that deportation could follow as a result of his convictions or that
    he would have no right to appeal a deportation order if the sentence imposed
    exceeded six months in jail. Had he known that deportation would follow from
    conviction, he would not have pleaded guilty.

[35]

The
    appellant did not change his mind about pleading guilty after he spoke to the
    Immigration Enforcement Officer. He made this decision because he knew from
    what other inmates at the jail had said, that pre-trial custody did not count
    in determining the length of sentence and a person who has a family cannot be
    deported.

[36]

In
    his affidavit, trial counsel explained that the appellant told him that he (the
    appellant) was a citizen of India where he wished to return to collect an
    inheritance to which he would not be entitled if he became a Canadian citizen.
    Counsel told the appellant to stay out of trouble because further trouble would
    increase the length of sentence the judge would impose and that any sentence
    over six months would result in a deportation order that the appellant could
    not appeal or seek to have stayed.

[37]

Trial
    counsel testified that he told the appellant that he could apply for legal aid
    certificates for immigration and family law counsel. The appellant declined to
    do so because he would not be staying in Canada. After counsel received and
    reviewed the Crown disclosure, he told the appellant that he would be looking
    at deportation because the sentence he would likely receive would exceed six
    months in custody. The initial position of the Crown was that a penitentiary
    sentence should be imposed. As a result of the plea inquiry conducted with the
    appellant, defence counsel was satisfied that the appellant understood that the
    judge would make the final decision about sentence even though counsel would be
    jointly suggesting a custodial sentence of 12 months, less pre-disposition
    custody, and a period of probation.

[38]

It
    was the evidence of trial counsel that the appellant understood the joint
    submission and instructed him to proceed. He was unconcerned about the
    immigration implications because he planned to return to India.

[39]

Trial
    counsel did not discuss with the appellant any apportionment of the time spent
    in pre-disposition custody among the various offences, so that with credit, the
    sentence imposed would not exceed six months in custody. A sentence under six
    months was simply impossible according to trial counsel because of the
    appellants record and the fact that he committed the offences while bound by
    the terms of several probation orders.

The Arguments on Appeal

[40]

The
    appellant says that his plea of guilty should be set aside because it was not
    fully informed. He did not know that he would have no right of appeal from the
    deportation order because his sentence, including credit for time spent in
    pre-disposition custody, exceeded six months.

[41]

In
    the appellants submission, the mere fact that he understood the general nature
    of the warning provided by the Immigration Enforcement Officer was not
    sufficient to render his plea of guilty informed. What is more, counsel had a
    duty to advise the appellant specifically that a jail sentence that exceeded
    six months deprived him of the right to appeal any deportation order made as a
    result of that conviction and sentence.

[42]

The
    respondent rejects any suggestion that the appellants guilty plea was
    uninformed because he lacked specific information about the availability of
    appellate review to challenge deportation orders.

[43]

According
    to the respondent, the record of trial proceedings as amplified by the fresh
    evidence demonstrates that the appellant knew that there were immigration
    consequences of his convictions. And he knew from what the Immigration
    Enforcement Officer had told him the day before he pleaded guilty, that if he
    received a custodial sentence of six months or more, he would lose his right to
    appeal the deportation order. The appellants essential complaint is that he
    relied on information provided by fellow inmates that time spent in
    pre-disposition custody was not included in the sentence calculations for
    immigration purposes. That the information was erroneous does
not
make
    his guilty plea uninformed.

[44]

The
    respondent emphasizes that the decision in
R. v. Wong
, 2018 SCC 25, 364
    C.C.C. (3d) 1 requires an appellant who seeks to set aside on appeal a guilty
    plea as uninformed to demonstrate not only that he or she was unaware of a
    legally relevant collateral consequence, but also that this lack of awareness caused
    him or her subjective prejudice. The respondent says that the appellant has
    failed to satisfy either requirement.

[45]

The
    respondent argues that the inability to appeal a deportation order is
not
a legally relevant collateral consequence. Admittedly, state compelled
    immigration consequences of a custodial sentencing disposition are legally
    relevant collateral consequences of a guilty plea. But it is sufficient to
    satisfy the informed component of a guilty plea where an accused is aware
    that deportation is a potential consequence. He or she need not know precisely
    how likely deportation will be or how limited the options may be to avoid it.

[46]

Even
    if the inability to challenge a deportation order on appeal were a legally
    relevant collateral consequence of a guilty plea, the appellants claim should
    be rejected. The appellant asserts that he was unaware that the joint
    submission for a 12-month sentence would leave him without a right of appeal because
    his lawyer failed to advise him of this, and his fellow inmates said that
    immigration authorities did not consider time spent in pre-disposition custody as
    part of a sentence. This explanation beggars belief. He did not ask his
    counsel, rather relied on advice from fellow inmates, well knowing the
    substance of the joint submission  12 months in custody plus probation. Trial
    counsel testified that he told the appellant that if he spent more than six
    months in jail he would be deported without a right of appeal.

[47]

Further,
    the respondent continues, any lack of knowledge is the appellants own doing.
    He knew the substance of the joint submission and the fact that a sentence of
    six months or more meant no appeal. He also knew that the sentencing judge was
    not bound by the joint submission. His approach of deliberate ignorance should
    be unavailing.

[48]

The
    respondent also takes issue with the appellants claim of subjective prejudice
    arising from his uninformed guilty plea. Any assertion that the appellant would
    have pleaded not guilty and proceeded to trial or insisted on different
    conditions, had he known there was no right of appeal, lacks evidentiary
    support. In addition to the circumstances already mentioned, it is plain that,
    from the outset, the case was headed for resolution, not for trial. Indeed,
    this was the appellants history with all prior incidents. Nor was the
    appellant in a position to insist on different conditions on entry of his pleas
    of guilty. As counsel said in cross-examination, a sentence that aggregated
    less than six months inclusive of pre-disposition custody was impossible
    given the circumstances of the case.

The Governing Principles

[49]

For
    the most part, the parties are not at odds about the principles that govern our
    decision in this case, only the result that should follow from their
    application.

The Requirements of a Valid Guilty Plea

[50]

To
    be valid, a plea of guilty must be voluntary, unequivocal and informed:
Wong
,
    at para. 3;
R. v. Quick
, 2016 ONCA 95, 129 O.R. (3d) 334, at para. 4.

The Informed Guilty Plea

[51]

For
    a plea of guilty to be
informed
, the accused who enters it must be
    aware of the nature of the allegations made by the Crown and the effect and
    consequences of the plea:
Wong
, at para. 3;
Quick
, at para.
    4;
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519.

[52]

An informed
    guilty plea means that an accused must be aware of the criminal consequences of
    the plea and the legally relevant collateral consequences. A legally relevant
    collateral consequence is a consequence that bears upon sufficiently serious
    legal interests of the accused. Immigration consequences bear on sufficiently
    serious legal interests, falling within the legally relevant collateral
    consequences of a guilty plea:
Wong
, at para. 4.

The Immigration Consequences

[53]

For
    permanent residents of Canada, s. 36(1)(a) of the
Immigration and
    Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
)
    declares them inadmissible on grounds of serious criminality for having been
    convicted in Canada of an offence under an Act of Parliament punishable by a
    maximum term of imprisonment of at least ten years, or of an offence under an
    Act of Parliament for which a term of imprisonment of more than six months has
    been imposed.

[54]

Under
    s. 64(1) of the
IRPA
, permanent residents found to be inadmissible to
    Canada on grounds of serious criminality have no right of appeal to the
    Immigration Appeal Division from a removal order. For these purposes, serious
    criminality refers to a crime punished in Canada by a term of imprisonment of
    at least six months: s. 64(2),
IRPA
.

[55]

Taken
    together, ss. 36(1)(a) and 64(1)-(2) of the
IRPA
render a permanent
    resident convicted of a
Criminal Code
offence punishable by a maximum
    term of imprisonment of at least ten years inadmissible to, and thus, removable
    from Canada and without a right of appeal when sentenced to a term of
    imprisonment of at least six months.

Knowledge of Immigration Consequences

[56]

Some
    pre-
Wong
authorities have considered the nature and extent of a
    permanent residents knowledge of immigration consequences that will defeat a
    claim that a guilty plea was uninformed.

[57]

In
R.
    v. Shiwprashad
, 2015 ONCA 577, 328 C.C.C. (3d) 191, the appellant, a
    permanent resident, was subject to a removal order arising out of convictions
    for sexual offences. The Immigration Appeal Division stayed the order for four
    years on certain conditions. The stay order contained the following wording:

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.

[58]

During
    the currency of the stay order, the appellant pleaded guilty to and was
    convicted of robbery. He was sentenced to a term of imprisonment that was the
    functional equivalent of a sentence of nine months in custody. He was
    subsequently deported:
Shiwprashad
, at paras. 10, 16, 25-28.

[59]

On
    appeal, the appellant sought to set aside his guilty plea on the ground that
    his counsel provided ineffective assistance by failing to inform him of the
    immigration consequences of his plea.

[60]

This
    court dismissed the appeal, satisfied that the appellant knew that:

i.

he was
    subject to deportation;

ii.

the stay of his
    deportation would be cancelled if he committed any further offences punishable
    by imprisonment for ten years or more or if he were sentenced to imprisonment
    for a term of six months or more; and

iii.

he could be deported.

See
Shiwprashad
, at
    paras. 72, 75.

[61]

In
R.
    v. Coffey
, 2017 BCCA 359,  the appellant sought to set aside his guilty
    plea as uninformed on the basis that he was unaware of the collateral
    immigration consequences of the guilty plea and two-year sentence. In
    particular, the appellant said that he did not know at the time of his guilty
    plea that as a permanent resident he could face deportation or that the length
    of his sentence, based on a joint submission, would prevent him from appealing
    his removal order.

[62]

The British
    Columbia Court of Appeal was satisfied that the appellant was aware that his
    permanent resident status in Canada could be jeopardized by his conviction and
    sentence. He was concerned that his guilty plea might lead authorities to
    initiate a removal process and instructed his lawyer not to raise immigration
    status during plea negotiations. Despite his concern, he did not choose to
    consult an immigration lawyer. A sentence of six months or less was unfeasible
    in the circumstances:
Coffey
, at paras. 46-49.

[63]

The
    appeal was dismissed. In delivering the reasons of the court, Garson J.A.
    concluded, at paras. 50-51:

In summary, an informed guilty plea requires the accused to
    have some awareness of the potential immigration consequences of their plea.
    Further, immigration consequences may be a necessary consideration in sentencing.
    However, an accused need not necessarily know the precise immigration
    consequences of their conviction and sentence. Case-by-case analysis is
    required to determine the degree to which an accused person must be aware of
    the specific details of the immigration consequences of their guilty plea.

In this case, because of what I have termed Mr. Coffeys
    willful blindness, I conclude that Mr. Coffeys plea was sufficiently informed.
    It follows that his counsel did not contribute to an uninformed plea. On this
    basis alone I would dismiss the appeal.

[64]

In
R. v. Tyler
, 2007 BCCA 142, 218 C.C.C. (3d) 400, the
    appellant sought to have his guilty plea struck on the basis that it was
    uninformed because he did not know the likely immigration consequences flowing
    from his plea. In dismissing his appeal, Donald J.A. wrote, at paras. 23-25:

While the automatic effect of a further conviction of
    possession of a break-in instrument may not have been fully understood by the
    appellant, I am satisfied that he knew that his status in Canada was in serious
    jeopardy. He pleaded guilty to achieve the short term gain of early release and
    he put aside consideration of the longer term consequences, no doubt hoping
    that things would work out as time went on. This was a free choice; his first
    lawyer urged him to try the charges but that would have meant staying in jail
    for several more months.

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).

Here the appellant knew he had been deported for possession of
    a break-in instrument, received a stay on good behaviour, and then pleaded
    guilty to the same offence within a few months of receiving the stay. I agree
    with respondent's counsel that the difference between awareness of an automatic
    effect, and knowledge of a highly probable result, is too fine a distinction.

See also
R. v. Kitawine
,
    2016 BCCA 161, 386 B.C.A.C. 24, at paras. 20, 25-28.

Setting Aside Pleas of Guilty

[65]

An
    accused who seeks to set aside a presumptively valid guilty plea, on the basis
    that the plea was uninformed because he or she was unaware of a legally
    relevant collateral consequence at the time of entering the plea, must
    establish:

i.

that
    she or he was in fact unaware of a legally relevant consequence of entering the
    plea at the time of pleading guilty; and

ii.

subjective
    prejudice.

See
Wong
, at paras. 6,
    9, 19.

[66]

To
    establish subjective prejudice, an accused must file an affidavit establishing
    a reasonable possibility that he or she would have either:

i.

elected to
    plead not guilty and go to trial; or

ii.

plead guilty,
    but with different conditions.

See
Wong
, at paras. 6,
    19.

Of necessity, a reviewing court
    must assess the veracity of an accuseds claim. This inquiry is subjective to
    the particular accused who seeks to set aside their plea, but allows for an
    objective assessment of contemporaneous evidence to determine the credibility of
    the accuseds subjective claim:
Wong
, at para. 6.

[67]

In
    connection with the first form of prejudice  where an accused would have
    pleaded not guilty and opted for trial  there will always be cases in which
    the accused may have little to no chance of success. However, that is not to
    say that a remote chance of success at trial means the accused is not sincere
    in his or her claim that the plea would have been different. Sometimes, certain
    but previously unknown consequences of a conviction make even a remote chance
    of success at trial a chance worth taking. Provided a court accepts the
    veracity of the accuseds statement, when tested against the objective
    contemporaneous evidence, then the accused has demonstrated prejudice and
    should be entitled to withdraw their guilty plea:
Wong
, at para. 20.

[68]

The
    second form of prejudice  where an accused would have pleaded guilty, but only
    on different conditions  will be established where a reviewing court finds
    that the accused would have insisted on those conditions to enter the guilty
    plea and those conditions would have alleviated, in whole or in part, the
    adverse effects of the legally relevant collateral consequence:
Wong
,
    at para. 21.

[69]

On
    the other hand, the mere possibility of different conditions, without more, is
    not automatically sufficient. It is only where an accused credibly asserts that
    she or he, during the plea negotiation phase, would have insisted on additional
    conditions, but for which she or he would not have pleaded guilty. Said in
    another way, an accused must articulate a meaningfully different course of
    action to justify vacating a plea, and satisfy the reviewing court that there
    is a reasonable possibility that she or he would have taken that course:
Wong
,
    at paras. 22-23.

[70]

A
    final point concerns the consequences of focusing the prejudice analysis on the
    subjective choice of the accused. It does not follow from this focus that a
    court must automatically accept an accuseds claim. The credibility of the
    claim is at large, not a given. The court must measure the accuseds claim
    about what his subjective and fully informed choice would have been against the
    objective circumstances as revealed by the evidence. Relevant factors in this
    assessment include, but are not limited to:

i.

the
    strength of the Crowns case;

ii.

any concessions
    or statements from the Crown about its case (for example, a willingness or
    refusal to participate in a joint submission or reduce the charge to a lesser included
    offence);

iii.

any available defence;
    and

iv.

the strength of connection
    between the plea of guilty and the collateral consequence (where the collateral
    consequence depends on the length of the sentence, a court may have reason to
    doubt the veracity of the claim).

See
Wong
, at paras. 26,
    28.

The Principles Applied

[71]

As I
    will explain, I would not give effect to this ground of appeal. In my view, the
    appellant has failed in his attempt to set aside his guilty plea on the basis
    that it was uninformed because he was unaware of the immigration consequences
    of his plea and the sentence jointly proposed by counsel.

[72]

At
    the outset, I do not contest the proposition that the immigration consequences
    of an accuseds plea, conviction and sentence fall within the legally relevant
    collateral consequences of which an accused must be aware to make an informed
    guilty plea.

[73]

Two
    inquiries determine whether a guilty plea should be set aside on the ground
    that it was uninformed because the accused was unaware of legally relevant
    collateral consequences:

i.

Was the accused
    misinformed or not informed about a legally relevant collateral consequence of
    entry of the plea?

ii.

Did this misinformation or
    lack of information result in prejudice to the accused?

[74]

At
    the first step or stage of the analysis to determine whether the accused was
    misinformed or not informed about a legally relevant collateral consequence of
    his plea, the assessment is objective. In this case, the critical issue is
    whether the accused was aware of the immigration consequences of his plea to
    the extent necessary to meet the informed requirement for a valid guilty
    plea.

[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.

[76]

In
    this case, the appellant was aware from what he had been told and documents he
    had received from an Immigration Enforcement Officer that convictions and
    sentences had immigration consequences. Those consequences included removal
    from Canada. He was also aware that both criminal convictions and the sentences
    imposed were the reasons for those consequences.

[77]

He learned
    further that he may or may not have the right to appeal to the Immigration Division
    should a removal order be issued against him. He was also aware that a term
    of imprisonment of at least six months meant that he had no right of appeal
    from the removal order. And he was invited to make written submissions
    explaining why his removal should not be sought. In addition, the appellant was
    aware that he would be pleading guilty, as he had in all other cases involving
    his spouse, and that his lawyer and the Crown would be asking the judge to
    impose a sentence of 12 months in custody followed by probation for three
    years.

[78]

In
    my respectful view, in the circumstances of this case, the appellant had an
    adequate understanding of the immigration consequences of his plea of guilty
    and the proposed sentence, which he understood the judge was not required to
    impose on the lawyers say-so. In particular, he was aware that those
    consequences included removal from Canada  perhaps without a right to appeal
    the removal decision.

[79]

As
    in
Coffey
to which I have earlier referred, there is also an element
    of wilful blindness in the appellants approach: see
Coffey
, at paras.
    47-51. He relied on fellow inmates for legal advice, rather than picking up
    counsels suggestion of obtaining a legal aid certificate for immigration
    purposes. And on his belief, despite the plain language in the documents he
    received from the Immigration Enforcement Officer, that he would only be given
    a warning, not removed from the country. He rolled the dice. And lost.

[80]

In
    light of my response to the first inquiry, it is unnecessary to consider the
    second. That said, I am also satisfied that the appellant has not established
    the prejudice component of the test.

[81]

To
    begin, the appellants affidavit is barren of any viable suggestion that, but
    for the alleged informational deficit, he would have pleaded not guilty and
    taken the case to trial. His assertion that his estranged spouse would not have
    testified against him is completely at odds with her conduct. A trial would
    have put him at risk of conviction of three times the number of offences to
    which he had pleaded guilty, deprived him of the mitigating effect of his pleas
    of guilty on sentence and likely provided sustenance for the Crowns request that
    he receive a penitentiary sentence.

[82]

Nor
    is this a case in which with further information the appellant might have
    pleaded guilty with different conditions. He pleaded guilty to only 8 of 26
    counts. The sentence imposed, no matter how the pre-disposition custody credit
    was apportioned, would not have resulted in leaving a right of appeal open to
    him. The likely certainty of removal cannot justify a sentence that is
    inconsistent with the fundamental purpose and applicable sentencing principles
    of the
Criminal
    Code
.

[83]

It
    is for these reasons that I would not permit the appellant to withdraw his
    guilty plea on the basis that it was uninformed.

Ground #2: The Ineffective Assistance of Counsel

[84]

This
    ground of appeal is discrete from, yet related to the claim that the
    appellants plea of guilty was uninformed. Having already determined that the
    plea of guilty was not uninformed, there is no need to retill the same ground
    in connection with this issue.

The Added Background

[85]

In
    his affidavit filed in support of his claim that his plea of guilty was
    uninformed and that his counsel provided ineffective assistance, the appellant
    alleged that counsel never showed him the Crown disclosure or advised him of
    the available modes of trial. He did not anticipate deportation would follow
    conviction and sentence without any right to challenge the order on appeal as
    he said in his affidavit:

I plead guilty as I never expected that as a result of my
    guilty plea and sentence, deportation order is imminent. I thought that I will
    get warning from the immigration and that everything will be over. I plead
    guilty as I knew that I spent a lot of time in custody and there is no surety.
    I also knew that if I went to trial, my wife will not come to court to testify
    against me.

[86]

The
    appellant also asserted that trial counsel never said anything to him about
    speaking to an immigration lawyer after the appellant told counsel of his
    immigration status. Nor did counsel ever suggest apportioning the
    pre-disposition custody credit to ensure that no sentence exceeded six months
    in custody.

[87]

Trial
    counsel responded that he reviewed Crown disclosure with the appellant on five
    occasions when they met in the courthouse cells. Counsel recommended trial in
    the Ontario Court of Justice based on the uncomplicated facts, the lack of any
    viable defences and the fact that the appellant would likely remain in custody
    pending trial because of his record, breach of probation orders and lack of a
    surety. Counsel told the appellant to stay out of trouble because further
    offences would likely increase the length of any sentence he would later have
    imposed upon him, and that any sentence exceeding six months would mean that he
    could not appeal the removal order. The appellant did not have any interest in
    retaining an immigration lawyer because he told counsel that he intended to
    return to India where he could collect an inheritance.

The Arguments on Appeal

[88]

In
    support of his claim that trial counsel provided ineffective assistance, the
    appellant relies upon what he says were three critical failures that resulted
    in a miscarriage of justice:

i.

the
    failure to advise the appellant the sentence of imprisonment of six months or
    more meant that he had no right of appeal from a removal order;

ii.

the
    failure to discuss with the Crown or seek from the sentencing judge an order
    apportioning credit for pre-disposition custody so that the custodial term did
    not exceed six months; and

iii.

the
    failure to expressly raise immigration consequences as a mitigating factor on
    sentence.

[89]

The
    respondent contends that the appellant has failed to establish the facts
    essential to underpin his claim of ineffective assistance. The trial counsels
    affidavit and cross-examination contradict the appellants claims. Additionally,
    it is clear that the appellant was aware, after the visit from the Immigration
    Enforcement Officer the day before he pleaded guilty, of the significant impact
    a custodial sentence of six months or more would have on his right to appeal
    any removal order. Despite this information, the appellant agreed to plead
    guilty knowing that the sentence to be jointly proposed was 12 months in
    custody.

[90]

The
    respondent says that the expanded record fails to support the appellants claim
    that he would have pleaded not guilty and proceeded to trial if he had
    information about the lost right of appeal on imposition of a jail sentence of
    six months or more. And the assertion that the sentence imposed would not
    exceed six months thus leaving a right of appeal, had his counsel made
    submissions about apportioning credit for pre-disposition custody, was not at
    all viable. To do so would have been to impose a sentence that would offend the
    lessons of
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras.
    13-16, 24.

The Governing Principles

[91]

The
    principles that govern determination of claims of ineffective assistance of
    counsel at trial are well settled. An appellant must establish:

i.

the
    facts on which the claim is grounded;

ii.

the
    incompetence of the representation provided by trial counsel (the
performance
component); and

iii.

a miscarriage of
    justice as a result of the incompetent representation by trial counsel (the
prejudice
component).

See
R. v. Cherrington
,
    2018 ONCA 653, at para. 25.

The burden settled upon the
    appellant is not easily satisfied:
R. v. G. (D.M.)
, 2011 ONCA 343, 275
    C.C.C. (3d) 295, at paras. 100-101.

[92]

Once
    the facts that underpin the claim have been established, the ineffective
    assistance analysis begins with the prejudice component. This component engages
    a determination of whether a miscarriage of justice has occurred. Either
    because of some procedural unfairness in the proceedings, a compromise of the
    reliability of the verdict or some combination of both consequences:
R. v.
    B. (G.D.)
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 28, 34;
Cherrington
,
    at para. 27. Where the reviewing court does not make a finding of prejudice, it
    is undesirable for the court to conduct an inquiry into and render a conclusion
    upon the performance component:
B. (G.D.)
, at para. 29;
R. v.
    Lavergne
, 2017 ONCA 642, at para. 17.

The Principles Applied

[93]

For
    the brief reasons that follow, I would not give effect to this ground of
    appeal.

[94]

The
    decision on this ground of appeal is largely pre-determined by rejection of the
    claim that the appellants guilty plea was uninformed because he was unaware of
    the legally relevant collateral consequences of it  deportation. The principal
    contaminant upon which the appellant relied to found his assertion of ignorance
    was the failures of counsel. Since I have found the information gap claim
    unavailing, the alleged inadequacies of counsel are somewhat beside the point.
    The trial judge was also aware that immigration consequences were in play
    because, in his submissions on sentence, defence counsel told the judge that
    the appellant was to report to immigration on release from custody. An experienced
    trial judge would have no difficulty in fathoming the reason for the attendance
    or the likely consequence.

[95]

The
    full burden of establishing prejudice then rests on the impact of the failure
    of trial counsel to discuss with the Crown or submit to the judge an
    apportionment of the credit for pre-disposition custody in such a way that the
    custodial portion of the proposed 12-month sentence would not exceed six
    months.

[96]

This
    failure had no effect on the reliability of the result of the proceedings. The
    appellant pleaded guilty. His plea of guilty was voluntary, unequivocal and
    informed. The legal effect of that plea and the congruity of the admitted facts
    with the essential elements of the relevant offences resulted in inevitable
    convictions.

[97]

It
    is also far from clear that this apportionment device is so readily available
    to sentencing judges. To the extent its application would run afoul of the
    principle accepted in
Pham
,
that the risk of deportation cannot justify imposing a sentence inconsistent
    with the fundamental principles of proportionality, it cannot assist.

[98]

Nothing
    that occurred here compromised the fairness of the proceedings either in
    connection with the entry of the conviction or the determination of a fit
    sentence.

[99]

The
    appellant also invited us to rework the sentencing calculus to achieve a result
    his counsel should have obtained had he done so at trial. I see no reason to do
    so. For a spousal abuse recidivist and serial probation order violator, the
    sentence imposed could be seen as rather lenient.

CONCLUSION

[100]

I would dismiss the
    conviction and sentence appeals in their entirety, other than to remit any
    victim fine surcharge that has been paid in light of the Supreme Courts
    decision in
R. v. Boudreault
, 2018 SCC 58, 50 C.R. (7th) 207.

Released: AH MAR 13 2019

David Watt J.A.

I agree. Alexandra
    Hoy A.C.J.O.

I agree. Edward Then
    J. (ad hoc)


