



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aujla, 2015 ONCA 325

DATE: 20150508

DOCKET: M44961

Pardu J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Gurpreet Aujla

Applicant

Cecilia Fearon-Forbes, for the applicant

Brian McNeely, for the respondent

Heard: May 4, 2015

On a motion to extend the time to appeal

ENDORSEMENT

[1]

The applicant moves for an order extending the time to appeal from
    convictions entered on March 31, 2014 following guilty pleas to mischief over
    $5,000, theft under $5,000 and breach of probation.

[2]

The applicant broke into a vehicle and stole a cellphone. He was caught
    red handed by the owner and held until police arrived. He was sentenced to 29
    days jail on top of the 46 days of pre-plea custody and placed on probation
    for 12 months.

[3]

The applicant, who is a permanent resident of Canada, says his lawyer
    did not advise him of the immigration consequences associated with his plea.
    His lawyer apparently confirms that absence of advice.

[4]

As a result of these convictions, in January 2015 the applicant received
    a letter from the Canada Border Services Agency (CBSA) advising him that he
    would be subject to an admissibility hearing under s. 44(2) of the
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
), to
    determine whether he was a person described in s. 36(1)(a) of that act. Section
    36(1)(a) provides that regardless of the actual sentence imposed, a conviction
    for an offence punishable by a maximum sentence of 10 years or more renders a
    permanent resident or a foreign national inadmissible on grounds of serious
    criminality. A conviction for mischief over $5,000 falls within the scope of
    s. 36(1)(a).

[5]

The applicant has filed an opinion from an immigration lawyer advising
    that in light of the applicants conviction for mischief over $5,000, this
    hearing would result in a deportation order by the Immigration Division of the
    Immigration and Refugee Board. The applicant would have the right to appeal the
    deportation order to the Immigration Appeal Division, where his appeal could be
    allowed, dismissed or stayed.

[6]

Although a permanent resident loses the right to appeal to the
    Immigration Appeal Division if a sentence of six months jail or more is
    imposed, there is a right of appeal where a lesser sentence is imposed.

[7]

Section 67(1) of the
IRPA
provides:

67.
(1) To
    allow an appeal, the Immigration Appeal Division must be satisfied that, at the
    time that the appeal is disposed of,

(
a
) the
    decision appealed is wrong in law or fact or mixed law and fact;

(
b
) a
    principle of natural justice has not been observed; or

(
c
) other
    than in the case of an appeal by the Minister, taking into account the best
    interests of a child directly affected by the decision, sufficient humanitarian
    and compassionate considerations warrant special relief in light of all the
    circumstances of the case.

[8]

To stay a removal order, the Immigration Appeal Division must be
    satisfied that sufficient humanitarian and compassionate considerations
    warrant special relief in light of all the circumstances of the case:
IRPA
,
    s. 68(1).

[9]

If the Immigration Appeal Division has previously stayed a removal
    order, but the permanent resident is subsequently convicted of another offence
    carrying a maximum penalty of 10 years or more, the stay is cancelled by
    operation of law and the appeal is terminated:
IRPA
, s. 68(4).

[10]

The
    applicant also says that he suffers from a serious mental illness which has
    required hospitalization both before and after he received the letter from the CBSA
    in January 2015. He says this has affected his ability to pursue the
    application for an extension of time to appeal.

[11]

The
    applicant is now 27 years old. He became a permanent resident when he was 12
    years old. He has accumulated a significant criminal record with more than 20
    convictions dating back to 2008, including impaired driving, failure to remain
    at the scene of an accident, obstructing police, theft under $5,000, possession
    of a controlled substance, assault, assault with a weapon, mischief and theft
    under $5,000.

[12]

In
    September 2011 he was convicted of possession of property obtained by crime,
    having a value over $5,000. This offence carries a maximum penalty of 10 years
    and thus falls within the scope of s. 36(1)(a) of the
IRPA
. He told the
    CBSA he was driving in a stolen vehicle and got into an accident. He explained
    that he fled from the scene of the accident because he was a prohibited driver
    who was driving a stolen vehicle. The CBSA decided not to refer him to an
    admissibility hearing as the reportable offence was a property-related offence
    not involving violence or drugs. He was given a warning letter and counseled in
    person by a CBSA border services officer about the consequences of any further
    criminal activity.

[13]

It
    appears that the immigration officials were unaware of his March 2011
    convictions for assault with a weapon and criminal harassment, which also
    rendered him subject to a deportation order under s. 36(1)(a) of the
IRPA
.
    The Crown argues that as a result of these earlier convictions, the applicant
    may still be deported even if the mischief conviction is eventually set aside. There
    is no way of evaluating whether the CBSA will now take any steps related to those
    convictions.

[14]

There
    is no evidence from the applicant that he was not, in general, aware that
    conviction for a criminal offence could result in a deportation order. It seems
    likely that he had this general awareness, given his meeting with the border services
    officer in 2011.

[15]

As
    observed in
R. v. R.T.
(1992), 10 O.R. (3d) 514 (C.A.), at para. 14:

To constitute a valid guilty plea, the plea must be voluntary
    and unequivocal. The plea must also be informed, that is the accused must be
    aware of the nature of the allegations made against him, the effect of his
    plea, and the consequence of his plea:
R. v. Lyons
, [1987] 2 S.C.R.
    309 at p.371, 37 C.C.C. (3d) 1 at p. 52; Law Reform Commission of Canada
    Working Paper No. 63, Double Jeopardy Pleas and Verdicts (1991) at p. 30.

[16]

Here,
    there is no dispute that the applicants pleas were voluntary and unequivocal. Despite
    his general awareness of potential immigration consequences, I am persuaded
    that the applicant has an arguable case that his pleas were not informed
    because he did not know that by pleading guilty to mischief over $5,000, a
    deportation order was mandated by the
IRPA
, unless stayed or set aside
    on appeal on compassionate and humanitarian grounds.

[17]

The
    Crown argues that lack of knowledge of potential immigration consequences
    cannot render a guilty plea invalid, and as a result, the applicants proposed
    ground of appeal has no merit.

[18]

In
    my view, this applicant has an arguable case that his plea was not informed. It
    will be for the panel hearing the appeal to determine whether the applicants
    plea should be set aside.

[19]

The
    applicant was recently diagnosed with schizophrenia. I accept that this
    disorder and his related hospitalization may have adversely affected and
    delayed his ability to move for an extension of time within which to appeal.

[20]

In
R. v. Rulli
, 2011 ONCA 18, the court observed, at para. 2, that if a plea
    was not informed the prejudice lies in the fact that in pleading guilty, the
    appellant gave up his right to a trial. Whether he had a viable defence was not
    a relevant factor in the circumstances.

[21]

In
    any event, mischief to property having a value of $5,000 or less carries a
    maximum penalty of two years jail. The applicant could have elected to go to
    trial or attempted to negotiate a plea to this lesser offence if he had
    understood the precise immigration consequences of a plea to mischief over $5,000.

[22]

I
    am persuaded that the applicant has an arguable case to set aside his plea and
    that the delay in pursuing the appeal is attributable in part to the timing of
    the letter from the CBSA, which was received 10 months after his plea was
    entered, and in part to his illness.

[23]

Time
    to appeal extended to a date 30 days following the release of these reasons.

G. Pardu J.A.


