



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Asphall, 2022 ONCA 1

DATE: 20220107

DOCKET: C69050

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Demaine Asphall

Appellant

Ben ElzingaCheng, for the appellant

Molly Flanagan, for the respondent

Heard: in writing

On appeal from the convictions entered and
    the sentence imposed on March 11, 2015 by Justice Malcolm McLeod of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant, who is a permanent resident of
    Canada and has been in Canada for 30 years, seeks to set aside guilty pleas on
    the basis that he was uninformed of the immigration consequences of them. The
    Crown now concedes the appeal.

[2]

The appellant pleaded guilty to possession of a
    restricted firearm with ammunition, carrying a concealed weapon, and breach of
    weapons prohibition. He was convicted and sentenced to two years less a day for
    possession, 90 days consecutive for carrying a concealed weapon, and 60 days
    consecutive for breach of the weapons prohibition. He has served his sentence.

[3]

After serving his sentence, the appellant was
    arrested by the CBSA and advised he was ineligible for admission to Canada as a
    consequence of his convictions, and that removal proceedings had been commenced
    against him.

[4]

The appellant swore in an affidavit in support
    of this appeal that he had been unaware of the immigration consequences of his
    convictions, and if he had been aware he would not have pleaded guilty but
    would have proceeded to trial. He was cross-examined on that affidavit, and the
    Crown now concedes that there is no basis in the evidence to challenge the
    appellants assertion that he was unaware of the immigration consequences of
    his guilty plea: there was no plea inquiry at trial, and trial counsel had no
    notes, no specific recollection, and did not have a uniform practice of
    advising clients of immigration consequences. Furthermore, the appellant provided
    evidence that he faced prejudice from removal from Canada: he has lived in
    Canada since he was 9 years old and removal would disrupt his family life: he has
    8 children and has been living with his wife and 6 of those children for the
    past 12 years.

DISPOSITION

[5]

Given the Crowns concession, we allow the
    appeal, set aside the guilty pleas and convictions, and order a new trial.

B.W. Miller J.A.

B. Zarnett J.A.

S. Coroza J.A.


