



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dean, 2019 ONCA 587

DATE: 20190709

DOCKET: C65687

Rouleau, Tulloch and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Dean

Appellant

Andre Dean, in person

Philip Norton, duty counsel

Andrew Hotke, for the respondent

Heard: July 9, 2019

On appeal from the conviction entered on March 10, 2016
    and the sentence imposed on March 10, 2016 by Justice David P. Cole of the
    Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant asks to set aside his guilty pleas to dangerous driving
    and fail to comply with conditions of a recognizance. The offences arose from a
    serious motor vehicle collision involving a police vehicle and a stolen
    vehicle. One officer suffered serious injury.

[2]

The appellants trial lawyer acknowledges that he may not have discussed
    the actual immigration consequences arising from the guilty pleas with his
    client who was in custody at the time. The joint submission involved a
    suspended sentence with credit of 328 days time served (enhanced from 225 days
    real time). It is agreed on appeal that this plea, combined with the agreed
    upon sentence imposed, has immigration consequences for the appellant.

[3]

Crown counsel fairly concedes that the appellant has met his onus of demonstrating
    on appeal that, when he pled guilty, he was not aware of the immigration consequences
    that would flow. The Crown submits, however, that the appellant has failed to
    establish subjective prejudice, particularly when measured against the
    objective circumstances. We do not agree. The appellant has established that
    there is a reasonable possibility that he may not have pled guilty had he known
    of the immigration consequences that would result from the plea and joint
    submission on sentence.

[4]

On the record before us, we are not in a position to adequately assess
    the strength of the Crowns case had the matter proceed to trial, particularly as
    it relates to the dangerous driving count. At the time of the plea, the
    appellant was 19 years of age and he had only been in the country for a few
    years. He had a lawyer and would not necessarily have known to inquire about
    immigration consequences, especially given that he may well have focused on the
    suspended sentence aspect of the joint submission.

[5]

In light of the full fresh evidence record before us, measured against
    the plea proceedings and having regard to the serious implications arising from
    the plea, we are satisfied that this appellant has met his onus for setting
    aside his guilty pleas.

[6]

In the circumstances we would allow the appeal, set aside the guilty
    pleas and order a new trial.


