



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Evans, 2022 ONCA 23

DATE: 20220113

DOCKET:
    C68816

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Deon
    Evans

Appellant

Nicolas M. Rouleau and Jeff Carolin,
    for the appellant

Matthew Asma, for the respondent

Heard: January 6, 2022 by video conference

On appeal from the convictions entered by Justice Tamarin M. Dunnet of
    the Superior Court of Justice on November 15, 2013.

REASONS
    FOR DECISION

[1]

The appellant moved to Canada from Guyana when
    he was 12 years old, and later obtained permanent resident status.

[2]

In November 2013, the appellant pleaded guilty to
    two counts of robbery committed in 2011, when he was 18 years old.

[3]

The appellant was told by his trial counsel that
    he would receive a lower sentence by pleading guilty than would likely be
    imposed if he was found guilty after trial, and that trial counsel would
    request a total sentence of 30 months, which after credit for time served,
    would result in the appellant spending no further time in custody. And, as he
    told the appellant he would do upon a guilty plea, the appellants trial
    counsel asked the trial judge to split a total sentence of 30 months between
    the two counts, as sentences that were less than two years per count would give
    the appellant a fighting chance from an immigration perspective. The trial
    judge gave effect to this request, and the appellant received sentences of 15 months
    per count which, after credit for pre-trial custody, amounted to an effective
    sentence of time served.

[4]

In actuality, the guilty pleas, convictions and
    sentences provided no fighting chance from an immigration perspective. The convictions
    rendered the appellant inadmissible to Canada and made him subject to a removal
    order. As the sentences he received exceeded six months per count, the
    appellant would have no right to appeal any removal order.

[5]

Asserting that he pleaded guilty without full
    awareness of these collateral immigration consequences, and that he suffered
    prejudice by doing so, the appellant asks that his convictions be set aside,
    and that proceedings against him be stayed or a new trial directed.

[6]

At the conclusion of oral argument, we allowed
    the appeal with reasons to follow. These are those reasons.

[7]

To set aside the guilty pleas, the appellant must
    satisfy two criteria: (a) that the pleas were uninformed in the sense that he was
    misinformed or uninformed about their immigration consequences; and (b) that he
    suffered subjective prejudice, in the sense that there is a reasonable
    possibility that [he] would have either (1) opted for a trial and pleaded not
    guilty; or (2) pleaded guilty, but with different conditions:
R. v. Wong
,
    2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-6, 33-34 and 36. In order to assess
    the veracity of the appellants claim that he suffered subjective prejudice, the
    court can look to objective, contemporaneous evidence. The inquiry is
    therefore subjective to the accused, but allows for an objective assessment of
    the credibility of the accuseds subjective claim:
Wong
, at paras. 6,
    26.

[8]

In order to meet these criteria, the appellant
    filed fresh evidence including his own affidavits. The Crown agrees that the
    fresh evidence should be admitted, and we do so.

[9]

The Crown also agrees that the appellant has
    satisfied the first criterion of the test for setting aside the guilty pleas.
    The appellant was not aware that convictions based on the guilty pleas rendered
    him inadmissible to Canada, with no right to appeal a removal order based on
    the convictions. He was led to believe that keeping his sentences for each
    count to under two years would be of significance to future immigration
    consequences. In fact, there was no beneficial significance, from an
    immigration perspective, to any sentence that was over six months; any
    such sentence meant the appellant would not have any right to appeal a removal
    order.

[10]

On the basis of the evidence and the Crowns
    concession, we conclude that the first criterion of the test for setting aside
    the guilty pleas has been satisfied.

[11]

We also conclude that the appellant has
    satisfied the second criterion of the test.

[12]

The appellants affidavit evidence is that had
    he been informed of the relevant immigration consequences, he would not have
    pleaded guilty and, instead, would have taken all available steps in an effort
    to stay with his family in Canada, including pleading not guilty, electing to
    stand trial, and appealing any guilty verdict.

[13]

The credibility of that assertion is challenged.
    The Crown argues that the appellants trial counsel told the appellant there
    may be immigration consequences and that he had no expertise in immigration law.
    As a consequence, the appellant must have been motivated to plead guilty more
    by the desire to immediately end his time in custody rather than by what might
    happen to his immigration status. As well, the Crown points to the appellants
    failure to take prompt steps to retain immigration counsel in 2016, after the
    appellant was notified of the risk of a removal order, and to follow the advice
    of immigration counsel to retain criminal counsel.

[14]

We are not persuaded by these arguments. Although
    trial counsel did qualify his advice and although the appellant was aware that
    there might be immigration consequences, it is common ground that the appellant
    was misinformed as to those consequences and led to believe that there would be
    a benefit  a fighting chance  from an immigration perspective to pleading
    guilty and receiving the sentence he did, when there was no benefit. Nor do we
    take, from the appellants conduct post-2016, which ultimately resulted in the
    retainer of immigration counsel and of counsel to bring this appeal, that the
    appellant was unconcerned about being removed from Canada.

[15]

The credibility of the appellants assertion is supported
    by certain objective matters, including the following:


(a)

The appellants trial counsel had been of the
    view that the appellant had a strong defence to the charges he was facing, as
    he had strong grounds to resist the admission of a confession the appellant had
    made to the police. The trial judge held the confession to be admissible; it
    was shortly after that occurred that trial counsel engaged in discussions with
    the Crown that led to the guilty pleas. Trial counsel had told the appellant
    that he thought there were strong grounds to appeal the ruling that admitted the
    confession. Accordingly, from the appellants perspective, if he had been fully
    aware of the immigration consequences of a guilty plea, there would be a reason
    why he might pursue the upside of not pleading guilty with the hope that if
    his counsel was right, he could ultimately avoid any immigration consequences
    from a conviction and resulting sentence.


(b)

The parties agree that at the time of the guilty
    pleas, the appellant had spent 30 months in pre-trial custody, and thus had 45
    months of credit for pre-trial custody. The parties also agree that the
    sentence that he would have received were he convicted after trial would likely
    have been four to five years, less pre-trial custody. The downside to
    proceeding to trial was the same from an immigration perspective as the guilty
    pleas, and was limited in terms of additional time that the appellant might
    have to spend in custody. The appellant may have been willing to proceed to
    trial and risk the downside of an additional 3 to 15 months in custody if it
    provided the possible upside of avoiding conviction and thus avoiding any
    immigration consequences.


(c)

The appellants life, family, and friends were
    all in Canada. He no longer had any close family or friends in Guyana, to which
    he would be deported. Accordingly, he had strong reasons to wish to avoid
    deportation and to follow a course of action that had a prospect of avoiding
    it.

[16]

Assessing the credibility of the appellants
    evidence against the objective factors, we are satisfied that there is a
    reasonable possibility that, if properly informed, he would have followed an
    alternative course rather than pleading guilty.

[17]

For these reasons, we allow the appeal, set
    aside the convictions, and order a new trial. The Crown has advised that if the
    appeal is allowed, it does not view prosecuting the appellant again to be in
    the public interest given that: (i) the sentences imposed have been served;
    (ii) he has not re-offended; and (iii) there are extreme pressures on court
    resources as a result of the pandemic. Accordingly, in the interests of justice,
    we exercise our discretion under s. 686(8) of the
Criminal Code
, R.S.C. 1985, c. C-46
and stay further
    proceedings against the appellant.

B.W. Miller J.A.


B. Zarnett
    J.A.

S.
    Coroza J.A.


