



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Seerattan, 2020 ONCA 201

DATE: 20200310

DOCKET: M51292 (C67761)



Paciocco J.A. (Motions
Judge)



BETWEEN

Her Majesty the Queen

Respondent

and

Cecil Seerattan



Applicant

David Shulman, for the appellant

Jeffrey Wyngaarden, for the respondent

Heard: February 7, 2020

REASONS FOR DECISION

[1]

On the day of the oral hearing, February 7, 2020, I ordered Mr. Cecil Seerattans
release pending appeal, on the terms set out in a judicial interim release
order of that date, with reasons to follow. These are my reasons.

[2]

Mr. Seerattan was convicted after pleading guilty to domestic violence
charges arising from two incidents involving the same complainant, with whom he
had been in a relationship. He is appealing those convictions, contending that
his guilty plea was uninformed and misinformed, and that the trial judge erred
in denying an adjournment of his sentencing hearing to facilitate an
application to have his guilty pleas set aside.

[3]

The Crown contests Mr. Seerattans release pending appeal. It contends
that Mr. Seerattan has failed to demonstrate that his appeal has merit, and
that, given the weakness of the appeal in the circumstances, he cannot
demonstrate that his continued detention is not necessary in the public
interest under the tertiary ground:
Criminal Code
, R.S.C. 1985, c.
C-46, s. 679(3)(c).

[4]

It is necessary to set the background facts out in some detail in order
to explain my decision.

[5]

Mr. Seerattan, who has a mild intellectual disability and suffers from
post-traumatic stress disorder, entered the guilty pleas in question on the
first day of a scheduled trial, after the trial judge denied what he
interpreted to be an adjournment request from Mr. Seerattan. Mr. Seerattan had
advised the trial judge that he had been speaking to a new lawyer, Mr. Weisz,
about representing him. The case had long been delayed. This was the second
trial date, and Mr. Seerattan had a history of discharging lawyers.

[6]

I take no issue with the trial judges decision to deny the adjournment,
but the circumstances going forward were far from ideal. At the time, Mr.
Seerattans counsel of record, Mr. Rabinovitch, had a pending application to be
released as counsel of record and was not prepared for the trial because Mr.
Seerattan had not been communicating with him.

[7]

After denying the adjournment, the trial judge instructed Mr. Seerattan
to communicate with Mr. Rabinovitch. Before standing the matter down to
facilitate this, he asked Mr. Rabinovitch whether any attempt had been made to
resolve the case. Mr. Rabinovitch said he had received no instructions to do
so. After a brief recess defence counsel indicated that there was a resolution,
including a guilty plea to some of the charges, and a joint position on
sentence.

[8]

Before accepting the guilty plea, the trial judge asked defence counsel
whether a plea inquiry had been conducted. Defence counsel confirmed that it
had and described the plea inquiry he undertook so the record is clear. In
recounting the plea inquiry that had been undertaken, Mr. Rabinovitch made no
reference to immigration issues. The guilty plea was accepted, and findings of
guilt were entered.

[9]

Those findings of guilt have significant immigration consequences for
Mr. Seerattan, who is a foreign national. In a clear effort to mitigate those
consequences, the parties arrived at a joint position on sentencing. Under the
terms of that joint position, for the first set of charges (those arising from
the first incident), Mr. Seerattan was to be given a total sentence of six
months less a day. On the second set of charges, arising from the second, more
serious incident, Mr. Seerattan would be given a further sentence of 6 months
less a day to be served consecutively to the sentence on the first set of
charges. The equivalent of 12 months that Mr. Seerattan spent in custody
pending his trial would be credited to this second, more serious set of charges.

[10]

This position was communicated to the trial judge, who, in trying to
clarify the joint position, correctly described the proposed sentence for the
more serious incident as 18 months less a day before credit for pretrial
custody was applied. This prompted Mr. Seerattan to ask to speak, and he said,
Like cause thats not the calculation we talk about. He was given an
opportunity to speak to counsel, which occurred in the body of the court. The
parties before me agree that the recording system picked up part of the
conversation, which includes Mr. Seerattan saying, That is an 18-month
sentence  May as well go to trial then  Immigration  It is not going to work
for me. After that conversation, Mr. Rabinovitch explained in open court, Mr.
Seerattan just had some concerns because of immigration issues.

[11]

Despite the joint submission on sentence, the parties wanted to obtain a
Pre-Sentence Report, so the sentencing hearing was adjourned.

[12]

Mr. Weisz took over the representation of Mr. Seerattan for his
sentencing hearing. On April 12, 2019, a date set for the sentencing hearing,
Mr. Weisz advised the trial judge that he had concerns about whether Mr.
Seerattans guilty plea was fully informed relating to the immigration
consequences. He requested an adjournment both to prepare for the sentencing and
to explore more fully the voluntariness of the guilty pleas. It is fair to say
that the trial judge expressed some skepticism about the claim that the plea
was not fully informed, but granted the adjournment to enable Mr. Weisz, who
had recently been retained, to acquire supporting material.

[13]

On the return date, May 10, 2019, Mr. Weisz advised the trial judge
that he had just received an opinion letter from an immigration lawyer that
morning, and had learned that, despite the attempt by the parties to negotiate
a sentence of less than six months on each of the charges that would preserve
Mr. Seerattans right to appeal a removal order, Mr. Seerattan was not entitled
to the right of appeal that he expected because he did not hold a permanent
resident visa.

[14]

The trial judge then gave Mr. Weisz time to meet with Mr. Seerattan.
After the meeting, Mr. Weisz informed the trial judge that he had instructions
to apply to strike the guilty plea. A date of June 24, 2019 was scheduled for
that application.

[15]

When that date arrived, Mr. Weisz was not ready. Dissatisfied with the
first immigration opinion he had received, he had sought a second opinion which
arrived too late to enable him to prepare Mr. Seerattans affidavit. In
counsels view, Mr. Seerattan required confirmation of the actual legal
consequences of the findings of guilt before being able to attest that he would
not have entered the pleas had he known of the immigration consequences. The
trial judge did not accept this explanation and denied the adjournment.

[16]

Mr. Seerattan has yet to file an affidavit to support his contention on
appeal that his guilty pleas should be set aside. Relying on the decision in
R.
v. Girn
, 2019 ONCA 202, 145 O.R. (3d) 420, the Crown contends that without
such affidavit, his appeal has no merit because he has not demonstrated a
foundation that could meet the test in
R. v. Wong
, 2018 SCC 25, [2018]
1 S.C.R. 696, for setting aside a guilty plea.

[17]

I do not agree. Defence counsel understands that without such affidavit,
the appeal is unlikely to succeed, but submits that in the circumstances of
this case, for the purposes of this application for bail pending appeal, the
record is adequate to demonstrate that the appeal is not frivolous. I agree
with this position, for the following reasons.

[18]

First, there is a firm foundation for finding that Mr. Seerattan was not
only uninformed but misinformed about the collateral immigration consequences
of his plea. The Crown conceded as much during the sentencing hearing, noting
that the parties negotiating the guilty pleas were under the mistaken
impression that by structuring the sentence as they did, Mr. Seerattan would
have the right to appeal a removal order. It is not contested between the
parties that there is no such right.

[19]

Second, there is adequate foundation that Mr. Seerattan was subjectively
prejudiced as a result. The comments made by Mr. Seerattan when the trial judge
pointed out that the sentence for the second incident was in fact an
eighteen-month sentence support a reasonable inference that Mr. Seerattans
belief that he would have the right to appeal a removal order was crucial to
his decision to plead guilty.

[20]

This court did decide in
Girn
that a party who has pleaded
guilty
knowing
that the potential consequences
include removal from Canada and that
he may or may not
have a right to appeal a removal order depending on the length of his sentence
has not been prejudiced if it turns out that there is no right of appeal: at
paras. 77-78. It remains to be decided, whether a party who enters a plea based
on an
affirmative yet mistaken belief
that he or
she
will have
a right to appeal a removal order
has entered a voluntary, unequivocal and informed guilty plea.
Girn
does
not provide an answer to that question. Indeed, in contrast to
Girn
,
this court set aside a guilty plea in
R. v. Pineda
, 2019 ONCA 935,
where a party pleaded guilty after counsel informed him that there may be
serious immigration consequences but did not get into the specifics: at
paras. 10-12.

[21]

As a result, Mr. Seerattans appeal is not frivolous.

[22]

Nor do relevant considerations unrelated to the merits of the appeal
support the Crowns submission that Mr. Seerattan has failed to demonstrate
that his detention is not necessary on the tertiary ground. In paragraph 38 of
his Reasons for Sentence, the trial judge extended a plea to the immigration
authorities to exercise discretion in favour of permitting Mr. Seerattan to
remain in Canada. He said, at para. 38:

Seerattan is a first offender, he pleaded guilty, he has led a
law-abiding life for 46 years, he is hard-working and maintains a number of
different jobs, he has certain diagnosed conditions that have responded well to
counselling from a number of different agencies in Toronto, and he has been on
bail successfully since October 2016 without re-offending. Perhaps, most
significantly, the victim in this case (Ms. David) has recovered fully and
speaks highly of Seerattan (as do other women in his life, such as his ex-wife
and half-sister). In particular, Ms. David advised the Court that Seerattan is
a good person and that he would be harmed if he was deported to Guyana. She
struck me as unbiased, in this regard, because she no longer has any
relationship with Seerattan. She also struck me as a strong and sincere individual
who was now working a good job and who had successfully moved on from the
effects of the present offences.

[23]

I appreciate that Mr. Seerattan is now seeking to remove the guilty plea
that lent support to the trial judges opinion. I also recognize that Mr.
Seerattan now stands charged with an additional, unrelated offence that
allegedly occurred while on release. However, given those circumstances in the
trial judges plea to immigration authorities that do remain true, the merits
of the appeal, the fact that Mr. Seerattan has now served most of his sentence,
and the fact Mr. Seerattan has been on bail release for many years without
other incident, it is not in the public interest to detain him pending his
appeal.

[24]

I therefore ordered his release, satisfied that the terms of release,
including the continued involvement of the Toronto Bail Program in his
supervision, will preserve public safety and allay concerns that reasonable
members of the community may have about the impact of his release on the repute
of the administration of justice.

David M. Paciocco J.A.


