The following is an excerpt from  page 18 of Summary Appeal Law and Trial Advocacy discussing the basis for an acquittal appeal:

Chapter 2

 

There Is No Such Thing as an “Unreasonable Acquittal”

There is no such thing as an unreasonable acquittal.^[5] This is a very important point which must be borne in mind. The defence can appeal a conviction as being unreasonable; however, the Crown cannot. This rule makes sense. The learned authors Sopinka and Gelowitz, in The Conduct of an Appeal, explain:

Analytically, therefore, the question whether there is an absence of evidence to support an acquittal is entirely separate from the question of an absence of evidence to support a conviction. A conviction based upon no evidence involves a fabrication of an element or elements of the offence; an acquittal upon no evidence is simply an application of the presumption of innocence. In other words, an acquittal is the default finding in a criminal trial where the Crown fails to discharge its burden of proof, positive evidence supporting an acquittal is never required.^[6]

[1]     R. v. Labadie, [2011] O.J. No. 1257, 275 C.C.C. (3d) 75 (Ont. C.A.).

[2]     R.S.C. 1985, c. C-46.

[3]     [2008] O.J. No. 3167, 2008 ONCA 589 (Ont. C.A.).

[4]     Ibid., at para. 71 [emphasis added].

[5]     R. v. Schuldt, [1985] S.C.J. No. 76 (S.C.C.). However, the Crown can appeal an acquittal if the acquittal is based on conjecture. If there was no other rational conclusion based on the evidence other than the guilt of the accused then an acquittal would be based on conjecture and raise a question of law — see R. v. Wild, [1970] S.C.J. No. 69 (S.C.C.) printed page 10 and Sopinka & Gelowitz, The Conduct of an Appeal, Third Edition (Toronto, ON: LexisNexis Canada, 2012) at paras. 3.19-3.23.

[6]     Ibid., at para. 3.16.

 

The following is an excerpt from Part 11 of Summary Appeal Law and Trial Advocacy discussing the evolving law on validity of a guilty and knowledge of immigration consequences:

h.     What Is Meant When It Is Said the Accused Must Be Aware of the Consequence of the Plea?

Justice Doherty, for the Ontario Court of Appeal, explained it as follows:

I will next address the appellant’s understanding of the consequences of his guilty plea. By an understanding of the consequences of his pleas, I mean the realization that convictions would flow from his pleas, as well as an appreciation of the nature of the potential penalty he faced. It is not disputed that the appellant understood he would be convicted on the basis of his pleas. That is exactly what he wanted. The seriousness of the offences was self-evident. The appellant also knew, before he pleaded guilty, that the Crown would seek a prison term of seven to ten years. In addition, the appellant had been sentenced to a significant jail term for assault related offences several years earlier. I have no trouble concluding that the appellant knew that upon conviction he would receive a substantial jail term.^[1]

i.      The Validity of Guilty Plea as It Relates to Knowledge
of Potential Immigration Consequences

In other words, as indicated above, knowledge of the consequences of guilty plea, for the purpose of the validity of the guilty plea, was specifically defined by the Ontario Court of Appeal as being knowledge of the potential penalty that would flow from the convictions. An informed plea had nothing to do with unintended collateral immigration consequences. This is in keeping with the previous pronouncement from the Ontario Court of Appeal that “[t]here are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered.”^[2]

In R. v. Hunt^[3] from the Alberta Court of Appeal specifically considered section 606(1.1) of the Criminal Code and held:

Therefore, in this case, the potential for a miscarriage of justice can only exist by reason of a consequence of pleading guilty not addressed or in the contemplation of anyone at the time the plea was entered.

It is clear that the consequence of deportation was not anticipated by anyone at the time the guilty plea was accepted and a conviction entered.

We are of the view that this “consequence” does not invalidate the guilty plea nor, in the circumstances of this case, result in a miscarriage of justice. We are mindful of this Court’s decision in R. v. Slobodan (1993), 135 A.R. 181 (Alta. C.A.) where it was held that an unanticipated mandatory five year licence suspension, in addition to the sentence imposed for dangerous driving causing bodily harm, namely a fine of $2,000.00 and a one year driving prohibition, did not “translate into a legal consequence” which entitled the appellant to change her guilty plea.

Although leave to reconsider the correctness of Slobodan was granted to the appellant, we do not find it necessary to decide that issue in order to dispose of this case.

We decide, that where there has been an unequivocal free and voluntary admission of the facts constituting the offence, not disputed on appeal, that an unexpected legal consequence such has occurred here is not such as to allow the withdrawal of the plea of guilty. In R. v. Hoang, [2003] A.J. No. 1555, 2003 ABCA 251, this Court stated at paragraph 36 that:

“The requirement that the accused understand the nature and consequences of a guilty plea is not a requirement to canvass every conceivable consequence which may result or may be forgone. Such a requirement be a practical impossibility.”

In light of the foregoing reasoning, the failure of the appellant in this case to understand all of the possible legal consequences that may have arisen from his guilty plea is not a sufficient ground upon which this Court could allow the appellant to withdraw his guilty plea.

There are no circumstances that exist in this case that would justify the exercise of our discretion to permit the withdrawal of the appellant’s guilty plea. It was a valid guilty plea which did not result in a miscarriage of justice to the appellant. The appeal is dismissed.

Therefore, at present, a simplified^[4] statement of the law is that Ontario does not require an accused to be aware of the immigration consequences of the plea of guilty for the plea to be valid: Consequence is specifically defined as penalty, and not collateral consequences.^[5]

However, recent summary appeal law is moving towards including knowledge of immigration consequences as a requirement of a valid guilty plea. In R. v. Meehan,^[6] Durno J. granted an extension of time because the Applicant was reasonably diligent and relied on inaccurate legal advice on immigration consequences. In R. v. Cimpaye,^[7] Parfett J., held that the consequence of deportation was not out of all proportion to the penalty imposed, but still granted an extension of time to appeal because the pre-plea exchange between the applicant and the court provided a factual basis to put the validity of the guilty plea into question. On hearing of the appeal, Pelletier J. found that the plea was equivocal and uninformed (as a result of the accused not knowing the immigration consequences of the guilty plea). Justice Pelletier, however, limited the circumstances under which knowledge of immigration consequences constitutes an essential part of the validity of a guilty plea:

I would secondly conclude that the plea was indeed uninformed. In this connection, I am in agreement with the majority of the suggestions made by the Crown, including the inadvisability of straddling trial judges with a duty of enquiring of anyone, represented or otherwise, of the possible consequences to pleading guilty and the resulting conviction. I would not endorse such a practice, nor am I recommending that it be employed. In any event, my comments on this issue would be clearly obiter, not being necessary for the determination of the issues before me.

Going forward, I would think that counsel, duty counsel, immigration authorities and the Court (where the need is apparent) would be well advised to have the immigration issue enquired into. I would not want to be seen as establishing, by any means, what type, class or appearance of any individual would compel such an enquiry. In a diverse society such as ours, it is impossible to identify a person who is not a citizen by his simple appearance. And so I would disassociate myself from any suggestion that the Court has a positive obligation to ask an individual, specifically, “Are you a citizen and have you enquired into the immigration implications of your plea?” In certain circumstances, it may become apparent. It could be through a language barrier. It could be through a comment offered with regards to the person’s origin or status. And at that point, I would think it would be useful and in the interests of justice that some enquiry take place. But, barring that, I would not suggest that it would become part of s. 606.^[8]

On the other hand, the approach of not granting leave to appeal based on unknown collateral immigration consequences of pleading guilty, unless there are exceptional circumstances and a real concern that an injustice may have occurred, is supported by the recent pronouncement from the Supreme Court of Canada,^[9] the Ontario Court of Appeal,^[10] and the Summary Appeal Court^[11] on the limited significance of collateral immigration consequences to the sentencing process. As indicated by the Supreme Court of Canada: “These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.”^[12]

This issue, however, was before the Ontario Court of Appeal in the matter of R. v. Shiwprashad^[13] and may in fact be an issue that is ultimately litigated in the Supreme Court of Canada. It is likely, in my view, that the law will move towards recognizing knowledge of immigration consequences as a requirement for a valid guilty plea. Law is often developed by a sense of what justice demands now. With Canada being home to many immigrants, it may be a requirement of fairness that a person who pleads guilty to an offence at least be informed of the most significant immigration consequences of the guilty plea which are not obvious and may be unknown.^[14] However, to achieve efficiency and be practical it may be that where the accused is represented by counsel the obligation is put on counsel to inform the accused of the immigration consequences and where an accused is unrepresented the obligation is put on the court.

^[1]     Ibid., at para. 37.

^[2]     See R. v. Closs, [1998] O.J. No. 172 at para. 8 (Ont. C.A.); and R. v. Monrose, [2010] O.J.
No. 6336 at para. 16, 2010 ONSC 5505 (Ont. S.C.J.).

^[3]     [2004] A.J. No. 196 at paras. 17-23, 2004 ABCA 88 (Alta. C.A.).

^[4]     See the recent developments in summary appeal law, below, and the likely direction of the
development of the law.

^[5]     R. v. T. (R.), [1992] O.J. No. 1914 at para. 37, 10 O.R. (3d) 514 (Ont. C.A.).

^[6]     [2013] O.J. No. 1565 at para. 23, 2013 ONSC 1782 (Ont. S.C.J.).

^[7]     [2014] O.J. No. 292 at paras. 29-31, 2014 ONSC 104 (Ont. S.C.J.).

^[8]     R. v. Cimpaye, [2014] O.J. No. 6422 at paras. 18, 25 and 26 (Ont. S.C.J.). It should be noted, however, that the decision of R. v. T. (R.), [1992] O.J. No. 1914 at para. 37, 10 O.R. (3d) 514 (Ont. C.A.) defined knowledge of the consequences of guilty plea, for the purpose of the validity of the guilty plea, to be the potential penalty that would flow from the convictions. It had nothing to do with unintended collateral immigration consequences. This is in keeping with the previous pronouncement from the Ontario Court of Appeal that, “[t]here are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered.”

      (R. v. Closs, [1998] O.J. No. 172 at para. 8 (Ont. C.A.)).

^[9]     R. v. Pham, [2013] S.C.J. No. 100 at para. 16, [2013] 1 S.C.R. 739 (S.C.C.).

^[10]   R v Lu, [2013] O.J. No. 2222 at paras. 45-47, 2013 ONCA 324 (Ont. C.A.), leave to appeal to S.C.C. refused [2013] S.C.C.A No. 313 (S.C.C.).

^[11]   R v Lu, ibid. See also R. v. Multani, [2010] O.J. No. 1748 at para. 3, 2010 ONCA 305 (Ont. C.A.).

^[12]   R. v. Pham, [2013] S.C.J. No. 100 at para. 16, [2013] 1 S.C.R. 739 (S.C.C.).

^[13]   [2015] O.J. No. 4387, 2015 ONCA 577 (Ont. C.A.). The Ontario Court of Appeal, on the facts before it, was able to dispose the matter without ruling on the issue. At paragraph 3, the Ontario Court of Appeal held: “Thus, even assuming that the appellant’s lawyer had a duty to advise him or to ensure that he obtained advice concerning the immigration consequences prior to his plea, on the facts of this case, the failure of counsel to do so did not result in a miscarriage of justice. The constitutional issue respecting s. 606(1.2) does not arise on these facts. Accordingly, I would dismiss the appeal.”

^[14]   This is a value based judgment influenced by one’s sense of what justice demands and the trend in current case law. However, sentencing is value based — see R. v. M. (C.A.), [1996] S.C.J. No. 28 at para. 82, [1996] 1 S.C.R. 500 (S.C.C.). It may also be argued, however, that an immigrant who violates the criminal law of Canada should not be entitled to any consideration. This would also be a value judgment. Moreover, legally, judges should not usurp the role of parliament by de facto deciding an immigration result in the guise of criminal law. There is support for this proposition in R. v. Pham, [2013] S.C.J. No. 100 at para. 16, [2013] 1 S.C.R. 739 (S.C.C.). The sense that this author has, however, is that many judges will bend over backwards to ensure that an immigrant does not lose his or her immigration status by pleading guilty without knowing the immigration consequences. The art in trial and appellate advocacy is to fit one’s advocated value judgments in respect of sentence within the framework of the law. Some may call it sophistry; some advocacy; some the pursuit of justice; and some a little bit of everything.

The stay cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category)^[1]. In R v O’Connor,^[2] Justice L’Heureux-Dube stated, “It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.”^[3] In Tobiass^[4], the Supreme Court noted that these “exceptional cases” that merited a stay will be relatively rare^[5]. The Court then set out some general propositions in relation to the nature of the remedy:

… A stay is not a form of punishment. It is not a kind of retribution against the state and it is not a general deterrent. If it is appropriate to use punitive language at all, then probably the best way to describe a stay is as a specific deterrent — a remedy aimed at preventing the perpetuation or aggravation of a particular abuse. Admittedly, if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice. It is conceivable, we suppose, that something so traumatic could be done to an individual in the course of a proceeding that to continue the prosecution of him, even in an otherwise unexceptionable manner, would be unfair. Similarly, if the authorities were to fabricate and plant evidence at the scene of a crime, the continued pursuit of a criminal prosecution might well be damaging to the integrity of the judicial system.^[6]

The test for stay for main and residual category of cases

                       In R. c. Piccirilli^[9], Moldaver J. for the majority of the Supreme Court of Canada explained that the the test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements: 1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; 2) There must be no alternative remedy capable of redressing the prejudice; and 3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”[10]. The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids “schizophrenia” in the law. But while the framework is the same for both categories, the test may — and often will — play out differently depending on whether the “main” or “residual” category is invoked[11]. Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused[12]. By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met[13].

In respect of the first stage, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example, as does using the criminal courts to collect a civil debt ^[14]. Moreover, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct^[15].

At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused’s right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward^[16]. For example, in R v Nasogaluak,^[17] the Supreme Court of Canada found that, in the circumstances of that case, a reduction in sentence was an appropriate remedy for an excessive use of police force in breach of the appellant’s s. 7 Charter rights. Justice Fish, writing for the Court, held:

I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and the offender. In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents.^[18]

Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. The balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed. When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these “clearest of cases”, the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials^[19].

   However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered^[20].

[1] R. c. Piccirilli, 2014 SCC 16 at para 31 [Piccirilli].

[2] [1995] 4 SCR 411.

[3] R v O’Connor, [1995] 4 SCR 411 at paragraph 82.

[4] Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391 at paras 91, 93 and 97 [Tobiass].

[5] Ibid., at para 91.

[6] Tobiass, supra note 4 at para 96.

[9] Supra note 1.

[10] Piccirilli. supra note 1 at para 32

[11] Ibid., at para 33

[12] Ibid., at para 34

[13] Piccirilli. supra note 1 at para 35

[14] Ibid., at para 37

[15] Ibid., at para 38

[16] Piccirilli. supra note 1 at para 39

[17] [2010] 1 SCR 206.

[18] Ibid., at para 64.

[19] Piccirilli. supra note 1 at para 40

[20]Piccirilli. supra note 1 at para 41

This blog by Moiz Karimjee is meant to provide updates, discuss issues  in the second edition of LexisNexis publication Issues in Criminal Trials and Summary Appeal Law or discuss recent issues of interest in the practice of summary appeals and trial advocacy.

The following notice in the book is also applicable to this blog:

Issues in Criminal Trials and Summary Appeal Law, Second Edition