The evolving law on validity of a guilty plea and knowledge of immigration consequences

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.

One thought on “The evolving law on validity of a guilty plea and knowledge of immigration consequences

  1. Pingback: Update on Validity of a Guilty Plea and Knowledge of Significant State imposed Collateral Consequences – Summary Appeal Law and Trial Advocacy

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