R. v. Kitawine (H.K.), (2016) 386 B.C.A.C. 24 (CA)

• Jurisdiction: British Columbia
• Judge: Donald, Saunders and Goepel, JJ.A.
• Date: 18 April 2016
• Citation: (2016), 386 B.C.A.C. 24 (CA),2016 BCCA 161
• Court: Court of Appeal (British Columbia)

R. v. Kitawine (H.K.) (2016), 386 B.C.A.C. 24 (CA);

    667 W.A.C. 24

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. AP.039

Regina (respondent) v. Hemed Kassim Kitawine (appellant)

(CA41654; 2016 BCCA 161)

Indexed As: R. v. Kitawine (H.K.)

British Columbia Court of Appeal

Donald, Saunders and Goepel, JJ.A.

April 18, 2016.

Summary:

The appellant pleaded guilty to robbery, hoping that if he received a sentence of six months he would keep alive his chances of remaining in Canada. His counsel was unaware that as a matter of law a conviction for an offence, like robbery, carrying a maximum penalty of 10 years or more, would terminate the appellant's appeal from an immigration removal order, regardless of the length of sentence. The appellant appealed for an order permitting him to withdraw the plea and for a new trial on the ground he was not informed of the consequences of his plea.

The British Columbia Court of Appeal dismissed the appeal. The appellant was well aware that his conviction would seriously jeopardize his immigration status. His position was not made worse by acting on incomplete advice about sentencing. The only incentive held out to him was the prospect of a lower sentence. The criminal process was not unfair and no miscarriage of justice occurred.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - See paragraphs 1 to 30.

Counsel:

C.T. Darnay, for the appellant;

R.G. Garson, for the respondent.

This appeal was heard on March 14 and 16, 2016, at Vancouver, B.C., by Donald, Saunders and Goepel, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the following reasons for judgment for the court on April 18, 2016.