R. v. Shiwprashad (K.), (2015) 337 O.A.C. 57 (CA)

JudgeWeiler, Tulloch and van Rensburg, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJune 02, 2015
JurisdictionOntario
Citations(2015), 337 O.A.C. 57 (CA);2015 ONCA 577

R. v. Shiwprashad (K.) (2015), 337 O.A.C. 57 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.018

Her Majesty the Queen (respondent) v. Kemchand Shiwprashad (appellant)

(C57684; 2015 ONCA 577)

Indexed As: R. v. Shiwprashad (K.)

Ontario Court of Appeal

Weiler, Tulloch and van Rensburg, JJ.A.

August 20, 2015.

Summary:

The accused, a permanent resident of Canada, pleaded guilty to robbery and was subsequently deported. He appealed his conviction. He argued that he did not understand the consequences of his plea because he did not know he would be deported if he pleaded guilty. Thus, he did not understand "the nature and consequences of his plea" as required by 606(1.1)(b)(ii) of the Criminal Code. He alleged that his counsel had a duty to inform him of the immigration consequences of his plea before he pleaded guilty and, since this was not done, he alleged ineffective assistance of counsel. Further, he challenged the constitutionality of s. 606(1.2) of the Code, which stated that: "The failure of the court to fully inquire whether the conditions set out [for a valid plea] in subsection (1.1) are met does not affect the validity of the plea." He alleged that this section violated ss. 7 and 15(1) of the Charter and was not saved under s. 1.

The Ontario Court of Appeal considered the fresh evidence filed and dismissed the appeal. The court was satisfied that the accused knew that deportation was a potential consequence of his guilty plea, although he might not have appreciated precisely how limited his options were to avoid that consequence. Even assuming that the accused's lawyer had a duty to advise him or to ensure that he obtained advice concerning the immigration consequences prior to his plea, counsel's failure to do so did not result in a miscarriage of justice. The constitutional issue respecting s. 606(1.2) did not arise on the facts.

Barristers and Solicitors - Topic 1546

Relationship with client - Duty to client - General - Duty of competence - [See Barristers and Solicitors - Topic 1554 ].

Barristers and Solicitors - Topic 1554

Relationship with client - Duty to client - General - Duty to inform or advise client - The accused, a permanent resident of Canada, pleaded guilty to robbery and was subsequently deported - He appealed his conviction - He argued that he did not understand the consequences of his plea because he did not know that he would be deported if he pleaded guilty - Thus, he did not understand "the nature and consequences of his plea" (Criminal Code, 606(1.1)(b)(ii)) - He alleged that his counsel had a duty to inform him of the immigration consequences of his plea before he pleaded guilty and, since this was not done, he alleged ineffective assistance of counsel - The Ontario Court of Appeal discussed the law regarding whether the failure to ascertain the effect of a guilty plea on the client's immigration status prior to plea constituted incompetence of counsel - The court declined to determine that question in this case, having regard to the lack of evidence as to the standard of care in Canada, and the court's conclusion that even if there was ineffective assistance of counsel, there was no miscarriage of justice - See paragraphs 58 to 65.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - The accused, a permanent resident of Canada, pleaded guilty to robbery and was subsequently deported - He appealed his conviction - He argued that he did not understand the consequences of his plea because he did not know he would be deported if he pleaded guilty - Thus, he did not understand "the nature and consequences of his plea" as required by 606(1.1)(b)(ii) of the Criminal Code - He alleged that his counsel had a duty to inform him of the immigration consequences of his plea before he pleaded guilty and, since this was not done, he alleged ineffective assistance of counsel - The Ontario Court of Appeal considered the fresh evidence filed and dismissed the appeal - The accused knew that deportation was a potential consequence of his guilty plea, although he might not have appreciated precisely how limited his options were to avoid that consequence - Thus, even assuming that the accused's lawyer had a duty to advise him or to ensure that he obtained advice concerning the immigration consequences prior to his plea, the failure of counsel to do so did not result in a miscarriage of justice - See paragraphs 66 to 74.

Criminal Law - Topic 4967

Appeals - Indictable offences - Powers of Court of Appeal - Conviction appeal following guilty plea - [See Criminal Law - Topic 4233 ].

Criminal Law - Topic 4989.9

Appeals - Indictable offences - Powers of Court of Appeal - Appeals re ineffective assistance of counsel - [See Criminal Law - Topic 4233 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4233 ].

Cases Noticed:

Nguyen v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 26; 2010 FC 30, refd to. [para. 7, footnote 2].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 32].

R. v. Pham (H.A.) - see R. v. Ly (T.Q.).

R. v. Ly (T.Q.), [2013] 1 S.C.R. 739; 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 2013 SCC 15, refd to. [para. 40].

R. v. Tyler (T.E.) (2007), 237 B.C.A.C. 312; 392 W.A.C. 312; 218 C.C.C.(3d) 400; 2007 BCCA 142, refd to. [para. 60].

R. v. Hunt (C.P.) (2004), 346 A.R. 45; 320 W.A.C. 45; 2004 ABCA 88, refd to. [para. 60].

R. v. Nersysyan, 2005 QCCA 606, refd to. [para. 60].

Padilla v. Kentucky (2010), 559 U.S. 356, refd to. [para. 60].

McNamee v. McNamee (2011), 280 O.A.C. 372; 106 O.R.(3d) 401; 2011 ONCA 533, refd to. [para. 66].

Berdette v. Berdette (1991), 47 O.A.C. 345; 3 O.R.(3d) 513 (C.A.), leave to appeal to refused, [1991] S.C.C.A. No. 306, refd to. [para. 66].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 70].

Authors and Works Noticed:

Bellissimo, Mario D., Immigration Criminality and Inadmissibility (2014 Looseleaf), p. 10-46 [para. 64].

Calarco, Paul, June 2013 Appeal Court Review - R. v. Pham: Immigration Consequences in Sentencing, Ontario Bar Association <http://www.oba.org/en/pdf/sec_ news_crim_jun13_cal_app.pdf>, generally [para. 64, footnote 6].

Clewley, Gary R., McDermott, Paul G., and Young, Rachel E., Sentencing: The Practitioner's Guide (2015 Looseleaf), para. 1.330 [para. 65].

James, Katie, and Rock, Nora, Can a criminal conviction make your client inadmissible for residency/citizenship?, LawPRO <http:// www.practicepro.ca/information/doc/conviction_inadmissible.pdf>, generally [para. 64, footnote 5].

Counsel:

Najma Jamaldin, for the appellant;

Stacey Young, for the respondent.

This appeal was heard on June 2, 2015, by Weiler, Tulloch and van Rensburg, JJ.A., of the Ontario Court of Appeal. Weiler, J.A., delivered the following decision for the court on August 20, 2015.

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20 practice notes
  • R. v. Wong, 2018 SCC 25
    • Canada
    • Supreme Court (Canada)
    • May 25, 2018
    ...Raymond, 2009 QCCA 808, 262 C.C.C. (3d) 344; R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334; R. v. Aujla, 2015 ONCA 325; R. v. Shiwprashad, 2015 ONCA 577, 337 O.A.C. 57; R. v. Sangs, 2017 ONCA 683; R. v. Tyler, 2007 BCCA 142, 237 B.C.A.C. 312; R. v. Kitawine, 2016 BCCA 161, 386 B.C.A.C. 24; P......
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    ...Sangs, 2017 ONCA 683, R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), R. v. Wong, R. v. Girn, 2019 ONCA 2022018 SCC 25, R. v. Shiwprashad, 2015 ONCA 577, leave to appeal refused, [2017] S.C.C.A. No. 40 R. v. P., 2020 ONCA 323 Keywords: Criminal Law, Break and Enter, Theft, Possession of Stol......
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    • Canada
    • Mondaq Canada
    • March 28, 2019
    ...2000 SCC 22, R. v. Boudreault, 2018 SCC 58, R. v. Quick, 2016 ONCA 95, R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), R. v. Shiwprashad, 2015 ONCA 577, R. v. Cherrington, 2018 ONCA 653, R. v. G. (D.M.), 2011 ONCA 343, R. v. Lavergne, 2017 ONCA 642, R. v. Coffey, 2017 BCCA 359, R. v. Tyler, ......
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    • Irwin Books Sentencing in Canada
    • June 26, 2020
    ...2018 ONSC 1141 ................................................................................................ 267, 268 R v Shiwprashad, 2015 ONCA 577 .................................................................................................. 139 R v Shobway, 2017 ONCJ 476 ...............
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15 cases
  • R. v. Wong, 2018 SCC 25
    • Canada
    • Supreme Court (Canada)
    • May 25, 2018
    ...Raymond, 2009 QCCA 808, 262 C.C.C. (3d) 344; R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334; R. v. Aujla, 2015 ONCA 325; R. v. Shiwprashad, 2015 ONCA 577, 337 O.A.C. 57; R. v. Sangs, 2017 ONCA 683; R. v. Tyler, 2007 BCCA 142, 237 B.C.A.C. 312; R. v. Kitawine, 2016 BCCA 161, 386 B.C.A.C. 24; P......
  • R v Chahal, 2018 ABCA 132
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    • Court of Appeal (Alberta)
    • April 6, 2018
    ...counsel did, for example acting without instructions: compare R v Benham, 2013 BCCA 276 at paras 32-34ff, 340 BCAC 26; R v Shiwprashad, 2015 ONCA 577 at paras 34-65, 328 CCC (3d) 191, leave denied [2017] SCCA No 40 (QL) (SCC No 37418); R v Rhodes, 2015 MBCA 100 at paras 13-18, 25, 323 Man R......
  • R. v. Kitawine (H.K.), (2016) 386 B.C.A.C. 24 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • April 18, 2016
    ...such cases, beginning with R. v. Lyons , [1987] 2 S.C.R. 309; R. v. Tyler , 2007 BCCA 142, in this jurisdiction; and R. v. Shiwprashad , 2015 ONCA 577 in Ontario, is to uphold the plea as sufficiently informed. [21] Where it is alleged that counsel failed to give any advice on immigration c......
  • R. v. Black (L.I.), 2016 SKPC 82
    • Canada
    • Provincial Court of Saskatchewan (Canada)
    • June 3, 2016
    ...application or a life sentence prior to the accused's decision to plead guilty. As indicated by Madam Justice Weiler in R v Shiwprashad , 2015 ONCA 577, at para 71, the decision of Justice La Forest in R v Lyons , [1987] 2 SCR 309, supports the proposition, in strikingly similar circumstanc......
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3 firm's commentaries
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • June 10, 2020
    ...Sangs, 2017 ONCA 683, R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), R. v. Wong, R. v. Girn, 2019 ONCA 2022018 SCC 25, R. v. Shiwprashad, 2015 ONCA 577, leave to appeal refused, [2017] S.C.C.A. No. 40 R. v. P., 2020 ONCA 323 Keywords: Criminal Law, Break and Enter, Theft, Possession of Stol......
  • Ontario Court Of Appeal Summaries (March 11-15, 2019)
    • Canada
    • Mondaq Canada
    • March 28, 2019
    ...2000 SCC 22, R. v. Boudreault, 2018 SCC 58, R. v. Quick, 2016 ONCA 95, R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), R. v. Shiwprashad, 2015 ONCA 577, R. v. Cherrington, 2018 ONCA 653, R. v. G. (D.M.), 2011 ONCA 343, R. v. Lavergne, 2017 ONCA 642, R. v. Coffey, 2017 BCCA 359, R. v. Tyler, ......
  • Court Of Appeal Summaries (August 17 – 21, 2015)
    • Canada
    • Mondaq Canada
    • August 26, 2015
    ...of the Criminal Code, Evidence, Improper Admission of Evidence, Private Communications, s. 24(2) of the Charter R. v. Shiwprashad, 2015 ONCA 577 [Weiler, Tulloch and van Rensburg Najma Jamaldin, for the appellant Stacey Young, for the respondent Keywords: Criminal Law, Robbery, Assault with......
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Sentencing in Canada
    • June 26, 2020
    ...2018 ONSC 1141 ................................................................................................ 267, 268 R v Shiwprashad, 2015 ONCA 577 .................................................................................................. 139 R v Shobway, 2017 ONCJ 476 ...............
  • The Role of Defence Counsel at Sentencing
    • Canada
    • Irwin Books Sentencing in Canada
    • June 26, 2020
    ...of the risk of deportation as a result of the plea: see, for example, Wong , above note 30; R v Quick , 2016 ONCA 95; R v Shiwprashad , 2015 ONCA 577. 34 Immigration and Refugee Protection Act , SC 2001, c 27, s 36(1). 35 Pham , above note 22; see also R v Suter , 2018 SCC 34. 140 | Sentenc......

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