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

• Judge: Weiler, Tulloch and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 02, 2015
• Jurisdiction: Ontario
• 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.