R. v. Tyler (T.E.), (2007) 237 B.C.A.C. 312 (CA)

• Judge: Donald, Hall and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Friday February 09, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 237 B.C.A.C. 312 (CA);2007 BCCA 142

R. v. Tyler (T.E.) (2007), 237 B.C.A.C. 312 (CA);

    392 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. MR.017

Regina (respondent) v. Timothy Earl Tyler (appellant)

(CA033634; 2007 BCCA 142)

Indexed As: R. v. Tyler (T.E.)

British Columbia Court of Appeal

Donald, Hall and Lowry, JJ.A.

March 6, 2007.

Summary:

The accused was subject to a removal order as a result of having been convicted for possession of a break-in instrument. The removal order was stayed for three years on compassionate grounds. As part of plea bargain, the accused subsequently pleaded guilty to possession of an instrument, a pair of scissors, suitable for breaking into, in this case, an automobile. The stay of the removal order was automatically cancelled pursuant to s. 68(4) of the Immigration Act. The accused applied for an extension of time to file a notice of appeal and to strike the guilty plea.

The British Columbia Court of Appeal denied relief.

Criminal Law - Topic 4228

Procedure - Pleas - Guilty plea - Effect of - The accused was subject to a removal order as a result of a conviction for possession of a break-in instrument - The order was stayed for three years on compassionate grounds - The accused subsequently pleaded guilty to possession of a break-in instrument pursuant to a plea bargain - The stay of the removal order was automatically cancelled (Immigration Act, s. 68(4)) - The accused sought an extension of time to file a notice of appeal and to strike the plea, asserting that he would not have pleaded guilty if he had known of the impact on his immigration status - The British Columbia Court of Appeal denied relief - While the accused might not have known about the automatic effect, he knew that his status in Canada was in serious jeopardy - He pleaded guilty to achieve the short term gain of early release and put aside consideration of the longer term consequences - That was a free choice - His first lawyer, whom he dismissed, urged him to try the charges but that would have meant several more months' imprisonment - Ignorance of the automatic effect did not vitiate the plea - The difference between awareness of an automatic effect and knowledge of a highly probable result was too fine a distinction.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - [See Criminal Law - Topic 4228].

Cases Noticed:

R. v. Swanson (D.A.) (2000), 136 B.C.A.C. 108; 222 W.A.C. 108; 2000 BCCA 177, refd to. [para. 71].

R. v. D.A.S. - see R. v. Swanson (D.A.).

R. v. Hoang (T.V.) (2003), 339 A.R. 291; 312 W.A.C. 291; 182 C.C.C.(3d) 69; 2003 ABCA 251, refd to. [para. 33].

Counsel:

G.F. Chand and F.M. Begg, for the appellant;

K.J. Gillett, for the Crown, respondent.

This matter was heard at Vancouver, British Columbia, on February 9, 2007, by Donald, Hall and Lowry, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the following judgment for the court on March 6, 2007.