Consequences of Guilty Plea

Provincial Offences Act

Conditions of accepting plea

45(3) A court may accept a plea of guilty only if it is satisfied that the defendant,

(a) is making the plea voluntarily;

(b) understands that the plea is an admission of the essential elements of the offence;

(c) understands the nature and consequences of the plea; and

(d) understands that the court is not bound by any agreement made between the defendant and the prosecutor.

R. v Rajkumar Rajadurai, 2015 ONSC 3018 (CanLII)

[6] It is the Applicant’s position that the plea comprehension inquiry was not conducted on the record, nor did counsel make any representations to the court about whether he had conducted a plea comprehension inquiry with the Applicant off the record. The Applicant submits that there was no discussion about the immigration consequences of conviction. Consequently, the Applicant submits that this court should exercise its discretion to grant an extension of time to allow the Applicant to appeal his conviction. The Applicant points to the three key factors outlined in R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233, 155 O.A.C. 13 at para. 20 (C.A.), namely:

• the applicant has shown a bona fide intention to appeal within the appeal period;

• the applicant has accounted for or explained the delay;

• there is merit to the proposed appeal.

[7] The Applicant also submits that the court must consider other factors, such as whether the consequences of conviction are disproportionate to the penalty, whether there is prejudice to the Crown and whether the Applicant has taken the benefit of the judgment. Overall, the Applicant asks the court to consider “whether the justice of the case requires that an extension of time be granted” (R. v. Mitchell, 2012 ONCA 804, [2012] O.J. No. 5424 at para. 3).

Bona fide intention to appeal within the appeal period

[8] The Applicant concedes that he did not show a bona fide intention to appeal within the appeal period, but it is his position that the intention to appeal did not form until he was aware of the immigration consequences.

(...)

[17] The Applicant’s evidence is that he did not fully understand the immigration consequences of his 2012 convictions until he received the April 7, 2015 letter cancelling his appeal to the Immigration Appeal Division and the stay of the removal order. This evidence has not been challenged. Further, as stated in Cimpaye at para. 14, “the complexities of the inter-relationship between criminal convictions and immigration status is not a subject matter that is well understood by the general public. Indeed, it is not always well understood by counsel.” When this complexity is considered together with the absence of any reference to immigration consequences in the sentencing transcript; the fact that the Applicant’s preferred language of communication is Tamil and requires the assistance of a Tamil interpreter; and his mental health issues, including the hospitalization after his release from custody in 2012, I am satisfied that that the Applicant did not form the intention to appeal his convictions until April 2015. Stated differently, the Applicant did not have reason to believe that an appeal was possible, necessary or appropriate until he received the letter cancelling his appeal and his stay in April 2015, consequences of which he apparently was unaware when he pled guilty in 2012.

[18] As such, I am of the view that the Applicant’s decision to appeal his conviction was made within a reasonable time, given his particular circumstances.

(...)

Merits of the Appeal

[21] The Applicant submits that the appeal is meritorious on the basis that the guilty plea was uninformed given the Applicant did not understand the immigration consequences of a guilty plea. The Applicant’s position is that if he had been aware of the immigration consequences of the plea he would not have pleaded guilty. Instead, he would have taken the risk of going to trial: R. v. Meehan, 2013 ONSC 1782, [2013] O.J. No. 1565 at para. 17.

[22] In order for a plea to be informed, the accused must be aware of consequences of his guilty plea, including the fact that a conviction follows. More particularly, the accused must have “an appreciation of the nature of the potential penalty” faced (R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514, [1992] O.J. No. 1914 at para. 37 (C.A.).

(...)

[27] It is well established that setting aside a guilty plea on appeal on the basis that it is somehow deficient carries a heavy burden of proof: R. v. Daibes, 2015 ONSC 104 at para. 97. That said, deportation is an exceptional consequence of a criminal conviction, and it appears that the Applicant was unaware of this very serious outcome. I am satisfied that there is merit to the appeal.

(...)

[30] For all these reasons, the extension of time for service and filing the Notice of Appeal is extended to a date 30 days following the release of these reasons.