was not aware of the collateral immigration consequences of the joint submission,
and that his trial counsel provided ineffective assistance.
Held, the appeals should be dismissed.
The accused had an adequate understanding of the immigration consequences
of his plea when he pleaded guilty. Knowledge of “consequences” has not been
taken to include knowledge of appellate rights and their limitations. There was
an element of wilful blindness in the accused’s approach, as the accused’s fresh
evidence stated that he relied on the advice of fellow inmates that pre-trial custody did not count in determining the length of sentence (for immigration purposes) and that a person who has a family cannot be deported, rather than
following his criminal lawyer’s advice and obtaining a legal aid certificate for
immigration purposes. The accused also failed to establish prejudice. His affidavit was barren of any viable suggestion that, but for the alleged informational
deficit, he would not have pleaded guilty. A trial would have put him at risk of
conviction on 26 rather than eight counts, deprived him of the mitigating effect
of his guilty plea on sentencing, and likely provided sustenance for the Crown’s
request that he receive a penitentiary sentence. Nor was this a case in which,
with further information, the accused might have pleaded guilty with different
conditions. As he pleaded guilty to eight counts, the sentence imposed, no
matter how the pre-trial custody was apportioned, could not have left a right of
appeal from the removal order open to him. The likely certainty of removal cannot justify a sentence that is inconsistent with the fundamental purposes and
principles of sentencing.
The accused failed to establish that he received ineffective assistance from trial
counsel. In light of the conclusion that his guilty plea was informed, the full
burden of establishing prejudice rested on the impact of trial counsel’s failure to
discuss with the Crown or submit to the sentencing judge an apportionment of the
credit for pre-trial custody in such a way that the custodial portion of the proposed
12-month sentence would not exceed six months. That failure had no effect on the
reliability of the result of the proceedings. Moreover, it was far from clear that
such an apportionment would have been available, as the risk of deportation
cannot justify imposing a sentence inconsistent with the fundamental principles
R. v. Coffey,  B.C.J. No. 2072, 2017 BCCA 359; R. v. Shiwprashad, 
O.J. No. 4387, 2015 ONCA 577, 337 O.A.C. 57, 328 C.C.C. (3d) 191, 126 W.C.B. (2d) 2;
R. v. Wong,  1 S.C.R. 696,  S.C.J. No. 25, 2018 SCC 25, 424 D.L.R. (4th)
191, 364 C.C.C. (3d) 1, 47 C.R. (7th) 451, 56 Imm. L.R. (4th) 1, EYB 2018-294585,
2018EXP-1454, 146 W.C.B. (2d) 333, consd
Other cases referred to
R. v. B. (G.D.),  1 S.C.R. 520,  S.C.J. No. 22, 2000 SCC 22, 184 D.L.R.
(4th) 577, 253 N.R. 201,  8 W.W.R. 193, J.E. 2000-919, 81 Alta. L.R. (3d) 1,
261 A.R. 1, 143 C.C.C. (3d) 289, 32 C.R. (5th) 207, 45 W.C.B. (2d) 567, REJB 2000-
17891, 2000 CCAN ¶10,047; R. v. Boudreault,  S.C.J. No. 58, 2018 SCC 58,
369 C.C.C. (3d) 358, 50 C.R. (7th) 207; R. v. Cherrington,  O.J. No. 4012,
2018 ONCA 653; R. v. G. (D.M.) (2011), 105 O.R. (3d) 481,  O.J. No. 1966,
2011 ONCA 343, 281 O.A.C. 85, 84 C.R. (6th) 420, 275 C.C.C. (3d) 295, 97 W.C.B.
(2d) 151; R. v. Kitawine,  B.C.J. No. 752, 2016 BCCA 161, 386 B.C.A.C. 24,
130 W.C.B. (2d) 356; R. v. Lavergne,  O.J. No. 4145, 2017 ONCA 642;
R. v. Pham,  1 S.C.R. 739,  S.C.J. No. 100, 2013 SCC 15, 357 D.L.R.
(4th) 1, 441 N.R. 375, J.E. 2013-500, 76 Alta. L.R. (5th) 206, 544 A.R. 40,
293 C.C.C. (3d) 530, 99 C.R. (6th) 219, 105 W.C.B. (2d) 488, 2013 CCAN ¶10,007,