July 31, 2018

Pleading Guilty Without Considering the Immigration Consequences

Criminally accused persons in Canada may be tempted to exchange their right to a trial for a less severe punishment compared to what they expect to receive if they proceed to trial. Plea bargaining is also an attractive option for the Crown (the prosecutor) in the face of scarce judicial and court resources. But it is imperative that foreign nationals (individuals who are neither Canadian citizens nor permanent residents) and permanent residents embroiled in the criminal justice system also consider the immigration consequences of a guilty plea. For example, pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act (IRPA), a permanent resident faces inadmissibility for serious criminality once they have been convicted of an offence that caries a maximum term of imprisonment of at least ten years or have been sentenced to more than six months in prison. A permanent resident who has been sentenced to at least six months in prison would also lose their right of appeal to the Immigration Appeal Division (IAD), thanks to s. 64(2) of the IRPA.

In the recent case of R v. Wong, 2018 SCC 25, the Supreme Court of Canada considered whether or not a permanent resident who was not aware of the immigration consequences at the time he pleaded guilty could later be allowed to withdraw his plea. Mr. Wong was a citizen of China and permanent resident of Canada who immigrated to Canada 25 years ago. He had pleaded guilty to one count of cocaine trafficking without being aware of the resulting inadmissibility and inability to appeal a removal order against him at the IAD. While serving his nine-month prison sentence he finally became aware of these consequences.

The four-member majority ruled that for a guilty plea to be withdrawn in such a situation the accused
must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim. (Para. 6)

Mr. Wong’s affidavit lacked an explanation of “what he would have done differently in the plea process had he been informed of the immigration consequences of his guilty plea…” (Para. 37) Therefore, the majority was “of the view that he has not established prejudice giving rise to a miscarriage of justice.” (Para. 39)

The majority of the Court in Wong has made it clear that a guilty plea is possible where an accused was unaware of the immigration consequences and is able to articulate what they “would have done differently” had they been better informed. It is worth noting that the three-member minority would not have focused on “whether there is sufficiently specific language in an affidavit as to how the accused would have proceeded if properly informed.” (Para. 94)

To avoid having to seek a withdrawal of a guilty plea, the accused and their counsel should contemplate how a conviction and sentence will affect the accused’s ability to remain in Canada at the earliest stage possible.