R v Singh, 2019 MBCA 105

Citation: R v Singh, 2019 MBCA 105 Date: 20191021 Docket: AR18-30-09024 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) Z. M. Jones ) for the Appellant ) (Respondent) Respondent ) J. W. Avey ) for the Respondent- and - ) ) Appeal heard andTARLOK SINGH ) Decision pronounced: ) October 9, 2019 ) (Accused) (Appellant) Appellant ) Written reasons: ) October 21, 2019 cameron JA (for the Court): [1] The accused appeals the dismissal by the

summary conviction appeal judge (the SCA judge) of his application towithdraw his guilty plea, entered in the Provincial Court, to a charge of having care and control of a motor vehicle while over .08(section 253(1) (now

section 320.14(1)(

b) of the Criminal Code (the Code)). He asserts that, at the time he entered his plea, he wasuninformed of the collateral consequence that, as a foreign national in Canada on a visa, he was subject to a removal order with no rightof appeal for any criminal conviction of a hybrid or indictable offence. He maintains that he would not have entered the guilty plea hadhe known that he would be deported because of the conviction.

At the hearing of the appeal, we allowed the appeal, granted leave towithdraw the guilty plea, quashed the conviction and remitted the matter to the Provincial Court for trial with reasons to follow. Theseare those reasons. [2] The accused was granted leave to appeal by a judge in chambers of this Court on the following question of law: Did the

summary conviction appeal judge err in his application of the test to withdraw a guilty plea as articulated in R. v. Wong, 2018SCC 25? [3] In R v Wong, 2018 SCC 25, a majority of the Supreme Court of Canada set out the proper approach for consideringwhether to permit the withdrawal of a guilty plea “on the basis that the accused was unaware of a collateral consequence stemming fromthat plea, such that holding him or her to the plea amounts to a miscarriage of justice” (at para 1). A guilty plea may be withdrawn wherean accused establishes:

i) on an objective basis that he or she was uninformed of the criminal consequences of the plea as well as thelegally relevant collateral consequences (see Wong at paras 3-4, 9, 33-34); and ii) on a subjective basis that the lack of informationcaused prejudice in that he or she would have either pleaded differently or pleaded guilty, but with different conditions (see Wong atparas 6, 19-22, 33, 35). [4] The SCA judge did not have the benefit of Wong at the time he rendered his decision.

Nonetheless, the accused isentitled to the benefit of that decision because this matter was still in the judicial system when Wong was decided (see R v Wigman, (SCC), [1987] 1 SCR 246 at para 29). A consideration of Wong at this stage of the proceedings leads us to conclude that theSCA judge erred in three ways. [5] First, he erred by applying the test in Palmer v The Queen, (SCC), [1980] 1 SCR 759 when refusing toadmit the accused’s affidavit in the proceeding to withdraw his guilty plea. In Wong, the majority stated that an affidavit from the

accused is a requirement in establishing subjective prejudice (see paras 6, 19).

Although lack of knowledge of the collateral consequences was accepted as an established fact in Wong , I would add that such an affidavit would likely also be required for the accused to establish objective lack of knowledge of legally relevant consequences in cases such as this, where the Crown asserts that the accused did have some notice of the possible consequences. [ 6 ] Further, the SCA judge erred by applying the Palmer criteria when he refused to admit the affidavit of counsel (not the same as in this appeal) who aided the accused in his guilty plea (sentencing counsel).

That affidavit supported the accused’s assertions that he was uninformed of the collateral consequences of his guilty plea. As noted by Wagner J (as he then was) in Wong (in dissent, but not on this point), “Where an accused enters a plea unaware of its legally relevant consequences, this raises a concern related to procedural fairness” (at para 44). The criteria in Palmer do not apply where unfairness in the process is alleged to have resulted in a miscarriage of justice (see R v Richard (DR) et al , 2013 MBCA 105 at paras 202-205 ).

When considering the interests of justice in the determination of whether to accept fresh evidence pursuant to

section 683 of the Code where procedural fairness is raised, the court may consider, among other things, material extraneous to the trial record so long as it is “relevant to the issue” ( Richard at para 204). [ 7 ] In our view, the failure to consider the highly relevant evidence proffered in sentencing counsel’s affidavit constituted an error.

The affidavit confirmed that the accused had advised sentencing counsel about his immigration status and that sentencing counsel did not discuss the matter further with him based on sentencing counsel’s mistaken belief that there would be no collateral immigration consequences to the accused. It was objective evidence supporting the accused’s assertion that he was uninformed of the consequence of deportation. [ 8 ] Second, the SCA judge erroneously placed significant weight on the fact that the accused did not attempt to introduce fresh evidence that would have demonstrated a defence to the charge.

In Wong , the majority noted that “the accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds” and that “[r]equiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and the subjective nature of choosing to plead guilty” (at para 23). [ 9 ] Finally, the SCA judge erred in disregarding the evidence that the accused was objectively uninformed of the collateral consequences of entering a guilty plea and subjectively prejudiced in that he would not have entered his guilty plea if he had been fully informed. [ 10 ] In support of his appeal, the accused applies to introduce fresh evidence to establish that he would not have entered his guilty plea if he had been fully informed of the collateral consequences.

While normally required to establish prejudice in accordance with Wong , in our view, such an affidavit is not necessary on the facts of this appeal. The record of proceedings before the Provincial Court, as well as the previously mentioned affidavits of the accused and sentencing counsel, establish both parts of the test in this case. The accused first tried to enter his guilty plea in the Provincial Court without the assistance of counsel.

The transcript evidences that, when the Provincial Court judge advised him that a criminal conviction “might have an impact on [his] ability to remain in Canada” and on his immigration status, he immediately asked if he could change his guilty plea. After the Provincial Court judge explained that, if he entered a plea of not guilty there was a chance that he would not be convicted, he asked if he could “try for that”.

She concluded by advising the accused to obtain legal advice and stated to him, “I strongly recommend that any dealings you have with anybody to advise them of your immigration status”, so that he could get legal advice pertaining to it. [ 11 ] In accordance with the advice of the Provincial Court judge, the accused retained sentencing counsel and advised him of his immigration status. Sentencing counsel was mistaken as to the potential collateral consequences of a conviction on the accused’s ability to remain in Canada. Therefore, he did not discuss those consequences with the accused.

When the accused, with the assistance of sentencing counsel, eventually entered his guilty plea before a different Provincial Court judge, sentencing counsel conducted the plea inquiry and the matter was not raised.

The collateral consequence only became known when the accused was contacted by a representative from the Canada Border Services Agency, asked to surrender his passport and told that he was to be deported as a result of his conviction. [ 12 ] Therefore, for the above reasons, we allowed the appeal, granted leave to withdraw the guilty plea, quashed the conviction and remitted the matter to the Provincial Court for trial. [ 13 ] In making the above orders, this Court is cognizant of the significant delay that has been occasioned in this case. At the hearing, we expressed our concern to counsel.

Appropriately, in our view, the accused has made a waiver of his

section 11(

b) rights pursuant to the Canadian Charter of Rights and Freedoms for the time between his initial attempt to enter a guilty plea in the Provincial Court on May 6, 2014, to October 9, 2019, the date when this appeal was heard. JA JA JA