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Immigration - General. Brink v. Canada
In Brink v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal from a denial of a Charter s.15 ['discrimination'] class action certification motion, here where the motion judge struck the claim (without leave to amend it) on the basis that no Charter claim was made out on the pleadings. The claim was with respect to immigration process fees charged by the government to "non-Canadian born" individuals.
Here the court walks through the Charter s.15 discrimination analysis in this immigration context:[1] The Federal Court struck out the statement of claim in the appellants’ proposed class action challenging the constitutionality of certain fees charged to individuals who apply for either permanent resident status in Canada or Canadian citizenship. The appellants asserted in their statement of claim that the levying of such fees violates subsection 15(1) of the Canadian Charter of Rights and Freedoms, as they only apply to "“non-Canadian born”" individuals, and as they discriminate against such individuals on the basis of their national or ethnic origin.
[2] In a decision reported as 2022 FC 1231, the Federal Court accepted that the appellants’ statement of claim identified two groups of individuals who were required to pay the fees in question, who were thus treated differently than others. It found, however, that the basis for that differential treatment was neither an enumerated nor an analogous ground of discrimination as contemplated by section 15 of the Charter. Consequently, the Federal Court found that it was plain and obvious that a claim asserting discrimination against these groups based on the Charter was bound to fail. Accordingly, the Court struck out the appellants’ statement of claim, without leave to amend.
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[25] The Federal Court noted that the appellants claimed that there is a distinction in the treatment accorded to those born in Canada and those born outside Canada. The question for determination was whether this equated to discrimination based on an enumerated or analogous ground for the purposes of section 15 of the Charter.
[26] While the appellants’ statement of claim alleged discrimination based on "“national or ethnic origin, or country of origin”," the Federal Court observed that the alleged bases for the discrimination had expanded over time. In addition to the aforementioned grounds, the appellants’ memorandum of fact and law filed in support of their certification motion also asserted that the Fees create a distinction based on the analogous ground of citizenship.
[27] The Federal Court noted that the alleged grounds of discrimination had further evolved in the appellants’ oral submissions to the Court, with counsel asserting that the bases for the alleged discrimination between the two groups were the enumerated grounds of national origin or ethnic origin, and analogous grounds that included citizenship, birth, or place of birth.
[28] The Federal Court observed that a Charter claim could only succeed if the distinction in issue was based on a proscribed ground of discrimination, whether it be an enumerated or an analogous ground. If it was not based on at least one such ground, then it was plain and obvious that the action could not succeed. The Court thus considered each of the alleged bases of distinction alleged by the appellants, and whether the distinction with respect to the Fees was based on that ground.
[29] Dealing first with the question of "“national origin”", the Federal Court held that "“national origin”" refers to the nation where a person was born, or more broadly, where that person’s ancestors came from. The Court held that the distinction between the two groups—those who must pay the Fees and those who are not required to pay the Fees—was not based on individuals’ national origin, as "“there are persons in each group with a variety of national origins, and some with the same national origin”".
[30] The Court further observed that while most people born in Canada are automatically Canadian citizens, there are exceptions to this such as, for example, children born in Canada to diplomatic or consular officers of a foreign government. Such individuals would have a Canadian "“national origin”" as they were born here, but they would nevertheless be required to pay the Fees. Similarly, children born outside Canada to parents, at least one of whom is a Canadian citizen, are automatically Canadian citizens. The "“national origin”" of such individuals would be that of a country other than Canada, but they would not be required to pay the Fees.
[31] From this, the Federal Court concluded that the distinction in issue in this case was not based on the class members’ national origin.
[32] The Federal Court next considered whether it was plain and obvious that the discrimination claim based on "“ethnic origin”" was bound to fail. The Court noted that "“ethnic origin”" refers to the ethnic or cultural origins of a person and/or the person’s ancestors, and that the ethnic origin of those born in Canada encompasses most or all of the world’s cultural or ethnic origins. As such, the Court found that there was no arguable case that the distinction at issue in this case was based on the class members’ ethnic origins. Indeed, the ethnic origin of those born in Canada who were not required to pay the Fees parallels the ethnic origins of those not born in Canada who may be required to pay the Fees.
[33] Although not specifically referred to as an alleged ground of discrimination in the statement of claim, the Federal Court also considered whether "“citizenship”" was the basis of the distinction at issue in this case. The Court observed that while it was true that Canadian citizens are not required to pay either type of fee, it was also true that not all non-Canadian citizens seeking either permanent residence or citizenship were required to pay the Fees.
[34] Indeed, the Court observed that the IRPA Regulations exempt various categories of individuals from the RPRF, many of whom are persons born outside Canada. Such individuals include, for example, dependent children of principal applicants for permanent resident status. The Citizenship Act, R.S.C. 1985, c. C-29, similarly exempts certain classes of non-citizen individuals from the RCF, including, for example, minor adoptees.
[35] From this, the Federal Court concluded that the basis of the distinction between those required to pay the Fees and those who are not is not their citizenship.
[36] Insofar as class members’ "“place of birth”" was concerned, the Federal Court found that it was plain and obvious that the claim based on place of birth could not succeed for the same reason that the claim based on national origin was bound to fail. That is, individuals subject to the Fees could have been born anywhere. Consequently, the distinction in question is not based on individuals’ places of birth.
[37] The Federal Court thus accepted that the appellants had identified two groups of individuals who were required to pay the Fees who were distinguished from another group of persons not required to pay the Fees. However, the basis for that distinction was neither an enumerated nor an analogous ground of discrimination for the purposes of section 15 of the Charter. Consequently, the Court found that it was plain and obvious that the appellants’ discrimination claim was bound to fail, and it granted the Crown’s motion to strike without leave to amend. The Court dismissed the appellants’ motion to certify the action as a class proceeding for the same reason.
IV. Issues
[38] The primary issue raised by the appellants is whether the Federal Court erred in law in failing to find that it was at least arguable that being "“non-Canadian born”" could qualify as an analogous protected ground for the purposes of section 15 of the Charter. The appellants further argue that the Federal Court erred in denying them leave to amend their statement of claim.
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VIII. The Appellants’ Section 15 Arguments
[62] Subsection 15(1) of the Charter states that "“[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”".
[63] The protections afforded by section 15 of the Charter are not limited to the grounds expressly referred to in the provision itself (the "“enumerated grounds”"). They also extend to certain grounds not specifically mentioned in the section, known as the "“analogous grounds”". Analogous grounds are often the bases for stereotypical decisions made not on the basis of merit, but on the basis of personal characteristics that are immutable or constructively immutable, being changeable only at unacceptable cost to personal identity: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1 at para.13.
[64] To establish a violation of subsection 15(1) of the Charter, a plaintiff must demonstrate that the impugned law or state action:. creates a distinction based on enumerated or analogous grounds, on its face or in its impact, and
. imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: R. v. Sharma, 2022 SCC 39 at para. 28; Fraser v. Canada (Attorney General), 2020 SCC 28 at para. 27. [65] A claimant must first establish that the differential treatment to which he or she claims to have been subjected is based on either an enumerated or an analogous ground within the scope of section 15.
[66] In addition to being victims of discrimination based on their national or ethnic origins, the appellants contend that class members are subject to discrimination based on their "“places of birth”" and the fact that they were born outside of Canada. They further submit that class members form the type of discrete and insular minority that warrants protection under section 15 of the Charter.
[67] The first question for consideration is thus whether the appellants’ section 15 claim as pleaded in their statement of claim is based on an enumerated or analogous ground.
A. Is the Appellants’ Section 15 Claim Based on an Enumerated or Analogous Ground?
[68] I agree with Canada that the alleged grounds of discrimination in this case have been something of a moving target. The appellants assert that the differential treatment allegedly at issue in this case was based on the fact that members of the putative class were "“non-Canadian born”". This, the appellants say, resulted in discrimination based on class members’ national origin, ethnic origin, and/or their country of origin.
[69] As noted earlier, "“citizenship”" was not alleged as a basis for the differential treatment in the statement of claim, but was raised as a ground of discrimination in the memorandum of fact and law filed by the appellants in support of their certification motion. The proscribed grounds of discrimination alleged by the appellants further evolved in their oral argument before the Federal Court, when they alleged that the distinction in issue was based on class members’ "“place of birth”" or simply their "“birth”".
[70] That said, the appellants have acknowledged that their "“primary complaint of discrimination”" relates to the place of birth of class members being outside of Canada.
[71] I will consider citizenship as a possible arguable ground for the appellants’ section 15 claim later in these reasons. In the meantime, I will confine my analysis to the grounds of alleged discrimination that were specifically identified in the appellants’ statement of claim, namely discrimination based on class members’ national origin, ethnic origin, and/or their country of origin, including their country of birth.
[72] In assessing whether a statement of claim should be struck, the Court must look at the claim as it has been drafted, not how it might be drafted: Merchant Law Group, above at para. 40.
[73] The appellants argue that the Federal Court erred in striking their statement of claim by failing to find that it was at least arguable that their claim disclosed a reasonable cause of action based on their places of birth. In support of this contention, they cite the decisions of the Federal Court and this Court in Veffer v. Canada (Minister of Foreign Affairs), 2006 FC 540 (Veffer FC), aff’d 2007 FCA 247 (Veffer FCA), leave to appeal to SCC refused, 32260 (14 February 2008). These decisions held that an individual’s place of birth is immutable, and that it thus qualifies as an analogous ground for the purpose of section 15 of the Charter.
[74] The appellants further observe that once recognized, an analogous ground always stands as a constant marker of potential legislative discrimination: Corbiere, above at para. 10; Fraser, above at para. 183. Consequently, the appellants say that the Federal Court erred in failing to find that they had an arguable case based upon class members’ places of birth.
[75] The appellants note that the threshold that they had to meet to establish that their statement of claim disclosed a reasonable cause of action was a low one, submitting that it was not "“plain and obvious”" that an individual being non-Canadian born could not be protected from discrimination under section 15 of the Charter. According to the appellants, the Veffer decisions are "“a complete answer”" to the first step of the two-part section 15 analysis, and their statement of claim thus raises an arguable case that the imposition of the Fees draws a distinction between class members and others based on the analogous ground of "“place of birth”".
[76] The appellants further assert that they brought the Veffer decisions to the attention of the Federal Court in their written submissions, but that the Court failed to address them in its decision.
[77] The facts of Veffer are instructive. Mr. Veffer is a Canadian citizen who was born in Jerusalem. He applied for a Canadian passport, indicating in his application form that his place of birth was "“Jerusalem, Israel”", asking that it be recorded as such in his passport. The Government of Canada denied his request based on a policy that required that the place of birth designation for individuals born in Jerusalem be indicated simply as "“Jerusalem”" in their Canadian passports, and not "“Jerusalem, Israel”".
[78] Mr. Veffer sought judicial review of this decision, alleging that the Government’s policy regarding place of birth descriptions in passports violated his right to freedom of religion under subsection 2(a) of the Charter and his section 15 equality rights, based on his religion and his place of birth.
[79] The Federal Court held that the Government’s passport policy drew a formal distinction between Mr. Veffer and others, based on his place of birth. The Court further found that Canadian passport applicants born in Jerusalem were treated differently from other passport applicants born outside Canada: Veffer FC, above at para. 34. The Federal Court went on, however, to determine that such a distinction was not discriminatory.
[80] In Veffer FCA, the parties agreed that "“place of birth”" was a ground analogous to those enumerated in subsection 15(1) of the Charter, as it met the criteria laid out in Corbiere, namely that it was an innate, immutable characteristic that was not alterable by conscious action: Veffer FCA, above at para. 56. This Court nevertheless dismissed Mr. Veffer’s appeal. In so doing, this Court observed that not every distinction created by legislation will be discriminatory, and that a reasonable person would not conclude that the passport policy invaded Mr. Veffer’s human dignity: at paras. 58, 72.
[81] The appellants here argue that to establish that their statement of claim discloses a reasonable cause of action all they need is an opening to advance a novel claim. They say that this Court’s decision in Veffer provides that opening, and that accordingly this case should be allowed to go to trial.
[82] It is important to recognize, however, that the alleged discrimination at issue in Veffer was based upon the claimant having a particular place of birth—that is, his having been born in the city of Jerusalem. Both Courts accepted that Mr. Veffer (and others born in Jerusalem) were treated differently than other passport applicants, because of the particular place where they were born.
[83] That is not the situation here. Members of the putative class are not a discrete and insular minority, as was the case in Veffer. Indeed, they are a diffuse and disparate group. Class members are not subject to the Fees because they were born in a specific country, as the Fees apply regardless of class members’ country of origin and the legislation imposing the Fees draws no distinction with respect to applicants’ places of birth. Class members are subject to the Fees because they seek permanent residency in Canada or Canadian citizenship, regardless of where they were born.
[84] The appellants contend that they do not need to show that every class member is potentially subject to the Fees, as the Supreme Court has held that "“partial discrimination”" is no less discriminatory than discrimination occurring in situations in which all members of a protected group are affected: Fraser, above at para. 72. That said, it bears noting that, as the Federal Court observed in this case, some individuals may be subject to the Fees, even though they were born in Canada.
[85] The distinction between having a particular place of birth and being born outside Canada writ large illustrates the flaw in the appellants’ "“head tax”" analogy.
[86] As noted earlier, the appellants characterize the Fees as being "“akin to ‘head taxes’”" in their statement of claim. In so doing, they attempt to draw an analogy between the Fees at issue in this case and the shameful practice in Canada’s past where migrants from China (and no other country) were required to pay a monetary amount in order to come to Canada. This was known as a "“head tax”".
[87] What was particularly offensive about the head tax was the singling out of would-be immigrants from one country. Not only was the policy racist in origin, it perpetuated negative stereotyping of Chinese individuals and clearly communicated to them (and others) that they were less worthy of being admitted to Canada and less welcome in this country than would-be immigrants from other countries.
[88] A more apt analogy to a head tax could arise if RPRF and RCF fees were only charged to people born in Germany or Somalia or Vietnam who were seeking permanent residence in Canada or Canadian citizenship: Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651 at para. 765.
[89] That is not, however, what we are dealing with here. The Fees are payable by anyone—whatever their national origin, ethnic origin or place of birth—who seeks permanent residence in Canada or Canadian citizenship. Veffer is thus distinguishable from the present case, and this Court’s comments in Veffer FCA with respect to "“place of birth”" being an analogous ground have to be read in this context.
[90] This distinction was recognized by this Court in Pawar v. Canada (1999), 247 N.R. 271, [1999] F.C.J. No. 1421 (F.C.A.). Pawar involved a section 15 Charter challenge to the residency requirement of the Old Age Security Act, R.S.C. 1985, c. O-9 brought by individuals who were born abroad. In upholding the Federal Court’s decision dismissing the action by way of summary judgment, this Court held that "“being born abroad”" was not embraced by the concept of "“national and ethnic origin”", and that it was neither an enumerated nor an analogous ground under section 15 of the Charter: at para. 2.
[91] This Court observed that the distinction at issue in Pawar was based on class members’ prior residency in countries without reciprocal pension agreements with Canada, and that it had nothing to do with the plaintiffs’ "“national or ethnic origin”". In other words, the distinction at issue in Pawar was not based on the particular country where class members had previously resided, but rather on whether those countries had entered into reciprocal pension agreements with Canada: para. 2.
[92] More importantly for our purposes, this Court further held in Pawar that "“people born abroad”" "“do not form a discrete and insular group who have suffered historical disadvantage because of immutable personal characteristics or vulnerability to political and social prejudice”": at para. 3.
[93] The appellants point to the brevity of this Court’s reasons in Pawar, suggesting that the decision may not have been fully considered, and that this should limit the decision’s persuasive effect. While it is true that the decision is only five paragraphs in length, this Court started its reasons by acknowledging the "“great significance of the case”": at para. 1. The Court went on to state that it had arrived at its decision only "“[a]fter having long considered and studied the written representations of counsel and listened carefully to their oral arguments”": at para. 2. The panel thus clearly understood the importance of the case, and considered it carefully.
[94] Perhaps more importantly, the decision of the Federal Court under consideration was substantial, detailed and carefully considered: Pawar v. Canada, 1998 CanLII 9096 (FC), [1998] F.C.J. 1418, [1999] 1 F.C. 158. This Court agreed with that decision, finding it unnecessary to repeat the Federal Court’s analysis: at para. 4. That does not mean that this Court did not carefully consider the case. It also bears noting that the Supreme Court of Canada subsequently denied leave to the class members in Pawar to appeal this Court’s decision: [1999] S.C.C.A. No. 526, 27578 (8 June 2000).
[95] A differently constituted panel of this Court subsequently came to the same conclusion as the Court did in Pawar: Shergill v. Canada, 2003 FCA 468, leave to appeal to SCC refused, 30177 (13 May 2004).
[96] In accordance with doctrine of vertical stare decisis, this Court’s decision in Pawar was binding on the Federal Court. Even though the Federal Court did not mention Pawar in its analysis, the Court was nevertheless bound to find that that "“being born abroad”" was not an analogous ground for the purpose of section 15 of the Charter, nor was it subsumed within the enumerated grounds of national or ethnic origin. As a result, it was plain and obvious that the appellants’ claim could not succeed.
[97] Stare decisis also has a horizontal aspect, which provides that decisions from the same court should be followed unless there is a compelling reason not to do so: R. v. Sullivan, 2022 SCC 19 at paras. 74-79; Janssen Inc. v. Canada (Minister of Health), 2021 FCA 137 at para. 72.
[98] Indeed, as this Court observed in Miller v. Canada (Attorney General), 2002 FCA 370, while it is open to this Court to overrule its prior decisions, "“the values of certainty and consistency lie close to the heart of the orderly administration of justice in a system of law and government based on the rule of law”": at para. 8. As a result, one panel of this Court ought not to come to a different conclusion from a different panel, even if it were the view that the first decision was wrongly decided: Miller, above at para. 8.
[99] The appellants have not provided a compelling reason that would justify departing from this Court’s decision in Pawar. This Court is thus required to conclude that individuals’ place of birth outside of Canada is not embraced by the concept of "“national and ethnic origin”", and that "“being born abroad”" is not an analogous ground under section 15 of the Charter.
[100] As noted above, class members are subject to the Fees because they are seeking permanent residency in Canada or Canadian citizenship. Their need to do so is a function of their immigration status rather than their place of birth or their national or ethnic origin. This does not assist the appellants, however, as this Court has rejected "“immigration status”" as an analogous ground on the basis that it is not a personal characteristic that is immutable or changeable only at great personal cost: Almadhoun v. Canada, 2018 FCA 112 at para. 28. See also Forrest v. Canada (Attorney General), 2006 FCA 400 at para. 16; Toussaint v. Canada (Attorney General), 2011 FCA 213 at para. 99.
[101] As noted earlier, the first part of the two-part test for assessing section 15 claims requires claimants to demonstrate that the impugned law or state action creates a distinction based on enumerated or analogous grounds, on its face or in its impact. As explained above, none of the grounds currently identified in the appellants’ statement of claim constitute enumerated or analogous grounds in the circumstances of their claim.
[102] It is thus plain and obvious that, to the extent that the appellants’ claim is based on their places of birth being outside of Canada, their national or ethnic origin or their country of origin, it could not succeed, as it did not engage any of the enumerated or analogous grounds protected by subsection 15(1) of the Charter. The Federal Court thus did not err in striking the appellants’ statement of claim on that basis.
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[134] It is true that citizenship has been recognized as an analogous ground for the purpose of section 15 of the Charter on the basis that it is, at least temporarily, a personal characteristic that is not alterable by conscious action, and in some cases is not alterable except on the basis of unacceptable cost: Law Society of British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6 at 151, 158; Lavoie v. Canada, 2002 SCC 23 at paras. 2, 39. However, as was noted earlier, class members are subject to the Fees because they are individuals who are actively seeking to change their legal status. This relates to their immigration status rather than their place of birth or their national or ethnic origin, or, indeed, their citizenship.
[135] The Supreme Court of Canada has further observed that it is "“the most fundamental principle of immigration law”" that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289 at 733. The Court further observed in Chiarelli that Parliament has the right to adopt an immigration policy, and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada: at para. 24. Requiring that applicants who wish to immigrate to Canada or become Canadian citizens pay certain fees is within this domain of policy making, as long as such individuals are not targeted in a discriminatory fashion. As explained above, the appellants are subject to the Fees because of their immigration status and not their citizenship, which is neither an enumerated nor an analogous ground. . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal, in an Ontario human rights case, reviewed the immigration Post-Graduate Work Permit (“PGWP”) program:[2] Ontario’s Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), prohibits discrimination in employment on the basis of citizenship. In the time period relevant to this appeal, the appellant was not a Canadian citizen or permanent resident (he has since become a Canadian citizen). He was an international student in Canada about to graduate with a mechanical engineering degree. As a matter of federal immigration law, upon graduation, he would be entitled to a Post-Graduate Work Permit (“PGWP”), which would allow him to work full-time, anywhere in Canada, for any employer, for up to three years. This entitlement forms part of a scheme of immigration legislation and regulation designed to attract skilled workers to settle in Canada, become permanent residents, and ultimately, Canadian citizens.
[3] During his last semester of university, the appellant applied for an entry-level engineering job with Imperial. Imperial had a policy that required, as a condition of employment, permanent eligibility to work in Canada, as established by proof of either Canadian citizenship or permanent resident status. The appellant was the top candidate for the job. Imperial offered him the job, conditional on permanent eligibility to work in Canada, as established by proof of either Canadian citizenship or permanent resident status. When the appellant disclosed that he was neither a Canadian citizen nor a permanent resident, and would have to initially work on the three-year PGWP, Imperial withdrew its job offer.
[4] For reasons I explain below, I conclude that the tribunal’s decision that Imperial discriminated against the appellant on the basis of citizenship was reasonable. I would allow the appeal and restore the tribunal’s order.
(1) The appellant’s status in Canada and eligibility to work
[5] In the fall of 2014, the appellant was a student in his final semester of a mechanical engineering degree at McGill University. He was scheduled to complete his studies in December 2014, and to formally graduate in January 2015.
[6] The appellant was, at that time, a citizen of Pakistan. He was in Canada on a student visa. Upon graduation from his university program, he would be eligible for a PGWP for a period of three years. The appellant’s entitlement to a PGWP was conditional only on his providing a letter from the university attesting to the completion of his degree. The PGWP would permit him to work full-time, for any employer, anywhere in Canada. That is, it would give him an unrestricted right to work in Canada, subject only to the three-year time limit.
[7] The PGWP program is part of a federal immigration program aimed at attracting international students to attend Canadian universities and colleges, in order to provide a source of skilled labour to Canada. The PGWP program is designed as a pathway to Canadian citizenship.[1] It has three stages. First, while an international student is still in school, federal immigration law permits them to work up to 20 hours per week during academic sessions, and full-time during scheduled breaks in academic sessions. Second, once an international student, like the appellant, graduates, they are eligible for a PGWP, which allows them to work full-time, for any employer, anywhere in Canada, for up to three years. Third, once the individual is working under the PGWP, they are eligible to apply for permanent resident status from within Canada after they have one year of full-time work experience in Canada. The finding of the tribunal, based on the evidence of immigration experts who testified before it, was that if all went smoothly, a PGWP-holder would obtain permanent residency status within 6-18 months of applying for it. The court further considers the specific Ontario HRC to federal immigration law context at paras 140-158.
. R. v. Berhe
In R. v. Berhe (Ont CA, 2022) the Court of Appeal considers the degree of knowledge of immigration consequences that may effect the validity of a guilty plea:[68] In R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, the Court recognized that a plea will be uniformed if the accused person was unaware of a legally relevant collateral consequence – i.e., an immigration consequence: see also R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52 and R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, at para. 10. A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded guilty with different conditions: Wong, at para. 6.
(a) The Knowledge Component
[69] In my view, Mr. Berhe has failed to establish that he lacked the necessary degree of knowledge about his immigration status. This issue has been addressed in a number of decisions from this court.
[70] In R. v. Shiwprashad, 2015 ONCA 577, 328 C.C.C. (3d) 191, the appellant was a permanent resident who committed a number of offences. His penultimate convictions resulted in him being declared inadmissible to Canada on the basis of “serious criminality” under s. 36(1) of IRPA. Like Mr. Berhe, the appellant’s removal order was stayed for a four-year period on certain conditions, including that he not commit any criminal offences, and that he observe certain reporting requirements if charged and/or convicted of a criminal offence. The stay order included the following:IMPORTANT WARNING
This stay or removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada, if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by a term of imprisonment of at least ten years) before your case has been finally reconsidered. [71] In dismissing the appeal, Weiler J.A. said, at para. 3: “While the appellant may not have been aware of the precise extent of his jeopardy at the time he pleaded guilty, he knew that deportation was a possible consequence.”
[72] In Girn, Watt J.A. observed, at para. 75, that the courts have “resisted imposition of a fixed quantum or standard of information necessary to characterize the plea as ‘informed’. Instead, the jurisprudence counsels a case-by-case analysis consistent with both the subjective nature of guilty pleas and the level of understanding of the consequences of entry of guilty pleas generally.” He further wrote that “[n]o case suggests that knowledge of ‘consequences’ includes knowledge of appellate rights and their limitations”: at para. 75; see also R. v. Coffey, 2017 BCCA 359, at para. 44. In Girn, like Shiwprashad, the court concluded that the appellant had sufficient information to know that further criminality would impact negatively on his immigration status: at para. 78.
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[76] In short, Mr. Berhe had sufficient knowledge of the negative immigration implications of pleading guilty to criminal harassment, on not just one, but two occasions. This case is different from R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, in which the court concluded that the appellant had been misled as to the impact of his guilty plea on his immigration status by his trial counsel erroneously advising him that he would suffer no immigration consequences: at para. 17. That did not happen in this case.
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