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Immigration - General. 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 A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded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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