An accused’s guilty plea in Canada must be voluntary, unequivocal, and informed. 

The Supreme Court of Canada recently affirmed in R. v. Wong, 2018 SCC 25 that an informed guilty plea includes knowledge of immigration consequences (para. 4).

A majority of the Court held that an uninformed guilty plea with respect to a legally relevant consequence may result in a miscarriage of justice and allow for the withdrawal of the guilty plea if an accused establishes subjective prejudice. More specifically, accused persons must demonstrate how they would have handled the plea process differently if they had been aware of the collateral consequence. As Justices Moldaver, Gascon and Brown, speaking for a majority of the Supreme Court of Canada, state at para. 6 in Wong:

…accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea 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.

The bottom line is that criminal practitioners must determine their clients’ immigration status at the outset of the solicitor-client relationship. Counsel’s advice with respect to choice of plea for non-citizen accused persons must take into account collateral immigration consequences. 

Other considerations:

·     Clients have a positive obligation to notify immigration authorities that they have been arrested and charged if they have an ongoing application with Immigration, Refugees, and Citizenship Canada. 

·      R. v. Pham, 2013 SCC 15 at para. 14: “…a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.”

 

 

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