R. v. Pineda, 2019 ONCA 935
[10] Based on the record before us, however, it seems clear that the appellant did not know the serious jeopardy he was in. While his lawyer told him that there may be serious immigration consequences arising from his guilty pleas, his lawyer admits that he did not “get into the specifics”. Rather, he told the appellant that he should seek the advice of an immigration lawyer. Knowing that the in-custody appellant had not done so, and did not know the “specifics” about the consequences of a guilty plea, the lawyer assisted the appellant with entering his plea.
[11] The consequences were, of course, grave. Not only was the appellant deportable after the plea because of his permanent resident status, but the length of sentence meant that he would not have a right of appeal from such an order.
[12] On the basis of the fresh evidence, we are satisfied that the appellant had not been informed by his counsel and was not otherwise aware of the potentially serious immigration consequences arising from his guilty pleas, specifically that he could be deported without a right of appeal.
[13] With respect to prejudice, we accept that the appellant would have elected to stand trial if he had been aware of the immigration consequences of his pleas. In his reasons for sentence, the sentencing judge noted the Crown’s case was circumstantial, there were triable issues including “issues with respect to whether or not the Crown could prove beyond a reasonable doubt that he was in fact in possession of the item that’s been exhibited…”. The consequences of deportation were devastating to the appellant’s relationship with his dependent children. The appellant states that had he known he would be facing deportation without a right of appeal, he would have taken all available steps in an effort to stay in Canada and keep his family together. One of those steps would have been pleading not guilty in the face of what he characterized as a weak Crown case.
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