Imagine it.

You came to Canada from Guyana as a very young adult. You’ve been a permanent resident (or, using the former term, a “landed immigrant”) for almost a quarter century.

But during that period, you’ve been found guilty of various criminal offences at a rate of about 1.6 crimes per year. Your last offence involved a serious breach of the victim’s personal integrity.

As a result, the immigration authorities act to remove you from Canada and succeed in getting an order to do just that. However, you get a reprieve. The order to remove you is postponed as part of an appeal, giving you a chance to demonstrate positive behaviour and stay on the right side of the law.

It’s a critical opportunity but you must not violate key conditions listed at the end of the stay order. You cannot read so your immigration representative has to read it to you:

“IMPORTANT WARNING: This stay of 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.”

Unfortunately, you find yourself charged again. This time it’s for robbery, threatening death and assault with a weapon.

It’s bad enough that the postponement of your removal from Canada is at risk. It straddles tragedy that the alleged crime which may see you eliminated from Canada is that you threatened your mother at knifepoint for 40 dollars.

In R. v. Shiwprashad[1], this was a critical part of the story. But there was more.

The accused/appellant pleaded guilty to robbery with the help of a defence lawyer who helped him with his most recent prior case. The Crown asked for 3 years in the penitentiary but the judge effectively gave him 9 months in jail.

That 9-month sentence, however, triggered immigration consequences. A week after being sentenced, Shiwprashad

“was reported inadmissible due to serious criminality pursuant to s. 36(1)(a) of the IRPA, and on June 4, 2013, the stay of the 2009 removal order was cancelled and the appellant’s appeal was terminated.[4] A warrant for the appellant’s arrest was executed on July 30, 2013, while he was in custody. [27]      The appellant completed his sentence on August 3, 2013, but was placed on an immigration hold. Notice of the decision cancelling the stay, dated August 16, 2013, was given to the appellant. On September 24, 2014, the appellant filed a judicial review application. The application was unsuccessful. A further application to the Federal Court of Canada to stay the removal order was also unsuccessful. [28]      The appellant was deported as scheduled on February 11, 2014.“

Mr. Shiwprashad appealed. The main question[2] the Court of Appeal addressed was:

• should the appellant’s guilty plea be canceled on the basis that he received ineffective assistance from his lawyer because he was not properly informed of the immigration consequences of the plea.

The three Court of Appeal justices unanimously denied the appeal on this question.

INEFFECTIVE ASSISTANCE

To succeed on this ground, Shiwprashad had to do three things:

1. prove, with available evidence, that his accusations against his trial lawyer should be accepted by the Court of Appeal as things that actually happened (i.e. accepted as facts); and successfully argue that
2. the representation provided by his trial lawyer was “incompetent”; and that
3. the incompetent representation resulted in a “miscarriage of justice”.

The evidence for the Court of Appeal’s consideration was sourced from

• the transcript of the proceedings in the original, lower court (primarily the guilty plea and sentencing hearing),
• sworn statements (i.e. affidavits) from both Shiwprashad and his former lawyer, and
• the testimony given when each was cross-examined by the Crown (a normal part of the appeal procedure when “fresh evidence”  – evidence not provided during the original proceedings/hearing – in affidavit form is provided in a case involving alleged ineffective assistance from the defence lawyer at the original hearing).

What did the Court of Appeal think about the credibility and reliability of Shiwprashad’s and his former lawyer’s evidence?

The Court’s assessment of the evidence and the claims it accepted as fact will be considered in R. v. Shiwprashad: Another Tale of Non-Citizens in the Canadian Justice System – Part 2.

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[1] 2015 ONCA 577 [“Shiwprashad”] (http://canlii.ca/t/gkr44)

[2] The appellant asserted another ground of appeal, namely that the criminal legislation [s. 606(1.2) of the Criminal Code] which requires a judge handling a guilty plea to ensure that an accused’s guilty plea is voluntary and informed violates the right to fair procedures before losing one’s freedom and/or the right to equality. The appeal was ultimately decided on the incompetence of counsel issue alone.

Photo Source:

http://cpimmigration.com/wp-content/uploads/2014/05/Deportation-Defense-in-Court-300×199.jpg