[Part 1 introduced the unfortunate circumstances of Mr. Shiwprashad, a permanent resident on a stay of deportation who pleaded guilty to robbing his mother for $40. His robbery conviction triggered cancellation of they stay and deportation by immigration authorities. He appealed his robbery conviction to the Court of Appeal for Ontario, essentially claiming that his criminal lawyer provided incompetent representation (a.k.a. ineffective assistance) in the proceedings leading up to and at his guilty plea and sentencing. Part 1 articulated the basic legal test Shiwprashad would have to pass to successfully claim lawyer incompetence. Part 2 examined the evidence which the Court of Appeal considered in deciding whether Shiwprashad’s particular allegation of incompetence was proven and detailed why the Court rejected Shiwprashad’s claim that his defence lawyer guaranteed that he would suffer no immigration consequences. In this conclusion, we consider Shiwprashad’s alternative argument and see that the Court of Appeal ultimately resolved the case on whether Shiwprashad suffered a miscarriage of justice.]

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As a second prong to his appeal, Shiwprashad essentially argued that, based on the evidence available to the Court that it did accept (including conduct the lawyer admitted to in his own evidence), it should find that his defence lawyer could not be presumed competent and that his performance (i.e. his decisions and judgments at the times they were made in the course of his role as a defence lawyer) was unreasonable, considering the standard expected of competent, similarly situated lawyers, in the specific circumstances of Shiwprashad’s case.[1]

However, Shiwprashad’s alternative argument would be cut off at the knees if he could not also show that his defence lawyer’s purported incompetence resulted in a “miscarriage of justice” (i.e. an unreliable verdict or an unfair hearing).[2] Without a miscarriage of justice, his conviction and sentence would stand leaving him unable to use the appeal as leverage to reverse the consequential damage of being deported.

Madam Justice Weiler, writing for a 3:0 unanimous Court and noting the appellant’s argument, certainly highlighted some, at the very least, yellow flags which might have supported a finding of substandard performance:

  • the defence lawyer knew Shiwprashad was a non-citizen from having represented him in the past;
  • it was easy to acquire the knowledge about the existing immigration/deportation risks which could arise from the robbery guilty plea and sentencing by simply reading the clear and explicit text of the immigration legislation;
  • the liability insurer for Ontario lawyers had advised lawyers assisting with guilty pleas to determine clients’ immigration status before proceeding;
  • persuasively, the United States Supreme Court held, in Padilla v. Kentucky, 559 U.S. 356 (2010), that the failure of criminal defence lawyers to advise non-citizen clients about the immigration consequences of guilty pleas constitutes ineffective assistance of counsel. Prior to this decision, defence counsel in the United States were not required to advise clients of the collateral consequences of a guilty plea such as loss of government benefits. Deportation was considered a collateral consequence; and
  • Ontario lawyer groups (textbook authors and the Ontario Bar Association) had highlighted the need for criminal lawyers to scrutinize clients’ immigration status and to alert clients to potential immigration consequences arising from guilty pleas and sentencing.[3]

Despite the information presented, the Court decided it needed more input on the subject of what amounted to reasonable legal assistance in this intersecting area of criminal and immigration law than was available in Shiwprashad’s case. It was not going to decide if the defence lawyer’s conduct was actually unreasonable.[4]

More importantly and unfortunately for Mr. Shiwprashad, it decided that even if it were assumed that the appellant’s defence lawyer had acted unreasonably, his handling of the case did not make Shiwprashad’s finding of guilt or sentence unreliable or create an unfair hearing.[5]

The Court summed up its assessment this way:

The appellant knew he was subject to deportation. He knew that the stay of his deportation order would be cancelled if he committed a further criminal offence which carries a penalty of ten years or more or if he received a sentence of six months or more and that he could be deported. In the circumstances irrespective of whether the appellant’s counsel fell below the standard required of a criminal law defence counsel by not advising the appellant of the immigration consequences of his plea, or, by not following up with him if he referred him for immigration advice, the appellant understood deportation was a potential consequence of his plea, the process was not unfair, and there was no miscarriage of justice. [6]

Could Mr. Shiwprashad have obtained citizenship before compiling a criminal record and, accordingly, acquired immunity from deportation before his criminal antecedents crashed down on him in a landslide which took him out of Canada? From the facts related in the decision it’s unknown. On the issues addressed in the case it is irrelevant.

However, if the choices are get your citizenship as soon as possible, before your life devolves into criminality, or hope that one day a court will decide that you did not understand your deportation risk, hopefully R. v. Shiwprashad makes the correct choice just a little more obvious.

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[1] Shiwprashad at paras. 59 and 61-64

[2] Id. at paras. 64-65

[3] Id. at paras. 65-74

[4] Id. at para. 75

[5] Shiwprashad at paras. 58-59, citing R. v. Joanisse (1996) 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 61

[6] Id. at para. 65, citing R. v. Joanisse (1996) 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 62

Photo source: http://www.eyesrilanka.com/wp-content/uploads/2015/06/deportation.jpg

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