[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 will consider the evidence available to the Court of Appeal for its task of deciding whether Shiwprashad was victimized by incompetence. In particular, it will consider whether Shiwprashad’s (or his defence lawyer’s) allegations, ostensibly supported by evidence contained in transcripts, affidavits and testimony, could be accepted as accurate and believable.]

In his affidavit, Shiwprashad

• admitted that, before the criminal case at issue, his immigration lawyer told him “very clearly” that if he got into any more trouble he’d be deported,
• claimed that his criminal defence lawyer gave advice that conflicted with that given by his immigration lawyer, telling him that he would “only receive 60-90 days on weekends on a sentence” and that he should “take the deal” so he could “get back to work”,
• insisted “that he informed defence counsel of his ‘immigration problems’, but counsel advised him that ‘if [he] received a sentence of less than six months jail, immigration could not bother [him].'”;
• stated that he “pleaded guilty because of what [defence counsel] told me about getting 90 days to be served on weekends. I believed him when he told me that as long as I did not get more than six months I would not get deported. I did not call my immigration counsel to confirm this advice. I thought that my criminal lawyer would know better than my immigration lawyer what the consequences of my plea would be.”

When cross-examined by the Crown, Shiwprashad

• testified that he told his defence lawyer about his immigration problems sometime in 2009, after his conviction for sexual interference and sexual exploitation. “However, when advised by the Crown that the [immigration] removal order was dated January 2011, the appellant changed his answer to say that he told defence counsel about his immigration problems after the removal order was stayed”,
• admitted a series of things – (1) he had a copy of the stay order, (2) the immigration lawyer read him (recall that Shiwprashad was illiterate) the whole order, including the warning that he could be deported if he committed further crimes, (3) he had no problems communicating with is immigration lawyer, and (4) every time he went to see his immigration lawyer to prepare for reports to immigration authorities, his immigration lawyer always asked Shiwprashad “if had been in any trouble.”
• as noted in paragraph 39 of the decision, Shiwprashad also testified that his defence counsel (1) never spoke to him about immigration before his plea on the robbery offence, (2) told him he would not have any problems with a sentence of 60-90 days intermittent, (3) guaranteed him this was the sentence he would receive, (4) never guided him to seek advice from an immigration lawyer, and (5) “told him that immigration would not bother him”, adding “I go with what he said because I trust him as my attorney.”

In another affidavit (filed late but still considered by the Court against the Crown’s objection), Shiwprashad swore that he “would never have pleaded guilty to robbery in Brampton in March 2013, if I knew that I would be deported and lose my family and my job.” The defence lawyer’s evidence included the following:

• contrary to Shiwprashad’s evidence,  “he never told the appellant he would not be deported if he received a sentence of less than six months”;
• he insisted he did not know and Shiwprashad never told him that an immigration issue arose after the appellant’s convictions for sexual interference and sexual exploitation or that a deportation order existed or that the deportation was stayed. In his affidavit the defence lawyer swore: “Given [the appellant’s] roots [in the] country over the past 25 years (secure full-time employment, two Canadian born children) I had no reason to believe he required the assistance of an immigration lawyer.”;
• he admitted certain things – (1) that, through having historically represented Shiwprashad criminally prior to the case in question, he knew his client was not a Canadian Citizen and that (2) “a general thought about potential immigration consequences was triggered when the Crown put its position of a three-year sentence on the record in response to the appellant’s guilty plea.”;
• when the Crown cross-examined him, the lawyer asserted that he had told his client to pursue advice from an immigration lawyer. Notably, this contradicted not only Shiwprashad’s evidence but also seemed to contradict the lawyer’s own affidavit (see the second bullet point above detailing defence counsel’s evidence);
• as noted by Justice Weiler in delivering the Court’s decision[1], “When defence counsel was reminded his affidavit said that he was unaware of any immigration issues, he explained that his affidavit referred only to his lack of awareness of the deportation issues that arose following the 2008 convictions, and had he known about those issues, he would have set a date for trial.”

As often happens in criminal and other cases featuring contrasting versions from key witnesses, the Court of Appeal did not fully accept the evidence of either witness.

The Court was not convinced of the defence lawyer’s purported ignorance about Shiwprashad’s potential deportation or that he told his client to see an immigration lawyer.

The transcript of the sentencing hearing revealed different occasions during which Shiwprashad’s deportation and particular immigration concerns were openly and clearly mentioned in the lawyer’s presence. (para. 48) The lawyer’s admitted failure to follow-up with Shiwprashad to see if he in fact sought the immigration legal advice defence counsel supposedly told him to get damaged the Court’s ability to accept that the defence lawyer actually encouraged his client to get that advice.

Still, despite the problems with the lawyer’s evidence, ultimately the Court of Appeal decided that Shiwprashad failed to meet his legal obligation to prove (not to the level of beyond a reasonable doubt but to the lesser level of proof  known as balance of probabilities – more likely that not) his version of the facts because, critically, the Court did not accept a Shiwprashad’s evidence that his defence lawyer “promised him he would receive a sentence of 60 to 90 days and told him he would not be deported if he pleaded guilty and received a sentence of less than six months.”

The Court could not accept Shiwprashad’s claim that the defence lawyer gave him that guarantee and that he relied on it because:

1. defence lawyers (as a matter of logic, experience and/or reasonableness presumably) generally would not give such a guarantee to a client in Shiwprashad’s circumstances (the Crown was not jointly supporting the sentence, Shiwprashad had a related criminal record for violence, and the crime for which he was being sentenced represented greater violence than past offences);
2. an experienced criminal like Shiwprashad who had been through guilty pleas many times (in fact, he pleaded guilty to all 14 of his prior convictions) had to know from repeated experience that his lawyer’s legal argument to the judge for a particular sentence was just that, an argument that could be rejected and not a guarantee of a specific amount of jail time or punishment;
3. during the sentencing hearing, in open court and absent any evidence that the appellant had problems hearing or understanding, Shiwprashad heard his lawyer tell the sentencing judge that he knew the judge was not obliged to accept his lawyer’s argument for a 60 to 90 day jail sentence; and
4. it accepted the defence lawyer’s evidence that it was not his practice to give immigration advice himself and that he did not give such advice on the occasion in question. The same evidence that helped lead the Court to doubt that the lawyer had encouraged the appellant to get advice from an immigration lawyer was the same evidence which showed the lawyer had “consistently ignored [Shiwprashad’s] immigration status” (para. 56), and made it more believable that he would not have personally given any immigration advice.

Because the appellant could not prove his main assertion – that his defence lawyer certified he would get 60 to 90 days in jail and guaranteed he would not suffer negative immigration consequences – his primary attack on what happened at his original hearing was rebuffed.

But having lost the battle on that issue, Shiwprashad had still not necessarily lost the war.

In Part 3, the discussion of R. v. Shiwprashad will conclude with consideration of the appellant’s alternative argument for claiming that his defence lawyer provided incompetent representation. In addition, Part 3 will examine the Court of Appeal’s approach to deciding what makes a criminal defence lawyer’s handling of immigration issues substandard and whether a criminal offender aware of his own immigration issues is properly positioned to claim that he’s been unjustly convicted.

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[1] Shiwprashad at para. 47

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