OCA ruling shows why criminal defenders should always determine client’s immigration status: lawyer

Accused pleaded guilty, unaware that it would lead to him getting deported

OCA ruling shows why criminal defenders should always determine client’s immigration status: lawyer
Kenneth Jim, Legal Aid Ontario.

A recent Court of Appeal case illustrates why defence lawyers, judges, and Crowns should always be aware of an accused’s immigration status before a guilty plea is entered, says Kenneth Jim, senior criminal counsel with Legal Aid Ontario.

After pleading guilty to multiple offences and being sentenced to one year in jail in 2017, Marc Jean argued at the Court of Appeal that his decision to take the plea had been uninformed. He did not know about the severe immigration consequences that would result from it. Jean was found inadmissible to Canada, was subject to removal proceedings, and because of the length of his sentence, he had no right to appeal the removal order. He has since been deported but can re-apply to return to Canada.

Jean brought fresh evidence to the appeal, which supported the case that his plea was uninformed, the Court of Appeal said. The Crown agreed that the appeal should be allowed considering the new evidence.

The court in R. v. Jean 2022 ONCA 901 found that there is “a reasonable possibility” that Jean would have approached the case differently had he understood the significant immigration consequences he would face. The court admitted the fresh evidence, set aside the conviction, and ordered a new trial.

The issue raised in R. v. Jean is relevant to an accused who is a permanent resident, refugee claimant, international student, or visitor. The case is a reminder for criminal defence lawyers always to determine a client’s immigration status, and to consult with an immigration lawyer on what the charge and sentence could mean for it, says Jim. He notes that Legal Aid Ontario has a service for legal-aid files through which staff lawyers will answer questions about immigration consequences over email.

“When the federal government makes changes to immigration legislation, the new laws can be retroactive. It’s always good for lawyers to refresh their knowledge, but they must also protect clients’ interest by consulting with an immigration lawyer and get the opinion in writing.”

“Many lawyers mistakenly believe that only the length of a sentence has an impact on a person’s ability to appeal a deportation order,” says Jim. But charges such as impaired driving, assault with a weapon, and break-and-enter, among others, have implications on a person’s immigration status and can result in deportation or loss of status, he says.

When considering a guilty plea, lawyers should know whether the plea will trigger admissibility and whether the sentence will deny the accused a right to appeal a deportation order under s. 36(1) of the Immigration and Refugee Protection Act, he says.

“In addition to finding out the immigration status, defence lawyers also need to pay attention to younger clients, as they may not know what information to provide,” says Jim. “It is the lawyer’s duty to find out their client’s background and sentencing factors and ensure that they are put forward to the judge.”

“Defence counsel should always maintain detailed notes and instructions from [the] client. This is to protect both client and counsel.”

Depending on the immigration implications, it may be in the client’s best interest to go to trial on the charges. In some circumstances, the lawyer can negotiate a resolution where the charge and sentence do not hurt their status, he says. For example, an assault with a weapon could be reduced to simple assault or impaired driving to dangerous driving seeking a discharge.

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