Accused not advised of immigration consequences of guilty plea

Accused was immigrant with permanent resident status. Accused sold cocaine to undercover police officer. Accused pleaded guilty to trafficking cocaine and was sentenced to nine months’ incarceration. Accused learned that, due to conviction and sentence, he would be removed from Canada without right to appeal removal order. Accused applied for extension of time, appealed his conviction, and applied for leave to appeal from sentence. Appeal was dismissed and application for leave to appeal sentence was granted. Trial counsel had not advised accused of immigration consequences of his guilty plea or of attracting sentence of six months or more. Court of Appeal ruled that accused could not succeed on basis of unintended collateral consequences of his guilty plea as he did not establish that such lack of information about immigration consequences would have made difference to his decision to plead guilty. Accused appealed. Appeal dismissed. Correct framework to apply where accused wants to withdraw guilty plea is subjective framework, not modified objective framework. Accused who seeks to withdraw guilty plea must demonstrate prejudice by filing affidavit establishing reasonable possibility that he or she would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions. Accused’s plea was uninformed, but he failed to establish he suffered prejudice giving rise to miscarriage of justice. Accused could not show there was reasonable possibility that if he had been informed of consequence, he would have either pleaded differently, or pleaded guilty with different conditions. Accused’s affidavit did not depose what he would have done differently if he had been informed of immigration consequences so he did not meet his burden. Accused’s sentencing was outstanding and Crown had conceded that sentence of six months less a day would be appropriate in light of accused’s deportation risk. 

R. v. Wong (2018), 2018 CarswellBC 1284, 2018 CarswellBC 1285, 2018 SCC 25, 2018 CSC 25, McLachlin C.J.C., Abella J., Moldaver J., Wagner J., Gascon J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellBC 2949, 2016 BCCA 416, Saunders J.A., Harris J.A., and Fitch J.A. (B.C. C.A.).