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PROCEDURE - Pleas - Setting aside guilty plea - Voluntariness

Thursday, April 04, 2019 @ 8:35 AM  


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Appeal by the accused, Girn, from a conviction and sentence for offences related to domestic violence. The accused was a permanent resident of Canada who had yet to apply for citizenship. In early 2015, the accused pled guilty to seven offences arising from three incidents of domestic violence against his spouse. He received a brief jail term followed by probation. Approximately two months after sentencing, three further incidents occurred that led to charges on 26 counts involving offences against the accused's spouse's person and property, and multiple breaches of probation. The accused was detained in custody. In 2016, while in custody, an immigration officer told the accused he faced the prospect of being deemed inadmissible on the basis of serious criminality. The following day, the accused entered a guilty plea to eight of the 26 counts, including assault causing bodily harm, and break and enter with intent. A joint submission resulted in a sentence of 12 months' imprisonment, less 247 days' credit, plus three years' probation. In 2017, a removal order was issued for the accused because of his convictions and sentence for assault causing bodily harm. The accused obtained an extension of time to appeal his convictions and sentence.

HELD: Appeal dismissed. The accused failed to establish that his guilty plea was uninformed due to unawareness of the immigration consequences of his plea and the sentence jointly proposed by counsel. The accused was aware that his convictions and sentences had immigration consequences that included removal from Canada, and that any right of appeal from a removal order could not be asserted for a term of imprisonment exceeding six months. He was aware that he was pleading guilty, and that counsel jointly sought a 12-month sentence. The accused relied on fellow inmates for legal advice rather than counsel. No prejudice arose, as a trial would have put the accused at jeopardy for 26 rather than eight counts, and likely provided a basis for the Crown seeking a penitentiary sentence. The accused failed to establish that he received ineffective assistance from counsel. His plea of guilty was voluntary, unequivocal and informed. The legal effect of that plea and the congruity of the admitted facts with the essential elements of the relevant offences resulted in inevitable convictions. There were no circumstances that compromised the fairness of the proceedings either in connection with the entry of the conviction or the determination of a fit sentence. As a spousal abuse recidivist and serial probation order violator, the sentence imposed upon the accused could be regarded as lenient.

R. v. Girn, [2019] O.J. No. 1264, Ontario Court of Appeal, A. Hoy A.C.J.O., D. Watt J.A. and E.F. Then J. (ad hoc) JJ.A., March 13, 2019. Digest No. TLD-April12019009