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APPEALS - Miscarriage of justice - Powers of appellate court - To receive new evidence

Monday, March 23, 2020 @ 9:35 AM  

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Appeal by Cerna from his convictions for five offences including assault with a weapon and attempting to obstruct justice and application to withdraw his guilty pleas. The charges arose from four different incidents. The accused drove away with items stolen by another individual. He returned the items the next day. In another incident, the accused swung a piece of wood at three family members. In a separate incident, he threatened his wife and brother-in-law. In contravention of a non-contact order, the accused called his wife from jail 67 times. He asked both his wife and his mother to provide a fake address that he could use to support his release. During the plea review, the accused acknowledged the facts underlying the offences. The accused’s immigration status was not mentioned during the plea review or at sentencing. The accused was sentenced to time served, as he had spent 179 days in pre-sentence custody, plus two years’ probation. Following his sentencing, the accused, who was a permanent resident, was served with a deportation order. The accused adduced fresh evidence that he pleaded guilty to get out of jail as soon as possible to earn money for his family but would have stayed in jail until trial if it would have increased his chance of remaining in Canada.

HELD: Appeal and application allowed. The accused’s fresh evidence was credible and was admitted. It was not unbelievable that, if faced with deportation and possible permanent separation from his family, the accused would have chosen a path that had the potential to avoid that outcome, even if it meant remaining in pretrial custody for a longer time. An acquittal on some of the charges would have reduced the overall seriousness of the accused’s behaviour and might have influenced the sentences for any other convictions. Even if the accused had pleaded guilty to, or had been convicted of, all the offences, he could have negotiated or made submissions regarding the allocation of his pre-sentence time among the convictions in a way that would have preserved his right to appeal the deportation order. The accused’s evidence demonstrated a reasonable possibility that he would have either entered pleas differently or pleaded guilty only with different conditions, had he been aware of the immigration consequences of the pleas. The accused established he suffered subjective prejudice because he was not advised of the immigration consequences of his guilty pleas, such that his pleas were the result of an unfair trial process and a miscarriage of justice.

R. v. Cerna, [2020] M.J. No. 44, Manitoba Court of Appeal, H.C. Beard, M.M. Monnin and K.I. Simonsen JJ.A., February 13, 2020. Digest No. TLD-March232020002