Guilty Pleas: Ten Things New Lawyers Sometimes Forget

In no particular order:

#10 Consider the immigration status of your client & the potential collateral consequences of a guilty plea

For permanent residents and foreign nationals, very significant consequences may follow a conviction that rises to the level of serious criminality under the Immigration and Refuge Protection Act, namely, the offender being subject to a removal order from Canada upon completion of their sentence.

It is essential then to be aware of a client’s immigration status.  As a matter of good practice, your firm’s client intake form should include information regarding immigration status. [FN1]

Under section 36(1)(1) of the Immigration and Refuge Protection Act, a permanent resident or foreign national is inadmissible on grounds of serious criminality whereupon he/she is convicted of 

1.       a federal offence (which includes any offence in the Criminal Code or the Controlled Drugs and Substances Act) punishable by a maximum term of at least 10 years’ imprisonment, or

2.       a federal offence for which a term of imprisonment of more than 6 months has been imposed. [Emphasis mine].

Counsel should be sure that their client fully understands the potential collateral consequences of a guilty plea where that conviction may result in a sentence of imprisonment being imposed. Lawyers should obtain a written direction from a client prior to any guilty plea, and to reference the possible immigration consequences of a plea in that direction . [FN2]. 

A plea of guilty is informed when an accused is aware of:

i.            the nature of the allegations;

ii.            the effect of the plea; and

iii.           the criminal and legally relevant collateral consequences of pleading guilty. [Emphasis mine]

See R. v. Wong, 2018 SCC 25 (CanLII), at paras. 3-4. 

Lawyers uncertain as to the potential immigration consequences that might entail from a conviction should consult a member of the immigration bar and refer clients accordingly.

In some circumstances, the prospect of triggering s. 36(1)(1) of the IRPA will strongly motivate defence counsel to arrive a joint sentencing position with the Crown, one that avoids a carceral sentence above six months.



[FN1]: LawPRO, the professional indemnity corporation for Ontario lawyers, has advised criminal lawyers to identify clients’ immigration status before entering plea and/or sentence negotiations in order to avoid exposure to possible claims.

[FN2]:  See for instance Mario D. Bellissimo, Immigration Criminality and Inadmissibility, looseleaf (2014), (Toronto: Carswell, 2014), at p. 10-46.

Stuart O’Connell, O’Connell Law Group (all rights reserved to author)

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