Pleading Guilty Without Knowing that you may be Deported

To be valid, a guilty plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and “legally relevant collateral consequences” of that plea.

            R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-4.

Legally relevant collateral consequences include immigration consequences. 

To set aside a presumptively valid plea, the appellant must establish that: 

(i)              he was unaware of a legally relevant consequence of the plea, assessed objectively; and
(ii)            he has suffered prejudice, in the sense that he would have acted differently had he been properly made aware of the consequences.

Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33.

Where deportation is within the range of possible consequences, and where the accused would not otherwise have obtained that information (for instance, by consulting with an immigration lawyer),  defence counsel should go further than simply informing the client that serious immigration consequences might follow from the guilty plea.  Counsel should specifically inform the client as to the prospect of deportation.

See R. v. Pineda, 2019 ONCA 935, where the Court of Appeal for Ontario found that the appellant had not been informed by his counsel and was not otherwise aware of the potentially serious immigration consequences arising from his guilty pleas, specifically that he could be deported without a right of appeal.  Guilty pleas and consequent convictions set aside.  New trial ordered.

Stuart O’Connell, O’Connell Law Group, Toronto.
Tel: 416-628-1942
(All rights reserved to author)



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