R v Wong: Informed Guilty Pleas Require Knowledge of Collateral Immigration Consequences
Earlier this year, the Supreme Court of Canada (“SCC” or the “Court”) in R v Wong, 2018 SCC 25 [Wong, SCC] held that guilty pleas must be informed. This means that the accused must be aware of the nature of the allegations made against him/her, the effect of the plea, and the collateral consequences of the plea, such as deportation risk. If a plea is uninformed and this “prejudices” the outcome, the Court held that the plea should be vacated. A collateral consequence is a “secondary result arising from legislation outside the criminal law” (R v Wong, 2016 BCCA 416, para 35 [Wong, 2016 BCCA]) and collateral consequences relating to immigration have already been determined relevant at the sentencing stage (R v Pham, 2013 SCC 15 [Pham], para 13).
In this article I will argue that (1) the Court’s split decision hides an underlying agreement on core issues, that (2) Wong may provide much-needed standardization to how courts approach withdrawal of uninformed guilty pleas, and that (3) despite leaving room for “bad” lawyering, the SCC’s decision not to base their analysis about vacating a plea on the effectiveness of counsel was the right legal approach (for “ineffectiveness of counsel” framework see R v Aulakh, 2012 BCCA 340). I will begin by summarizing the facts, procedural history, and decision. Next, I explore the possible scope of how Wong may be applied in future. I finish with a discussion about the desirability of standardizing how lower courts approach this topic, the issue of “bad” counsel, and why I think the “burden” of informing the accused of immigration consequences should ultimately be shared by defense counsel, the Crown, and the court.
Mr. Wong is a Chinese citizen and a permanent resident of Canada. In a “dial-a-dope” operation, an undercover police officer caught and charged him in the act of selling a small amount of cocaine. Mr. Wong pled guilty and served a 9-month sentence of imprisonment. While he was still incarcerated, the Canadian Border Services Agency (CBSA) contacted him and informed him that they had found him inadmissible to Canada. Consequently, the CBSA was planning to pursue his deportation. A non-citizen who is convicted of a criminal sentence in Canada of six months or more will be rendered inadmissible to Canada on grounds of serious criminality under s. 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). Further, a removal order flowing from this determination cannot be appealed (IRPA, s. 64(1) and (2)). Mr. Wong’s trial lawyer never informed his client of the possibility of deportation. Mr. Wong appealed his guilty plea and understandably hired new lawyers for his subsequent appeals.
Mr. Wong took steps to have his guilty plea vacated beginning with the British Columbia Court of Appeal (Wong, BCCA 416). He also initiated a sentencing appeal (R v Wong, 2018 BCCA 360 [Wong, 2018 BCCA]). Under s. 606(1.1)(ii) of the Criminal Code, RSC 1985 c C-46, a condition for accepting a guilty plea is that the accused understands the nature and consequences of the plea (see R v Taillefer, 2003 SCC 70, para 85). At the BCCA, Mr. Wong alleged that his guilty plea should be vacated based on the ineffective assistance of counsel, an argument considered under the miscarriage of justice provision of the Criminal Code (s. 686(1)(a)(iii)).
Though all the BCCA justices accepted that Mr. Wong was unaware of collateral consequences of his plea, they did not believe it could be withdrawn. Each judge wrote separate concurring reasons dismissing the case. Justice Saunders did not find it credible that Mr. Wong would have approached his case differently if he had been furnished with immigration information. Justice Saunders required that Mr. Wong establish an “articulable route to a conclusion different from a guilty verdict” (Wong, 2016 BCCA, para 43). Applying the ineffective assistance of counsel framework, Justice Saunders did not find that the work of Mr. Wong’s trial lawyer fell below the standard of reasonableness expected from professionals or that deficient counsel work resulted in prejudice. Justice Fitch agreed with Justice Saunders on the result, but was opposed to applying the ineffectiveness of counsel framework. He did not believe Mr. Wong needed to demonstrate he had a viable defense (Wong, 2016 BCCA, para 52). Justice Harris held that counsel effectiveness was a relevant consideration, but like Justice Fitch did not require Mr. Wong to prove he had an “articulable route to an acquittal” (Wong, 2016 BCCA, para 82). Mr. Wong appealed to the Supreme Court of Canada. At the same time Mr. Wong applied to appeal the length of his sentence, with that matter held in abeyance until the conviction appeal was resolved.
Mr. Wong’s application at the SCC was ultimately dismissed, but on the premise that the “immigration consequence” (the risk of deportation) would never materialize in his case given the likely disposition of the outstanding sentencing appeal (Wong, SCC, para 38):
We note that Mr. Wong’s sentencing appeal is outstanding, and the Crown had conceded that a sentence of six months less a day would be appropriate in light of Mr. Wong’s deportation risk. From this, it follows that his right to appeal the removal order will likely be preserved after the conclusion of his sentencing appeal (Wong, 2018 BCCA, para 38).
Appellate courts can vary a sentence where the sentencing judge was unaware of the collateral immigration consequences, so long as the new sentence is still proportionate to the gravity of the offence and the degree of responsibility of the offender (Pham, paras 14 and 18). Two weeks ago Mr. Wong’s sentencing appeal was successful. Now that Mr. Wong’s sentence is set at under six months, he is unlikely to face inadmissibility to Canada and will likely avoid deportation.
Agreement and Disagreement in the Court
In the SCC decision, the majority and dissenting opinions demonstrated an underlying agreement that immigration consequences are relevant to an informed guilty plea. However the Court disagreed over whether a subjective or objective test was appropriate for determining prejudice. Interestingly, given the 4-3 split and the fact the dissent was written like a majority opinion, it appears that one of the judges may have switched sides at the 11th hour (possibly Justice Rowe, who concurs with but does not contribute to writing the majority’s judgment).
The subjective framework that is now law states the accused must “file an affidavit establishing a reasonable possibility that he or she would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions” (Wong, SCC, headnote). In the Court’s words, an accused “seeking to withdraw a guilty plea must demonstrate [subjective] prejudice” and cannot simply be throwing a “Hail Mary” (paras 19 and 20). The alternative approach championed by the dissent would have evaluated prejudice through a modified objective or “reasonable person” test. The majority argued this objective test would “not account for the fundamentally subjective and deeply personal nature of the decision to plead guilty” and that “it will likely be difficult for courts to apply” (headnote).
Although the minority would have allowed the appeal in this case, perhaps the apparent conflict in the judgments hides fundamental similarities in their views. The affidavit required by the majority, while a new procedural step, will be vetted and “measured against objective circumstances” (para 26). Thus, each test would involve engaging in an analysis based on certain objective factors, like the strength of the Crown’s case or any concessions or statements from the Crown (para 26). Further, both judgments agree on the fundamental notion that possession of information about a collateral immigration consequence like deportation goes to the heart of what an informed and valid guilty plea should be.
Scope of the Decision
The narrow takeaway from Wong is that, as a minimum baseline, an accused who enters a guilty plea ignorant to deportation risk is eligible to have their plea vacated if they can show their outcome was prejudiced. Are there broader implications? Some might look at this case and say it harmonizes the national approach to vacating uninformed guilty pleas. However, there are important questions of scope that will need to be addressed by future jurisprudence. For instance, what if a guilty plea affects other immigration matters short of deportation such as the ability to sponsor a family member? What about the situation where a guilty plea can have serious collateral consequences outside the immigration sphere? Take as examples other significant risks of a criminal conviction including losing employment, a child, social assistance benefits (see R v. Dennis, 2013 BCCA 153 for a case regarding a lifetime ban from welfare) or a professional license.
The Court did not specify exactly how the test in Wong applies in these circumstances. Nonetheless, it did offer guidance that the type of “legally relevant” collateral consequences it had in mind “will typically be state-imposed and flow fairly directly from the conviction or sentence” and have an “impact on serious interests of the accused” (Wong, SCC, para 75). Another ambiguity left by Wong pertains to the level of ignorance that will make a plea uninformed. Does a person have to be totally ignorant of the collateral consequence, or can they have some understanding and still ask for their plea to be vacated? In R v Kitawine, 2016 BCCA 161, for example, the accused had been exposed to some immigration information while going through the criminal process, and the appellate court judge inferred he knew enough to meaningfully enter the plea. Uncertainties like these are undoubtedly going to be fodder for creative litigators moving forward.
Prior to Wong, courts took diverse approaches to the issue of vacating an uninformed guilty plea. In Ontario, the Court of Appeal was sympathetic to an accused truck driver facing a license suspension, finding he was prejudiced when he plead without knowing about this consequence (R v Quick, 2016 ONCA 95). By contrast, in Alberta and Quebec appellate courts have held that being unaware of a collateral consequence does not necessarily make a plea uninformed or invalid (R v Hunt, 2004 ABCA 88; R v Nersysyan, 2005 QCCA 606). In terms of mixed approaches, it is pertinent also to revisit the fact that Mr. Wong’s case was analyzed in three different ways by justices of the same court at the British Columbia Court of Appeal. The Supreme Court directs all Canadian courts with its decisions. Perhaps some much-needed standardization will result from Wong.
It is hard not to see that Mr. Wong’s trial lawyer let his client down. As Justice Gascon wrote in his dissenting opinion in R v Suter, 2018 SCC 34, “[t]he whole point of having a lawyer in the first place – in the detention context or otherwise – is so that they can tell you what to do based on what they know” (para 137). Still, though the question of how to admonish and deter “bad” counsel remains, the SCC’s rejection of the ineffectiveness of counsel framework in Wong was likely the right call. First, that framework would not be meaningful in the case of self-representing litigants. Second, it would present an additional burden for the accused to prove. Third, there are viable alternatives to disciplining ineffective counsel, such as through making a complaint directly to the provincial law societies. Finally, placing an emphasis on defence counsel professionalism might suggest more limited expectations regarding the duty of the Crown and plea judge to properly inform an accused of collateral consequences. While defense counsel retains primarily responsibility, in R v Martinez-Marte, 2008 BCCA 136, the British Columbia Court of Appeal urged Crown counsel to raise the issue of immigration consequences upon the failure of defence counsel to do so in the context of sentencing (para 19).
It is an interesting question how the “burden” of informing the accused should best be split between lawyers, the Crown, and the courts. An implication of Wong is that collateral consequences of a criminal conviction, especially deportation, should always be at the forefront of a criminal defense lawyer’s mind. Criminal and immigration law must not be viewed as completely distinct areas of legal practice (a reality some call “crimmigration”). How involved should courts be given that they are supposed to be impartial neutral bodies? What of the Crown’s dual capacities as adversary and public servant? Provincial legal aid entities can certainly play a helpful role. Legal Aid Ontario’s Plea Comprehension Inquiry questionnaire, for instance, specifically includes immigration status and collateral consequences in its checklist of items to address in every guilty plea. One option would be to mandate that before all plea agreements are signed, the accused must be informed of the collateral consequences in the presence of Crown counsel and the defence counsel. Also, duty counsel lawyers may be able to function better if counsel’s instructions clearly list the collateral consequences their clients are facing. Such practices would ensure the accused is properly informed of collateral consequences when deciding whether to forego their right to a trial. It would also promote the finality of guilty pleas and thus be good for the criminal justice system.