COURT OF APPEAL FOR BRITISH COLUMBIA
|
Citation: |
R. v. Coffey, |
|
|
2017 BCCA 359 |
Date: 20171020
Docket: CA43842
Between:
Regina
Respondent
And
Peter Gerard Coffey
Appellant
|
Before: |
The Honourable Mr. Justice Frankel The Honourable Madam Justice Garson The Honourable Mr. Justice Harris |
On appeal from: An order of the Supreme Court of British Columbia, dated July 5, 2013 (R. v. Coffey, Vancouver Docket Number 26326).
|
Counsel for the Appellant: |
C.R. Terepocki |
|
Counsel for the Respondent: |
J.N. Walker |
|
Place and Date of Hearing: |
Vancouver, British Columbia September 13 and 14, 2017 |
|
Place and Date of Judgment: |
Vancouver, British Columbia October 20, 2017 |
|
Written Reasons by: |
|
The Honourable Madam Justice Garson |
|
Concurred in by: |
|
The Honourable Mr. Justice Frankel The Honourable Mr. Justice Harris |
Summary:
The appellant, a permanent resident of Canada, applied for an extension of time to appeal his conviction. He sought an order allowing him to withdraw his guilty plea to one charge of being in possession of the proceeds of crime. He argued his plea was uninformed because he did not know his conviction and sentence could lead to his deportation from Canada without an appeal to the Immigration Appeal Division. He also said his counsel provided ineffective assistance by allowing him to enter an uninformed guilty plea. Held: Appeal dismissed. The appellant’s plea was sufficiently informed. It follows that his claim of ineffective assistance of counsel must fail. He knew his guilty plea could jeopardize his immigration status and lead to a removal order. If the appellant was ignorant of specific details of the immigration consequences of his plea, this ignorance resulted from his own wilful blindness. Upon raising the issue of a potential removal order with his counsel, he declined their offer to refer him to an immigration lawyer and asked them not to mention his immigration status in plea negotiations. In addition, as the law stands in British Columbia, an appellant seeking to withdraw a guilty plea must establish an articulable path to acquittal. The appellant failed to do so. His proposed defence of innocence had no air of reality.
Reasons for Judgment of the Honourable Madam Justice Garson:
[1] The appellant, Peter Coffey, applies for an extension of time to appeal his conviction. He seeks an order permitting him to withdraw his plea of guilty to one charge of being in possession of the proceeds of crime. He contends that he was not aware of the collateral immigration consequences of a guilty plea and two-year sentence. He also says that there is an innocent explanation for his being found in possession of a large amount of cash.
[2] Mr. Coffey is a permanent resident of Canada. His conviction for possession of the proceeds of crime rendered him inadmissible to Canada on grounds of serious criminality under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. He says he did not learn until sometime after he pleaded guilty that he could face deportation as a result of his plea. Further, he says he did not know at the time of his plea that, pursuant to s. 64(2) of the IRPA, the length of his sentence would prevent him from appealing his removal order to the Immigration Appeal Division (“IAD”).
[3] Mr. Coffey also applies for the admission of fresh evidence on appeal to explain the delay in commencing this appeal as well as the circumstances surrounding his guilty plea. On application by the Crown, we granted an order permitting cross-examination of Mr. Coffey on his affidavits at the hearing of the appeal.
[4] As I explain in the reasons that follow, I would dismiss the application to extend the time to appeal for two main reasons. Mr. Coffey was generally aware that his Canadian permanent resident status might be jeopardized by his conviction but declined to accept a referral to an immigration lawyer. In these circumstances I do not believe it can be said that his guilty plea was uninformed as to its consequences. It follows that I would not find that his counsel’s advice was inadequate. Second, Mr. Coffey has provided two irreconcilable explanations for his being found in possession of over $400,000 in vacuum-packed cash. Based on the evidence he gave in his affidavits and his cross-examination, I conclude there is no air of reality to the defence he proposes to put forward at a trial.
[5] On either of these grounds, I conclude there is no merit to his appeal and that it would not be in the interests of justice to grant an extension of time to appeal.
[6] Mr. Coffey is now 51. He was born in the United States but has resided in Canada since he was five years old. He is a permanent resident of Canada, but not a citizen.
[7] On July 30, 2010, Mr. Coffey was arrested in or near Regina, Saskatchewan. He was found in possession of $464,566 in cash, most of which was carefully wrapped and vacuum-sealed. $402,575 were attributable to the offence. Earlier that day, the police had observed him take delivery of the money in Portage La Prairie, a town not far from Winnipeg, Manitoba. The police seized the cash and, on July 30, 2010, Mr. Coffey was charged in Winnipeg, with one count of being in possession of the proceeds of crime in excess of $5,000 contrary to s. 354(1) of the Criminal Code of Canada.
[8] Mr. Coffey retained Winnipeg counsel. Plea negotiations proceeded slowly but eventually resulted in an agreement that Mr. Coffey would plead guilty to one count of unlawful possession of the proceeds of crime; that the charges would be waived to British Columbia pursuant to s. 478(3) of the Code; that the Crown and defence would jointly recommend to the sentencing judge a sentence of two years’ incarceration; that Mr. Coffey would acknowledge certain facts based on his admission that he was willfully blind as to the source of the cash he was carrying; and a number of other terms not relevant to this appeal.
[9] On March 12, 2013, before finalizing the plea agreement, Mr. Coffey e-mailed his counsel concerning the basis of the plea arrangements. In a detailed letter of instruction, he wrote:
… I would like the crown to agree that if the government initiates some sort of removal process, over this guilty plea, because of my Canadian status? They would oppose it. This is probably unlikely to happen? But in the event it did? It would be long and expensive process to fight? Crown opposing may shorten or kibosh the process? Your thoughts? ...
[10] In response to the March 12 e-mail, Mr. Coffey’s counsel arranged a telephone conference with Mr. Coffey on March 14, 2013. In their joint affidavit filed on this appeal, Mr. Coffey’s former counsel deposed that, during the telephone conference, they offered to refer Mr. Coffey to an immigration lawyer, but Mr. Coffey declined:
The Appellant was advised that we were not immigration lawyers and, as such, did not feel we were able to properly advise him as to the likelihood of the Government of Canada instituting proceedings for his removal, nor what might flow from that. We did offer, however, to the Appellant that we would refer him to immigration counsel who would be able to provide an appropriate opinion. In response to that, the Appellant told us that all he wished from us was advice as to whether or not any negotiations could be part of the plea bargaining process, with Crown Counsel, in an effort to insure that the Crown would either support his staying in Canada or have his remaining in Canada be part of our negotiated resolution.
[11] On April 2, 2013, Mr. Coffey’s counsel responded in writing to various matters in the March 12, 2013, e-mail. In specific response to the question regarding his immigration status, his counsel confirmed their earlier advice given during the March 14 telephone conference:
You next inquired about the Government initiating some sort of removal process against you. You are a landed immigrant, not a Canadian citizen. I advised you that the Public Prosecution Service of Canada, generally, will not, and cannot, bind immigration authorities as to the manner in which they might deal with a matter if they become aware of it. I advised you that it was possible that we could inquire of the PPSC if they would approach immigration on this issue to see what their position might be. You advised me that you would prefer that not be done as you wanted to not bring yourself to the attention of immigration officials if they were not already aware of you. Accordingly, we will do nothing on this particular concern.
[Emphasis in original.]
[12] In accordance with the plea agreement, Mr. Coffey pleaded guilty in the Supreme Court of British Columbia on July 5, 2013. The judge accepted the joint sentencing submission and Mr. Coffey was sentenced to two years in jail.
[13] While incarcerated, Mr. Coffey learned that the Canadian Border Services Agency (“CBSA”) had identified him as a person of interest. He then began the process of engaging immigration counsel. His warrant expired on July 5, 2015. In August of 2015, he learned that the CBSA was considering his deportation. It was not until sometime around July 13, 2016, that he received legal advice indicating that he could appeal his conviction on the basis that his guilty plea was uninformed as to the collateral consequences of his conviction and two-year sentence. He filed his notice of appeal and application for an extension of time to appeal on August 5, 2016.
[14] Section 36(1) of the IRPA provides that permanent residents will become inadmissible on grounds of serious criminality if convicted in Canada of an offence punishable by a maximum term of imprisonment of at least ten years or of an offence for which a term of imprisonment of more than six months is imposed. Under s. 355(a) of the Code, possession of the proceeds of crime in excess of $5,000 is punishable by a maximum of ten years. The offence therefore fits the definition of serious criminality in s. 36(1) of the IRPA.
[15] Section 24 of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 [FRFCA], came into force on June 19, 2013. Section 24 amends s. 64(2) of the IRPA. Prior to June 19, 2013, s. 64 of the IRPA provided that permanent residents who were found inadmissible on grounds of serious criminality could appeal a removal order to the IAD if sentenced to a term of imprisonment of less than two years. The IAD may stay a removal order on humanitarian and compassionate grounds. Section 24 of the FRFCA provides that the right to appeal a removal order to the IAD is only available if the offender receives a sentence of less than six months’ imprisonment in respect of serious criminality. Subsections 64(1) and 64(2) of the IRPA, as amended by s. 24 of the FRFCA, read as follows:
64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
Serious criminality
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months…
[16] This amendment came into force just a few weeks before Mr. Coffey was sentenced. However, the date of the amendment is not material to his appeal because the IAD applies the amended version of s. 64 to those sentenced both before and after the amendment came into force, except in circumstances in which the transitional provisions of the FRFCA apply. Section 33 of the FRFCA, one of the transitional provisions, provides that the pre-FRFCA version of s. 64(2) of the IRPA will apply if, prior to June 19, 2013, a person was already the subject of a report referred to the Immigration Division by the Minister’s delegate under s. 44(2) of the IRPA. A referral by the Minister’s delegate under s. 44(2) of the IRPA triggers an admissibility hearing at the Immigration Division:
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
[17] There is no evidence that Mr. Coffey was already the subject of a report under s. 44(2) of the IRPA on June 19, 2013. Even if the Crown had agreed to a sentence of two years less a day before June 19, 2013, the amended version of s. 64(2) would apply to preclude Mr. Coffey’s appeal to the IAD.
[18] As a result, Mr. Coffey does not argue on appeal that he could have avoided the amendment by pleading guilty and negotiating a sentence of two years less a day before June 19, 2013. Further, a six-month sentence was never a realistic proposal during plea negotiations. Thus, to avoid the removal order and the loss of his right of appeal to the IAD, Mr. Coffey would have needed to avoid conviction altogether.
[19] I would frame the issues on this appeal in the following manner:
a) Should the time to appeal Mr. Coffey’s conviction be extended;
b) Should Mr. Coffey’s plea be withdrawn on the basis that he received ineffective assistance from his counsel and in the result was unaware of the collateral consequences of his guilty plea; and
c) Has Mr. Coffey demonstrated an articulable path to an acquittal, which may be a necessary pre-condition to setting aside a guilty plea.
[20] In R. v. Roberge, 2005 SCC 48 at para. 6, the Supreme Court of Canada enumerated the factors that guide the exercise of the power to extend time to apply for leave to appeal in that Court:
The power to extend time under special circumstances in s. 59(1) of the [Supreme Court Act, R.S.C. 1985, c. S-26,] is a discretionary one. Although the Court has traditionally adopted a generous approach in granting extensions of time, a number of factors guide it in the exercise of its discretion, including:
1. Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time;
2. Whether counsel moved diligently;
3. Whether a proper explanation for the delay has been offered;
4. The extent of the delay;
5. Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
6. The merits of the application for leave to appeal.
The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted.
[21] This Court has outlined similar factors in considering whether to grant an extension of time to file a notice of appeal or application for leave to appeal under s. 3(2) of the Criminal Appeal Rules. The relevant factors were laid out in R. v. Tallio, 2017 BCCA 259 at para. 8:
1) Was there a bona fide intention to appeal?
2) When were the respondents informed of the intention?
3) Would the respondents be unduly prejudiced by an extension of time?
4) Is there merit in the appeal?
5) Is it in the interests of justice that an extension be granted?
[22] In this instance I am of the view that the extension of time should be denied because the appeal lacks merit and extending the time to appeal would not be in the interests of justice. I shall turn directly to the merits of the appeal.
[23] I turn first to the legal principles surrounding the withdrawal of a guilty plea. Section 606(1.1) of the Code provides that a court may accept a guilty plea only if satisfied that the accused makes the plea voluntarily and understands the nature and consequences of the plea. In R. v. Staples, 2007 BCCA 616 at paras. 38–39 (Chambers), Justice Rowles discussed the requirements for a valid guilty plea and the circumstances in which a guilty plea may be set aside:
[38] In R. v. T. (R.) (1993), 10 O.R. (3d) 514, 58 O.A.C. 81 (C.A.) (cited to O.R.), the Ontario Court of Appeal held that where the validity of a guilty plea is raised for the first time on appeal, an appellant has the onus of showing the plea was invalid. In order for a guilty plea to be valid, it must be voluntary, unequivocal, and informed in the sense that the accused is aware of the nature of the allegations, the effect of his plea, and the consequence of his plea. A plea is voluntary when it is a conscious volitional decision made for reasons the accused regards as appropriate. A plea entered in open court is presumed to be voluntary (T. (R.) at 519–20).
[39] A guilty plea should only be set aside if the appellant establishes “exceptional circumstances” (R. v. Hoang, 2003 ABCA 251, 339 A.R. 291 at paras.24–27). As noted in Hoang, a guilty plea also provides finality. The court, the prosecution and the public are led to believe that the accused accepts responsibility for his criminal misconduct. A guilty plea may result in a substantial benefit to an accused, including the withdrawal of other charges or a lenient sentencing recommendation (R. v. Duong, 2006 BCCA 325, 228 B.C.A.C. 183 at paras. 9–11).
[24] Justice Saunders summarized the principles governing the withdrawal of a guilty plea on account of the ineffective assistance of counsel in R. v. Wong, 2016 BCCA 416, drawing from R. v. Aulakh, 2012 BCCA 340. I quote from her reasons at paras. 21–25:
[21] Complaints in respect to both an invalid guilty plea and ineffective assistance of counsel are considered under s. 686(1)(a)(iii) of the Criminal Code, the miscarriage of justice provision. In this case, the submission with respect to flaws in the guilty plea intersect with the submission on ineffective assistance of counsel and the two avenues yield the same result.
[22] In Aulakh this court comprehensively addressed the criteria by which an appeal based on ineffective assistance of counsel is to be assessed. Madam Justice Smith explained that ineffective assistance of counsel may result in a miscarriage of justice because it affects the reliability of the verdict or it affects the adjudicative fairness of the process of arriving at a verdict. She explained the threshold for a miscarriage of justice:
[42] A miscarriage of justice will occur where there is a reasonable probability or reasonable possibility (the terms are used interchangeably in the jurisprudence) that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome”: Strickland v. Washington, 466 U.S. 668 (1984) per O’Connor J. at 2068, cited in [R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 64 (Ont. C.A.]. The standard of reasonable probability/possibility falls somewhere between a mere possibility and a likelihood: Joanisse at 64.
[23] There are, as explained in Aulakh, three criteria that must be satisfied to establish ineffective assistance of counsel: (i) the underlying facts on which the claim is based; (ii) trial counsel’s representation fell below the standard of reasonableness expected from professionals; and (iii) the deficient counsel work resulted in a miscarriage of justice. The last two criteria may be described as the performance component and the prejudice component, both to be established on a balance of probabilities. Usually the prejudice component is assessed first. The object of a claim of ineffective counsel is not to second guess or “grade” counsel, as said by Mr. Justice Major in R. v. G.D.B., 2000 SCC 22 at para. 29, [2000] 1 S.C.R. 520.
[24] The specific complaint of ineffective assistance of counsel in respect to a guilty plea is a subset of cases on miscarriage of justice, and engages the criteria of a valid guilty plea under s. 606 of the Criminal Code. In R. v. Singh, 2014 BCCA 373, Madam Justice Stromberg-Stein comprehensively addressed the legal framework:
[33] To be valid, a guilty plea must be voluntary, unequivocal, and informed by an appreciation of the nature of the allegations, the legal effect of the plea, and the consequences of the plea: R. v. T.(R.) (1992), 10 O.R. (3d) 514 at 519, [1992] O.J. No. 1914 (C.A.). The appellant must establish his guilty plea was not voluntary in the sense that he did not appreciate the nature of the charge or the consequences of the plea: R. v. Gates, 2010 BCCA 378 at para. 2, 293 B.C.A.C. 243; J.G.T., 2003 BCCA 1 at para. 17, 178 B.C.A.C. 29.
…
[25] In British Columbia, however, more than an invalid guilty plea may be required to persuade the court there is a miscarriage of justice. In Singh Madam Justice Stromberg-Stein explained:
[50] As noted above, an appellate court’s jurisdiction to set aside a guilty plea arises from s. 686(1)(a)(iii) of the Criminal Code; that is, the court may allow an appeal where it is of the opinion that there was a miscarriage of justice.
[51] In my view, even if Mr. Singh could demonstrate that some error occurred in the entering of his guilty plea, he could not establish that a miscarriage of justice has occurred: R. v. Carter, 2003 BCCA 632 at paras. 6-12, 190 B.C.A.C. 178. He has not raised a valid defence to the charge of second degree murder, which is a prerequisite for the withdrawal of his guilty plea.
[52] In R. v. Read (1994), 47 B.C.A.C. 28, 24 W.C.B. (2d) 240 (C.A.), commenting on Adgey, Legg J.A. held:
[43] Further, I am not satisfied on the evidence before us that there is an arguable ground of appeal that has any likelihood of succeeding. The appellant is seeking to withdraw a guilty plea on appeal. The trial judge’s discretion with respect to accepting guilty pleas should not be interfered with lightly. An appellate court will only interfere with a guilty plea if the appellant can establish that there are valid grounds for so doing. There is no evidence to justify the conclusion that the appellant did not appreciate the nature of the charge or the effect of his plea or that his plea of guilty was not a voluntary one. A guilty plea entered in open court is presumed to be voluntary unless the contrary is proven... further, the appellant must establish that his plea was wrong and that it would be unjust to uphold the plea. [reference omitted] Finally, the court must be satisfied on the evidence before it that the appellant has a defence which if proven could constitute a valid defence.
…
[Emphasis added.]
[25] In Wong, the appellant argued that his guilty plea was uninformed as a result of inadequate assistance of counsel, leading to a miscarriage of justice. As in this case, the appellant could only have avoided the collateral immigration consequences of his guilty plea through an acquittal. The Court rejected the appellant’s argument that a miscarriage of justice occurred. The appellant failed to establish that his decision to plead guilty would have been altered by knowledge of the collateral immigration consequences of his plea. The appellant also failed to establish that he could have avoided the immigration consequences at issue even if he had pleaded not guilty, as he could not show an articulable path to an acquittal.
[26] The requirement of demonstrating a valid defence or an articulable path to acquittal is a matter of some controversy. In Wong, the three judges on the division diverged on whether an articulable path to acquittal is a prerequisite to withdrawing a guilty plea. Justice Fitch agreed with Saunders J.A. that, in the context of an uninformed guilty plea, an appellant must establish that they would have acted differently if they had been properly informed. Otherwise, there is no miscarriage of justice. However, Fitch J.A. questioned the imposition of a further requirement that the appellant establish an articulable path to acquittal. At para. 76., he noted that such a requirement was rejected by the Ontario Court of Appeal in R. v. Rulli, 2011 ONCA 18 at paras. 1–2.
[27] Justice Harris agreed with Saunders J.A. that the jurisprudence of this Court appears to have established a requirement of “something akin to ‘an articulable route to an acquittal’ or a valid defence” (para. 82). However, Harris J.A. shared Fitch J.A.’s “concerns of principle regarding such a requirement”, although he did not think Wong was the appropriate case to decide the issue (para. 82).
[28] Leave to appeal to the Supreme Court of Canada has been granted in Wong: [2016] S.C.C.A. No. 557.
[29] Mr. Coffey did not ask this Court to reconsider whether demonstration of a valid defence is required to establish a guilty plea. Rather, his position is that he met that requirement.
[30] In summary, s. 606 of the Code requires that a guilty plea be informed by an appreciation of the consequences of the plea. To succeed in withdrawing the plea, however, an appellant must show not only that their guilty plea was uninformed, but also that a miscarriage of justice occurred, as per s. 686(1)(a)(iii) of the Code. To establish a miscarriage of justice, an appellant must show they would have acted differently had they been fully aware of the consequences of the guilty plea. In addition, the jurisprudence in British Columbia suggests that the appellant must point to a valid defence or articulable path to acquittal to establish that an uninformed plea gave rise to a miscarriage of justice.
[31] Earlier in these reasons, I excerpted the affidavit and correspondence of Mr. Coffey’s former counsel concerning the discussions they had with Mr. Coffey regarding his immigration status. As noted above, in his March 12, 2013, e-mail to counsel, Mr. Coffey expressed concern that his guilty plea might lead to the initiation of “some sort of removal process”. Counsel informed him in a letter that the Public Prosecution Service of Canada generally will not and cannot bind immigration authorities. In response to this information, Mr. Coffey asked that his immigration status not be raised with the Crown during plea negotiations. Mr. Coffey’s counsel also deposed that, during their March 14, 2013, telephone conference with Mr. Coffey, they said they could not advise him regarding the likelihood that his conviction would lead to removal proceedings. According to their affidavit, they offered to refer Mr. Coffey to immigration counsel, but Mr. Coffey declined the offer because he was only interested in knowing whether he should try to make his immigration status part of the negotiated resolution with the Crown.
[32] Mr. Coffey filed affidavits on appeal in support of the argument that his plea was uninformed. In his affidavit of August 3, 2016, Mr. Coffey deposed to the following:
6. At the time, I did not realize, nor was I advised by my lawyers, that by pleading to exactly two years, rather than two years less a day, I was losing my ability under the Immigration and Refugee Protection Act (“IRPA”) to appeal a removal order.
…
9. If I had known of these collateral consequences of this plea, I would have never agreed to it.
…
19. I believe that a miscarriage of justice has occurred by my entering a guilty plea on July 5th, 2013. I had no idea that I would face any immigration consequences as a result of the plea and I was never informed by either my criminal lawyers, nor my immigration lawyers that guilty pleas themselves can be appealed.
[Emphasis added.]
(On appeal, counsel did not argue the point expressed by Mr. Coffey at para. 6 of his affidavit.)
[33] In his affidavit of April 28, 2017, Mr. Coffey further deposed as follows:
At no point was it ever explained to me that my decision would have life altering consequences by way of me facing deportation by the Canadian Border Services Agency. If I had known that I would be facing deportation without a right of appeal, I would have never had entered in guilty plea to this charge.
[34] During his cross-examination on these affidavits, Mr. Coffey agreed that there were many advantages to his guilty plea. By pleading guilty, Mr. Coffey benefited from the waiver of his charges to British Columbia, where he could serve time closer to home in a more comfortable facility, and from the likelihood that the judge would follow the joint recommendation of a two-year sentence rather than the 5- to 8-year sentence sought by the Crown if the case proceeded to trial. The plea bargain also provided for the return of both his vehicle and approximately $62,000.
[35] Mr. Coffey also admitted under cross-examination that he told his lawyers not to discuss his immigration status with the Crown. He admitted that his criminal defence counsel may have offered to provide him with the name of an immigration counsel in their telephone conference of March 14, 2013. However, Mr. Coffey testified that, at the time, he did not pursue this enquiry because his counsel said it was unlikely that immigration officials would take steps to remove him from the country. His counsel’s affidavit contradicts this last aspect of his evidence.
[36] The Crown argues that Mr. Coffey’s guilty plea was sufficiently informed because he knew the plea might jeopardize his permanent resident status. The Crown notes that, in his correspondence with counsel, Mr. Coffey specifically referenced “removal” as a potential consequence of the plea.
[37] The Crown contends that knowledge of the precise consequences of pleading guilty is not essential to an informed plea. For this proposition, the Crown relies on R. v. Tyler, 2007 BCCA 142; R. v. Shiwprashad, 2015 ONCA 577; and R. v. Kitawine, 2016 BCCA 161.
[38] In Tyler, the appellant sought to withdraw his guilty plea on the basis that he lacked knowledge of the immigration consequences of the plea. At the time he committed the offence in question, he was subject to a removal order due to a previous conviction for the same offence. The IAD had stayed the removal order on humanitarian and compassionate grounds in October 2002. The appellant made the impugned guilty plea in December 2002.
[39] Unknown to the appellant, a provision of the IRPA provided that the stay of his removal order would be automatically cancelled without an appeal to the IAD if he was convicted of another offence constituting criminality or serious criminality under the IRPA.
[40] The Court found that, at the time of the guilty plea, the appellant knew the conviction could seriously jeopardize his immigration status, but he took his chances and made the plea because he was desperate to get out of jail. The Court held that the appellant’s guilty plea was sufficiently informed, unequivocal, and voluntary:
[23] While the automatic effect of a further conviction of possession of a break-in instrument may not have been fully understood by the appellant, I am satisfied that he knew that his status in Canada was in serious jeopardy. He pleaded guilty to achieve the short term gain of early release and he put aside consideration of the longer term consequences, no doubt hoping that things would work out as time went on. This was a free choice; his first lawyer urged him to try the charges but that would have meant staying in jail for several more months.
[24] Does the ignorance of the automatic effect of the conviction vitiate the plea? If that were so, then pleas could be struck on the basis that the outcome was not precisely as anticipated. That kind of certainty is not to be expected of the criminal process, especially when judges are free to depart from bargains struck by counsel, within certain reasonable limits. See R. v. Hoang, 182 C.C.C. (3d) 69, 2003 ABCA 251 ¶ 36:
The requirement that the accused understand the nature and consequences of a guilty plea is not a requirement to canvas every conceivable consequence which may result or may be foregone. Such a requirement would be a practical impossibility. American jurisprudence has held the accused should be aware of the probable direct consequences of the plea: Parker v. Ross, 470 F.2d 1092 (4th Cir. 1972).
[25] Here the appellant knew he had been deported for possession of a break-in instrument, received a stay on good behaviour, and then pleadedguilty to the same offence within a few months of receiving the stay. I agree with respondent’s counsel that the difference between awareness of an automatic effect, and knowledge of a highly probable result, is too fine a distinction.
[Emphasis added.]
[41] In Shiwprashad, the appellant argued that his guilty plea to the charge of robbery was uninformed because he was unaware the plea would lead to his deportation. As in Tyler, the appellant failed to appreciate that his conviction for robbery would cancel the stay of a pre-existing removal order and terminate his appeal to the IAD. The Ontario Court of Appeal made the following finding at para. 3:
… the appellant knew that deportation was a potential consequence of his guilty plea although he may not have appreciated precisely how limited his options were to avoid that consequence. While the appellant may not have been aware of the precise extent of his jeopardy at the time he pleaded guilty, he knew that deportation was a possible consequence.
The Court held that no miscarriage of justice occurred because the appellant was sufficiently aware of the potential for deportation arising from the conviction.
[42] In Kitawine, the appellant sought to withdraw a guilty plea made in 2013 on the ground that it was uninformed. The appellant’s past convictions had led to a removal order in 2011, but the IAD had stayed the removal order on humanitarian and compassionate grounds. In 2013, the appellant was charged with an offence constituting serious criminality under the IRPA. He mistakenly believed that if he pleaded guilty and received a sentence of only six months, he would increase his chances of staying in Canada. As in Tyler and Shiwprashad, however, the appellant’s guilty plea led to the cancellation of the pre-existing stay and the termination of his appeal to the IAD.
[43] The Court dismissed the conviction appeal. The appellant’s plea was informed because he knew “his conviction would seriously jeopardize his immigration status” (para. 3). The Court discussed the level of knowledge required for an informed guilty plea:
[20] … More difficult are those cases where the accused had a general awareness of the nature of the collateral consequences, but not necessarily an appreciation of the precise outcome. The general trend in such cases, beginning with R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Tyler, 2007 BCCA 142, in this jurisdiction; and R. v. Shiwprashad, 2015 ONCA 577 in Ontario, is to uphold the plea as sufficiently informed.
[44] In summary, the Crown says these authorities support the proposition that a guilty plea may be valid even if the convicted person did not know the precise consequences of their plea. General awareness is sufficient. The Crown further submits that, like the appellants in Tyler, Kitawine, and Shiwprashad, Mr. Coffey was aware that his guilty plea could lead to removal, but he chose the short term benefits of the plea bargain over the long term risk of deportation.
[45] Mr. Coffey responds by pointing out that the appellants in Kitawine, Tyler, and Shiwprashad were already subject to removal orders that had been stayed by the IAD when they made their impugned guilty pleas. As a result, the appellants in those cases were further along in the immigration process than Mr. Coffey and had more knowledge of the risk to their immigration status.
[46] I conclude from Mr. Coffey’s affidavit, his former counsel’s evidence, and his cross-examination that he was aware his permanent resident status in Canada could be jeopardized by his conviction and sentence. He specifically expressed concern that his guilty plea would lead the authorities to initiate a removal process, indicating that he knew his guilty plea could lead to deportation. There is no evidence that he was specifically aware he would lose his ability to appeal a removal order to the IAD. However, he was sufficiently concerned about the possible immigration consequences of his plea that he raised the subject with his counsel.
[47] In the end Mr. Coffey chose to “stay under the radar” by not raising his immigration status with Crown counsel during plea negotiations. He also chose not to consult an immigration lawyer on the consequences of his guilty plea despite his lawyers’ offer to refer him to an immigration lawyer. I conclude that there is an element of willful blindness in the manner in which he chose to instruct his counsel.
[48] On the facts of this case, it would be condoning Mr. Coffey’s willful blindness to hold that his ignorance of precise immigration consequences was sufficient to vitiate his guilty plea. It was his own decision not to pursue further enquiries with an immigration lawyer. On these facts, considering Mr. Coffey’s own part in declining to make further enquiries, I would conclude that the absence of specific knowledge of the loss of his right of appeal does not vitiate his guilty plea.
[49] The Supreme Court of Canada’s decision in R. v. Pham, 2013 SCC 15 at paras. 13–14, requires sentencing judges to give appropriate consideration to the collateral immigration consequences of a sentence, but this proposition does not alter my conclusion. As discussed, Mr. Coffey was sufficiently aware of the collateral immigration consequences of his plea. In any event, to maintain his right of appeal to the IAD, Mr. Coffey needed a sentence of six months or less. A sentence of this length was unfeasible, as demonstrated by the Crown’s unwillingness to agree to a sentence of two years less a day during plea negotiations. In Pham, the Court noted at paras. 13–14 that, although collateral consequences may be relevant in tailoring a sentence, the sentence must nonetheless be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” In this case, a sentencing judge was unlikely to view a sentence of six months or less as proportionate to the gravity of the offence and Mr. Coffey’s responsibility.
[50] In summary, an informed guilty plea requires the accused to have some awareness of the potential immigration consequences of their plea. Further, immigration consequences may be a necessary consideration in sentencing. However, an accused need not necessarily know the precise immigration consequences of their conviction and sentence. Case-by-case analysis is required to determine the degree to which an accused person must be aware of the specific details of the immigration consequences of their guilty plea.
[51] In this case, because of what I have termed Mr. Coffey’s willful blindness, I conclude that Mr. Coffey’s plea was sufficiently informed. It follows that his counsel did not contribute to an uninformed plea. On this basis alone I would dismiss the appeal.
[52] Even if I had reached a contrary conclusion on the first argument, I would dismiss the appeal on the ground that his proposed defence has no air of reality. Accordingly, I now turn to the evidence pertinent to a possible defence to the charge. As discussed above, in British Columbia, an appellant seeking to withdraw a guilty plea must establish a valid defence or articulable path to acquittal in order to establish that the plea gave rise to a miscarriage of justice: Wong at para. 25.
[53] Mr. Coffey has put forward two explanations for his possession of over $400,000 in vacuum-sealed cash on July 30, 2010. First, he says the money was the lawful proceeds of diamond sales. He originally gave this explanation at his bail hearing following his arrest in 2010 and has resurrected it on this appeal. Mr. Coffey provided a second explanation at his sentencing hearing in 2013. In the second explanation, he said that he was doing a favour for a friend and was willfully blind as to the source of the funds. The two explanations are not reconcilable.
[54] Mr. Coffey introduced fresh evidence on this appeal to support his diamond sales defence. He explained in his testimony and affidavits that he had a friend whose first name was Zayev. He cannot recall Zayev’s last name. Zayev was a diamond distributor. Mr. Coffey learned that Zayev’s work included travelling across western Canada to sell diamonds to independent jewellers on behalf of a Vancouver diamond wholesaler. The wholesaler would deliver the diamonds to Zayev with a credit memo that required either the diamonds or cash of a stated amount to be returned to the wholesaler by a stated date. In 2009, Zayev was planning to leave the country and Mr. Coffey was looking for work. He started taking over Zayev’s route in late 2009 and by the spring and summer of 2010 he was signing 90-day credit memos with the wholesaler worth over $400,000.
[55] In his affidavit, Mr. Coffey explains how he came into possession of the cash that was seized in Regina:
7. On a Tuesday in late July 2010, I had collected $410,000 in presold diamonds and was visiting family in rural Manitoba. The credit memo was set to expire the following Tuesday, and unfortunately an unforeseen family circumstance developed that prevented me from travelling directly back to Vancouver to drop the funds off at O’Neill Diamonds Inc. Knowing that I had to get the funds back to Vancouver by Tuesday, August 5th, 2010, at the latest, I contacted my close friend Cirilo Lopez, whom I knew was also out in Manitoba and would soon be returning for the west coast. Being in somewhat of a jam, but needing the funds to be delivered, I reached out to Lopez and asked if he would drop the funds off at my house. My plan was to fly out early on Tuesday morning, pick up the funds and take them directly to O’Neill Diamonds Inc.
8. On Wednesday, July 30, 2010, Lopez came up to the house where I was staying in Manitoba and picked up the O’Neill cash from me and we agreed to drop the funds off at my home, at the time located in Langley, BC.
9. On early Thursday morning, I received a telephone call from Lopez, indicating that something unanticipated had come up and that he suddenly was unable to travel out to BC. I agreed to meet Lopez at a spot in Portage La Prairie, MB, where I then took back the funds.
10. Knowing that I had only a limited amount of time to transport the funds back to Vancouver, I began immediately travelling west. By the time I had reached Regina, SK, I was pulled over on Highway 1 and arrested for possession of funds obtained by crime.
[56] He expanded on this evidence during his cross-examination. Essentially, he testified that he learned a birthday party was being held in Calgary for his girlfriend. He wanted to attend the party. He arranged for Mr. Lopez to transport the cash from the diamond sales back to British Columbia, but at the last minute Mr. Lopez was unable to do so. Accordingly, the cash was returned to him at Portage La Prairie on July 10, 2010 (as observed by the police surveillance), and he planned to drive back to Vancouver (in time to comply to the terms of the credit memo), then turn around and return to Calgary for the party. Of course, he was arrested in or near Regina and never made it to the party.
[57] During cross-examination, Mr. Coffey maintained that the seized money was the same money in the same wrapping and locked bag that he had delivered to Mr. Lopez four days earlier. He testified that he vacuum-packed the money himself because it was his habit to do so. His family is in the funeral home business and they deal frequently in cash. He said they often vacuum-pack cash because it is a tidier way to manage the cash. He testified that the cash seized by the Regina police belonged to the diamond wholesaler, who had sued him in the Supreme Court for the money. He did not defend the law suit and, although a writ was issued. The diamond wholesaler took no further steps to pursue it.
[58] The agreed statement of facts that formed the basis of the plea agreement at the sentencing hearing on July 5, 2013, outlines a different account of Mr. Coffey’s possession of the cash. According to the agreed statement of facts, police were investigating a drug trafficking network involving a number of individuals including Mr. Lopez. The investigation did not involve Mr. Coffey until July 30, 2010. On that day police tracked Mr. Lopez and another individual to a motel in Portage La Prairie in Manitoba. The police were in a room adjoining Mr. Lopez’s room in the motel. The agreed statement of facts continues:
[the police] could hear … taping, banging, a vacuum sealer being used and the zipping of a bag coming from room 129. …
[59] Mr. Lopez then exited the room with a bag and met Mr. Coffey outside. Mr. Lopez put the bag in the trunk of Mr. Coffey’s BMW and, after the two men spoke together, Mr. Coffey drove away by himself in the BMW. Later that day, Mr. Coffey was stopped and arrested by Regina police. The police seized the bag that had been placed in the car by Mr. Lopez. The bag held $402,575 in cash in vacuum-sealed bags. They also seized a suitcase containing $61,460, which was not vacuum-sealed, and $531 from Mr. Coffey’s wallet.
[60] During his cross-examination, Mr. Coffey acknowledged that, on July 3, 2013, he signed the agreed statement of facts that was placed before the sentencing judge. Mr. Coffey also gave his counsel explicit instructions as to the factual basis for his guilty plea prior to the sentencing hearing. In an e-mail to counsel dated March 12, 2013, he wrote:
I would like to make it very very clear that at the guilty plea hearing I’m going to be very particular as to what I’m pleading guilty to? IE: crowns statement to the court. I’ve indicated this to you in a previous conversation. I will not plead guilty if the crown in any way shape or form insinuates or portrays, by omission, by lies, by exaggeration, or by any other means of what my actual involvement with Lopez and this possession actually was. However the act of becoming into the possession of the proceeds of crime is presented to the court, I’m pleading guilty only to the truth of the matter. Lopez was a very close friend of mine, NOT BUSINESS PARTNER, NOT DRUG LORD BOSS TO ME, NOT EMPLOYER, I PLAYED ABSOLUTELY NO ROLE IN HIS DRUG DOINGS, I DID NOT CHARGE A PENNY NOR MAKE A PENNY OFF OF MY HELPING HIM OVER THAT THREE DAY PERIOD OR ANY OTHER PERIOD. I wasn’t helping him for financial gain or purposely trying in any way shape or form to further his drug dealings. I helped him cause he was a close friend and was also helping me as he always did. …
[Emphasis in original.]
[61] After the telephone conference between Mr. Coffey and his lawyers on March 14, 2013, his counsel e-mailed him on April 2, 2013, to confirm their answers to the questions in his March 12 e-mail:
You wanted it made clear to what you are pleading [guilty]. I have advised you in the past and I have advised you again during our conversation of March 14, 2013 that you are pleading guilty to possession of proceeds of crime. You are pleading guilty based on the fact that you had been asked by a friend to do a favour for him and take monies with you to Vancouver. The amount of money, coupled with the manor [sic] in which it was packaged, you agree gave rise to a need for further inquiry to quell any suspicion. You chose not to ask anything so that you would not actually find out the nature of the money. This is what we call at law “willful blindness”. It is not going to be suggested that you were a business partner of Mr. Lopez in his drug business, nor that you were a drug lord or an employer of Mr. Lopez. As I advised you, if it was suggested that you played a role in his drug dealings, you would have been charged accordingly. You were not.
[62] In a subsequent letter to Crown counsel dated March 25, 3013, Mr. Coffey’s lawyers provided this same explanation to the Crown.
[63] From the evidence tendered as to the plea negotiations and instructions given by Mr. Coffey to his counsel, it is clear that the diamond sales defence was never pursued. Instead, Mr. Coffey chose to put forward the wilful blindness explanation.
[64] Mr. Coffey’s former counsel deposed that he told Mr. Coffey shortly after he was retained that:
…the defence of diamond sales, would require some confirmatory evidence. I suggested that there must be some documentation confirmatory of these diamond sales: receipts; client list; or even name and addresses of purchasers to allow as to follow up with these purchasers.
Counsel deposed that he was never provided with any of the information requested to confirm the diamond sales.
[65] On his cross-examination before us, Mr. Coffey contradicted his former counsel’s evidence. He said that he had indeed provided his counsel with documentation confirming the diamond sale defence. He did not produce it to us. He also acknowledged that when he pleaded guilty he agreed that the circumstances made the funds the proceeds of crime, but he testified that he had now been counselled that those proceeds should not have been considered proceeds of crime.
[66] Mr. Coffey deposed in his affidavit of April 28, 2017, that he decided “to simply plead out” because of the projected length of the trial and the cost of retaining counsel. This contradicts the evidence in the affidavit of Mr. Coffey’s counsel:
At no time when we were negotiating the agreement; when we were reviewing matters in person or by way of email or telephone conversation; or in response to letters directly sent to him outlining the nature of his guilty plea, did Mr. Coffey ever advise us that he was innocent and merely pleading guilty out of convenience. To the contrary, had Mr. Coffey done so we would have advised him that we could not and would not enter the plea of guilty on his behalf.
[67] Mr. Coffey now contends that he has an arguable defence, namely that the cash was lawfully obtained proceeds from diamond sales. Quite apart from the fact that it is clear he abandoned this defence after his lawyer sought confirmatory documentation, and apart from the fact that he entered into a plea agreement and agreed statement of facts that contradicted this explanation, the evidence put forward to support Mr. Coffey’s proposed defence has absolutely no air of reality.
[68] In the result, Mr. Coffey has not demonstrated that it would be in the interests of justice to extend the time to appeal. His plea was sufficiently informed, as he was aware of the potential for removal but declined to pursue the matter further as suggested by his former counsel. In addition, the proposed defence has no air of reality and is contradicted by the position he advanced to the court in the agreed statement of facts from the sentencing hearing. In the result I am unable to conclude that a miscarriage of justice occurred when Mr. Coffey pleaded guilty. He has not established that he would have acted differently and risked a trial with the potential consequences of a 5-8 year sentence had he been informed of the precise immigration consequences.
[69] I would dismiss the application to extend time to appeal on the basis that there is no merit to the appeal.
“The Honourable Madam Justice Garson”
I AGREE:
“The Honourable Mr. Justice Frankel”
I AGREE:
“The Honourable Mr. Justice Harris”