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Decision of the Week


CITATION: R. v. Pineda, 2019 ONCA 935

DATE: 20191127

DOCKET: C62380

Watt, Miller and Fairburn JJ.A.


Her Majesty the Queen



Chris Denny Pineda


Naomi M. Lutes, for the appellant

Caitlin Sharawy, for the respondent

Heard: September 12, 2019

On appeal from the conviction entered on May 22, 2013 by Justice Steve A. Coroza of the Ontario Court of Justice.



[1]           The appellant seeks to set aside his guilty pleas on the basis that they were uninformed. Had he known the immigration consequences of his guilty pleas, he maintains that he would have instead proceeded to trial. For the reasons set out below, we allow the appeal, set aside the guilty pleas, and order a new trial on all counts of the information.

[2]           The appellant, an American national, came to Canada at age three and thereafter became a permanent resident. His four dependent children all reside in Canada, as do his mother and developmentally challenged brother. He conducted his business in Canada and considered himself Canadian. However, he never applied for, or received, Canadian citizenship.

[3]           On November 1, 2012, the appellant was charged with three firearm-related offences under the Criminal Code and one possession offence under the Controlled Drugs and Substances Act. He plead guilty to three of the offences – careless storage of a firearm, unlawful possession of a loaded prohibited firearm, and possession of cocaine – and a fourth charge was withdrawn. Pursuant to a joint submission he received a global sentence of 15 months incarceration less time spent in pre-trial custody, followed by 36 months probation. As a result of these convictions and sentences, he was stripped of his status as a permanent resident and ordered deported to the United States, with no right of appeal. He now resides in the U.S. and is not permitted re-entry into Canada where his children continue to reside. 

[4]           The appellant now seeks to introduce fresh evidence to establish that his guilty pleas were uninformed because he was unaware of the serious immigration consequences of them.


[5]           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.

[6]           In the fresh evidence, the appellant states that although he was advised by his lawyer that there might be immigration consequences to his guilty pleas, and that he should seek the advice of an immigration lawyer, he did not understand that deportation would be within the range of possible consequences. He had thought he might be subject to questioning by an immigration official, or subject to an immigration hold. He did not consult an immigration lawyer. Trial counsel, in his affidavit, did not contradict this evidence. Trial counsel agreed that although he had a conversation with the appellant and alerted him that there might be immigration consequences, he likely did not discuss any specific immigration consequences with the appellant. Trial counsel’s evidence, at its highest, was that the word “deportation” may have come up.

[7]           There was no plea comprehension inquiry conducted in court. The appellant’s counsel advised the trial judge that the plea inquiry had been conducted with the appellant in advance. The trial judge was not made aware of the appellant’s immigration status or that immigration consequences could flow to the appellant as a result of his convictions.

[8]           The respondent concedes that the fresh evidence should be admitted. We are satisfied that the fresh evidence meets the Palmer criteria, as modified to assess the validity of a guilty plea, and ought to be admitted: R. v. Sangs, 2017 ONCA 683, at para. 7.

[9]           It is the respondent’s position that, at a minimum, the appellant was wilfully blind as to the immigration consequences arising from his plea. The respondent argues that the appellant should not be permitted to rely upon his wilful blindness in support of the claim that his pleas were involuntary: R. v. Girn, 2019 ONCA 202 at 62-3, 79. 

[10]        Based on the record before us, however, it seems clear that the appellant did not know the serious jeopardy he was in. While his lawyer told him that there may be serious immigration consequences arising from his guilty pleas, his lawyer admits that he did not “get into the specifics”. Rather, he told the appellant that he should seek the advice of an immigration lawyer. Knowing that the in-custody appellant had not done so, and did not know the “specifics” about the consequences of a guilty plea, the lawyer assisted the appellant with entering his plea. 

[11]        The consequences were, of course, grave. Not only was the appellant deportable after the plea because of his permanent resident status, but the length of sentence meant that he would not have a right of appeal from such an order. 

[12]        On the basis of the fresh evidence, we are satisfied 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. 

[13]        With respect to prejudice, we accept that the appellant would have elected to stand trial if he had been aware of the immigration consequences of his pleas. In his reasons for sentence, the sentencing judge noted the Crown’s case was circumstantial, there were triable issues including “issues with respect to whether or not the Crown could prove beyond a reasonable doubt that he was in fact in possession of the item that’s been exhibited…”. The consequences of deportation were devastating to the appellant’s relationship with his dependent children. The appellant states that had he known he would be facing deportation without a right of appeal, he would have taken all available steps in an effort to stay in Canada and keep his family together. One of those steps would have been pleading not guilty in the face of what he characterized as a weak Crown case. 


[14]        We admit the fresh evidence, set aside the pleas of guilty and consequent convictions, and order a new trial on all counts in the information.

“David Watt J.A.”

“B.W. Miller J.A.”

“Fairburn J.A.”

Criminal Charges. Indictable, Summary & Hybrid Explained

Types of Criminal Charges

When an individual is arrested, they receive a set of criminal charges. Charges mean that the individual has been accused of committing an offence contrary to the Criminal Code, and that they could be facing sanctions such as probation, a fine, or jail time. There are three main types of criminal charges (offences): summary, indictable, and hybrid.

What do Summary, Indictable and Hybrid mean?

Summary offences are offences that carry a maximum of 6 months in prison, or a fine of up to $5000, or both. Generally these offences are less serious than indictable offences. The charging document for summary offences is called an information. Indictable offences can carry punishments that include fines over $5000 or more than 6 months in prison, or both. The charging document for an indictable offence is called an indictment, and when an individual is facing charges related to an indictable offence, they can elect whether to have a trial with or without a jury. Hybrid offences are offences that can either be summary or indictable, depending on what the Crown elects. Most offences in the Criminal Code are hybrid offences, and the offence will be deemed indictable until the Crown makes the election.

The Smordin Law Approach

In Ontario there are two courts that hear criminal matters: the Ontario Provincial Offencese, and the Superior Court of Justice. The Ontario Provincial Offences hears both summary and indictable offences, but the Superior Court of Justice only hears indictable offences.

The lawyers at Smordin Law have years of experience dealing with all types of criminal offences. If you or someone you know are facing criminal charges for any type of offence, contact Smordin Law to discuss your options.

Criminal Code, RSC 1985, c C-46, ss. 469, 787.

Interpretation Act, RCS 1985 c I-21, s. 34(1)(a).

Smordin Law Criminal Lawyers
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Hamilton, ON
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