R. v. Mills, 2024 ONCA 204

what you need to know

-Section 650(1) of the Criminal Code requires an accused person to be “present in court during the whole of their trial”. This includes sentencing proceedings.

-In this case, the appearance before the trial judge, post-plea and post-sentencing submissions, plainly engaged the appellant’s vital interests in violation of s. 650: the trial judge was clearly concerned about the possibility that his plea was not adequately informed and arranged that appearance in order to conduct what would have effectively been a further plea inquiry.

Background & history

The appellant pleaded guilty to a charge of failing to remain at the scene of a fatal motor vehicle accident. When the appellant entered his plea, the trial conducted a plea inquiry which satisfied her the plea was informed and voluntary. The appellant’s trial counsel, however, did not advise the trial judge that the appellant was a permanent resident and the plea inquiry did not include any questions about his immigration status or awareness of any collateral immigration consequences.

The appellant’s matter returned before the trial judge for sentencing. The appellant’s trial counsel sought a conditional sentence; the Crown sought an upper-reformatory sentence of imprisonment. Neither counsel made submissions on any potential immigration consequences. The appellant’s trial counsel incorrectly affirmed that the appellant was a Canadian citizen. When the trial judge later asked the appellant if he wished to say anything, he corrected his counsel advising he was in fact a permanent residence.

This prompted the trial judge to ask the appellant whether he had spoken to an immigration lawyer about the potential immigration consequences of a criminal conviction and sentence for the charged offence. The appellant replied that he had not done so.

The trial judge then stated: “generally speaking, when there is an issue like this that arises, I would like to make sure that you have an opportunity to speak with an immigration lawyer about the potential consequences, but usually I like to do that before the plea is entered and we get this far.”

A note on immigration consequences: The appellant is a permanent resident. His wife too. Their kids were born in Canada and therefore Canadian citizens. Under, s. 36(1)(a) of the Immigration and Refugee Protection Act, if a permanent resident is convicted of an offence that is punishable by a maximum term of imprisonment of at least 10 years, or if the accused receives a sentence of imprisonment of more than six months, they are deemed inadmissible. Failing to remain at the scene of a fatal accident, i.e. the offence to which the appellant pleaded guilty, carries a maximum term of life imprisonment. As a result, regardless of which sentence the appellant received, he would be deemed inadmissible under the IRPA. The appellant’s actual sentence, however, had important consequences on his right to appeal against a removal order on humanitarian or compassionate grounds. If the appellant had receives a sentence of less 6 months’ actual imprisonment (or a CSO of any length), he would have been able to appeal a removal order. However, if he received a custodial sentence of 6 months or more, he would lose the right to appeal.

Trial counsel advised the court that he had not known that the appellant was a permanent resident. The trial judge advised the parties there would be further discussion on this issue following the completion submissions. Unfortunately, the proceedings that day concluded without returning to the issue of immigration consequences and the matter was adjourned for the imposition of sentence.

A few days later, the trial judge realized they had not returned to the issue of immigration consequences and e-mailed counsel to arrange for a further appearance and stated that she would like the appellant to attend as well. Ultimately, the appellant was not informed of this appearance and did not attend. At the appearance, the trial judge stated she wanted “to be satisfied that [the appellant] made the decision of his plea on an informed basis on that point” referring to any potential immigration consequences.

Despite not having had any further discussions with the Appellant following the plea, about any immigration consequences, trial counsel indicated that the appellant understood those consequences and would be “sticking with his plea”.

Ultimately, the appellant was sentenced to 18 months’ imprisonment.

s. 650 of the criminal code

Section 650(1) of the Criminal Code requires an accused person to be “present in court during the whole of their trial”. This includes sentencing proceedings.

The right to be present at trial in s. 650(1) is subject to a number of statutory exceptions. Most notably for present purposes, s. 650.01(1) permits criminal defendants to “appoint counsel to represent [them] for any proceedings under this Act by filing a designation with the court”. Section 650.01(3) then sets out the circumstances in which an accused person may appear by designated counsel rather than by appearing personally, while s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.

In this case, the appearance before the trial judge, post-plea and post-sentencing submissions, plainly engaged the appellant’s vital interests: the trial judge was clearly concerned about the possibility that his plea was not adequately informed and arranged that appearance in order to conduct what would have effectively been a further plea inquiry.

Although the trial judge had specifically requested that the appellant appear personally on June 29, 2021, the Crown argues that s. 650.01(3) nevertheless gave her jurisdiction to proceed in his absence, because his counsel had previously filed a designation, and because s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.

The Court of Appeal concluded that even if the appearance in the appellant’s absence did not cause the trial judge to lose jurisdiction, by virtue of s. 650.01, the existence of the designation did not cure the broader problem that arose when the trial judge conducted what was effectively a further plea inquiry with the appellant’s counsel, in the appellant’s absence:

(1) While s. 650.01(3) permits guilty pleas to be taken in the accused’s absence, s. 650.01(3)(c) also creates a default presumption that the accused should be present, “unless the court orders otherwise”. Although the appellant had already entered his guilty plea months earlier, the trial judge evidently meant to use the June 29, 2021 appearance to conduct what would in effect be a further plea inquiry. She had also specifically directed that the appellant should attend personally by videoconference.

(2) The appellant was not aware of the existence of this appearance. Even though the appellant signed a designation, it is debatable whether this gave trial counsel the authority to appear on the appellant’s behalf without specific instructions at a court appearance that the appellant had no idea was taking place.

(3) The representations made by the trial judge at said appearance were misleading. The comments clearly suggested that trial counsel had given the appellant legal advise about the issue of immigration consequences following the plea/sentencing submissions. In fact, trial counsel had not done so.

(4) The animating purpose of s. 650 is fairness and openness. The presence of the accused at all stages of trial affords him the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity may leave an accused with a justifiable sentence of injustice. The appellant ought to have been given the opportunity to be present at that appearance.

Lastly, the Court concluded that the curative proviso did not apply. Even if trial counsel had the authority to appear on the appellant’s behalf, pursuant to s. 650.01, the Court was not satisfied that the appellant suffered no prejudice. It is possible, that had the appellant been present, his guilty plea might have been struck. In any event, his absence at the appearance clearly affected the apparent fairness of the proceedings given the vital issues and interests at play.

Disposition - appeal granted and new trial ordered.