Accused unaware of guilty plea’s implications on immigration status: Ontario Court of Appeal

Parties agree that appellant's plea uninformed, jointly propose downgrade of charge

Accused unaware of guilty plea’s implications on immigration status: Ontario Court of Appeal

The Ontario Court of Appeal has substituted a mischief conviction in place of an arson conviction upon finding that the appellant’s guilty plea was uninformed.

In R. v. Kieferle, 2022 ONCA 465, the appellant pleaded guilty to arson. Justice Timothy Lipson of the Ontario Court of Justice convicted her of the offence and imposed a sentence in a decision dated Feb. 21, 2020.

The appellant filed a conviction appeal. The parties agreed that her plea was uninformed and jointly proposed a remedy. Specifically, they agreed that the court should set aside the arson conviction and substitute it with a conviction for mischief under $5,000.

On June 6, Justice J. Michal Fairburn, Ontario’s associate chief justice; Justice James MacPherson; and Justice Alison Harvison Young of the Ontario Court of Appeal for Ontario heard and orally released their decision on the conviction appeal.

Appeal court agrees with proposal on disposition

The appellate court dismissed the appeal, set aside the arson conviction, and substituted a conviction for mischief under $5,000. It also set aside aDNA order, given the entry of the new conviction. The sentence, however, did not change.

The Court of Appeal accepted that the guilty plea was uninformed because the appellant did not understand the plea’s implications on her immigration status. It agreed that the parties’ proposed remedy would achieve what they originally intended in view of the appellant’s circumstances, including her mental health challenges.

The appellate court expressed gratitude to Erin Dann, appearing as amicus curiae, and to Nicole Rivers, counsel for the respondent, Her Majesty the Queen, for their co-operation and efforts to arrive at a just result.

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