COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berhe, 2022 ONCA 853

DATE: 20221207

DOCKET: C63256/M49551/M49552

Trotter, Harvison Young and Thorburn JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Yohannes Berhe

Applicant/Appellant

Yohannes Berhe, acting in person

Eric Neubauer, appearing as amicus curiae

Nicole Rivers, for the respondent Crown

Heard: June 17, 2022

On appeal from the orders Justice Suhail A.Q. Akhtar of the Superior Court of Justice dated December 30, 2016, and July 20, 2018.

Trotter J.A.:

A.           introduction

[1]          Mr. Berhe applies for leave to appeal from three orders made by the Summary Conviction Appeal Court Judge (“SCACJ”) relating to four summary conviction appeals:

C63256 is an application for leave to appeal from the decision of the SCACJ which dismissed Mr. Berhe’s appeals from the decisions of Justice Blouin and Justice Wolski of the Ontario Court of Justice.

M49551 is an application for leave to appeal from the decision of the SCACJ which dismissed a summary conviction appeal as abandoned, followed by a refusal to re-open that appeal.

M49552 is another application for leave to appeal from a decision of the SCACJ which dismissed a summary conviction appeal as abandoned.

[2]          With respect to C63256 and M49551, Mr. Berhe contends that he was unaware of the immigration consequences he faced when he entered his pleas of guilty. He applies to adduce fresh evidence on this issue.

[3]          With respect to M49552, Mr. Berhe claims that the trial judge erred in finding him guilty of making harassing phone calls to the Toronto Police Service (“TPS”), based on an erroneous interpretation of s. 372(3) of the Criminal Code, R.S.C. 1985, c. C-46.

[4]          Because all three matters arise from summary conviction proceedings, Mr. Berhe must first obtain leave to appeal before any of them can be considered on their merits: s. 839(1) of the Criminal Code. The usual practice of this court is to consider applications for leave to appeal in writing: Criminal Appeal Rules, SI/93-169, r. 25(5). But given the history of these proceedings, and in view of the fact that Mr. Berhe is self-represented, the court agreed to grant an oral hearing. Moreover, although this court generally does not provide reasons for granting or refusing leave to appeal (r. 25(21)), it is in the interests of justice to do so in this case.

[5]          Files C63256 and M49551 share common issues related to Mr. Berhe’s knowledge of the immigration consequences of pleading guilty. M49552 does not. It is convenient to address M49552 first and then consider the other two matters together.

[6]          The following reasons explain why I would refuse leave to appeal in M49552, and why I would grant leave to appeal in C63256 and M49551 but dismiss these appeals.

B.           Harassing Communications – M49552

(1)         Introduction

[7]          On February 7, 2018, after a trial before Justice Rebecca Rutherford of the Ontario Court of Justice, Mr. Berhe was convicted of making harassing phone calls (Criminal Code, s. 372(3)) and breach of probation (Criminal Code, s. 733.1). He was sentenced to time served (65 days of pre-sentence custody), and a $25 fine on each count.

[8]          Mr. Berhe appealed his convictions to the Superior Court two days later. After numerous administrative appearances, only some of which Mr. Berhe attended, his appeal was dismissed as abandoned on July 20, 2018. Mr. Berhe made no attempt to revive that appeal by seeking to have it reopened.

(2)         Jurisdiction to Seek Leave to Appeal to this Court

[9]          Under s. 839(1), a court of appeal may grant leave to appeal from a decision of a summary conviction appeal court on a question of law alone. However, in R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, this court held that leave should be granted only sparingly, after a consideration of the significance of the legal errors raised to the general administration of justice, along with the merits of the proposed appeal.

[10]       The Crown acknowledges that this court may grant leave to appeal a decision of a SCACJ dismissing an appeal as abandoned. However, an applicant in these circumstances must identify an error of law in the decision to dismiss the appeal as abandoned: see R. v. Tung, 2016 ONCA 782, 132 O.R. (3d) 561, at paras. 34, 36-39; R. v. Mir, 2016 ONCA 795, at para. 12. Mr. Berhe has failed to do so.

[11]       The decision to order an appeal dismissed as abandoned is a discretionary one that permits a court to control its own process: R. v. Bresnark, 2013 ONCA 110, at paras. 7-8. In this case, the experienced SCACJ assessed the situation and determined that Mr. Berhe had done nothing to advance his appeal.

[12]       Amicus curiae submits that the process leading up to this decision was unfair in that Mr. Berhe was thwarted in his attempts to pursue his appeal by circumstances beyond his control. He was in a dispute with legal aid authorities and this hampered his efforts to pursue his appeal. I see no unfairness in the process that led to the dismissal of Mr. Berhe’s appeal. It was open to the SCACJ to conclude that Mr. Berhe was not interested in advancing his appeal at all. The record of the various appearances before the SCACJ supports this conclusion. Accordingly, there was no error of law. This is sufficient to dispose of this application for leave to appeal.

(3)         The Merits of the Proposed Appeal

[13]       Although it is not necessary to do, for the sake of finality, I address the proposed grounds of appeal. For the reasons that follow, I would conclude that there is no merit to these grounds.

(a)         The Underlying Facts

[14]       The two charges stem from Mr. Berhe’s attendance at the Small Claims Court at 47 Sheppard Avenue East in Toronto. On October 16, 2017, Mr. Berhe was allegedly causing a disturbance at the counter of the court office. He was yelling at court staff. A security guard escorted Mr. Berhe from the building and advised him that he could return at 12:45 p.m. for his scheduled settlement conference. Mr. Berhe returned that afternoon, but he was late. By the time he arrived, his settlement conference had already been adjourned. Mr. Berhe eventually left the building without incident.

[15]       In the midst of this unfolding scenario, shortly after he was first escorted from the building, Mr. Berhe called the non-emergency line of the TPS. He told the call-taker that he had been improperly banned from entering 47 Sheppard Avenue East and required police assistance in gaining access. This was not true – Mr. Berhe was never banned or prohibited from entering 47 Sheppard Avenue East. At the time, there was not even a security screening station at the entrance to the building. Nonetheless, Mr. Berhe was told that this was not a police matter.

[16]       Over the next five days, Mr. Berhe made seven calls to six different call-takers and supervisors. He was abusive and argumentative. He often yelled at whomever was on the line, and repeatedly threatened to report civilian members of the TPS to their supervisor. These communications led to two charges: harassing communications and breach of probation (for failing to keep the peace).

(b)         Issues at Trial and the Proposed Grounds of Appeal

[17]       Mr. Berhe’s trial lasted roughly three days. The security guard from 47 Sheppard Avenue East, Mr. Berhe’s probation officer, and a civilian member of the TPS testified at the trial. The calls made by Mr. Berhe, which had been recorded, were played at trial. Cumulatively, they were 45 minutes long. The TPS employee testified that time spent dealing with Mr. Berhe’s calls would have affected the ability of the TPS to answer other non-emergency calls for assistance.

[18]       The focus on the trial was on s. 372(3) of the Criminal Code. It was accepted by the parties and the trial judge that, if Mr. Berhe were found guilty under this section, it would also constitute a breach of his probation order, which required that Mr. Berhe keep the peace and be of good behaviour.

[19]       Section 372(3) of the Criminal Code provides:

372(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by means of telecommunication. [Emphasis added.]

In this case, the alleged “person” was the TPS.

[20]       In her reasons for judgment, the trial judge addressed the following issues:

(a)     Is the TPS a “person”?

(b)     Were the calls harassing in nature?

(c)      Did Mr. Berhe intend to harass the TPS?

(d)     Did Mr. Berhe have a lawful reason for making the calls?

[21]       The trial judge found that the Crown established all elements of the offence ((a) to (c), above), and that Mr. Berhe failed to establish a lawful excuse ((d)). If granted leave to appeal, Mr. Berhe would re-litigate each of these issues. However, grounds (b) and (c) do not engage questions of law alone. Consequently, I need not address them here. Nonetheless, to the extent that these arguments might be enveloped in a more general submission that the verdict was unreasonable, thereby raising a question of law, it is my view that there was evidence to support the trial judge’s conclusion that elements (b) and (c) were established.

[22]       Mr. Berhe’s main submission, ably advanced on his behalf by amicus curiae, is that the trial judge erred in finding that the TPS is a “person”. At trial, Mr. Berhe’s trial counsel submitted that, for the purposes of s. 372(3), a “person” must be a natural person, not an organization. The trial judge rejected this submission, holding:

I do not agree. Repeated calls to an organization can amount to harassment, that is, they can annoy and trouble when they are deliberately made to disturb the regular operation of the organization’s business. Voicemails can be filled up, call takers, personnel and/or receptionist jobs can easily be disrupted for no lawful purpose. In other words, the operation of an organization could be plagued and affected by repeated telephone calls. I find that the Toronto Police Service is a person in this context.

[23]       In reaching this conclusion, the trial judge consulted s. 2 of the Criminal Code, the general definitional provision, which provides that: “‘every one’, ‘person’, and ‘owner’, and similar expressions, includes Her Majesty and an organization”.

[24]       Amicus curiae repeats the same submission made at trial – in the context of s. 372(3), a “person” must be a natural person, capable of being harmed, in the same way as a complainant in a criminal harassment prosecution brought under s. 264 of the Criminal Code. I do not accept this submission.

[25]       First, this interpretation does not accord with the plain definition of a “person” in s. 2. In addition to the definition relied upon by the trial judge, the definition of “organization” in s. 2 is also important. An “organization” is defined as: “(a) A public body, body corporate, society, company, firm, partnership, trade union or municipality”. There can be no doubt that the TPS fits within this broad definition.

[26]       Amicus curiae submits that, in the context of s. 372(3), interpreting a “person” to include an “organization” would be absurd. An organization is not capable of being harassed in the same way as a natural person. He seeks to draw a comparison with the offence of criminal harassment in s. 264 of the Criminal Code, which requires that the victim is a natural person.

[27]       Although the two offences share some similarities – repeated conduct that is harassing in nature – there are important differences. First, s. 372 is found in Part IX – Offences Against Rights of Property. As amicus curiae acknowledges, corporations may be victims of theft, fraud, trespassing, and other offences found in this Part of the Criminal Code.

[28]       Moreover, each manner of committing an offence under s. 372 is focussed on the transmitter’s or sender’s intent, not the impact of the conduct on the recipient. Section 372 includes a cluster of offences unified by the misuse of telecommunications: the conveying of false information with the intent to injure or alarm a person (ss. (1)); making an indecent communication with the intent to alarm or annoy a person (ss. (2)); and repeatedly communicating with the intent to harass a person (ss. (3)).

[29]       The offence of criminal harassment in s. 264 is found in Part VIII – Offences Against the Person and Reputation. All offences in this Part require impactful conduct on another human being, whether it be harm, injury, personal violation, intimidation, or fear. In criminal harassment cases, it must be established that the victim “is harassed” and that the harassing conduct caused another “person reasonably, in all of the circumstances, to fear for their safety or the safety of anyone know to them:” see R. v. Orton, 2019 ONCA 334, at para. 125; R. v. Kordrostami (2000), 47 O.R. (3d) 788 (C.A.), at para. 8. These consequential elements are missing from s. 372(3).

[30]       This distinction between the two offences is discussed in Manrique c. R., 2020 QCCA 1170, 394 C.C.C. (3d) 1, at paras. 35, 36, leave to appeal to S.C.C. refused, 39694 (October 14, 2021). In that case, Healy J.A., writing for the court, found that while s. 264 “requires proof of transmission, receipt of the transmission and the causal inducement in the recipient of fear for his or her safety or that of anyone known to him or her,” s. 372(3) “does not require that the communication was received by another person”: at paras 35, 36. The court upheld the trial judge’s decision to acquit the appellant under s. 264 of the Code, but to convict him under s. 372(3), based on the same evidentiary foundation.

[31]       The trial judge made no error in determining that the TPS was a “person” for the purpose of s. 372(3).

[32]       Amicus curiae further submits that, even if the TPS is a “person” under s. 372(3), it was not proven that it was actually harassed by Mr. Berhe’s repeated calls. I would not accept this submission. As noted in the discussion above, the Crown is not required to prove that the target of repeated telecommunications was harassed; it need only be proved that the repeated communications were made with the intention of harassment. The trial judge found that they were indeed made for this purpose. This was a factual finding that does not give rise to a question of law. I see no error in any event.

[33]       Finally, amicus curiae submits that the trial judge erred in reversing the burden of proof on the issue of whether Mr. Berhe had a lawful excuse for his actions. At the time of his trial, s. 794(2), applicable to summary conviction proceedings, cast the burden of proving an “exception, exemption, excuse or qualification” on the defendant. In R. v. Goleski, 2015 SCC 6, [2015] 1 S.C.R. 399, the Court said, at para. 1: “In our view, the British Columbia Court of Appeal correctly concluded that s. 794(2) of the Criminal Code, R.S.C. 1985, c. C-46, properly interpreted, imposes a persuasive burden on the accused to prove an ‘exception, exemption, proviso, excuse or qualification prescribed by law’.” Though section 794(2) has since been repealed, it was operative at the time of Mr. Berhe’s trial and appeal: S.C. 2018, c. 29, s. 68.

[34]       Assuming for the sake of argument that the burden should not have been on Mr. Berhe, the evidence overwhelmingly proved that there was no justification for the repeated calls. As the trial judge said:

There was no lawful reason for the calls. Mr. Berhe targeted the Toronto Police Service. He did not care to whom he spoke. He only insisted on complaining. Mr. Berhe has a right to make legitimate requests for service from the Toronto Police Service, however, that is not what he did during the October calls. He thwarted any help that would have been offered to him. He knew what he was doing, he knew his calls were of a harassing nature.

[35]       I see no error in the trial judge’s analysis. It may be that Mr. Berhe’s initial call was justified.  Even this is doubtful, however, because he knew at that time that he was not prohibited from attending at the Small Claims Court. Taken as a whole, there was no lawful reason that justified Mr. Berhe’s repetitive and abusive behaviour.

[36]       In my view, there is no merit in this ground of appeal.

[37]       As a final note, in his oral submissions, Mr. Berhe rightly pointed out that the trial judge made a factual error at the end of her reasons when she mentioned that he made his phone calls to the emergency line (i.e., 911) of the TPS. In fact, Mr. Berhe made his calls to the non-emergency line. However, this error was inconsequential. It had no impact on his liability under s. 372(3).

[38]       For the reasons mentioned above, I would dismiss the application for leave to appeal.

C.           immigration consequences – m49551 and C63256

(1)         Introduction

[39]       These two applications for leave to appeal share a common issue – whether when pleading guilty, Mr. Berhe was sufficiently aware of the repercussions of his decisions. That is, whether he was aware of the immigration consequences of pleading guilty to certain offences. With respect to C63256, the SCACJ considered this issue on the merits and dismissed Mr. Berhe’s appeal.

[40]       Mr. Berhe raises the same immigration issue in M49551. The SCACJ dismissed this appeal as abandoned. An application to re-open the appeal was subsequently dismissed. Thus, from a procedural standpoint, this application for leave to appeal resembles M49552, and would otherwise face the same roadblock as Mr. Berhe has not pointed to an error of law in the decision to dismiss. However, given the importance of the underlying issue, and because the same issue is properly before us in C63256, it is in the interests of justice to consider the application for leave to appeal in M49551 on its merits.

[41]       I would grant leave to appeal in both cases, but I would dismiss both appeals.

(2)         Mr. Berhe’s Immigration Status at the Time of his Guilty Pleas

[42]       Mr. Berhe’s immigration situation in Canada is complicated in some ways, but straightforward in others. The complication resides in his accumulation of criminal convictions.

[43]       Mr. Berhe was born in Asmara, which was formerly part of Ethiopia, but is now the capital of Eritrea. Because Mr. Berhe is not recognized as a citizen of either Ethiopia or Eritrea, he is considered stateless. Mr. Berhe entered Canada in 1988 when he was recognized as a Convention refugee and obtained Permanent Resident status.

[44]       Mr. Berhe’s immigration status became more precarious after he started committing criminal offences. A detailed summary of Mr. Berhe’s multiplicity of proceedings is set out in a helpful chart prepared by the Crown and included in its Factum in C63256. Neither amicus curiae nor Mr. Berhe disputes the accuracy of this chart. It is included as Appendix “A” to these reasons.

[45]       It is not necessary to track through all of the various events over the years. It is important to note that on June 2, 2005, the Immigration Division of the Immigration and Refugee Board deemed Mr. Berhe to be inadmissible to Canada on the basis of “serious criminality”, pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). He was subsequently ordered deported. Still, his offending continued.

[46]       On February 26, 2009, the Immigration Appeal Division found that there were humanitarian and compassionate grounds to stay the removal order for a period of three years, on the conditions that Mr. Berhe not commit any further criminal offences and that he keep the peace and be of good behaviour. But his offending continued. As a result, the stay of Mr. Berhe’s removal order was cancelled pursuant to s. 68(4) of the IRPA in July 2012. All subsequent attempts to reinstate the stay and/or challenge the removal order itself have failed.

(3)         M49551 – Criminal Harassment

[47]       On March 14, 2017, Mr. Berhe pled guilty to a single count of criminal harassment before Katarynysh J. of the Ontario Court of Justice.

[48]       Mr. Berhe attended at the office of a Member of Parliament and dealt with the M.P.’s office manager. A letter related to his immigration status had been prepared. Evidently, Mr. Berhe thought the letter was unsatisfactory and made multiple calls to the office manager in which he swore at her, insulted her, and at one point made racist comments. He attended at the office the following day. He became belligerent and the police had to be called to remove him from the premises. He returned the next week to talk about the letter. He left without incident, but due to his state of agitation, the office manager locked the front door of the office. When Mr. Berhe returned later in the day he was enraged when he discovered the door had been locked. This conduct continued over a couple of days. Mr. Berhe was eventually charged with criminal harassment.

[49]       Mr. Berhe pled guilty. At the time of his guilty plea, amicus curiae told the trial judge that Mr. Berhe had some issues with the immigration system and indicated that he had recently abandoned an appeal and that “he may well be leaving Canada as a result of that.” Amicus curiae (not Mr. Neubauer) asked the trial judge to consider the fact that a six-month sentence would have potential removal consequences for Mr. Berhe. The Crown corrected this assertion, informing the court that the six-month threshold “has no implication on whether or not [Mr. Berhe] is going to be deported. It’s past that point”. The Crown clarified that Mr. Berhe was already subject to a deportation order and that he was undergoing a “danger assessment” related to whether the deportation order would be acted upon. The danger assessment is discussed below. But it is important to note that Mr. Berhe was made aware of this process before he entered his plea.

[50]       The trial judge accepted Mr. Berhe’s guilty plea and sentenced him to the equivalent of six months’ imprisonment (with 45 days left to be served) and other ancillary orders.

[51]       Mr. Berhe filed a Notice of Appeal in the Superior Court on March 21, 2017. When he failed to appear, his appeal was dismissed as abandoned on June 2, 2017. On February 9, 2018, Mr. Berhe applied to re-open his appeal. After eight further appearances, the application to re-open was dismissed. The SCACJ was satisfied that Mr. Berhe was not interested in moving his appeal forward. The appeal was dismissed as abandoned.

[52]       As discussed below, in conjunction with C63256, Mr. Berhe applies to adduce fresh evidence in an attempt to demonstrate that his guilty plea should be struck because he was unaware of the adverse consequences of his guilty plea on his immigration status.

(4)         C63256 – Threatening Death, Criminal Harassment, and Failure to Comply with Recognizance

[53]       On March 7, 2014, Mr. Berhe entered pleas of guilty before Blouin J. to the offences of uttering death threats and criminal harassment. On the threatening charge, Mr. Berhe got into an argument with his welfare officer. He told her: “You are a whore. You are a fucking whore. I’m going to kill you, whore. You can’t hold my fucking cheque.” With respect to the criminal harassment charge, it was alleged that Mr. Berhe repeatedly contacted a person working for a different Member of Parliament. When he became frustrated with her failure to assist him in the manner he expected, he became abusive, called her frequently, and came to her office and banged on her office door, which she had locked to avoid contact with him.

[54]       On August 22, 2013, Mr. Berhe pled guilty before Wolski J. to one count of failing to comply with a recognizance contrary to s. 145 of the Criminal Code. He was alleged to have violated the residence requirement of his bail. He received a sentence of 1 day imprisonment on top of 34 days in pre-sentence custody.

[55]       Mr. Berhe appealed the convictions that resulted from his guilty pleas before Blouin J. and Wolski J. In both appeals, he argued that there was ineffective assistance of counsel and that the pleas were not fully informed.

[56]       With respect to the appeal of the convictions entered by Wolski J., the SCACJ dismissed the appeal, finding that the plea was voluntary and informed; he declined to give effect to the submission that Mr. Berhe was compromised by physical/mental ailments.

[57]       The SCACJ then turned to the immigration consequences of Mr. Berhe’s guilty plea before Blouin J. In support of his appeal, Mr. Berhe relied on his own affidavit in which he swore that he was unaware of the impact that a conviction for criminal harassment would have on his immigration status. Trial counsel provided an affidavit in which he said that he could not recall discussing the immigration consequences with Mr. Berhe. Both Mr. Berhe and trial counsel were cross-examined on their affidavits.

[58]       The SCACJ did not accept Mr. Berhe’s evidence. He noted that Mr. Berhe testified for the first time in cross-examination that he had spoken to his trial counsel about his immigration situation. The SCACJ said: “When asked to explain this omission, the appellant repeatedly failed to provide a coherent or credible answer.” The SCACJ stated his conclusions, at paras. 37-39:

Moreover, the appellant's testimony that he was unaware of the immigration consequences when pleading guilty to the criminal harassment charge is seriously undermined by his affidavit evidence, where he claimed to have been the subject of a removal order for a prior conviction. He claimed that the order had been stayed because he had not committed any offences for a period of three years. Assuming this to be true, the appellant must have known of the risk of potential immigration repercussions when pleading guilty to the offences before Blouin J.

When challenged on this point, the appellant responded by telling the court that he believed that he would only be liable for deportation if he received a sentence in excess of two years. Once again, this information was absent from his affidavit. More significantly, it is unclear why he would hold this belief when, on his own evidence, he became the subject of the stayed deportation order after being sentenced to only 13 days pre-sentence custody for uttering a forged document in 2003. Despite his claim that this removal order was stayed, no documentation was ever produced in court to substantiate this claim.

Similarly, I disbelieve the appellant's assertion that he was unaware of the immigration consequences of the plea. I find this to be a case where the appellant knew that deportation was a potential consequence of his guilty plea but did not appreciate, or at the time care, how limited his options were to avoid that consequence as was the case in Shiwprashad [R. v. Shiwprashad, 2015 ONCA 577, 328 C.C.C. (3d) 191]. There, the court found that even if counsel had an obligation to advise the appellant with respect to immigration consequences prior to plea or arrange for such advice, there was no miscarriage of justice. I find the same principle applies in this case. [Emphasis added.]

[59]       Both appeals were dismissed.

(5)         The Fresh Evidence Application

[60]       As part of his applications for leave to appeal in this court, Mr. Berhe has filed fresh evidence concerning his immigration status. This includes his own affidavit, as well as the affidavit of Rylie Burns, a paralegal. Ms. Burns’ affidavit attaches a letter from an immigration lawyer, Lorne Waldman. The Crown consents to the admission of the fresh evidence.

[61]       Mr. Berhe’s circumstances have changed somewhat since his appeal in C63256. On appeal before the SCACJ, Mr. Berhe argued that his guilty pleas were uninformed because he was unaware of the immigration consequences arising by virtue of s. 36 of the IRPA. Section 36 provides that an individual is inadmissible on grounds of “serious criminality” when either the offence of which the person is convicted is punishable by a maximum term of imprisonment of at least 10 years or the person receives a sentence of more than six months.

[62]       In this court, Mr. Berhe relies on Mr. Waldman’s opinion letter which clarifies his immigration status. At the time of his pleas, and to this day, Mr. Berhe was subject to a deportation order. However, because Mr. Berhe is a Convention refugee, he cannot be deported to a country where he is at risk of persecution without the issuance of a “danger opinion” issued by the Minister. This is provided for in ss. 115(1) and (2) of the IRPA. Mr. Waldman was of the opinion that, at the time he wrote, this process had been initiated by the Canada Border Services Agency. The inquiry involves a determination of: (a) whether Mr. Berhe is currently a danger to the public in Canada; and (b) what risks he might face if returned to his country of origin.

[63]       Mr. Waldman points out that a person must be a present and future danger, such that dated criminal convictions would not necessarily be dispositive, but that more recent convictions might increase the probability of an unfavourable danger opinion (relying on Ragupathy v. Canada (Minister of Citizenship and Immigration), 2006 FCA 151 and Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.)). Mr. Walman provided the following opinion:

Given this, a recent criminal conviction for an offence that involves violence, or a recent criminal conviction for an offence that meets the “serious criminality” threshold, would be extremely important evidence that could be relied upon by the Minister to support a finding that the person concerned constitutes a present or future danger to the public in Canada.

[64]       In his affidavit, Mr. Berhe says that, when he entered his guilty pleas, he was unaware that a conviction (irrespective of the sentence imposed) would increase the likelihood that the Minister would issue a danger opinion against him. As he said in his affidavit:

When I pleaded guilty, I did not know that doing so would increase the likelihood that the Minister would issue a danger opinion against me.

I consider the increased likelihood of a danger opinion issuing against me to be a significant consequence. As a refugee, the requirement that the Minister make a finding that I am a danger to the public is the only protection I have from being deported against a valid deportation order.

If I knew that pleading guilty to these offences carried the consequence of increasing the likelihood that the Minister would issue a danger opinion against me, I would not have pleaded guilty. I would have insisted on having a trial on both offences, no matter how remote my chance of success at trial.

I now ask that my plea be struck as it was not voluntary.

[65]       Amicus curiae submits that Mr. Berhe’s ignorance of the implications of a danger opinion renders his guilty pleas to be uninformed and that Mr. Berhe should be permitted to withdraw them on this basis. The respondent submits that, assuming for the sake of argument that Mr. Berhe was unaware of this precise immigration consequence, given his highly precarious immigration status in Canada, he must have known that any conviction would pose a problem for his immigration status and increase his chances of being deported.

(6)         Discussion

[66]       I agree with the Crown’s submission that the validity of Mr. Berhe’s guilty pleas were not undermined by a failure to understand the impact they might have on his immigration status.

[67]       For a guilty plea to be valid, it must be voluntary, unequivocal, and informed: R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 85; R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519. For a plea to be informed, s. 606(1.1)(b) of the Criminal Code requires the accused person’s understanding of number of factors, including “the nature and consequences of the plea.”

[68]       In R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, the Court recognized that a plea will be uniformed if the accused person was unaware of a legally relevant collateral consequence – i.e., an immigration consequence: see also R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52 and R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, at para. 10. A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded guilty with different conditions: Wong, at para. 6.

(a)         The Knowledge Component

[69]       In my view, Mr. Berhe has failed to establish that he lacked the necessary degree of knowledge about his immigration status. This issue has been addressed in a number of decisions from this court.

[70]       In R. v. Shiwprashad, 2015 ONCA 577, 328 C.C.C. (3d) 191, the appellant was a permanent resident who committed a number of offences. His penultimate convictions resulted in him being declared inadmissible to Canada on the basis of “serious criminality” under s. 36(1) of IRPA. Like Mr. Berhe, the appellant’s removal order was stayed for a four-year period on certain conditions, including that he not commit any criminal offences, and that he observe certain reporting requirements if charged and/or convicted of a criminal offence. The stay order included the following:

IMPORTANT WARNING

This stay or removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada, if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by a term of imprisonment of at least ten years) before your case has been finally reconsidered.

[71]       In dismissing the appeal, Weiler J.A. said, at para. 3: “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.”

[72]       In Girn, Watt J.A. observed, at para. 75, that the courts have “resisted imposition of a fixed quantum or standard of information necessary to characterize the plea as ‘informed’. Instead, the jurisprudence counsels a case-by-case analysis consistent with both the subjective nature of guilty pleas and the level of understanding of the consequences of entry of guilty pleas generally.” He further wrote that “[n]o case suggests that knowledge of ‘consequences’ includes knowledge of appellate rights and their limitations”: at para. 75; see also R. v. Coffey, 2017 BCCA 359, at para. 44. In Girn, like Shiwprashad, the court concluded that the appellant had sufficient information to know that further criminality would impact negatively on his immigration status: at para. 78.

[73]       I reach the same conclusion in this case. With respect to C63256, the court has the benefit of the SCACJ’s assessment of Mr. Berhe’s credibility. He found that Mr. Berhe knew that deportation was a potential consequence of his guilty plea, even if he did not appreciate, nor care about, how limited his options were to avoid that consequence. I see no error in the SCACJ’s analysis on this issue.

[74]       Nor does the fresh evidence, focusing on the danger opinion, alter my conclusion on this issue. Again, as in Shiwprashad, the focus is not on knowledge of the precise extent of the jeopardy faced upon pleading guilty. Mr. Berhe knew or must have known that, by pleading guilty to criminal harassment, it could only harm his chances of remaining in Canada. Appendix “A” demonstrates his extensive experience with the Canadian immigration system. If he was not actually aware, he was wilfully blind to the implications of further offending and his removal order.

[75]       Although there is no underlying finding on this issue in relation to M49551, Mr. Berhe’s position is considerably weaker. It must be remembered that his plea in this matter to yet another criminal harassment charge was entered on March 14, 2017, less than three months after his appeal in C63256 was dismissed, an appeal in which he claimed to have no knowledge of the immigration consequences of pleading guilty to a charge of criminal harassment. Moreover, at the time of his plea, the trial Crown explained to the trial judge the concept of a danger assessment, in Mr. Berhe’s presence. His assertion before this court that he did not know that a further conviction for criminal harassment would have an adverse effect on this process cannot be accepted.

[76]       In short, Mr. Berhe had sufficient knowledge of the negative immigration implications of pleading guilty to criminal harassment, on not just one, but two occasions. This case is different from R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, in which the court concluded that the appellant had been misled as to the impact of his guilty plea on his immigration status by his trial counsel erroneously advising him that he would suffer no immigration consequences: at para. 17. That did not happen in this case.

(b)         The Prejudice Component

[77]       As noted above, it is Mr. Berhe’s evidence that, had he known that his guilty pleas would jeopardize his already precarious immigration status, he would not have pled guilty. He would have gone to trial. Wong provides that this is a subjective assessment; however, “[t]hat the analysis focusses on the accused’s subjective choice does not mean that a court must automatically accept an accused’s claim. Like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances”: at para. 26. Among the factors to be considered in this analysis, are the following: the strength of the Crown’s case; any available defence; and the strength of connection between the plea of guilty and the collateral consequence: Wong, at para. 26; Girn, at para. 70.

[78]       Mr. Berhe is unable to discharge his burden on this component. The respective records in C63256 and M49551 demonstrate that Mr. Berhe was insistent on pleading guilty. He became frustrated when he experienced any sort of resistance. He was understandably anxious to be released from pre-trial custody when he entered his pleas.

[79]       But there was more to it than that. Mr. Berhe faced two overwhelming cases of criminal harassment – two similar cases to which he had no semblance of a defence. Thus, had he exercised his right to go to trial, his situation today would not be any different.

[80]       I would dismiss both appeals.

D.           conclusion

[81]       I would refuse leave to appeal in relation to M49552. I would grant leave to appeal in C63256 and M49551, but dismiss both appeals.

[82]       I would like to express the court’s appreciation for the assistance and diligence of Mr. Neubauer as amicus curiae and Ms. Rivers as Crown Counsel on these three appeals.

Released: December 7, 2022 “G.T.T.”

“G.T. Trotter J.A.”

“I agree. Harvison Young J.A.”

“I agree. Thorburn J.A.”

 

Appendix “A”

	Date		Detailed Summary of Proceedings
	May 7, 2003		CONVICTION: uttering forged document The applicant was convicted of uttering a forged document, and sentenced to a $300 fine and credit for 13 days pre-sentence custody. This conviction triggered the finding of inadmissibility. Immigration Letter, Applicant’s FEA, Tab 3, Exhibit A Reasons and Decision (IAD), Respondent’s FEA, Tab 2, Exhibit B
	April 28, 2005		CONVICTION: mischief under $5,000, indecent act The applicant was convicted of mischief under and indecent act, and sentenced to 15 days on each charge (concurrent), with 36 days pre-trial custody and 15 months probation.
	May 18, 2005		CONVICTION: mischief, assault, theft, indecent act The applicant was convicted of 3 counts of mischief, assault peace officer, theft under $5,000, and indecent act. He was sentenced to 1 year for mischief, and 1 year on the remaining charges.
	June 2, 2005		DEEMED INADMISSIBLE The Immigration Refugee Division deemed the applicant inadmissible to Canada on grounds of serious criminality. The applicant was subsequently ordered deported. IAD Decision July 25, 2012, Respondent’s FEA, Tab 2, Exhibit F, at p. 40
	June 24, 2005		NOTICE OF APPEAL The applicant filed a Notice of Appeal to the Immigration Appeal Division against the removal order. IAD Decision July 25, 2012, Respondent’s FEA, Tab 2, Exhibit F, at p. 40
	January 25, 2006		CONVICTION: public mischief, uttering threats, fail to comply The applicant was convicted of public mischief, uttering threats, and fail to comply with probation. He was sentenced to 1 day concurrent for mischief and uttering threats (with 44 days credit for pre-trial custody) and 14 days consecutive for fail to comply.
	January 31, 2008		CONVICTION: indecent act, theft The applicant was convicted of two counts of indecent act and theft under $5,000. He was sentenced to 1 day (6 months pre-trial credit) for one indecent act, and one day for the second indecent act and for theft.
	February 26, 2009		3 YEAR STAY OF REMOVAL ORDER The applicant filed an appeal from the removal order and the Immigration Appeal Division concluded that there were sufficient humanitarian and compassionate considerations to warrant special relief. A stay of removal order was issued for a period of 3 years, including conditions that he not commit any criminal offence and that he keep the peace and be of good behaviour. IAD Reasons and Decision, February 26, 2009, Respondent’s Application to Adduce Fresh Evidence, Tab 2, Exhibit B
	March 9, 2009		CONVICTION: criminal harassment The applicant was convicted of criminal harassment, and sentenced to 68 days custody (27 days PTC), and 2 years probation.
	May 29, 2009		APPLICATION FOR LEAVE The applicant applied to the Federal Court of Canada for leave to appeal and for judicial review of the decision on February 26, 2009. His application states that the conditions of the stay are “hard to follow” given his mental health issues. Respondent’s Application to Adduce Fresh Evidence, Tab 2, Exhibit C
June 24, 2009		CONVICTION: fail to comply The applicant was convicted of fail to comply with recognizance, and sentenced to 1 day custody, on top of 13 days pre-trial credit.
July 16, 2009		CONVICTION: fail to comply The applicant was convicted of fail to comply with recognizance, and sentenced to 5 days custody with credit for 9 days pre-trial custody.
November 25, 2009		APPLICATION FOR LEAVE DISMISSED The applicant’s application for leave to appeal was dismissed due to his failure to file an application record. Respondent’s Application to Adduce Fresh Evidence, Tab 2, Exhibit D
December 15, 2009		CONVICTION: indecent act (x5) and fail to comply The applicant was convicted of five counts of indecent act, fail to comply with probation, and fail to comply with recognizance. He was sentenced to 30 days on each charge, with 59 days credit for pre-trial custody, and 2 years’ probation.
September 3, 2010		CONVICTION: indecent act, fail to comply The applicant was convicted of indecent act and fail to comply with probation (sentenced to 1 day, 3 months PTC, 12 months probation).
June 10, 2011		CONVICTION: indecent act, indecent exposure etc. The applicant was convicted of indecent act, indecent exposure to a person under 16 (x2), and fail to comply with probation (x3). He was sentenced to 3 months on each indecent act and indecent exposure, consecutive, and 6 months for each fail to comply, consecutive. These convictions triggered the cancellation of the stay of the removal order.
March 14, 2012		REQUEST FOR SUBMISSIONS The Immigration Appeal Division wrote to the appellant requesting submissions regarding the Minister’s position that his stay had been cancelled and his appeal dismissed. Letter sent to the appellant at his last known address. The applicant was given a deadline of April 4, 2012 to make submissions. IAD Reasons and Decision, July 25, 2012, Respondent’s FEA, Tab 2, Exhibit F, at p. 41
March 19, 2012		COUNSEL RETAINED The appellant’s counsel wrote to the Immigration Appeal Division indicating that she had been retained, and requesting a copy of the Record of the Appeal. The IAD sent the documents on March 20. No submissions were received. IAD Reasons and Decision, July 25, 2012, Respondent’s FEA, Tab 2, Exhibit F at p. 41
July 25, 2012		APPEAL DISMISSED Appeal of deportation order dismissed, although Canadian authorities did not act at that time to affect his removal from Canada. IAD Reasons and Decision, July 25, 2012, Respondent’s FEA, Tab 2, Exhibit F
October 26, 2012		CONVICTION OVERTURNED: indecent exposure etc. The applicant’s conviction for indecent exposure (which caused the cancellation of the stay of removal order) was overturned by this Court (R. v. Berhe, 2012 ONCA 716).
December 5, 2012		CONVICTION: theft under The applicant was convicted of theft under $5,000 and sentenced to a fine of $155.
August 22, 2013		GUILTY PLEA: fail to comply The applicant entered a guilty plea to fail to comply with recognizance before Wolski J. (subject of this appeal).
March 7, 2014		GUILTY PLEA: criminal harassment, uttering threats The applicant entered guilty pleas to uttering threats and criminal harassment before Blouin J. (subject of this appeal).
2016		APPLICATION TO RE-OPEN CANCELLATION OF STAY Applicant sought to re-open the cancellation of his stay and the refusal of his appeal. Letter of Lorne Waldman, Application to Adduce Fresh Evidence, Tab 3, Exhibit A
June 22, 2016		NOTICE OF APPEAL The applicant filed his Notice of Appeal to the Superior Court of Justice challenging the convictions for criminal harassment, threatening, and fail to comply. Notice of Appeal, AB at p. 7-14
December 30, 2016		SUMMARY CONVICTION APPEAL DISMISSED Justice Akhtar dismissed the applicant’s appeals from his guilty pleas for criminal harassment, threatening, and fail to comply. Reasons for Decision (SCA), AB at pp. 226-234
February 2, 2017		APPLICATION TO RE-OPEN DISMISSED AS ABANDONED Immigration Appeal Division determined that the applicant had abandoned his application to reopen his appeal. Application for Leave, Respondent’s FEA, Tab 2, Exhibit G at p. 48
March 10, 2017		Applicant Notified of Decision Dismissing application as abandoned: The applicant was notified on March 10, 2017 of the IAD’s decision dismissing his application to re-open as abandoned. Application for Leave, Respondent’s FEA, Tab 2, Exhibit G at p. 48
March 14, 2017		GUILTY PLEA: criminal harassment The applicant pleaded guilty to criminal harassment (subject of application M49551).
February 7, 2018		GUILTY PLEA: harassing communications, breach of probation The applicant was convicted after trial of harassing communications and breach of probation (subject of application M49552).
February 14, 2018		APPLICATION FOR LEAVE AND JUDICIAL REVIEW The applicant filed an application for leave and for judicial review of the decision of the IAD dismissing his application to re-open as abandoned. Application for Leave, Respondent’s FEA, Tab 2G, at p. 48
June 11, 2018		APPLICATION FOR LEAVE TO APPEAL DISMISSED The applicant applied to the Federal Court and the Federal Court dismissed the applicant’s application for leave and for judicial review of the February 2, 2017 decision for failure to file an Application Record. Endorsement, Respondent’s FEA, Tab 2G, at p. 51