NEELAM Kamaljit Singh Grewal of Abbotsford pleaded guilty to two charges of possession for the purpose of trafficking because he was informed by defence counsel that his guilty pleas would not jeopardize his permanent residency in Canada. He was later issued a deportation order.

Grewal claimed that he would not have agreed to the pleas had he been properly informed of their consequences. He asked the B.C. Court of Appeal to grant him an extension of time to appeal his convictions, admit fresh evidence, set aside his guilty pleas, and order a new trial.

The court has allowed his appeal, noting that defence counsel misinformed him about the immigration consequences of his plea arrangement. The Crown conceded that allowing the pleas to stand would result in a miscarriage of justice.

Justice Lauri Ann Fenlon, Justice Margot Fleming and Justice Heather MacNaughton in their oral reasons for judgment said that Grewal left India and moved to Canada in 1991 when he was 18 years old. He became addicted to heroin soon after, although he managed to continue working and supporting his family. In December 2015, and again in June 2016, he was arrested after police observed him engaged in what appeared to be a dial-a-dope trafficking operation. He was found to be in possession of small quantities of prohibited drugs and was charged in separate Informations for each incident.

Grewal initially entered not guilty pleas and set both matters for trial. As a permanent resident and non-citizen, avoiding immigration consequences was one of his primary concerns. He had at that point lived in Canada for 27 years; his wife and three adult children resided here and relied on him for support.

The court said that in July 2018, Grewal retained new counsel who negotiated a joint submission with Crown Counsel for a suspended sentence and probation. Defence counsel advised Grewal to plead guilty, and assured him that this outcome would avoid immigration consequences.

The cout noted: “It is evident from the transcript of the proceedings below that Mr. Grewal’s counsel misinformed him about the immigration consequences of the proposed plea arrangement. Counsel believed that a suspended sentence would not trigger immigration consequences because it did not amount to a sentence of six months or more. However, s. 36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides that a permanent resident will be “inadmissible on grounds of serious criminality” for “having been convicted in Canada of an offence … punishable by a maximum term of imprisonment of at least 10 years, or of an offence … for which a term of imprisonment of more than six months has been imposed” (emphasis added). Because the maximum punishment for possession for the purpose of trafficking a Schedule I substance is life imprisonment, Mr. Grewal was subject to the provision as soon as he entered a guilty plea, regardless of the type of sentence imposed.”

Grewal was sentenced in August 2022. In December 2023, he received an interview request from Canada Border Services Agency. It was at this point that Grewal first discovered that the convictions could impact his immigration status. He was issued a deportation order on July 19, 2024, the court said.

It added that Grewal deposed that, if properly informed about the immigration consequence of the guilty pleas, he would have continued to trial or explored other options, such as pleading to the lesser included offence of possession or proceeding in Drug Treatment Court.

The court agreed with the Crown respondent that Grewal had met the two-step test for setting aside a guilty plea established by the Supreme Court of Canada in R. v. Wong, 2018 SCC 25. He demonstrated both that he was misinformed about the consequences of entering the guilty pleas, and that the misinformation resulted in prejudice to him.

The court also pointed out: “It is also notable that the circumstances surrounding the entering of the guilty pleas were not ideal. Mr. Grewal appeared by telephone, a Punjabi interpreter was not made available, and the judge did not conduct a formal plea comprehension inquiry under s. 606(1.1) of the Criminal Code, R.S.C. 1985, c. C-46.”

In these circumstances it would be a miscarriage of justice to allow the convictions to stand, the court said. It set aside the guilty pleas and ordered a new trial.