A man's attempt to overturn drug convictions from 2005 and 2008 in order to immigrate to the U.S. was turned down by the courts last week.
In a B.C. Court of Appeal decision issued June 14, Justice Christopher Grauer found it would not be in the interests of justice to grant a man time extensions to appeal his convictions from 2005 and 2008.
The man, whose name is redacted in the published judgment, pleaded guilty in Surrey in 2005 to possessing crack cocaine for the purposes of trafficking and to possessing cocaine in Richmond in 2008.
He was arrested in the Surrey case after undercover officers — who received free samples and purchased products from a car — identified him as the person driving the car. In the Richmond case, 28 individually wrapped rocks of crack cocaine were found in his car.
He was sentenced to a six-month conditional sentence and a fine of $500 for the Surrey and Richmond files respectively.
The man filed notices of appeal to both convictions in August 2023. Adults convicted for criminal cases in B.C. are given 30 days after sentencing to appeal their convictions.
The man is living in the U.S. on a non-immigrant visa with his partner, a U.S. citizen, and their children. He told the court he first encountered immigration problems in 2016 after travelling in and out of the U.S.
"Records in the Richmond file indicate, however, that on Feb. 4, 2014, his counsel requested a copy of the record of proceedings “in order to assist [the appellant] in immigration-related matters,” wrote Grauer.
The man then obtained a pardon from the Parole Board of Canada in 2019 for his convictions, which "doesn't guarantee entry or visa privileges to another country," according to the parole board.
The man asked his immigration lawyer during the same year about possibly marrying his partner and immigrating to the U.S.
He was advised he was "likely ineligible" for permanent residency and instead applied for an investor visa in 2022.
His son was born in the U.S. in 2021, which made him "more concerned" about his non-immigrant status, the man told the court, adding he was planning to raise his son in the U.S. with his partner.
He told the court he realized in 2022 that appealing his convictions was an option and sent the information to the lawyer. One year later, in 2023, his lawyer told him overturning his convictions on appeal was his only solution to overcome his U.S. inadmissibility and he finally filed his appeals through a Canadian lawyer last year.
Man claims he considered investor relations as a career in 2005
According to the man, had he known of these consequences at the time, he would have chosen to have a trial or asked his lawyer to negotiate an alternative resolution.
He told the court he began considering investor relations as a career in 2005 when he was 20 and submitted a letter from a Surrey broker indicating he had worked for one year as her assistant. He claimed his goal at the time was to build his career to move to the U.S., where there was a larger market.
However, Grauer noted the psychological-vocational assessment report prepared for his 2005 conviction described the man as unemployed at the time of intake and stated he didn't graduate from high school. The report indicated the man was "employed primarily in labour-intensive work."
While recommendations were made for schooling to pursue a career in business, the report did not mention any interest in investor relations and working in the U.S.
A neurologist's reports for the Surrey sentencing, on the other hand, noted the man had worked odd jobs such as a cook in a restaurant and he was trying to complete his schooling in February 2005.
At the time of the sentencing, the man appeared to be working in construction.
According to the man, he did not recall advising anyone at the time that he intended to travel to the U.S. for work and no one told him the potential immigration consequences of his convictions.
The man told the court he started working on mergers and acquisitions in 2007 and began travelling to the U.S. regularly in 2008 for his job.
Grauer noted that while his lawyer reported during his 2008 sentencing that he was managing a "corporate consulting type of business," there was no mention of travel to the U.S.
No merit to appeal, says B.C. Court of Appeal justice
Grauer found the man's appeal would cause "significant" prejudice to the prosecution, who will have problems accessing information for both cases.
The Surrey file, which is 20 years old, is missing documents, the prosecution told the court. The hard copy of the police file was destroyed and "it is now not possible even to identify" what documents are missing because access to the file has been cordoned off due to the man's pardon.
Some police officers involved in the two cases have either retired or left the force and may not be available to testify.
"The remaining witnesses, the Crown submits, will be obliged to recall events and details that took place up to 20 years ago," wrote Grauer.
The man, on the other hand, said the prejudice is "largely illusory" and argued the only real prejudice is the "faded memories" of the police officers because there is no evidence that those who are no longer on the force would be unavailable to give evidence. He also stated he was prepared to consent to access to the cordoned-off record.
Grauer disagreed. Apart from "possibly significant documentary problems," he found there is "palpable" prejudice caused by the fading of memory.
"The appellant’s argument would have much more weight if the delay were a matter of three or four years. However, we are dealing with investigations that took place 18 and 20 years ago," he wrote.
"The case against the appellant at the time of his charges was based primarily on police surveillance, involving a number of officers and depending upon continuity between them."
There was also no merit to the man's case because the guilty pleas "had no impact" upon his status in Canada and "exposed him to no jeopardy," wrote Grauer, who explained there was nothing suggesting the man contemplated having an American partner and U.S.-born children at the time of his guilty pleas.
While the man argued he formed an intention to appeal "within a reasonable time after the consequences came to light," Grauer disagreed, finding there was a "very lengthy delay" between 2014, when the man first sought immigration advice and his 2023 appeal.
He added the man had encountered issues in 2016 and was told in 2019 that he would be ineligible for immigration, but "gave no thought" to appealing until 2022, after his son was born.
Grauer found it would not be in the public interest to grant the man an extension since Canadian immigration law is "irrelevant" to the case and "the personal impact is markedly less."
The man also failed to demonstrate a basis that counsel and sentencing courts should have considered future U.S. immigration consequences "at the time of sentencing or at any time," wrote Grauer.
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