R v Wong, (2018) S.C.J. 25 – (Moldaver, Gascon, Brown & Rowe):

[67] It is well established that for a plea to be informed, the accused must be aware of its consequences: Taillefer, at para. 85. At a minimum, this entails awareness of the criminal consequences of a plea, and thus awareness that conviction and a penalty may follow: T. (R.), at p. 523.

[68] Collateral consequences are consequences that are secondary or collateral to the criminal process and that have an impact on the offender: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11. This Court has already held that collateral immigration consequences may be relevant in the sentencing context: Pham, at para. 13. As I wrote in Pham, although the sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender, collateral consequences such as deportation may be relevant factors in determining the fitness of the sentence (para. 24). However, the simple fact that a collateral consequence is relevant at the sentencing stage does not mean that it necessarily bears on the validity of a guilty plea. In determining whether a sentence is fit, a court must consider all relevant factors, which may include collateral consequences of the sentence. The validity of a sufficiently informed guilty plea engages different considerations. In the latter context, the ultimate issue is whether the accused forfeited his or her rights, by pleading guilty, in a process that was fundamentally fair.

[72] Collateral consequences that affect the accused person’s fundamental interests could have a more significant impact on the accused than the criminal sanction itself. As a result, it may be essential for an accused to be aware of such consequences in order to enter an informed guilty plea. This is particularly true in the immigration context, in which an accused may be exposed to a collateral consequence as serious as deportation. People who are to be deported may experience any number of serious life-changing consequences. They may be forced to leave a country they have called home for decades. They may return to a country where they no longer have any personal connections, or even speak the language, if they emigrated as children. If they have family in Canada, they and their family members face dislocation or permanent separation.

[73] The seriousness of these consequences has led Canadian courts to adopt the broader approach and accept that an accused person’s awareness of immigration consequences is relevant to the determination of whether his or her plea is sufficiently informed.

[75] …For a collateral consequence to be legally relevant and capable of supporting a determination that a guilty plea is sufficiently informed, it will typically be state-imposed and flow fairly directly from the conviction or sentence, and it must have an impact on serious interests of the accused.

[76] A guilty plea will therefore be uninformed if the accused establishes on a balance of probabilities that he or she was unaware of a collateral consequence that is legally relevant.

[79] Even if it is shown that a guilty plea was uninformed because the accused was unaware of a legally relevant collateral consequence, that alone does not establish a miscarriage of justice. An uninformed guilty plea may raise the possibility of a breach of procedural fairness, but the court must go on to consider the effect of the lack of awareness. An uninformed guilty plea may only be set aside on the basis of a miscarriage of justice if it has resulted in prejudice to the accused.

[80] Therefore, at the second stage of the inquiry, a court must be satisfied of a reasonable possibility that the accused would have proceeded differently had he or she been aware of the collateral consequence, either by declining to admit guilt and entering a plea of not guilty, or by pleading guilty but with different conditions. This must be determined by applying an objective standard, modified such that a court can take the situation and characteristics of the accused before it into account. Thus, the inquiry is not concerned with whether the accused before the court would actually have declined to plead guilty. Reviewing courts must objectively assess the impact of the missing information in the particular circumstances of the accused. The question, therefore, is whether there is a reasonable possibility that a similarly situated reasonable person would have proceeded differently if properly informed.