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| John L. Hill |
Telman Vladamir Astudillo was born in Chile in 1974 and came to Canada with his parents as a refugee in 1976. All of his immediate family, including his son, live in Canada. Astudillo has no ties to Chile.
Astudillo had amassed a serious criminal record in Canada, including several firearms offences. In 1995, he was served with notice that the Ministry of Citizenship and Immigration was considering issuing an opinion that he
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In 2012, he obtained 13 new criminal convictions, including assault with a weapon, uttering threats and criminal harassment. These charges did not result in a deportation order.
In early 2018, Astudillo met a woman with whom he formed a relationship. When that ended, he continued to harass her, which led to the issuance of a criminal charge. In late 2018, he met another woman who also accused Astudillo of harassment when that relationship ended.
The Crown proceeded summarily and Astudillo pleaded guilty to both charges. Thereafter, steps were taken under the Immigration and Refugee Protection Act, including sending Astudillo a procedural fairness letter that he received. He failed to make submissions within the required timelines. An Immigration Review Board hearing was scheduled, but the hearing was delayed by delays caused by Astudillo and canceled when he indicated he intended to appeal the criminal charges. Finally, on Feb. 20, 2024, the Immigration and Refugee Board issued a deportation order based on the two convictions for his 2018 charges.
Astudillo now sought to appeal his convictions and to withdraw his guilty pleas. This would overturn the deportation order (subject to re-prosecution by the Crown), and if it was unsuccessful, he planned to appeal through the Immigration Appeal Division.
The British Columbia Supreme Court accepted the guidance found in R. v. Coffey, 2017 BCCA 359 that a case-by-case analysis is required to determine an accused’s awareness of the potential immigration consequences of a guilty plea. Here, Astudillo’s affidavit stated he understood that a hybrid charge, if proceeded with by indictment, could result in a 10-year sentence and trigger admissibility proceedings. Yet, here, the Crown proceeded summarily, so the penitentiary term could not result. Even though the motion to set aside his guilty plea was brought late in the game, the court accepted that Astudillo proceeded with due diligence once he was apprised that avenue was open to him.
To determine if the court should extend the time for appeal, it considered each of the five factors set out in R. v. Gendreau, 2016 BCCA 141:
(a) Whether the applicant had a bona fide intention to appeal before the expiration of the appeal period and communicated that intention to the opposing party.
(b) Thether the opposing party would be unduly prejudiced by an extension of time.
(c) The extent of the delay.
(d) Whether there is a proper explanation for the delay and
(e) The merits of the proposed appeal.
(b) Thether the opposing party would be unduly prejudiced by an extension of time.
(c) The extent of the delay.
(d) Whether there is a proper explanation for the delay and
(e) The merits of the proposed appeal.
The court gave the most serious consideration to the last of these tests, the merits of the appeal. The court accepted that concerning Astudillo’s level of knowledge about the consequences of his guilty pleas:
a) He did not have specific knowledge of the jeopardy he faced.
b) He did not know the mechanism by which he faced that jeopardy.
c) However, he did know of the possibility that he faced serious immigration jeopardy arising from his 2020 guilty pleas. His actual knowledge was based on his prior experience in 1995.
b) He did not know the mechanism by which he faced that jeopardy.
c) However, he did know of the possibility that he faced serious immigration jeopardy arising from his 2020 guilty pleas. His actual knowledge was based on his prior experience in 1995.
Astudillo had a history of immigration concerns, and he was aware that he could face deportation even though he might have been unaware of the mechanisms. The court rejected his statement that he would have proceeded to trial had he known the immigration consequences. Looking at objective, circumstantial evidence, the court could not find that he suffered prejudice from his guilty pleas.
It was determined that extending the time for appeal was not in the interests of justice, and the court need not consider withdrawing the guilty pleas.
The Manitoba Court of Appeal, guided by R. v. Wong, 2018 SCC 25, considered the accused’s intentions but weighed subjective prejudice against an objective assessment of the credibility of the accused’s subjective claim. It is likely that, had the Manitoba approach been taken, the result would have been the same.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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