An immigrant wants robbery convictions he pleaded guilty to set aside because they could mean his deportation from Canada.
Sukhvinder Singh Khungay also has more recent convictions for three counts of trafficking in cocaine, common assault and assault with a weapon against an intimate partner, criminal harassment and breach of a probation order.
In 2009, Khungay pleaded guilty to five counts of robbery and an offence involving an imitation firearm.
However, Khungay told B.C. Court of Appeal Justice Joyce DeWitt Van Oosten, he did not realize that, as a result of the guilty pleas, he could be declared inadmissible to Canada and deported for serious criminality.
“He seeks to have the convictions set aside on the ground that his guilty pleas were uninformed and therefore invalid,” DeWitt Van Oosten said in her October 6 decision.
She questioned why so many people with knowledge of the consequences of guilty pleas did not inform him of those consequences.
He had sought an extension on time to file an appeal, which DeWitt Van Oosten granted.
“I find this case close to the line,” she said. “Particularly in light of the delay in filing an appeal and the prejudice to the Crown arising from the passage of time. However, in light of the Court’s jurisprudence on extensions, the particular circumstances of the case, and the critical importance of ensuring that guilty pleas are informed, I am not prepared to deny the applicant an opportunity to have his convictions reviewed.”
Khungay, 53, is a United Kingdom citizen. He immigrated to Canada with his parents in May 1979, obtaining landed immigrant status. He is a permanent resident and has two Canadian-born children, both now adults.
He said it wasn’t until after he was sentenced that he learned he could be deported as a result of his crimes.
After a workplace accident that led to significant back surgery, Khungay developed a cocaine addiction. His marriage dissolved in 2000 and he became involved in criminal activity.
Three of the five robberies involved stealing money from business employees or owners using an imitation handgun. In one case, Khungay threatened to kill the victim if he didn’t get cash. A fourth robbery involved a vehicle theft where the driver as threatened with the imitation gun. A fifth robbery involved threatening to shoot a 74-year-old man and demanding cash.
All offences were in a month’s span, described by Crown as a spree.
“The robberies were said to have been committed to pay an outstanding drug debt and to obtain money for more drugs,” DeWitt Van Oosten said.
In July 2008, Khungay was charged with five counts of robbery and five counts of use of an imitation firearm while committing or attempting to commit an indictable offence.
He pleaded guilty in May 2009. He had a lawyer.
In July 2009, Khungay was sentenced to three years’ total imprisonment, receiving two years’ credit for time spent in pre-sentence custody.
It was while serving his sentence that Khungay received a letter from Canada Border Services Agency (CBSA) advising his case was under review for transfer to the Immigration and Refugee Board (IRB) for an admissibility determination.
Khungay believed this would be additional punishment on top of incarceration.
“He was ‘filled with dread’ at the possibility of being separated from his children and other family members,” DeWitt Van Oosten said.
However, while he stayed sober in jail, the death of his mother and of a brother had a profound impact on Khungay.
It was during the relapse that he returned to criminal activity. And, he was again told by CBSA he could be removed.
It was in January of 2020 that Khungay was called before the IRB. He retained a lawyer.
“It was during his discussions with this lawyer that he first became aware that his 2009 guilty pleas could be invalid because he did not know of the collateral consequences when they were entered,” DeWitt Van Oosten said.
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