A convicted Surrey robber has lost his bid to have his guilty pleas vacated by the Court of Appeal for British Columbia after finding out he’s being deported for “serious criminality.”
Sukhvinder Singh Khungay pleaded guilty in 2009 to five counts of robbery and one count of using an imitation handgun while committing or attempting to commit an indictable offence. His case was originally heard in Surrey provincial court. He is a permanent resident of Canada, having emigrated here in 1979 from the United Kingdom when he was 11 years old, but he has never applied for Canadian citizenship.
The Immigration and Refugee Board of Canada on Feb. 21, 2020 ordered that Khungay be removed from Canada “on the basis that he was inadmissible for serious criminality,” Justice David Harris noted in his July 14 reasons for judgment.
After Khungay filed an appeal and it was dismissed, he turned to the appeal court in an attempt to have his guilty pleas reversed on grounds he was not informed of the “collateral immigration consequences” of his pleas, which he says resulted in a miscarriage of justice.
“He says that he was deeply shocked to discover that his right to remain in Canada was put at risk by his convictions and that he felt that he was being punished a second time,” Harris noted in his reasons.
“It is common ground that the appellant did not know of the immigration consequences of his pleas before pleading guilty. He says now that had he known, he would have prioritized avoiding the risk of removal from Canada above all other considerations,” Harris noted. The judge said that the plea agreement had been “highly favourable” to Khungay as he faced a “very substantial” prison term of 10 years or more if he were convicted on more than one of the counts “as originally framed.”
“He says now that had he been aware that he could be subject to an admissibility hearing and a possible removal order, he would not have pleaded guilty.”
But Harris found Khungay’s claim that he would have gone to trial in the hope of getting an acquittal was not credible.
The robberies took place in Surrey and Langley, and were apparently fueled by his drug problem. One involved a car jacking, and the victim of an attempted robbery was an elderly man. Harris noted the Crown’s case was “extremely strong” and the prosecutor would not accept a plea for a sentence of less than four years.
Subsequent to serving his sentence for these crimes, Khungay was convicted of other crimes in 2015, 2016 and 2018. In 2015 he pleaded guilty to assaulting a girlfriend, in 2016 pleaded to assaulting a girlfriend on two occasions, once with a knife, as well as criminal harassment, and in 2018 pleaded guilty to three crimes involving trafficking in controlled substances. Khungay is now subject to the removal order “because of subsequent convictions which re-initiated his exposure to removal,” the judge noted.
“Now in his evidence, the appellant tries to walk back from his desire to accept responsibility, express remorse, plead guilty and apologize to his victims,” Harris said. “As I read his evidence, these expressed desires were insincere or merely instrumental to help reduce his sentence.”
Harris concluded that Khungay had not demonstrated a “realistic possibility” he would have pleaded differently had he known about the collateral deportation consequences he faced as a result.
“I would decline to vacate the guilty plea. The appellant has not established that his guilty plea gave rise to a miscarriage of justice. In the result, I would dismiss the appeal,” he said. Justices James Fitch and Susan Griffin concurred.