A convicted robber who pleaded guilty to five counts of robbery in Surrey provincial court wants those pleas set aside since learning he’s facing deportation as a result.
Sukhvinder Singh Khungay entered his guilty pleas in 2009. Justice Joyce DeWitt-Van Oosten, of the Court of Appeal for B.C., on Oct. 6 granted him an extension of time to appeal.
The court heard Khungay, 53, has permanent resident status but is not a Canadian citizen and the Immigration Division of the Immigration and Refugee Board of Canada has ordered him deported. He told the judge that when he pleaded guilty to the robberies he was not aware the convictions and resulting sentences could get him removed from Canada.
“He seeks to have the convictions set aside on the ground that his guilty pleas were uninformed and therefore invalid,” DeWitt-Van Oosten noted in her reasons for judgment. “I am satisfied that the interests of justice are best served by granting an extension.”
The court heard Khungay immigrated to Canada from the United Kingdom with his parents in 1979 and fathered two Canadian-born children, now adults.
He became addicted to cocaine after injuring his back at work and after his marriage ended in 2000, the judge noted, he “succumbed to criminality.” He was sentenced in July 2009 to two years concurrent for each of the robberies in 2009 and a consecutive one-year in jail for an imitation firearms offence, making for five years altogether.
“Three of the five robberies involved stealing money from business employees or owners using an imitation handgun. During one of those robberies, the applicant threatened to kill the victim if he did not produce cash,” the judge noted. “A fourth robbery involved stealing a vehicle by threatening the driver with the imitation handgun, pushing him out of the driver’s door, and then fleeing with the vehicle. A fifth robbery involved approaching a 74‑year‑old man who was walking down his driveway, threatening to shoot him and demanding cash. The applicant revealed the barrel of the imitation handgun to that victim. He was unsuccessful in obtaining money.”
This all happened in the span of a month, to pay off a drug debt and to get more drugs.
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In December 2009, Khungay got a letter from the Canada Border Services Agency telling him the convictions and sentences made him “inadmissible” to Canada on grounds of “serious criminality.”
Khungay said he was “shocked,” and “filled with dread” at the prospect of being separated from his family.
Subsequent to the robberies, the judge noted, he committed other crimes including common assault of an intimate partner, assault with a weapon against an intimate partner, criminal harassment and breach of a probation order, and three counts of trafficking in cocaine.
A deportation order was issued on Feb. 21, 2020. He then launched an appeal of his 2009 convictions on March 13.
The Crown opposed an extension of time. But the judge granted it.
“In light of the evidence before me, the applicant has a strong argument that his 2009 guilty pleas were uninformed,” DeWitt-Van Oosten decided.
“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. As noted, whether the appeal succeeds on its merits is for a division to decide, based on its own assessment of the record.”
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