A British Columbia man has failed in his bid to appeal two convictions for trafficking and possessing crack cocaine — nearly 20 years after he first pleaded guilty.
The man, known only as B.L. in court documents, said he was unaware that pleading guilty to trafficking drugs would make him ineligible to immigrate to the U.S.
B.L. argued that, had he known that fact, he would never have pleaded guilty to the offences he committed when he was around 20 years old. He sought to immigrate to the U.S. to permanently be with his wife and son.
However, his appeals have been quashed by B.C.’s highest court, with the judge ruling that a retrial two decades after the crimes would unnecessarily burden Crown prosecutors. They were also filed well after the 30-day grace period normally given to those wanting to appeal.
“The appellant’s argument would have much more weight if the delay were a matter of three or four years,” wrote Court of Appeal Justice Christopher Grauer in a judgment released Monday.
“However, we are dealing with investigations that took place 18 and 20 years ago.”
Police officers’ memory likely faded: judge
According to the decision, B.L. was driving a vehicle in Surrey, B.C., in 2004 while a passenger was handing out free samples of crack cocaine, and was spotted by an undercover officer sitting at a bus stop.
Two weeks later, another undercover officer called a number that was on the car to order some more drugs — and another officer positively identified the substance as cocaine. B.L. pleaded guilty in April 2005 and received a six-month conditional sentence in August 2006.
In total, the judgment says, seven officers were involved in the bust. Nearly two decades later, Crown prosecutors told the court that five of them have either retired or left the police force.
It was a similar story for B.L.’s 2008 conviction. In 2006, officers stopped him in his vehicle and found 28 individually-wrapped rocks of crack cocaine.
Grauer says that five of the 11 officers involved in that bust have retired or left the police — including, crucially, the officer who stopped B.L.’s vehicle.
Crown prosecutors argued that the significant time gap since the busts, and the fact that some evidence had been purged from the cases, meant that a retrial would prejudice them significantly.
B.L. argued that electronic records remained from his convictions, and he also consented to have some evidence unsealed if the judge allowed a retrial.
But Justice Grauer disagreed, and said the convictions relied on a number of officers agreeing on a timeline of events.
“Quite apart from the possibly significant documentary problems, the prejudice caused by the fading of memory is not just something that can be presumed; after this length of time, it is palpable,” he wrote.
Man stopped at YVR
B.L. told the court that he eventually set up an investment advisory company focused on the U.S. health-care sector, and travelled to the United States multiple times with no issue.
In 2016, however, he was stopped at Vancouver International Airport (YVR) and found to be inadmissible to enter the U.S. due to his criminal record.
He subsequently applied for various waivers and visas in order to continue his job. He received an official pardon from the Parole Board of Canada in 2019, allowing him to enter the country.
However, B.L. told the court that he remains ineligible to become a permanent resident of the U.S. — something that became very important to him as his son was born there.
B.L. said he had always maintained interest in immigrating to the U.S., even at the time of his convictions, which meant his bid to appeal the convictions was merited.
However, the judge disagreed with him, saying that psychological assessments at the time of his conviction showed no indication that B.L. wanted to work in investments.
“On the contrary, at the time of that sentencing, the appellant was employed in construction and still dealing drugs,” Greaves wrote. “With respect to both sets of charges, conviction appeared to be inevitable.”
The judge found that there was no objective evidence of B.L. wanting to immigrate until 2019, well after he knew he would have trouble crossing the border.
“Nothing suggests that having an American partner and U.S.-born children was within his contemplation at the time of his guilty pleas,” the justice wrote.
“I conclude that the appellant has failed to raise a reasonably arguable ground of appeal,” he added.