Update on Validity of a Guilty Plea and Knowledge of Significant State imposed Collateral Consequences

The law on validity of guilty plea and knowledge of collateral consequences has evolved as I had suggested it would in my book Summary Appeal Law and Trial Advocacy (November, 2015) when discussing the Evolving Law on Validity of Guilty Plea and Knowledge of Immigration Consequences.

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea[1].   However, what is the “consequence” of a plea? In the seminal case of R. v. T. (R.)[2], Justice Doherty held, “By an understanding of the consequences of his pleas, I mean the realization that convictions would flow from his pleas, as well as an appreciation of the nature of the potential penalty he faced[3].” In other words, R. v. T. (R.)[4] appeared to suggest that consequences were restricted to “penalty” rather than collateral consequences of a guilty plea.

In Ontario[5], the recent decision in R v. Quick [2016] O.J. No. 582 (Ont.CA) has removed any doubt that consequences of a guilty plea includes state imposed significant collateral consequences. It is now settled law in Ontario that where an appellant raises the validity of a plea for the first time on appeal and claims the plea is uninformed, the appellant must show a failure to appreciate or an unawareness of a potential penalty that is legally relevant . Legally relevant penalties would at least include both Criminal and non-Criminal “penalties” imposed by the state for a Criminal Code offence[6]. However, from the subjective perspective of the accused[7], these consequences must not be too remote; must not differ significantly from the anticipated consequences; or, must not be too insignificant to affect the validity of the plea[8]. What is called for is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateral consequence to the accused. A simple way to measure the significance to an accused of a collateral consequence of pleading guilty is to ask: is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would the information have mattered to the accused? If the answer is yes, the information is significant[9].

In the context of an appeal, the accused and his or her counsel will have to adduce fresh evidence, by way of affidavit, with respect to being uninformed about significant collateral consequences at the time of the guilty plea.[10] If the Court of Appeal concludes that the accused was unaware of what were significant collateral consequences that would result from the guilty plea, and the accused would not have plead guilty if aware of those significant collateral consequences, then the guilty plea would be set aside even if the accused did not have a viable defence to the charge. The prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial[11].

 In the context of guilty plea courts, the decision in R v. Quick, supra, has practical questions in the judge’s mandatory plea inquiry under s. 606(1)(1.1) of the Criminal Code[12]. In the context of the collateral consequence of an indefinite driving suspension, Justice Laskin noted “…that before an accused pleads guilty to a driving offence, a trial judge would be well advised to ensure that the accused understands the nature and length of any licence suspensions[13].” There is no principled reason to suggest that a trial judge should not ensure that the accused understands any other significant collateral consequences, such as immigration consequences, before pleading guilty. It may be prudent for trial judges, and counsel, to address the issue of collateral consequences which are significant to the accused before a guilty plea is entered.

 

 

[1] R. v. T. (R.), [1992] O.J. No. 1914 (Ont. C.A.) at para. 14.

[2] Ibid

[3] Ibid at para. 37

[4] Ibid

[5] In Alberta, the opposite conclusion was reached- see R v. Hunt [2004] A.J. No. 196 at paras. 17-23, 2004 ABCA 88 (Alta. C.A.); R. v. Slobodan (1993), 135 A.R. 181 (C.A.).

[6] R v. Quick [2016] O.J. No. 582 (Ont.CA) at para. 28

[7] Ibid at para. 35

[8] Ibid at para. 31

[9] Ibid at para. 33

[10] Ibid at para. 7

[11] Ibid at para. 38

[12] Ibid at para. 40

[13] Ibid

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