Pleas | crimdefencetoronto

Guilty Pleas

General Principles

A very early guilty plea which is entitled to a substantial credit in the sentencing process: R v Graham, 2017 ONCA 245 at paras 1-4

Validity of

Requirement that the Plea be Informed

For an accused’s plea to be informed, the accused must be aware of the nature of the allegations and the effect and potential consequences of the plea: R v Quick, 2016 ONCA 95 at para 4

Note, however, that the accuseed need not be aware of the precise consequences of his plea, which may be difficult to predict: R v. Shiwprashad, 2015 ONCA 577 at para 71

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 penalties imposed by the state. Thus, non-criminal “penalties” imposed by the state for a Criminal Code offence would be “legally relevant:”R v Quick, 2016 ONCA 95 at para 28
- for example, the indefinite suspension of one's driver's license: quick at para 30

However, it is unneecssary that an informed plea requires an accused to understand every conceivable collateral consequence of the plea, even a consequence that might be “legally relevant”. Some of these consequences may be too remote; other consequences not anticipated by the accused may not differ significantly from the anticipated consequences; or, the consequence itself may be too insignificant to affect the validity of the plea: Quick at para 31
- For example, if the accused was unaware of an indefinite license suspension, but for health reasons was unable to drive again in any event, the collateral consequence would be too remote to warrant a striking of the plea: Quick at para 32

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? If the answer is yes, the information is significant: Quick at paras 33-35

The test is subjective, based on the accused before the court. However, when the non-disclosed evidence is tendered as fresh evidence on appeal, the test is objective. The question is not whether the accused would have declined to plead guilty, but whether a reasonable and properly informed person in the same situation would have done so.

Guilty Pleas - Setting Aside

An appellate court has jurisdiction to set aside a plea entered before a trial judge. In doing so, the appelate court examines the trial record, as well as any additional material proffered by the parties, which in the interests of justice should be considered in assessing the validity of the plea: R v Shepherd, 2016 ONCA 188 at para 13

Examples

Where trial judge not informed of immigration consequences: R v Aujla, 2015 ONCA 325
Where accused argues that he had limited cognitive capacity to enter plea: R v Baylis, 2015 ONCA 477
Where accused argues ineffective assistance of counsel on the guilty plea: R v Baylis, 2015 ONCA 477; R v Grewal, 2015 ONCA 482
Where accused argues ineffective assistance of counsel on the application to strike the guilty plea: R v Baylis, 2015 ONCA 477
Fresh evidence that meets the Palmer criteria and calls into question the accused's liability for the offence will serve to invalidate a guilty plea on appeal: R v Shepherd, 2016 ONCA 188 at paras 17-21

Sentencing

The amount of credit a guilty plea will attract on sentencing varies with each case: R v Carreira, 2015 ONCA 639 at para 15

Guilty Pleas - Setting aside

In seeking to set aside a plea, the accused need not show a viable defence to his charge. Whether he has a defence is irrelevant: “the prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial:” R v Quick, 2016 ONCA 95 at para 38
Where trial judge not informed of immigration consequences: R v Aujla, 2015 ONCA 325
Where accused argues that he had limited cognitive capacity to enter plea: R v Baylis, 2015 ONCA 477
Where accused argues ineffective assistance of counsel on the guilty plea: R v Baylis, 2015 ONCA 477; R v Grewal, 2015 ONCA 482
Where accused argues ineffective assistance of counsel on the application to strike the guilty plea: R v Baylis, 2015 ONCA 477