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Criminal - Guilty Pleas. R. v. Mills
In R. v. Mills (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a guilty plea for "failing to remain at the scene of a fatal traffic accident" [CCC s.320.16(3)].
Here the court reviews some facts and law on the immigration 'collateral consequences' of criminal convictions:[9] On March 26, 2021, the appellant re-elected to be tried in the Ontario Court of Justice and entered a plea of guilty on the fail to stop charge. The trial judge conducted a plea inquiry, after which she stated that she was “satisfied this is an informed and voluntary plea”. However, the appellant’s trial counsel did not advise the trial judge that the appellant was a permanent resident of Canada, and the trial judge’s plea inquiry did not include any questions about the appellant’s immigration status, or his awareness of the collateral immigration consequences of his plea and/or of the sentence that he might receive.
(2) The immigration consequences of the appellant’s guilty plea
[10] The appellant, who was 38 years old at the time of sentencing, was born in Jamaica and came to Canada when he was 13 years old. He was granted permanent resident status but has never obtained Canadian citizenship. His wife is also a Canadian permanent resident. Their children were born in Canada and are Canadian citizens.
[11] Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the IRPA”), deems permanent residents to be “inadmissible on grounds of serious criminality” if they are convicted in Canada of an offence “punishable by a maximum term of imprisonment of at least 10 years”, or if they actually receive a sentence of “imprisonment of more than six months”.
[12] The offence of failing to stop after an accident resulting in death in s. 320.16(3) of the Criminal Code, to which the appellant pleaded guilty, carries a maximum sentence of life imprisonment: Criminal Code, s. 320.21. Because this maximum sentence is greater than ten years’ imprisonment, a conviction for this offence makes the appellant inadmissible under s. 36(1) of the IRPA, regardless of what sentence he actually receives.
[13] However, the appellant’s actual sentence had important consequences for his right to appeal against a removal order on humanitarian or compassionate grounds: see e.g., Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 6-7. In summary, if the appellant had received a sentence of less than six months’ actual imprisonment – including a conditional sentence of any length – he would have been able to appeal a removal order to the Immigration Appeal Division pursuant to s. 63(3) of the IRPA. However, if he received a custodial sentence of six months or more, he would lose the right to appeal: IRPA, s. 64(2). . R. v. Francis
In R. v. Francis (Ont CA, 2023) the Court of Appeal considers the test for setting aside a guilty plea:(2) The test for setting aside a guilty plea
[28] There is a robust test for setting aside a guilty plea. The onus rests on the appellant.
[29] A valid guilty plea must be voluntary, unequivocal and informed: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3; R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 51. This appeal focusses upon whether the plea was informed.
[30] To be informed, the accused must be aware of: (1) the nature of the allegation made against him; (2) the effect of entering the plea; and (3) the consequences of entering the plea: Wong, at para. 3, quoting R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. The accused must be aware of the criminal consequences that will flow from the plea, as well as the “legally relevant collateral consequences” of the plea, meaning those consequences that bear upon “sufficiently serious legal interests”: Wong, at para. 4.
[31] To establish that a plea was uninformed, not only must the appellant demonstrate that he was unaware of a relevant consequence at the time of entering the plea, he must also establish that he suffered subjective prejudice as a result. This latter criterion requires that the appellant show that there exists a reasonable possibility that, had he known of the consequences, he would have either elected to plead not guilty or elected to plead guilty with different conditions: Wong, at paras. 6, 9, 19, and 33. . R. v. Sithravel
In R. v. Sithravel (Ont CA, 2023) the Court of Appeal consider the 'Gardiner' guilty plea sentencing principle, which requires that only admitted or beyond-a-reasonable-doubt found facts be applied in sentencing, here in a case where the defendant had absconded between the guilty plea and sentencing:[6] The nub of the second ground of appeal is that the sentencing judge relied on the appellant being the “mastermind” of the robbery as a significant aggravating factor. The appellant argues that this constituted an error in principle because he did not admit this as part of the facts in support of the guilty plea and it was not proven by the Crown beyond a reasonable doubt in a Gardiner hearing: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.
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[12] The sentencing judge interceded at various points to ensure that the appellant was prepared to admit the elements of the offence and to suggest that, if the appellant was prepared to admit the essential elements of the offence, a Gardiner hearing could be held regarding additional aggravating factors.
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[24] Some may feel an understandable sense of frustration in the appellant’s sentence appeal being allowed when he chose to abscond and not be present for the sentencing hearing. Had he been present, one expects his counsel would have drawn the sentencing judge’s attention to issues regarding facts not admitted or insisted on the Gardiner hearing which had been discussed at the time the plea was entered. However, the fact that the appellant absconded could not change the facts that were and were not admitted when the guilty plea was entered or the onus on the Crown, if it wanted to rely on additional facts in aggravation, to prove them beyond a reasonable doubt in a Gardiner hearing.
[27] The facts admitted in support of a guilty plea are important. An accused who admits facts in support of a plea is giving up their right to require the Crown to prove the facts establishing the offence and, in many cases, to prove aggravating factors: Gardiner; Criminal Code, s. 724(3)(e). Lack of clarity as to what facts are admitted in support of a guilty plea can, as in this case, generate errors in relation to factors relied on as aggravating or mitigating and create difficulties in ascertaining the factual record for appellate review. . R. v. Makara
In R. v. Makara (Ont CA, 2023) the Court of Appeal considers the law of 'guilty pleas', here in an unsuccessful motion to extend time to commence an appeal:[10] ... To be valid, a guilty plea must be voluntary, unequivocal, and informed: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3, citing R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. See also R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. Where fresh evidence gives rise to an applicant’s ability to challenge the validity of a guilty plea this court has extended the time for perfecting an appeal to allow such evidence to be brought forward: see, for example, R. v. Murray, 2022 ONCA 906; R. v. Brooks, 2020 ONCA 605. . R. v. Berhe
In R. v. Berhe (Ont CA, 2022) the Court of Appeal considered the requirements of a guilty plea:[67] For a guilty plea to be valid, it must be voluntary, unequivocal, and informed: R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 85; R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. For a plea to be informed, s. 606(1.1)(b) of the Criminal Code requires the accused person’s understanding of number of factors, including “the nature and consequences of the plea.”
[68] In R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, the Court recognized that a plea will be uniformed if the accused person was unaware of a legally relevant collateral consequence – i.e., an immigration consequence: see also R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52 and R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, at para. 10. A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded guilty with different conditions: Wong, at para. 6. . R. v. Gibbs
In R. v. Gibbs (Ont CA, 2022) the Court of Appeal considers the requirements of a guilty plea:(1) The appellant’s guilty plea was voluntary and informed
[4] It is well established that a guilty plea must be “voluntary, unequivocal and informed”: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 43. There is no closed list of valid grounds for withdrawing a plea: R. v. C.K., 2021 ONCA 826, 159 O.R. (3d) 81, at para. 66; R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514, at p. 519. While the appellant deposed in his affidavit that his plea was not unequivocal, he does not contest that his plea was unequivocal in the sense that he did not clearly plead guilty in open court. The main thrust of the appellant’s submissions is that his plea was not voluntary and informed. For the reasons that follow, we conclude that there is no basis to set aside the appellant’s guilty plea.
(a) The appellant’s guilty plea was voluntary
[5] A voluntary plea represents “the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: C.K., at para. 67; T.(R.), at p. 520. The capacity to make a volitional decision to plead guilty is not high: C.K., at para. 69. A guilty plea made in open court will be presumed to be voluntary unless the contrary is shown: C.K., at para. 74; T.(R.), at p. 520. As this court observed in C.K., at para. 68, “[t]here are a range of ways that volition can be destroyed, including coercion, improper inducements or pressure imposed, and incapacity” (footnote omitted). In this case, the appellant alleges incapacity to plead guilty because of his mental illness. As a result, the onus is on the appellant to demonstrate on a balance of probabilities that he “lacked the capacity to make an active or conscious choice to plead guilty. To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice”: R. v. Cherrington, 2018 ONCA 653, at para. 21 (citations omitted).
[6] The appellant has not met his onus to demonstrate that his plea was not voluntary. Absent evidence to the contrary, which is not present here, the appellant is presumed to be capable. ...
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(b) The appellant’s guilty plea was informed
[9] An informed plea means that an accused “must understand the nature of the allegations, the effect of the plea and the consequences of the plea”: Wong, at para. 43. Moldaver J. for the majority explained in Wong that an uninformed guilty plea may be withdrawn “if the accused shows (1) that he or she was not aware of a legally relevant collateral consequence and (2) that there is a reasonable possibility he or she would have proceeded differently if properly informed of that consequence”: at para. 44. However, he cautioned that “not every guilty plea entered in such circumstances will result in prejudice that is serious enough to constitute a miscarriage of justice” and that the court must be satisfied “of a reasonable possibility that the accused would have proceeded differently had he or she been aware of the legally relevant consequence in issue, either by declining to admit guilt and entering a plea of not guilty, or by pleading guilty but with different conditions”: at para. 44.
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