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Criminal - Guilty Pleas

. 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 A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded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. ...


(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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