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Criminal - Guilty Pleas (2). R. v. Gordon
In R. v. Gordon (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here where guilty pleas were held to be uninformed as the defendant was led to believe they would receive a fixed and lenient sentence:C. Principles applicable to setting aside a guilty plea
[19] The Supreme Court has emphasized that the plea resolution process is central to the criminal justice system, and that maintaining the finality of guilty pleas is “important to ensuring the stability, integrity, and efficiency of the administration of justice”: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3. At the same time, “the finality of a guilty plea also requires that such a plea be voluntary, unequivocal and informed”: Wong, at para. 3 (emphasis added).
[20] In order to strike a guilty plea on the basis that it was uninformed, the court must be satisfied that (1) the appellant was misinformed about or unaware of information that he needed to have in order to give an informed plea (the “information” component), and (2) he suffered prejudice amounting to a miscarriage of justice (the “prejudice” component): R. v. Espinoza-Ortega, 2019 ONCA 545, 146 O.R. (3d) 529, at para. 35.
[21] The appellant bears the burden of demonstrating that the plea was uninformed and that he suffered prejudice as a result: Wong, at paras. 6 and 65.
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(1) The guilty plea was uninformed
[23] For a guilty plea to be informed, the accused must be aware of the allegations made by the Crown and the effect and consequences of the plea: R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 51; R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. If the accused establishes that he was unaware of the consequences of the plea, the court will consider the gravity of those consequences objectively: as held in Wong, at para. 34, “this step objectively assesses the seriousness of the unknown legal consequence” (emphasis added).
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[28] The Crown argues that the length of a sentence is not the type of serious unknown consequence that warrants setting aside a guilty plea; only consequences such as the difference between a custodial and a non-custodial sentence (as in R. v. Al-Diasty (2003), 2003 CanLII 41570 (ON CA), 64 O.R. (3d) 618 (C.A.)), or legally relevant collateral consequences such as deportation (as in Wong) are serious enough to fall within the scope of what the courts have viewed as an uninformed plea. However, there is no principled reason to distinguish between the seriousness of these types of consequences and the length of a custodial sentence. Certainly, a trivial difference between the length of a sentence an accused expects to receive based on his lawyer’s representations and the actual sentence imposed may not amount to a serious legal consequence. But, here, Mr. Gordon understood that he would only spend another six months in custody, whereas the sentence imposed was another two-and-a-half years or five times longer than he expected. Objectively, this rises to the level of a serious unknown legal consequence.
[29] The Crown relies on this court’s decision in R. v. O’Shea, 2016 ONCA 53, in support of the position that the length of a sentence cannot be characterized as misinformation about a serious consequence for the purpose of striking a guilty plea. In that case, the appellant claimed that his trial counsel had told him that the pre-trial judge would only impose a 45-day sentence, whereas the sentence imposed by the trial judge was ultimately much longer. In rejecting the appellant’s attempt to withdraw his guilty plea, this court observed as follows:The problem here is that the appellant’s counsel may well have been overly optimistic about the potential sentence after the first pre-trial and may not have properly communicated to the appellant and his mother that a 45 day sentence was being opposed by the Crown and was not a certainty with the trial judge who ultimately took the plea. However, absent an allegation of ineffective assistance of counsel, which the appellant fairly does not make, this is not enough to clear the “informed” hurdle in the “voluntary, unequivocal and informed” test for the validity of a guilty plea: see R. v. R.T., (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.). Through the advice of his counsel, the appellant knew that he would not face a trial and would receive a custodial sentence if he pleaded guilty. Through the advice of his counsel, he may have expected a lower sentence than the one he received. This dichotomy is not sufficient to call into question the validity of his guilty plea. As LaForest J. said in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at para. 107:Subsequent dissatisfaction with “the way things turned out” or with the sentence received is not, in my view, a sufficient reason to move this Court to inquire into the reasons behind the election or plea of an offender, particularly where there is nothing to suggest that these were anything other than informed and voluntary acts. [Emphasis added.] [30] It is important to note that the Supreme Court decided Wong after O’Shea. In O’Shea, this court suggested that miscommunication by trial counsel to the appellant is not relevant to the issue of whether a plea is misinformed, and that, in such circumstances, absent a claim of ineffective assistance of counsel, the plea could not be withdrawn. However, in Wong, at para. 24, the Supreme Court affirmed that the ineffective assistance of counsel framework is irrelevant to the information component because “that framework focuses on the source of the misinformation (or incomplete information) rather than the misinformation itself. Assessing whether prejudice arises from misinformation does not depend upon its source” (emphasis in original). Accordingly, in a case such as this one, where there is unequivocal evidence regarding the information trial counsel provided to his client regarding assurances from the plea judge about the length of sentence, the source of Mr. Gordon’s information is irrelevant. Moreover, unlike what appears to have occurred in O’Shea, this is not a case where Mr. Gordon hoped to get a lower sentence based on conversations with his lawyer, but rather a case where his lawyer provided assurances that the plea judge had said he would give him a specific sentence.
[31] This case is exceptional. It would be rare for counsel to provide an assurance to their client that a plea deal will lead to a specific sentence, especially in circumstances where there is no joint submission. It would also be rare for counsel to give evidence that they provided a verbal assurance regarding a specific sentence despite requesting that their client sign a document acknowledging that the plea judge may impose a different sentence. However, in this case, given the unequivocal evidence from both Mr. Gordon and his trial counsel, I accept that he understood that the plea judge had provided an assurance that, if he pleaded guilty, his sentence would be no more than an additional six months in custody. I further accept that he therefore misunderstood an objectively serious consequence of his guilty plea. The information component is therefore made out.
(2) Mr. Gordon suffered prejudice
[32] Prejudice is to be assessed subjectively: Wong, at para. 6; Espinoza-Ortega, at para. 35. To demonstrate prejudice, the appellant must file an affidavit to establish that he would either have (1) pleaded differently, or (2) pleaded guilty but with different conditions: Wong, at para. 19; Espinoza-Ortega, at para. 36.
[33] In his affidavit and during cross-examination, Mr. Gordon stated unequivocally that he would not have pleaded guilty if he understood that he could spend more than an additional six months in custody. His conduct prior to the guilty plea is entirely consistent with this position. His counsel approached the Crown on several occasions to suggest a guilty plea in exchange for time served. In addition, when the plea judge said at the first pre-trial that he would be open to sentencing Mr. Gordon to an additional 6 to 12 months, Mr. Gordon refused to plead guilty, on the basis that he did not want to serve longer than an additional three more months in custody.
[34] The Crown submits that, in order to assess the issue of prejudice, it is necessary to look at what was occurring at the time of the guilty plea. At that point, Mr. Gordon was on the eve of trial; he would have understood that the Crown had a strong case against him and that the Crown maintained its position that the sentence should be 8 to 10 years. In those circumstances, it was in his interest to plead guilty even if he risked a sentence beyond six additional months. However, as the Supreme Court instructed in Wong, at paras. 12 and 25, prejudice is assessed on a subjective basis and not on the basis of what a reasonable person in the accused’s position would know or decide. In this case, Mr. Gordon’s evidence, including the evidence of his behaviour prior to the guilty plea, show clearly that he would not have pleaded guilty if he had understood that there was a risk of more than a further six months in custody.
[35] Before concluding, I make one last point. In this case, after the plea judge gave his sentence, Mr. Gordon asked to speak. As reviewed above, his trial counsel asked to speak to him and then told him there was nothing he could do other than proceeding with an appeal. I note that it would have been preferable if, at that point, trial counsel brought the matter back before the plea judge. The plea judge could then have considered whether he was functus or whether he could entertain an application to strike the plea. Had the matter been raised with the plea judge at that time, at the very least, it would have resulted in the creation of a more complete record for review on appeal, including the views of the plea judge about what transpired during the judicial pre-trial discussions.
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