R v Wong, 2018 SCC 25

The Issue

What is the proper approach for considering whether a guilty plea can be withdrawn on the basis that the accused was unaware of a collateral consequence stemming from that plea, such that holding him or her to the plea amounts to a miscarriage of justice under s. 686(1)(a)(iii) of the Code.

The Answer

An accused must be aware of the criminal consequences of a plea as well as the legally relevant collateral consequences – one which bears on sufficiently serious legal interests of an accused. The assessment of this must be done on a subjective basis. That is, the accused must establish subjective prejudice by establishing (normally via an affidavit) that they were unaware of the consequence and would have either (1) opted for a trial and pleaded not guilty, or (2) pleaded guilty, but with different conditions. This subjective inquiry does allow, however, for an objective assessment of the credibility of the claim.

The Fine Print

First, the ineffective assistance of counsel framework has no relevance. 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.

Second, in the present case Wong’s plea was uninformed as he was unaware of the immigration consequences. To establish prejudice, however, the accused seeking to withdraw a guilty plea must show a reasonable possibility that, having been informed of the legally relevant consequence, he or she would have either pleaded differently, or pleaded guilty with different conditions. Mr. Wong has not met this burden.

Though he filed an affidavit before the Court of Appeal, he did not depose to what he would have done differently in the plea process had he been informed of the immigration consequences of his guilty plea. There was therefore see no basis to permit him to withdraw his plea.