MCLNugget: Wong SCC

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What is the proper approach for considering whether a guilty plea can be withdrawn on the basis that the accused was unaware of a collateral consequence stemming from that plea, such that holding him or her to the plea amounts to a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.

DM

Quick Pleas? Better think fast...

Ratio

The Ontario Court of Appeal recently ruled in Quick that when a person pleads guilty to a criminal charge, prior knowledge of the “collateral consequences” of conviction can be crucial to securing the plea as an “informed plea”: 2016 ONCA 95. 

Facts

Quick involved a guilty plea by Mr. Quick to a charge of dangerous driving.  The plea was part of a resolution involving other charges.  The resolution agreement was for a custodial sentence; no driving prohibition to attach to the ‘dangerous’ charge.  Mr. Quick’s counsel told him he would lose his licence for one year.

Under s. 259(2) a Canada wide driving prohibition is discretionary for convictions for dangerous driving simpliciter.  Mr. Quick did receive a jail sentence and no driving prohibition was imposed.  But when the dangerous driving conviction came to the attention of the Ministry of Transportation of Ontario, (hereinafter “MTO”), Mr. Quick’s licence was suspended indefinitely.  Mr. Quick had two prior impaired driving convictions on his record from within the last ten years. 

The Appeal

At the Court of Appeal, Mr. Quick attested by affidavit that at the time he plead guilty to the ‘dangerous’ charge, he did not know about the consequences he would face vis-à-vis the MTO.  Mr. Quick swore that had he known he would lose his licence indefinitely, he would not have plead guilty and would have had a trial.  Therefore, he argued, his was not an “informed plea”.

The Decision

Laskin, J. agreed with Mr. Quick, and struck his plea, overturning the conviction.  In the decision Laskin, J. sets out a handful of signposts for navigating through the rough terrain ahead, of collateral consequences, knowledge of which can be integral to securing an informed plea.

For collateral consequences to be the type that affect the informed nature of a guilty plea they must be “significant”.  “Significance” is a modification on earlier analyses by lower courts where the concept of “legally relevant” collateral consequences was invoked to decide those that count.

After Quick, “significant” collateral consequences are identified by looking subjectively from the point of view of the accused for what matters.  Mr. Quick was a truck driver by trade, so an indefinite licence suspension by the MTO would be “significant” to him.  “Significant” to an individual are consequences, knowledge about which would change a plea to a trial.   

Quick’s collateral consequences for the Crown and courts

What is curious and perhaps cumbersome about the Quick way forward is the filter for significance in consequences is bound up with the individual accused, while the interests in ensuring knowledge about penalties – to secure pleas – falls to the Crown and to the courts. 

Moreover, while the type of collateral consequences likely significant in a given case might be possible to identify, such as transportation, or immigration based consequences, the particular impact of a conviction may be discretionary not automatic, or unable to be determined from outside the collateral agency or department.  For example, the Crown would not likely know the specific immigration status and history of an individual canvassing a plea agreement, and therefore not be able to convey the potential collateral immigration consequences of entering a plea, nor likewise the policies of transportation ministries in other provinces than the one where a plea negotiation is taking place.

Comment

If the collateral consequences are to qualify as significant, and the details of collateral penalties in every given case are to be so individualized in the “informed” analysis - and so closely scrutinized in hindsight - then shouldn’t it be the individual himself or herself, who is charged with the foresight?

LR

Current & Curious: Guilty Pleas

This recent decision from the Ontario Court of Appeal has a few interesting aspects to it, including some discussion about competence of counsel. However, arguably the most interesting and curious aspect of it relates to the apparent guilty plea.

On the first date of trial the appellant and trial counsel met. Latter accounts of this meeting diverge signifcantly about what took place. Counsel indicated that the appellant provided written directions to accept the Crown's allegation - plead not guilty but not dispute the allegation. The appellant denied he ever provided those directions.
What did occur, however, was that the appellant appeared in court, plead not guilty, the Crown read in the allegations, trial counsel indicated that the appellant did not dispute the allegations and the appellant was found guitly.

 

On appeal the conviction was struck and a new trial was ordered.  The Court of Appeal held that what transpired constituted a miscarriage of justice as there was a plea of not guilty and no evidentiary proof was established, as required, by the Crown:

This case proceeded on the basis of a plea of not guilty, a plea by which the appellant denied having committed the offence charged and required the prosecutor to prove the essential elements of that offence by relevant, material and admissible evidence beyond a reasonable doubt.

After the plea of not guilty, the prosecutor adduced no evidence. No viva voce testimony. No real evidence. As a surrogate for evidence, the prosecutor read the allegations made against the appellant. It is fundamental that prosecutorial allegations are not evidence. Nor did they become admissions under s. 655 of the Criminal Code by the failure of the appellant's trial counsel to make submissions [paras 55-56].

DG Mack