MCLNugget: Wong SCC

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What is the proper approach for considering whether a guilty plea can be withdrawn on the basis that the accused was unaware of a collateral consequence stemming from that plea, such that holding him or her to the plea amounts to a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

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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

Mandatory does not mean automatic

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Andrew Shia had some guns. He had some marijuana too. He kept them both in a closet. The police came to his home as a result of a domestic violence complaint. The police found the guns and the marijuana. The guns were lawfully possessed and properly stored. The marijuana was not. Shia was charged with production of marijuana and his firearms were seized. Shia pleaded guilty. He did so on the understanding that he would receive a discharge and that a section 109 firearms prohibition could not be made by the court. When he pleaded guilty no order was made. When he sought the return of his guns, however, the police refused. They did so on the basis that he was prohibited pursuant to section 109(1)(c) from possessing them. Shia appealed seeking to set aside his guilty plea: 2015 ONCA 190.

The appeal was allowed and the guilty plea was set aside. The basis for doing so was that the Crown had elected summarily and the matter was dealt with in the Ontario Court of Justice (provincial court). As Watt JA pointed out:

Production of marijuana is not an indictable offence within the exclusive jurisdiction of a judge of the superior court of criminal jurisdiction under s. 469 of the Criminal Code or an indictable offence within the absolute jurisdiction of a provincial court judge under s. 553 of the Criminal Code.

As a person charged with an indictable offence not listed in either s. 469 or s. 553 of the Criminal Code, the appellant was entitled to elect his mode of trial under s. 536(2) of the Criminal Code. He was never afforded this statutory requirement.

The presiding judge had no inherent jurisdiction to try the appellant or receive his plea of guilty. The judge’s authority to do either depended entirely on the appellant’s election “to be tried by a provincial court judge without a jury and without having had a preliminary inquiry” as s. 536(2) requires. The absence of an election meant that the provincial court judge had no authority to try the appellant or to receive his plea of guilty. [Citations omitted]; [@25-27].

While not necessary, Watt JA also made some comments on the issue of the section 109(1)(c) order. Noting that the order was mandatory, Watt JA pointed out that the presiding judge did not in fact make the order. Notwithstanding the mandatory nature of the order, the failure to make the order means that the order was not in fact in place:

Although, as I have said, it is not strictly necessary to consider the effect of the absence of a s. 109(1)(c) order to resolve this appeal, there appears to be some confusion over whether a s. 109(1)(c) order that is mandatory under the Criminal Code takes effect even if a judicial order is not made. The short answer is that no judicial order means no order. In other words, “no” means “no”.

[...]

The court record is the only authentic source from which to determine whether a s. 109(1)(c) firearms prohibition exists and can be enforced. An examination of the court record in this case would have disclosed that the presiding judge made no order under s. 109(1)(c). The fact that the order is supposed to be mandatory does not mean it applies even where there has been judicial default in ordering it. The existence of such an order depends on a judicial act, not an investigative assumption. [@34 and 38]

DM

Criminal Chameleons

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“Our criminal law has its chameleons. Take hybrid offences, for example. Sometimes, indictable. Other times, summary conviction. But capable of change.” [@para 1] In DME although the Crown was capable of changing its election, everyone forgot that one change often necessitates another, in this case the level of court. 

DME was charged with sexual assault and sexual exploitation.  While those charges were before the courts DME was further charged with breaching the undertaking he had been released on. Shortly after he was charged once more, this time with breaching the recognizance he had been released on following the second set of charges.  The Crown elected to proceed by indictment on all three informations and DME elected to have a trial by judge and jury. More than two after the first information was sworn, DME was committed to stand trial.

On the day of trial, following a judicial pre-trial, the Crown re-elected to proceed summarily and DME entered pleas of guilt. The Superior Court judge found DME guilty and sentenced him to a term of imprisonment and a period of probation. 

DME appealed: 2014 ONCA 496 arguing that the proceedings which followed the Crown’s re-election were vitiated by jurisdictional error. First, DME submitted that the Crown was not entitled to re-elect as they did and second, that the Superior Court of Justice had no jurisdiction to take the guilty pleas.

Dealing first with the Crown re-election to proceed by summary conviction Watt JA writing for a unanimous court , highlighted four points rejecting this ground of appeal:

First, the right to elect mode of proceeding for hybrid offences is that of the Crown.

Second, the common law equally permits the Crown, having once elected one mode of proceeding in connection with a hybrid offence, to re-elect later the other mode of proceeding. In some instances consent of the accused and approval of the presiding judge may be required.

Third, unlike an accused's right to elect or re-elect mode of trial, the Crown's right to elect or re-elect mode of proceeding need not be made at any specific place or before any particular judicial officer. Provided any consent and approval requirements are satisfied, it is of no jurisdictional moment where re-election is made.

Finally, that the re-election to proceed by summary conviction took place more than six months after the subject-matter of the proceedings arose is of no jurisdictional significance. The appellant, who was represented by counsel throughout, not only agreed with the change in the mode of proceeding, but also benefited substantially from it. Counsel for the appellant could advocate for a conditional sentence of imprisonment when Crown counsel proceeded summarily, a disposition statutorily unavailable to him when Crown counsel proceeded by indictment. And the maximum punishment to which the appellant would be subject on summary conviction was a term of imprisonment for 18 months rather than for ten years if the Crown proceeded by indictment. It may also be open to question whether re-election of mode of proceeding amounts to institution of proceedings within s. 786(2) of the Criminal Code: Linton, at pp. 536-537. [@paras 42-45]

DME’s second ground of appeal had more traction. Notwithstanding the fact that no one “involved in the case – Crown, defence or judge – query, let alone contest, the jurisdiction of the Superior Court of Justice to proceed as the prosecution played out.” [@para 49] the Court of Appeal held that the “presiding judge had no authority to arraign the appellant, to take his plea of guilty, or to impose what he considered to be a fit sentence.” [@para 67].

Watt JA explained as follows:

First, section 798 of the Criminal Code requires that summary conviction proceedings be adjudicated by a summary conviction court.  A summary conviction court is defined in section 785 of the Code.

Second, the Superior Court is the appellate court for summary conviction offences. “It would be somewhat undesirable to have judges of the same court try and review trials for error.” [@para 69]

Third, no other criminal code sections applied to give the Superior Court jurisdiction in the circumstances of this case.

Fourth, although there are provisions which allow a Superior Court judge to exercise jurisdiction as a justice of the peace and “as a matter of statutory construction a justice of the peace falls within the definition of a summary conviction court”, none of the parties asked the presiding judge to do so. [@para 74]

Fifth, prior decisions of the Court of Appeal make it clear that “superior court of criminal jurisdiction has no authority to try summary conviction offences.” [@para 75]

The Court remitted the matter to the Ontario Court of Justice for pleas of guilt (which the appellant made clear he intended to enter) and sentence.

LT

Corbett Update: Sexual Assault Conviction need not be Edited

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In 2005 Ron Mayers attacked and sexually assaulted a stranger who was alone inside a shop in a commercial plaza. The shop was not open for business at the time. Mr. Mayers entered the shop and confirmed the victim was alone. He then closed the door so that she could not leave, dragged the victim into a back room, and started to pull off her clothes. He tore her bra and exposed her breasts. He held a knife to her throat and forced her to perform oral sex on him. Later he forced her to lie on the floor with objects piled on her back while he searched the business for money. He stole some cash from her wallet and fled the scene. Mr. Mayers discarded a wad of tissues near the scene, which was found to contain the victim’s vomit and his semen. While being seen by paramedics the victim vomited, and her vomit was found to contain Mr. Mayers’ semen.

At trial Mr. Mayers brought an application to prohibit the Crown from cross-examining him on his criminal record pursuant to R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC).

Mr. Mayers has an extensive criminal record. He had been released from prison less than three months before this crime. His criminal record includes two sexual assault convictions that were entered about three or four years before this trial. In the Corbett application he sought to have most of his criminal record redacted for the purpose of cross-examination, including the two sexual assault convictions.

The trial judge dismissed the Corbett application, in part because of defence counsel’s “forceful attack” on the victim’s credibility. Regarding the sexual assault convictions, the trial judge ruled that editing was not required and a strong limiting instruction would address any prejudice.

The Court of Appeal upheld the trial judge’s ruling: R v Mayers, 2014 ONCA 474. The Court held:

R. v. Corbett, [1988] 1 S.C.R. 670, the guiding authority, instructs, at paras. 35 and 50, that trial judges should begin from the premise that juries should receive all relevant information accompanied, where necessary, by a proper and clear limiting instructions. Corbett further instructs that the discretion to keep information about an accused's criminal record from the jury should not be exercised absent clear grounds in policy or law for doing so.

Bearing in mind the approach dictated by Corbett and giving the trial judge’s ruling the appropriate deference, we cannot say that she erred in exercising her discretion against editing the appellant’s criminal record by removing the convictions for sexual assault.  This ground of appeal cannot succeed. [paras 5 and 6]

In trials for sexual offences, trial judges have sometimes ruled that sexual assault convictions should be edited down to assaults, and those rulings have been upheld on appeal: R v Charbonneau, 2012 ONCA 314 (CanLII) at para 29; R v Paul, 2009 ONCA 443 (CanLII) at para 19; R v Batte, 2000 CanLII 5750 (ON CA) at para 51.

The decision in Mayers confirms that editing the accused’s convictions for sexual assault down to assault is by no means required. A strong limiting instruction can address any prejudice, even in a trial for sexual assault.

MGM

Current & Curious: Procedural Peculiarity

Tina Deveau was charged with impaired and "over 80". Prior to her trial she filed a Charter motion to exclude evidence based on alleged violations of her rights under sections 8, 10(a) and 10(b).  The Crown apparently did not file a response. 

At trial a debate ensued over how the motion and trial should proceed. The defence insisted that the Crown had to call evidence to establish a prima facie case before it was required to call evidence on the motion. The Crown argued that the defence had to call evidence to establish the breach and it would decide thereafter if it would call evidence. Ultimately Deveau testified on the Charter motion.  The Crown then sought to call evidence on the breach and the defence objected.  The trial judge outlined the defence objection:

So therefore, at this point in time, having heard the Defence’s evidence, the Crown ought to be estopped from calling evidence, viva voce evidence, on the matter. 

The trial judge then held the Crown was precluded from calling evidence:

So the Crown, having heard what the Appellant had to say, in my view, having not given the Applicant any notice of what its position was through a brief cannot now call a witness to present its position. To me that would be procedurally unfair, and I will not admit that.

The trial judge granted the motion and Deveau was acquitted.

The Crown successfully appealed and Deveau appealed to the Nova Scotia Court of Appeal: 2011 NSCA 85. The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal court, and concluded as follows:

The Crown had provided disclosure of its evidence for the prosecution proper. The Crown had made it clear that the Crown would decide whether or not to call evidence on Ms. Deveau’s Charter motion after the Crown heard Ms. Deveau’s evidence for that motion. The Crown was entitled to take that position. The Provincial Court judge’s view was that, before the respondent to a motion hears the applicant’s evidence, the respondent must file a pre-motion brief which commits the respondent to particular evidence for the motion. Failure to comply, according to the judge, precludes the respondent from calling evidence. That view is not a principle of law. No authority for such a preclusion or estoppel has been cited. Had the Crown been permitted to lead evidence in response to the defence motion, the defence would have been entitled, in appropriate circumstances, to an adjournment or to lead rebuttal evidence [para 10[. 

Two aspects of this case are curious.  First, on an alleged section 8 violation, in the context of "over 80" cases, the onus is on the Crown as there is a warrantless search which is presumed unreasonable. 

 

Second, it is odd that the matter did not proceed by way of a blended trial/voir dire. In cases such as this the usual course is to proceed in that manner.  It is efficient and effective.  Having not proceeded in that fashion in this case - for some inexplicable reason - has resulted in three different judicial proceedings and now will result in a new trial.  Absent some compelling reason, the trial judge should have queried why the matter did not proceed in that fashion. 

 

DG Mack