In Regina v. Espinoza-Ortega, 2019 ONCA 545, the Ontario Court of Appeal set aside the accused’s conviction and sentence for impaired driving causing bodily harm and related charges and ordered a new trial. The accused entered a guilty plea and presented a joint submission for a sentence of 45 days, three years’ probation, and a two-year driving prohibition. The trial judge asked for a victim impact statement, which once provided, led him to reject the joint submission.
The Crown also resiled from the joint submission after speaking to a senior crown prosecutor and the original Crown attorney who had offered the resolution. The defence immediately made an application to vacate the guilty plea. However, the trial judge refused to allow the accused to withdraw his guilty plea and sentenced the accused to twelve (12) months and one (1) day in custody, plus one (1) year of probation and a two-year driving prohibition.
An appeal was filed on behalf of the accused. The grounds were predicated on the basis that the trial judge erred in refusing to strike the guilty plea, failed to grant appropriate credit for time spent on house arrest, and imposed a sentence that was harsh and excessive.
The Court of Appeal agreed that the trial judge erred in declining to strike the guilty plea, which was not an informed plea. The accused did not know that the Crown would resile from the joint submission after the plea was entered and then take the position that the proposed sentence was not in the public interest.
The Supreme Court in Regina v. Anthony-Cook, 2016 SCC 43, did not limit withdrawal of a guilty plea only to cases where the proposed sentence was illegal. In that case, the following general principles were delineated:
However, for the benefits of joint submissions to be achieved, “the parties must have a high degree of confidence that they will be accepted”: Anthony-Cook, at para. 41. Consequently, it is important that trial judges exercise restraint and only reject a joint submission “where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”: Reginav. Anthony-Cook, at para. 42. To assist trial judges, Moldaver J. set out a list of six (6) steps to help structure their approach in cases where they are troubled by a joint submission:
The trial judge should consider the joint submission on an as-is basis and, subject to the failure to include a mandatory order, assume that other provisions have been considered but rejected: para. 51.
The public interest test should be applied whether the judge is considering jumping or undercutting the proposed sentence: para. 52.
Where the joint submission is contentious, the trial judge will want to know the circumstances that led to it in order to properly assess the public interest in not accepting it. Counsel should be prepared to inform the sentencing judge of all the relevant circumstances and explain why the joint submission is not contrary to the public interest in light of those circumstances: paras. 53-57.
Where the judge is still concerned, counsel should be given an opportunity to make further submissions, including the possibility of allowing the accused to withdraw the plea: para. 58.
If the trial judge’s concerns are still not alleviated, the judge may allow the accused to apply to withdraw the plea. At this point in his reasons, Moldaver J. stated that he was not going to settle in this case the circumstances when a plea may be withdrawn, but gave as an example, “where counsel have made a fundamental error about the legality of the proposed joint submission”: para. 59.
Where the trial judge remains unsatisfied, clear and cogent reasons for rejecting the joint submission must be given: para. 60.
Furthermore, the joint position was a mistake by both parties, but especially the Crown who admitted to agreeing to the sentence through an error in judgment. An application to withdraw a plea should be allowed in such circumstances. The general principles that govern an application to vacate a guilty plea were cited in the following terms by the Court of Appeal.
 A guilty plea must always meet the three requirements of being voluntary, unequivocal and informed: Wong, at para. 3; R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. One of the components of an informed plea is that the accused is aware of both the criminal consequences and the legally relevant collateral consequences of the plea: Wong, at paras. 3-4; R. v. Girn, 2019 ONCA 202 (CanLII), at paras. 51-52. Because Mr. Wong was not aware of the immigration consequences that flowed from a nine-month sentence, the majority of the Supreme Court held that his plea was uninformed.
 In coming to this conclusion, the majority set out a two-step test to apply when considering an application to withdraw a guilty plea on the basis that it was uninformed: Wong, at para. 33. While Wong involved the withdrawal of a guilty plea on appeal, the two-step test would also apply at first instance if the accused became aware at that time of consequences that he did not know when he entered the plea.
 To be allowed to withdraw a guilty plea on the basis that it was uninformed, the accused must show: (1) that he was misinformed about or unaware of information that he needed to have in order to give an informed plea, and (2) that he suffered prejudice amounting to a miscarriage of justice: see Wong, at paras. 5, 33-35; Girn, at para. 65. Prejudice under the second branch is to be assessed subjectively: Wong, at para. 6.
 To demonstrate subjective prejudice on appeal, the appellant must file an affidavit “establishing a reasonable possibility that he or she would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions”: Wong,para. 19; see also Girn, at paras. 66-69. Such conditions could include “accepting a reduced charge to a lesser included offence, a withdrawal of other charges, a promise from the Crown not to proceed on other charges, or a joint submission on sentencing”: Wong, at para. 21.
The accused would not have pleaded guilty as he did, but would have continued negotiations with the Crown.
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