“Simply put, pleading guilty is the decision of the accused, not a reasonable accused, or someone like the accused.”
In Regina v. Wong, 2018 SCC 25, a 4:3 majority of the Supreme Court of Canadaheld that when an accused person seeks to withdraw a guilty plea on the basis that he or she did not appreciate the consequences of that plea, he or she must establish subjective prejudice.
The Supreme Court said that an Accused person who seeks to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea should be required to establish subjective prejudice. To that end, the accused must file an affidavit establishing a reasonable possibility that he or she would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions.
Because the original guilty plea is an exercise of the accused’s own subjective judgment, it logically follows that the test for withdrawing that plea should also be directed to the accused’s subjective judgment. The inquiry is subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim. Ultimately, what matters is the accused’s decision to plead guilty or to proceed to trial, and not whether that decision is, to someone else, reckless or irrational. This framework is premised upon the view that judicial scrutiny must be directed to how the accused, and no one else, would have proceeded. But like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances. Courts should therefore carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility. This approach strikes the proper balance between finality of guilty pleas and fairness to the accused. The accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds and requiring the accused to articulate a route to an acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty.”
The accused, Mr. Wong, is a permanent resident, had pleaded guilty to cocaine trafficking and was sentenced to nine (9) months’ imprisonment without realizing this would automatically make him inadmissible to Canada and prevent him from appealing the inadmissibility. The majority from the Supreme Court held that the accused’s had filed an affidavit that failed to indicate that he would have proceeded differently had he known of the collateral immigration consequences and that therefore the plea could not be withdrawn. However, the Crown conceded a sentence of six (6) months less a day was appropriate and this would restore the accused’s right to appeal his inadmissibility.
The three-member dissent would have used a “modified objective” test: whether a reasonable person in the same situation as the accused would have proceeded differently had he or she been aware of the collateral consequences. The dissent stated:
The dissent’s modified objective approach to determine whether an accused has shown prejudice would not account for the fundamentally subjective and deeply personal nature of the decision to plead guilty. Pleading guilty is the decision of the accused, not a reasonable accused, or someone like the accused. To permit reviewing courts to substitute their own view of what someone in the accused’s circumstances would have done is to run a serious risk of doing injustice to that accused. A modified objective framework focusses upon what a judicially constructed hypothetical person would do, instead of how the particular accused would have proceeded. Furthermore, this approach would likely be difficult for lower courts to apply. Given the highly contextual and even idiosyncratic nature of factors that influence important decisions, adopting a standard based on what a hypothetical reasonable person who need not be presumed to have taken the best or single most rational course of action would have done effectively confers upon reviewing courts unbounded discretion to reach whatever conclusion they see fit. The modified objective framework also adopts a variable standard of scrutiny, not tied to a particular accused, but rather to a reasonable person. However, different accused, even different similarly situated accused, may ascribe varying levels of significance to different collateral consequences. Thus, a modified objective approach risks resulting in vacated guilty pleas even where there is no evidence that the accused personally would have done something differently. Even further, an accused who admits under cross‑examination that he or she would have proceeded identically would still be entitled to withdraw his or her plea if a reasonable accused in his or her circumstances would withdraw the plea. This would impose unnecessary and substantial demands on a criminal justice system that is already overburdened.
This case illustrates the importance of ensuring that sufficient representations are made to a court when an application is made to vacate a guilty plea. If you are facing similar circumstances, call Mr. J.S. Patel, Criminal Lawyer at 403-585-1960.
