R. v. Wong

R. v. Wong
Collection
Supreme Court Judgments
Date
2018-05-25
Neutral citation
2018 SCC 25
Report
[2018] 1 SCR 696
Case number
37367
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Wagner, Richard; Gascon, Clément; Brown, Russell; Rowe, Malcolm
On appeal from
British Columbia
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696
Appeal Heard: November 10, 2017 Judgment Rendered: May 25, 2018 Docket: 37367
Between:
Wing Wha Wong
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario, Attorney General of Alberta, Director of Criminal and Penal Prosecutions, Criminal Lawyers’ Association of Ontario, Canadian Association of Refugee Lawyers, Association des avocats de la défense de Montréal, Chinese and Southeast Asian Legal Clinic, South Asian Legal Clinic of Ontario, Canadian Council for Refugees, Canadian Civil Liberties Association and African Canadian Legal Clinic
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Brown and Rowe JJ.
Joint Reasons for Judgment: (paras. 1 to 40)
Moldaver, Gascon and Brown JJ. (Rowe J. concurring)
Dissenting Reasons: (paras. 41 to 109)
Wagner J. (McLachlin C.J. and Abella J. concurring)
R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696
Wing Wha Wong Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Attorney General of Alberta,
Director of Criminal and Penal Prosecutions,
Criminal Lawyers’ Association of Ontario,
Canadian Association of Refugee Lawyers,
Association des avocats de la défense de Montréal,
Chinese and Southeast Asian Legal Clinic,
South Asian Legal Clinic of Ontario,
Canadian Council for Refugees,
Canadian Civil Liberties Association and
African Canadian Legal Clinic Interveners
Indexed as: R. v. Wong
2018 SCC 25
File No.: 37367.
2017: November 10; 2018: May 25.
Present: McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Criminal law — Guilty plea — Withdrawal — Collateral consequences — Immigration consequences — Accused pleading guilty to single count of trafficking in cocaine — Accused not aware that conviction and sentence could result in loss of his permanent resident status and removal from Canada without any right of appeal — Accused seeking to withdraw plea on basis that it was uninformed and gave rise to miscarriage of justice — Proper approach for considering whether guilty plea can be withdrawn on basis that accused unaware of collateral consequence stemming from plea, such that holding him to plea amounts to miscarriage of justice — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a)(iii).
W, a Chinese citizen and permanent resident of Canada, was charged with one count of trafficking in cocaine under s. 5(1) of the Controlled Drugs and Substances Act stemming from what was apparently a one‑off transaction in a “dial‑a‑dope” operation in which W allegedly sold a small amount of cocaine to an undercover officer. W entered a plea of guilty to the charge and was sentenced to nine months’ imprisonment. Before entering his plea, W was not made aware that a guilty plea might carry immigration consequences. However, because of W’s status as a permanent resident in Canada, his conviction and sentence had two serious consequences under the Immigration and Refugee Protection Act . W was rendered inadmissible to Canada for serious criminality and he had no right to appeal any removal order made against him because he was a permanent resident who was inadmissible because of a crime that was punished in Canada by a term of imprisonment of at least six months. W appealed his conviction, asking that his guilty plea be set aside on the ground that he had not been informed of its full consequences. The Court of Appeal dismissed W’s conviction appeal.
Held (McLachlin C.J. and Abella and Wagner JJ. dissenting): The appeal should be dismissed.
Per Moldaver, Gascon, Brown and Rowe JJ.: Society has a strong interest in the finality of guilty pleas and maintaining their finality is important to ensuring the stability, integrity, and efficiency of the administration of justice. But the finality of a guilty plea requires that such a plea be voluntary, unequivocal and informed. And to be informed, the accused must be aware of the nature of the allegations made against him, the effect of his plea and the consequences of his plea.
Accused persons who seek 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 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.
Here, W was not aware of the immigration consequences of his conviction and sentence and since immigration consequences bear on sufficiently serious legal interests to constitute legally relevant consequences, W’s guilty plea was uninformed. However, W has not shown a reasonable possibility that, having been informed of the legally relevant consequences, he would have either pleaded differently, or pleaded guilty with different conditions. Though he filed an affidavit before the Court of Appeal, W 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 is therefore no basis to permit him to withdraw his plea.
Per McLachlin C.J. and Abella and Wagner JJ. (dissenting): In determining when a guilty plea can be set aside because the accused was not aware that it might have serious collateral consequences, the answer must strike a balance between core values of the criminal justice system by ensuring a procedurally fair trial and safeguarding the rights of the accused, while also preserving the finality and order that are essential to the integrity of the criminal process. A guilty plea may be withdrawn if the accused shows (1) that he or she was not aware of a legally relevant collateral consequence and (2) that there is a reasonable possibility he or she would have proceeded differently if properly informed of that consequence. A legally relevant consequence is one which bears on sufficiently serious interests of the accused. For a collateral consequence to be legally relevant and capable of supporting a determination that a guilty plea is sufficiently informed, it will typically be state‑imposed and flow fairly directly from the conviction or sentence, and it must have an impact on the serious interests of the accused. A guilty plea will be uninformed if the accused establishes on a balance of probabilities that he or she was unaware of a collateral consequence that is legally relevant. At this first step of the inquiry, the only concern is whether the consequence is sufficiently serious that it would constitute a legally relevant consequence.
Even if it is shown that a guilty plea was uninformed because the accused was unaware of a legally relevant collateral consequence, an uninformed plea may only be set aside on the basis of a miscarriage of justice if it has resulted in prejudice to the accused. At this second stage of the inquiry, a court must be satisfied of a reasonable possibility that the accused would have proceeded differently had he or she been aware of the collateral consequence, either by declining to admit guilt and entering a plea of not guilty, or by pleading guilty but with different conditions. This must be determined by applying an objective standard, modified such that a court can take the situation and characteristics of the accused before it into account. The applicable standard of proof is a reasonable possibility, which falls between a mere possibility and a likelihood. The inquiry is not concerned with whether the accused before the court would actually have declined to plead guilty. Reviewing courts must objectively assess the impact of the missing information in the particular circumstances of the accused. It need not be presumed that a reasonable person in the same situation as the accused would have taken the best or single most rational course of action based on the likelihood of success at trial. The inquiry is not concerned with whether it would have been reasonable to plead guilty. Instead, the inquiry considers whether there is a reasonable possibility that a similarly situated reasonable person would have proceeded differently if properly informed, in light of the circumstances and the seriousness of the collateral consequence at issue.
While the initial decision to enter a guilty plea reflects a subjective choice made by an accused, the decision whether to strike that plea on the basis of invalidity is no longer strictly personal to the accused. It must also consider society’s interest in the finality of guilty pleas; however, the public interest may not override the prejudice suffered by an individual accused as a result of an uninformed plea. The modified objective approach strikes a proper balance between the competing interests when an accused seeks to withdraw a guilty plea on the ground that he or she was not aware of a legally relevant consequence. It allows a court to take the situation and characteristics of the accused into account in order to properly assess whether the uninformed plea had a prejudicial effect in his or her circumstances. This test also ensures that an accused cannot seek to strike a plea on the ground that he or she was deprived of information that would have been unlikely to have an impact on the decision in the circumstances. Further, the modified objective inquiry mitigates, to a greater extent than a subjective assessment, the inherently speculative nature of the assessment of prejudice flowing from an uninformed plea. It is artificial to require accused persons to state exactly how they would have proceeded had they been informed of the consequences of their plea. Prejudice is best assessed by considering objectively how the information would have mattered in the particular circumstances of the accused on a standard of reasonable possibility, rather than by evaluating how compellingly the accused is able to describe subjective prejudice by way of affidavit and how well the accused is able to withstand cross‑examination. The requirement that an accused demonstrate subjective prejudice by way of affidavit acts as a procedural bar and the ability of trial judges to assess the prejudice flowing from an uninformed plea will be wholly contingent on whether there is sufficiently specific language in an affidavit as to how the accused would have proceeded if properly informed. Such an approach risks favouring form at the expense of substance.
In this case, the loss of permanent resident status and the risk of removal from Canada without any right of appeal constitute legally relevant consequences. W was unaware that his guilty plea might carry these immigration consequences which flowed directly from his conviction and sentence. His plea was therefore uninformed. There is a reasonable possibility that a reasonable person in W’s circumstances would have proceeded differently had he or she been aware of such consequences. His guilty plea therefore gave rise to a miscarriage of justice and must be set aside.
Cases Cited
By Moldaver, Gascon and Brown JJ.
Considered: R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; referred to: R. v. T. (R.) (1992), 10 O.R. (3d) 514; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; Lee v. United States, 825 F.3d 311 (2016); Lee v. United States, 137 S. Ct. 1958 (2017); R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; Perka v. The Queen, [1984] 2 S.C.R. 232; Southwark London Borough Council v. Williams, [1971] Ch. 734; R. v. Rulli, 2011 ONCA 18; R. v. Henry, 2011 ONCA 289, 277 C.C.C. (3d) 293; R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334.
By Wagner J. (dissenting)
R. v. Anthony‑Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; Adgey v. The Queen, [1975] 2 S.C.R. 426; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; R. v. T. (R.) (1992), 10 O.R. (3d) 514; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739; R. v. Slobodan (1993), 135 A.R. 181; R. v. Hunt, 2004 ABCA 88, 346 A.R. 45; R. v. Nersysyan, 2005 QCCA 606; R. v. Raymond, 2009 QCCA 808, 262 C.C.C. (3d) 344; R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334; R. v. Aujla, 2015 ONCA 325; R. v. Shiwprashad, 2015 ONCA 577, 337 O.A.C. 57; R. v. Sangs, 2017 ONCA 683; R. v. Tyler, 2007 BCCA 142, 237 B.C.A.C. 312; R. v. Kitawine, 2016 BCCA 161, 386 B.C.A.C. 24; Padilla v. Kentucky, 559 U.S. 356 (2010); Fong Yue Ting v. United States, 149 U.S. 698 (1893); Strickland v. Washington, 466 U.S. 668 (1984); R. v. Joanisse (1995), 102 C.C.C. (3d) 35; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; Lee v. United States, 137 S. Ct. 1958 (2017).
Statutes and Regulations Cited
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(1) , (3) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 606(1.1) , 686(1) (a)(iii).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1) , 44(2) , 45 , 46(1) (c), 48 , 49(1) (a), 63(3) , 64(1) , (2) , 67(1) .
Authors Cited
Barreau du Québec. Détermination de la peine, mis à jour en décembre 2013 (online: https://www.barreau.qc.ca/media/1328/penal-peine.pdf; archived version: http://www.scc-csc.ca/cso-dce/2018SCC-CSC25_1_fra.pdf).
Di Luca, Joseph. “Expedient McJustice or Principled Alternative Dispute Resolution? A Review of Plea Bargaining in Canada” (2005), 50 Crim. L.Q. 14.
Fitzgerald, Oonagh E. The Guilty Plea and Summary Justice: A Guide for Practitioners. Toronto: Carswell, 1990.
Law Society of British Columbia. Sentencing Procedure, updated September 1, 2017 (online: https://www.lawsociety.bc.ca/Website/media/Shared/docs/practice/checklists/C-3.pdf; archived version: http://www.scc-csc.ca/cso-dce/2018SCC-CSC25_2_eng.pdf).
Law Society of Ontario. How to Prepare and Conduct a Sentencing Hearing, updated December 2016 (online: https://www.lsuc.on.ca/For-Lawyers/Manage-Your-Practice/Practice-Area/Criminal-Law/How-to-Prepare-and-Conduct-a-Sentencing-Hearing/; archived version: http://www.scc-csc.ca/cso-dce/2018SCC-CSC25_3_eng.pdf).
Legal Aid Ontario. Plea Comprehension Inquiry, October 2017 (online: http://legalaid.on.ca/en/info/forms/plea-comprehension-inquiry-EN.pdf; archived version: http://www.scc-csc.ca/cso-dce/2018SCC-CSC25_4_eng.pdf).
Verdun‑Jones, Simon N., and Adamira A. Tijerino, Policy Centre for Victim Issues. Victim Participation in the Plea Negotiation Process in Canada: A Review of the Literature and Four Models for Law Reform. Ottawa: Justice Canada, 2002.
APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Harris and Fitch JJ.A.), 2016 BCCA 416, 342 C.C.C. (3d) 435, 47 Imm. L.R. (4th) 171, [2016] B.C.J. No. 2215 (QL), 2016 CarswellBC 2949 (WL Can.), affirming the conviction of the accused for trafficking in cocaine. Appeal dismissed, McLachlin C.J. and Abella and Wagner JJ. dissenting.
Peter H. Edelmann and Erica Olmstead, for the appellant.
Ron Reimer and John Walker, for the respondent.
Karen G. Papadopoulos, for the intervener the Attorney General of Ontario.
David A. Labrenz, Q.C., for the intervener the Attorney General of Alberta.
Ann Ellefsen‑Tremblay and Andrej Skoko, for the intervener the Director of Criminal and Penal Prosecutions.
Erika Chozik and Cate Martell, for the intervener the Criminal Lawyers’ Association of Ontario.
Lobat Sadrehashemi and Lorne Waldman, for the intervener the Canadian Association of Refugee Lawyers.
Nicholas St‑Jacques, Lida Sara Nouraie and Philipe Knerr, for the intervener Association des avocats de la défense de Montréal.
Avvy Yao Go, Vincent Wan Shun Wong and Sukhpreet Sangha, for the interveners the Chinese and Southeast Asian Legal Clinic and the South Asian Legal Clinic of Ontario.
Jared Will and Joshua Blum, for the intervener the Canadian Council for Refugees.
Anil K. Kapoor and Ian B. Kasper, for the intervener the Canadian Civil Liberties Association.
Faisal Mirza and Dena Smith, for the intervener the African Canadian Legal Clinic.
The judgment of Moldaver, Gascon, Brown and Rowe JJ. was delivered by
Moldaver, Gascon and Brown JJ. —
I. Overview
[1] This case concerns 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 Criminal Code, R.S.C. 1985, c. C-46 .
[2] The decision of an accused to plead guilty is plainly significant. By pleading guilty, an accused waives his or her constitutional right to a trial, relieving the Crown of its burden to prove guilt beyond a reasonable doubt. Taking this step is of such significance that it represents one of the very few decisions in the criminal process which an accused must personally take. Indeed, defence counsel are ethically bound to ensure that the ultimate choice is that of the accused.
[3] The plea resolution process is also central to the criminal justice system as a whole. The vast majority of criminal prosecutions are resolved through guilty pleas and society has a strong interest in their finality. Maintaining their finality is therefore important to ensuring the stability, integrity, and efficiency of the administration of justice. Conversely, the finality of a guilty plea also requires that such a plea be voluntary, unequivocal and informed. And to be informed, the accused “must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea” (R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519).
[4] We agree with our colleague Wagner J. that for a plea to be informed, an accused must be aware of the criminal consequences of the plea as well as the legally relevant collateral consequences. A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused. Here, Mr. Wong was not aware of the immigration consequences of his conviction and sentence. Immigration consequences bear on sufficiently serious legal interests to constitute legally relevant consequences. His guilty plea was therefore uninformed.
[5] We respectfully disagree with our colleague, however, as to the prejudice that must be shown to establish a miscarriage of justice and vacate a guilty plea. Our colleague proposes that whether an accused has shown prejudice should be determined by way of a “modified objective” analysis. On that approach, prejudice giving rise to a miscarriage of justice is established where the court is satisfied of a “reasonable possibility that a similarly situated reasonable person would have proceeded differently if properly informed” (Wagner J.’s reasons, at para. 80). As we discuss below, this approach does not account for the fundamentally subjective and deeply personal nature of the decision to plead guilty. Further, it will likely be difficult for courts to apply.
[6] In our view, the accused should be required to establish subjective prejudice. Meaning, accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.
II. Analysis
A. Modified Objective Framework
[7] Under the modified objective approach as stated by our colleague, a guilty plea may be withdrawn if the accused shows
(1) that he or she was not aware of a legally relevant collateral consequence and (2) that there is a reasonable possibility he or she would have proceeded differently if properly informed of that consequence.
(Wagner J.’s reasons, at para. 44)
[8] While this statement may appear to call for a subjective assessment (since it refers to what the accused would have done), our colleague clearly affirms that his approach entails applying a modified objective standard — one which requires the reviewing court to consider what “a reasonable person in the circumstances of the accused” would have done (para. 104). The requisite standard of proof he states is “reasonable possibility”: specifically, is there a reasonable possibility that awareness of the legally relevant consequence would have “sufficiently influenced” the decision of someone in the accused’s circumstances, or that a reasonable person in the same situation as the accused would have “proceeded differently” (para. 81 (emphasis deleted)).
[9] We agree that the accused must first show that he or she was unaware of a legally relevant collateral consequence at the time of pleading guilty, and endorse a broad approach to evaluating the relevance of a collateral consequence in the assessment of whether a guilty plea was sufficiently informed. We also agree that a legally relevant collateral consequence will typically be state-imposed, flow from conviction or sentence, and impact serious interests of the accused. And, like our colleague, we do not see it as necessary to define the full scope of legally relevant collateral consequences nor the characteristics of such consequences for the purposes of this appeal. We see two problems, however, with the second step as our colleague states it.
[10] First, a modified objective framework fails to account for the fundamentally subjective nature of the guilty plea. As the Attorney General of Alberta observed before us:
. . . the decision whether or not to plead guilty is inherently personal and an accused at first instance can decide to simply roll the dice whether or not they are advised by their lawyer they have a realistic prospect of conviction and whether or not it’s going to have a deleterious effect upon sentence.
. . .
. . . sometimes people can decide to run trials in a very ill-advised manner.
(Transcript, at pp. 122-23)
[11] We agree. The decision to plead guilty reflects deeply personal considerations, including subjective levels of risk tolerance, priorities, family and employment circumstances, and individual idiosyncrasies. For this reason, it is one of the few steps in the criminal process where defence counsel are ethically required to seek their client’s direct instruction (R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34).
[12] Simply put, 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. An example from United States caselaw suffices to make the point. In Lee v. United States, 825 F.3d 311 (6th Cir. 2016), the accused sought, as Mr. Wong seeks, to withdraw his plea on the basis that he was unaware of its consequences for his immigration status. The Sixth Circuit Court of Appeals denied the accused’s motion. Even taking into account the accused’s particular circumstances, the Sixth Circuit wrote:
. . . no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence. [para. 2]
[13] The accused in Lee had deposed that he would have proceeded to trial, with the effect of near certain deportation, rather than taking a plea deal with certain deportation, even if conviction at trial meant a longer prison sentence. Despite what the Sixth Circuit saw as the only rational course of action, the accused’s right to remain in the United States was more important to him than any jail sentence, no matter its length. The Sixth Circuit’s decision was ultimately overturned by the Supreme Court of the United States in Lee v. United States, 137 S. Ct. 1958 (2017), in which the objective approach for assessing prejudice was rejected.
[14] Our colleague quite rightly notes that this Court has applied a modified objective test in other contexts, such as when assessing the availability of the defences of necessity (R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 32) and duress (R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 61) (Wagner J.’s reasons, at para. 88). But it does not follow that a modified objective test is equally suited to assessing the considerations surrounding the decision to plead guilty. It is true that much of the criminal law is itself premised upon objective considerations, in that it “reflect[s] society’s values as to what is appropriate and what represents a transgression” (Latimer, at para. 34; see also Perka v. The Queen, [1984] 2 S.C.R. 232, at p. 248). The availability of a valid defence such as necessity or duress cannot therefore be approached purely subjectively, lest it “become simply a mask for anarchy” (Latimer, at para. 27, citing Southwark London Borough Council v. Williams, [1971] Ch. 734 (C.A.), at p. 746). The same cannot, however, be said of the accused’s decision to plead guilty. That decision does not purport to reflect society’s values as to what is right or wrong. Rather, it reflects the accused’s subjective choice. Unlike the considerations applied to the availability of a valid defence, no mischief follows from letting considerations personal to the accused determine whether he or she would have, in the circumstances, made an informed plea of guilty. 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.
[15] We acknowledge that our colleague does not advocate for a purely objective framework, but for a modified objective framework. It allows for some consideration of the general “situation and characteristics of the accused” insomuch as it undertakes the analysis from the perspective of someone “in the particular circumstances of the accused” (see Wagner J.’s reasons, at paras. 80 and 87). But it nonetheless suffers from the same drawback as a purely objective inquiry: it focusses upon what a judicially constructed hypothetical person would do, instead of how the particular accused would have proceeded.
[16] The second problem we see in the modified objective framework is that it will likely be difficult for lower courts to apply. Our colleague refers to what “a similarly situated reasonable person” would have done (para. 80). But this is qualified by his statement that such a reasonable person need not be presumed to “have taken the ‘best’ or single most rational course of action” (para. 82). Given the highly contextual and even idiosyncratic nature of factors that influence important decisions (such as choosing whether or not to plead guilty), adopting a standard based on what a hypothetical reasonable person (who might not always act in the most rational way) would have done effectively confers upon reviewing courts unbounded discretion to reach whatever conclusion they see fit. It also runs squarely into the injustice that led to the United States Supreme Court’s intervention in Lee.
[17] The modified objective framework will also be difficult to apply because it adopts a variable standard of scrutiny. Our colleague maintains that where the collateral consequence of a plea is “as serious as deportation”, a more lenient standard of reasonableness would be applied, whereas “less obviously serious consequence[s]” are scrutinized by “a more exacting inquiry” (para. 100). To be sure, different accused — even different similarly situated accused — may ascribe varying levels of significance to different collateral consequences, based on their idiosyncratic values and preferences. Thus, and with respect, we would not treat the significance of a particular consequence as a “matter of common sense” (ibid.). And because Justice Wagner’s approach is not tied to a particular accused, but rather to a reasonable person, reviewing courts may be left guessing as to what standard of scrutiny to apply to the consequence at issue.
[18] In sum, our colleague’s modified objective approach risks, in our view, 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 would have proceeded identically would still be entitled to withdraw his plea if a reasonable accused in his circumstances would withdraw his plea. This would impose unnecessary and substantial demands on a criminal justice system that is already overburdened, to the detriment of other participants in the system, including accused persons, victims, and the public at large who seek efficient and just resolution of criminal complaints.
B. Subjective Prejudice Framework
(1) Forms of Prejudice
[19] In our view, an accused seeking to withdraw a guilty plea must demonstrate prejudice by filing an affidavit establishing a reasonable possibility that he or she would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions. This approach strikes what we see as the proper balance between the finality of guilty pleas and fairness to the accused.
[20] With respect to the first form of prejudice — where the accused would have opted for a trial and pleaded not guilty — there will of course be instances in which the accused may have little to no chance of success at trial, and the choice to proceed to trial may simply be throwing a “Hail Mary”. But a remote chance of success at trial does not necessarily mean that the accused is not sincere in his or her claim that the plea would have been different. For certain accused, such as the accused in Lee, the certain but previously unknown consequences of a conviction made even a remote chance of success at trial a chance worth taking. In such circumstances, and where the court accepts the veracity of his or her statement, the accused has demonstrated prejudice and should be entitled to withdraw his or her plea.
[21] There remains the second form of prejudice — where an accused would have pleaded guilty, but only on different conditions. A guilty plea on different conditions will suffice to establish prejudice where a court finds that the accused would have insisted on those conditions to enter a guilty plea and where those conditions would have alleviated, in whole or in part, the adverse effects of the legally relevant consequence. We do not presume here to list every condition which, if raised by the accused, could give rise to prejudice. At minimum, however, these additional conditions may 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.
[22] The mere possibility of different conditions on its own is not, we stress, automatically sufficient. A plea may be withdrawn only where an accused credibly asserts that he or she would have, during the plea negotiation phase, insisted on additional conditions, but for which he or she would not have pleaded guilty. In short, the accused must articulate a meaningfully different course of action to justify vacating a plea, and satisfy a court that there is a reasonable possibility he or she would have taken that course.
[23] Parenthetically, we observe that the accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds. “[T]he prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial” (R. v. Rulli, 2011 ONCA 18, at para. 2 (CanLII)). Requiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty. An accused is perfectly entitled to remain silent, advance no defence, and put the Crown to its burden to prove guilt beyond a reasonable doubt. It does not make sense to let an accused proceed to trial at first instance without any defence whatsoever, but to insist on such a defence to proceed to trial when withdrawing an uninformed plea. Though the decision to go to trial may be unwise or even reckless, we are not seeking to protect an accused from himself or herself. Rather, we seek to protect an accused’s right to make an informed plea.
[24] For the same reason, we agree with our colleague that the ineffective assistance of counsel framework has no relevance to this case (Wagner J.’s reasons, at para. 60). 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. As Saunders J.A. explained at the Court of Appeal, the particular miscarriage of justice engaged in this case arises from the invalidity of Mr. Wong’s plea (2016 BCCA 416, 342 C.C.C. (3d) 435, at para. 24).
(2) Subjective Analysis
[25] Our framework is premised upon the view that judicial scrutiny must be directed to how the accused, and no one else, would have proceeded. The question to be answered is whether the accused would have acted differently, had he or she been armed with the knowledge of the legally relevant consequence.
[26] That the analysis focusses on the accused’s subjective choice does not mean that a court must automatically accept an accused’s claim. 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. Such factors may include the strength of the Crown’s case, any concessions or statements from the Crown regarding its case (including a willingness to pursue a joint submission or reduce the charge to a lesser included offence) and any relevant defence the accused may have. The court may also assess the strength of connection between the guilty plea and the collateral consequence, that is, whether the trigger for the collateral consequence is the finding of guilt as distinct from a particular length of sentence. More particularly, where the collateral consequence depends on the length of the sentence — keeping in mind that a guilty plea typically mitigates a sentence — the court may have reason to doubt the veracity of the accused’s claim.
[27] While our colleague refers to similar factors (at para. 105), he would consider them in assessing whether a reasonable person in the accused’s circumstances would have been influenced in their decision to plead guilty by the information. Again, we see the analysis differently. To reiterate, it properly operates from the standpoint of the accused, and what the accused would or would not have done, knowing of the legally relevant consequence.
[28] Of course, the basis for judicial scrutiny of the accused’s claim is not limited to objective circumstances contemporaneous with the original plea, since the accused’s idiosyncratic preferences may not always be reflected in those circumstances. A reviewing court must therefore also test the veracity of the accused’s assertions in their own right. A court may properly find an accused’s expressed preferences to be credible, and to establish a reasonable possibility of prejudice, based solely on the contents of the accused’s affidavit and on his or her withstanding of cross-examination.
[29] Throughout the process of testing the accused’s claim, however, the focus must remain upon what this accused — and only this accused — would have done. The basis for that subjective inquiry is found in the subjective nature of the initial decision to plea. 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 judgm