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Criminal - Guilty Pleas

. R. v. Osborne [inconsistent facts between jury charge and guilty plea]

In R. v. Osborne (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here argued on whether the Crown committed an abuse of process by relying on inconsistent facts between jury charge and a guilty plea:
Did the Crown Commit an Abuse of Process?

[41] The appellant argues that it was improper for the Crown to suggest to the jury that Ms. Hall sent the appellant and Z.H. to kill Mr. Pringle, when it had already accepted a guilty plea from Ms. Hall on the basis that she specifically did not want Mr. Pringle killed. In other words, it was wrong for the Crown to accept a fact in one proceeding, Ms. Hall’s guilty plea, but assert a different fact in another related proceeding, the appellant’s trial.


[46] Nonetheless, no abuse of process arises. An abuse of process can occur where “state conduct compromises the fairness of an accused’s trial (the ‘main’ category) [… or] where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the ‘residual’ category)”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. We will begin with the residual category.

[47] Two features of guilty pleas need to be borne in mind. First, it must be recognized that a guilty plea is based on the facts an accused person is prepared to admit, and not on the facts the Crown might have succeeded in proving after trial. Second, the decision of the Crown to accept a guilty plea is a tactical one that can properly be influenced by a range of considerations. This includes the strength of the case against the particular accused person and the public interest in accepting a plea agreement from one alleged party to secure testimony against another party. It would not advance the integrity of the judicial process to restrict the Crown in prosecuting another party, on the basis of the same basic factual scenario that the related pleading party was prepared to admit. Imposing such a strict limit would frustrate legitimate tactical decisions to accept pleas of guilt from co-parties and would require verdicts to be imposed after the trial of a co-party that are inconsistent with the facts proved at that trial.

[48] Significantly, the Crown did nothing to mislead the court about its theory when Ms. Hall’s plea was entered. It did not say that Ms. Hall did not intend to have Mr. Pringle killed nor did the Crown, at Ms. Hall’s plea proceeding, present the agreed statement of facts as a complete and candid narrative of what had transpired. Instead, the agreed statement of facts was presented by describing the admissions Ms. Hall had made, including to the police.

[49] Moreover, the evidence as it unfolded during Mr. Osborne’s trial supported the factual scenario the Crown advanced at his trial. There was logic in the Crown’s position that Ms. Hall’s testimony was self-serving, that she had credibility problems, and that there is reason to conclude that in her testimony she minimized her own role. There was also evidentiary support for a finding that the appellant attended Mr. Pringle’s residence with the intention of killing him. This evidentiary support included not only the lethal nature of the weapon used and the brutal force exerted but the testimony of Hannah Moore, who was at Mr. Bolton’s residence immediately before the appellant and Z.H. went to Mr. Pringle’s residence, who testified she heard the appellant say, before he left Mr. Bolton’s residence, that he “just wanted to kill him”. Although Ms. Moore did not know who exactly the appellant was talking about, the circumstances make it clear that it was Mr. Pringle.

[50] There is therefore no Crown conduct that would call into question the integrity of the judicial process.

[51] Nor did the Crown’s conduct compromise the fairness of the trial. As indicated, the Crown’s position was supported by the trial evidence and there was no surprise or subterfuge about its position. There was complete transparency surrounding Ms. Hall’s plea – Ms. Hall was called as a witness at the appellant’s trial, where she confirmed the basis of her plea. During their opening statement, with the appellant and his counsel having full knowledge of Ms. Hall’s guilty plea (and the basis for it), Crown counsel said that Ms. Hall requested “Mr. Pringle be assaulted in order to shut him up” and that it was expected Ms. Hall would “concede her role in arranging this offence, but that she did not know Mr. Pringle would be killed”. Then, during the pre-charge conference, the Crown repeatedly referenced their intention to say in their closing remarks that many of the Crown’s witnesses, including Ms. Hall, were self-interested and that the jury should therefore be cautious in relying on their evidence.

[52] Finally, although trial counsel’s failure to object is never determinative, it can, depending on the circumstances, be a strong indication that counsel did not perceive there to be any unfairness: R. v. Boone, 2016 ONCA 227, 28 C.R. (7th) 1, at para. 53, leave to appeal refused, [2016] S.C.C.A. No. 238 (S.C.C.); R. v. Moore, 2017 ONCA 947, 357 C.C.C. (3d) 500, at para. 21. Here, counsel did not object to this aspect of the Crown’s argument, despite there being no mystery about what the Crown’s theory would be. In those circumstances, the lack of objection could not possibly have been through inadvertence and reflects trial counsel’s reasonable assessment that nothing unfair was transpiring.

[53] There is no basis to interfere with the trial judge’s conclusion that there was no abuse of process. Accordingly, we would reject this ground of appeal.
. R. v. Mills

In R. v. Mills (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a guilty plea for "failing to remain at the scene of a fatal traffic accident" [CCC s.320.16(3)].

Here the court reviews some facts and law on the immigration 'collateral consequences' of criminal convictions:
[9] On March 26, 2021, the appellant re-elected to be tried in the Ontario Court of Justice and entered a plea of guilty on the fail to stop charge. The trial judge conducted a plea inquiry, after which she stated that she was “satisfied this is an informed and voluntary plea”. However, the appellant’s trial counsel did not advise the trial judge that the appellant was a permanent resident of Canada, and the trial judge’s plea inquiry did not include any questions about the appellant’s immigration status, or his awareness of the collateral immigration consequences of his plea and/or of the sentence that he might receive.

(2) The immigration consequences of the appellant’s guilty plea

[10] The appellant, who was 38 years old at the time of sentencing, was born in Jamaica and came to Canada when he was 13 years old. He was granted permanent resident status but has never obtained Canadian citizenship. His wife is also a Canadian permanent resident. Their children were born in Canada and are Canadian citizens.

[11] Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the IRPA”), deems permanent residents to be “inadmissible on grounds of serious criminality” if they are convicted in Canada of an offence “punishable by a maximum term of imprisonment of at least 10 years”, or if they actually receive a sentence of “imprisonment of more than six months”.

[12] The offence of failing to stop after an accident resulting in death in s. 320.16(3) of the Criminal Code, to which the appellant pleaded guilty, carries a maximum sentence of life imprisonment: Criminal Code, s. 320.21. Because this maximum sentence is greater than ten years’ imprisonment, a conviction for this offence makes the appellant inadmissible under s. 36(1) of the IRPA, regardless of what sentence he actually receives.

[13] However, the appellant’s actual sentence had important consequences for his right to appeal against a removal order on humanitarian or compassionate grounds: see e.g., Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 6-7. In summary, if the appellant had received a sentence of less than six months’ actual imprisonment – including a conditional sentence of any length – he would have been able to appeal a removal order to the Immigration Appeal Division pursuant to s. 63(3) of the IRPA. However, if he received a custodial sentence of six months or more, he would lose the right to appeal: IRPA, s. 64(2).
. R. v. Francis

In R. v. Francis (Ont CA, 2023) the Court of Appeal considers the test for setting aside a guilty plea:
(2) The test for setting aside a guilty plea

[28] There is a robust test for setting aside a guilty plea. The onus rests on the appellant.

[29] A valid guilty plea must be voluntary, unequivocal and informed: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3; R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 51. This appeal focusses upon whether the plea was informed.

[30] To be informed, the accused must be aware of: (1) the nature of the allegation made against him; (2) the effect of entering the plea; and (3) the consequences of entering the plea: Wong, at para. 3, quoting R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. The accused must be aware of the criminal consequences that will flow from the plea, as well as the “legally relevant collateral consequences” of the plea, meaning those consequences that bear upon “sufficiently serious legal interests”: Wong, at para. 4.

[31] To establish that a plea was uninformed, not only must the appellant demonstrate that he was unaware of a relevant consequence at the time of entering the plea, he must also establish that he suffered subjective prejudice as a result. This latter criterion requires that the appellant show that there exists a reasonable possibility that, had he known of the consequences, he would have either elected to plead not guilty or elected to plead guilty with different conditions: Wong, at paras. 6, 9, 19, and 33.
. R. v. Sithravel

In R. v. Sithravel (Ont CA, 2023) the Court of Appeal consider the 'Gardiner' guilty plea sentencing principle, which requires that only admitted or beyond-a-reasonable-doubt found facts be applied in sentencing, here in a case where the defendant had absconded between the guilty plea and sentencing:
[6] The nub of the second ground of appeal is that the sentencing judge relied on the appellant being the “mastermind” of the robbery as a significant aggravating factor. The appellant argues that this constituted an error in principle because he did not admit this as part of the facts in support of the guilty plea and it was not proven by the Crown beyond a reasonable doubt in a Gardiner hearing: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.


[12] The sentencing judge interceded at various points to ensure that the appellant was prepared to admit the elements of the offence and to suggest that, if the appellant was prepared to admit the essential elements of the offence, a Gardiner hearing could be held regarding additional aggravating factors.


[24] Some may feel an understandable sense of frustration in the appellant’s sentence appeal being allowed when he chose to abscond and not be present for the sentencing hearing. Had he been present, one expects his counsel would have drawn the sentencing judge’s attention to issues regarding facts not admitted or insisted on the Gardiner hearing which had been discussed at the time the plea was entered. However, the fact that the appellant absconded could not change the facts that were and were not admitted when the guilty plea was entered or the onus on the Crown, if it wanted to rely on additional facts in aggravation, to prove them beyond a reasonable doubt in a Gardiner hearing.

[27] The facts admitted in support of a guilty plea are important. An accused who admits facts in support of a plea is giving up their right to require the Crown to prove the facts establishing the offence and, in many cases, to prove aggravating factors: Gardiner; Criminal Code, s. 724(3)(e). Lack of clarity as to what facts are admitted in support of a guilty plea can, as in this case, generate errors in relation to factors relied on as aggravating or mitigating and create difficulties in ascertaining the factual record for appellate review.
. R. v. Makara

In R. v. Makara (Ont CA, 2023) the Court of Appeal considers the law of 'guilty pleas', here in an unsuccessful motion to extend time to commence an appeal:
[10] ... To be valid, a guilty plea must be voluntary, unequivocal, and informed: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3, citing R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. See also R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. Where fresh evidence gives rise to an applicant’s ability to challenge the validity of a guilty plea this court has extended the time for perfecting an appeal to allow such evidence to be brought forward: see, for example, R. v. Murray, 2022 ONCA 906; R. v. Brooks, 2020 ONCA 605.
. R. v. Berhe

In R. v. Berhe (Ont CA, 2022) the Court of Appeal considered the requirements of a guilty plea:
[67] For a guilty plea to be valid, it must be voluntary, unequivocal, and informed: R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 85; R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. For a plea to be informed, s. 606(1.1)(b) of the Criminal Code requires the accused person’s understanding of number of factors, including “the nature and consequences of the plea.”

[68] In R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, the Court recognized that a plea will be uniformed if the accused person was unaware of a legally relevant collateral consequence – i.e., an immigration consequence: see also R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52 and R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, at para. 10. A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded guilty with different conditions: Wong, at para. 6.
. R. v. Gibbs

In R. v. Gibbs (Ont CA, 2022) the Court of Appeal considers the requirements of a guilty plea:
(1) The appellant’s guilty plea was voluntary and informed

[4] It is well established that a guilty plea must be “voluntary, unequivocal and informed”: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 43. There is no closed list of valid grounds for withdrawing a plea: R. v. C.K., 2021 ONCA 826, 159 O.R. (3d) 81, at para. 66; R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514, at p. 519. While the appellant deposed in his affidavit that his plea was not unequivocal, he does not contest that his plea was unequivocal in the sense that he did not clearly plead guilty in open court. The main thrust of the appellant’s submissions is that his plea was not voluntary and informed. For the reasons that follow, we conclude that there is no basis to set aside the appellant’s guilty plea.

(a) The appellant’s guilty plea was voluntary

[5] A voluntary plea represents “the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: C.K., at para. 67; T.(R.), at p. 520. The capacity to make a volitional decision to plead guilty is not high: C.K., at para. 69. A guilty plea made in open court will be presumed to be voluntary unless the contrary is shown: C.K., at para. 74; T.(R.), at p. 520. As this court observed in C.K., at para. 68, “[t]here are a range of ways that volition can be destroyed, including coercion, improper inducements or pressure imposed, and incapacity” (footnote omitted). In this case, the appellant alleges incapacity to plead guilty because of his mental illness. As a result, the onus is on the appellant to demonstrate on a balance of probabilities that he “lacked the capacity to make an active or conscious choice to plead guilty. To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice”: R. v. Cherrington, 2018 ONCA 653, at para. 21 (citations omitted).

[6] The appellant has not met his onus to demonstrate that his plea was not voluntary. Absent evidence to the contrary, which is not present here, the appellant is presumed to be capable. ...


(b) The appellant’s guilty plea was informed

[9] An informed plea means that an accused “must understand the nature of the allegations, the effect of the plea and the consequences of the plea”: Wong, at para. 43. Moldaver J. for the majority explained in Wong that an uninformed 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”: at para. 44. However, he cautioned that “not every guilty plea entered in such circumstances will result in prejudice that is serious enough to constitute a miscarriage of justice” and that the court must be satisfied “of a reasonable possibility that the accused would have proceeded differently had he or she been aware of the legally relevant consequence in issue, either by declining to admit guilt and entering a plea of not guilty, or by pleading guilty but with different conditions”: at para. 44.


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Last modified: 14-06-24
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