Withdrawal of an Uninformed Guilty Plea, The Lawyer’s Daily (June 29, 2018)

A guilty plea constitutes a formal admission of guilt to the crime with which an accused is charged. It relieves the Crown of its burden to prove guilt beyond a reasonable doubt and constitutes a waiver of constitutional right to a trial. The accused’s decision to plead guilty is, thus, fundamentally subjective and deeply personal.

In R v. Wong, 2018 SCC 25, the Supreme Court of Canada grappled with a vexing issue of whether a guilty plea can be withdrawn because the accused was unaware that it may have serious immigration consequences. The court was divided on the analytical framework for setting aside an uninformed plea, which it ultimately clarified by adopting a broad subjective prejudice framework.

In Wong, Wing Wha Wong, a permanent resident of Canada, was charged with a single count of trafficking in cocaine to which he pleaded guilty and received a nine-month sentence. However, when he entered the guilty plea he was unaware that his being convicted and sentenced could result in the loss of his permanent resident status and a removal order from Canada without any right to appeal. Wong learned of these immigration consequences while serving his prison sentence.

Following his release, Wong appealed his conviction and sentencing, asking that his guilty plea be set aside on the ground that he had not been informed of its full consequences. He formulated his conviction appeal as a competence of counsel claim, arguing that his trial counsel’s ineffective assistance had resulted in a miscarriage of justice.

The central issue in this case was whether Wong’s guilty plea was informed and constituted a valid waiver of his rights. For a plea to be informed the accused must be aware of the criminal consequences of the plea and the legally relevant collateral consequences stemming from that plea. The court found it unnecessary to define the full scope of a legally relevant consequence, noting that such a consequence will typically be state-imposed, flow from conviction or sentence and impact serious interest of the accused. The court agreed that the loss of permanent resident status and the risk of removal from Canada without any right to appeal bear on a person’s sufficiently serious legal interests to constitute legally relevant consequences.

Pursuant to s. 36 of the Immigration and Refugee Protection Act a permanent resident will be inadmissible on grounds of serious criminality for having been convicted in Canada of an offence for which, among others, a term of imprisonment of more than six months has been imposed. A finding of inadmissibility under this section will lead to the issuance of a removal order against a permanent resident and eliminates the statutory right to appeal it (s. 64 of IRPA).

The court resolved that an accused seeking to withdraw a guilty plea must, first, demonstrate that he was unaware of legally relevant consequences at the time of the plea and, secondly, he was subjectively prejudiced by this lack of information. Meaning, the accused must file an affidavit establishing a reasonable possibility that he would have either (1) pleaded differently; or (2) pleaded guilty, but with different conditions.

The court found that Wong’s guilty plea was uninformed. Though Wong filed an affidavit, 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. The absence of sufficiently specific language in Wong’s affidavit prevented him from establishing subjective prejudice. Consequently, the court dismissed Wong’s conviction appeal, despite acknowledging that at the time Wong sought to withdraw his plea the state of the law as to what he was required to include in his affidavit was not entirely clear. As a reprieve, the SCC observed that Wong’s sentencing appeal remained outstanding and that the Crown has conceded that a sentence of six months less a day would be appropriate in light of Wong’s deportation risk. Should the lower court reduce his sentence, it could clothe Wong with the statutory right to appeal the removal order, but he will, unfortunately, remain a convicted felon based on a technical legal oversight.

The subjective prejudice framework that the court adopted focuses only on the accused’s choice. The inquiry is subjective to “the accused, not a reasonable accused, or someone like the accused” (emphasis added). It seeks to answer the question of whether the particular accused would have acted differently had he been aware of the collateral immigration consequences. This does not mean that a court will automatically accept the accused’s assertions.

Like all credibility determinations, the accused’s claim about what his subjective and fully informed choice would have been is measured against objective circumstances. However, there is no need for the accused to show a viable defence to the charge or the source of the misinformation (or incomplete information) in order to withdraw a plea on procedural grounds.

Wong is a welcome clarification of the law on setting aside an informed guilty plea. Much like in Tran v. Canada (Minister of Public Safety and Emergency Preparedness) 2017 SCC 50, Wong reinforces the importance for defence counsel to collaborate with immigration counsel to ensure that their client is fully informed of collateral immigration consequences of his guilty plea.

Awareness of those consequences is directly relevant not only to the accused’s strategy and tactics, but also the determination of whether the guilty plea was sufficiently informed. It would also allow his defence counsel to raise with the Crown, at the plea bargaining stage, the immigration consequences that might result from the accused’s conviction and to negotiate, for example, a plea to a lesser included offence or what sentence to agree to in joint submissions.