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PROCEDURE - Pleas - Setting aside guilty plea

Tuesday, November 17, 2020 @ 6:44 AM  


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Appeal by Lam from his guilty plea and conviction for possession of cocaine for the purpose of trafficking. During an undercover drug investigation that targeted Tran, officers came to believe the appellant was Tran’s supplier. The police executed a search warrant at the appellant’s residence and seized over two kilograms of cocaine and $47,000 in cash. The search warrant was successfully challenged in related proceedings. The trial judge found trial counsel failed to provide reasonable professional assistance to the appellant in several areas. She found the appellant’s guilty plea was not fully informed because trial counsel failed to advise him that the ability to challenge the lawfulness of the search of his apartment and the admissibility of the evidence obtained would be forfeited upon entry of the plea. The trial judge concluded the appellant failed to establish it would be unfair to permit the guilty plea to stand and dismissed the appellant’s application to strike his guilty plea.

HELD: Appeal allowed; new trial ordered. The trial judge had an obligation to consider whether the plea should be set aside upon determining it to be uninformed by one of its most direct legal consequences. Had the trial judge embarked on that analysis, she would have concluded the appellant had established a reasonable possibility that he would not have pleaded guilty had he been informed that doing so would end his ability to challenge the warrant. It was not necessary to address whether the guilty plea could be set aside on grounds that the appearance of justice had been fatally compromised by the provision of ineffective legal assistance.

R. v. Lam, [2020] B.C.J. No. 1629, British Columbia Court of Appeal, D.C. Harris, G.J. Fitch and J. DeWitt-Van Oosten JJ.A., October 13, 2020. Digest No. TLD-November162020004