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PROCEDURE - Pleas - Change of plea - Voluntariness

Friday, May 25, 2018 @ 3:00 PM  

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Appeal by Wong from a judgment of the British Columbia Court of Appeal affirming his conviction for trafficking in cocaine. Wong was a Chinese citizen and a permanent resident of Canada. As he pleaded guilty to a count of trafficking cocaine, he was not aware that his conviction and sentence could result in the loss of his permanent resident status and a removal order from Canada without any right of appeal. When informed of the consequences of his plea, Wong sought to withdraw it. Wong deposed in an affidavit filed in his appeal that he had been unaware of the possible consequences of pleading guilty. The British Columbia Court of Appeal dismissed the appeal although all judges accepted that Wong had been unaware of the collateral immigration consequences of his plea. The main issue before the Court was the proper approach for considering whether a guilty plea could be withdrawn on the basis that the accused was unaware of a collateral consequence stemming from that plea.

HELD: Appeal dismissed. Accused persons who sought to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea were to file an affidavit establishing a reasonable possibility that they would have either opted for a trial and pleaded not guilty or pleaded guilty, but with different conditions. In the second case, it was necessary for the accused to assert 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. A meaningfully different course of action was to be articulated to justify vacating a plea and satisfy a court that there was reasonable possibility that this course would have been taken. Though the decision to go to trial could be unwise or even reckless, the court’s aim was not to protect an accused from himself or herself. Rather, the court was to seek to protect an accused’s right to make an informed plea. The accused’s assertion had to be scrutinized, with regards to objective circumstantial evidence such as the strength of the Crown’s case and concessions (including a willingness to pursue a joint submission or to reduce the charge to a lesser included offence), relevant defense or the connection between the guilty plea and the collateral consequence. The approach simply required an accused to state how he or she would have acted differently. The questions of whether the accused was uninformed and whether the accused’s being uninformed impacted the plea had to be answered. The first was an objective question, and the latter subjective. Though he filed an affidavit before the Court of Appeal, Wong 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 Court could therefore not permit his plea to be withdrawn.

R. v. Wong, [2018] S.C.J. No. 25, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, R. Wagner, C. Gascon, R. Brown and M. Rowe JJ., May 25, 2018. Digest No. TLD-May212018011SCC