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Advising your client on the consequences of a guilty plea in provincial offences and criminal law

Date: May 2, 2018
It may not be obvious to some lawyers and paralegals that accepting a guilty plea for your client and/or on behalf of your client can have serious implications for the individual if you do not fully explain to them the consequences of pleading guilty to a charge before the Court. It is not only a lawyer and paralegal’s ethical duty to do so, but it is also their legal duty. Why face a client complaint to the Law Society and the risk of being under scrutiny on appeal on the ground of ineffective legal assistance at trial, when all you have to do and must do, is sit down with your client, explain to them the consequences of pleading guilty, and have them acknowledge their understanding of the consequences of pleading guilty in writing before embarking on a plea before the Court. The consequences of such an issue lie at the heart of this paper.
Under the Rules of Professional Conduct, the Law Society mandates that a lawyer and paralegal must advise “the client of the implications and possible consequences of a guilty plea”[1]. Section 45 (1) of the Provincial Offences Act and Section 606 (1) of the Criminal Code of Canada further provides that a court may accept a plea if the client “understands the nature and consequences of the plea”.[2] Therefore, there is no question that a lawyer and paralegal has an ethical and legal duty to advise his or her client of the implications of pleading guilty. For the purposes of this paper, I will cite examples of case law where the Court struck the guilty plea on appeal because the client did not receive the proper legal advice and/or was not advised of the consequences of pleading guilty.
The Court of Appeal of Ontario in R v. Armstrong[3], set aside the guilty pleas of the Appellant, quashed the convictions, and ordered a new trial. Here, the Appellant erroneously misunderstood the consequences of the plea due to the erroneous legal advice communicated to her from trial counsel. In this case, the Court of Appeal explained:
“In our view, the appellant’s mistaken belief that she could receive a conditional discharge and avoid a criminal record if she pled guilty to the charges contributed significantly to her decision to plead guilty. We cannot say with any confidence that the appellant would have plead guilty had she been properly advised that her pleas of guilty would inevitably lead to at least one criminal conviction and a consequent criminal record. We must conclude that the appellant’s pleas were predicated in part on a significant misunderstanding of the potential consequences of those pleas. That misunderstanding was a direct result of the erroneous advice given to her by trial counsel.”[4]
In R v. Stewart[5], Glass J. allowed an appeal, set aside a conviction and ordered a new trial in a situation where the Appellant’s lawyer did not tell him about an automatic statutory license suspension under the Highway Traffic Act. Glass J. held under the circumstances of this case:
“Mr. Stewart entered his guilty plea uniformed and in effect not voluntarily because of his lack of information. His legal representative was a barrister who was governed by the Rules of Professional Conduct which require the lawyer to advise the client fully of the implications of a guilty plea and the possible consequences of that plea. That did not occur. A miscarriage of justice occurred and must be addressed.”[6]
In R v. Alabi[7], the Court of Appeal also set aside a plea and ordered a new trial. Here, the Appellant did not make an informed decision to plead because her trial counsel wrongly informed her that a conditional sentence was available for the offence in which she plead guilty when this particular sentence, in fact, turned out to be an illegal one. The Court of Appeal found:
“In our view, the plea should be set aside. Similar to the case R. v. Al-Diasty, 2003 CanLII 41570 (OCA), the appellant entered her plea based on a misunderstanding of the available sentence that was shared by all counsel and the trial judge at the time. Her evidence is that she would not have plead guilty had she known that a conditional sentence was not available. Her evidence as to the extent of her involvement in the criminal organization supports a belief that a conditional sentence would not have been inappropriate had it been an available sentence.”[8]
In the recent decision of R v. Quick[9], the Ontario Court of Appeal allowed the Appellant’s appeal, set aside his guilty plea and conviction on the his dangerous driving charge, and ordered a new trial. In this case, the Ontario Court of Appeal ruled:
“Quick’s guilty plea to dangerous driving was not informed because he was not aware of the indefinite suspension of his driver’s licence that automatically followed under the HTA. Thus, his conviction for dangerous driving gives rise to a miscarriage of justice.”[10]
For all the criminal lawyers out there, the importance of advising your client of the immigration consequences was attacked head on by the Honourable Justice Durno in the Ontario Superior Court decision of R v. Meehan[11]. In this case, the Honourable Justice Durno allowed an appeal, quashed the conviction and ordered a new trial where the Appellant did not know of the immigration consequences of his plea. The Honourable Justice Durno ruled:
“I am persuaded that the plea was not informed. The appellant adverted to the consequences from conviction and honestly believed there were no immigration consequences.”[12]
Even though the Honourable Justice Durno’s decision is the law of Ontario, the Ontario Court of Appeal had not addressed an appeal dealing specifically with immigration consequences until the recent decision of R. v. Sangs[13]. In this case, the Appellant was never informed of the immigration consequences of his plea and conviction. The Ontario Court of Appeal unanimously set aside the plea of guilty and conviction, and ordered a new trial on all counts for reasons below:
“We are satisfied that it is in the interests of justice to receive the appellant’s affidavit and accompanying cross-examination as fresh evidence on the hearing of the appeal. It is relevant to and admissible on the issue raised to set aside the plea of guilty, that is to say, that the plea of guilty was uninformed because he was unaware of the collateral immigration consequences of its entry. Having admitted the fresh evidence, we are satisfied that the appellant’s plea of guilty was uninformed. It follows, in our respectful view, that the plea of guilty cannot stand as one of the legal requirements for it to be valid is lacking. It follows from its invalidity that it cannot form the basis of the conviction entered in the trial court.”[14]
The decisions of Meehan and Sangs should put all criminal lawyers on notice that immigration consequences must always be the discussion with your client in a plea situation. For members of the Law Society that practice provincial offences and criminal law, the law is clear that you must advise your clients of the nature and consequences of pleading guilty. We all should be aware of what the Court of Appeal said in R v. M.B.[15] that “an accused who is represented by counsel at trial is entitled to receive effective legal assistance. This entitlement is embodied in the constitutional protections afforded by ss. 7 and 11 (d) of the Canadian Charter and Freedoms.”[16]
It is important to note that in the context of all cases that your clients’ rights and interests must be protected, especially in advising them of the consequences of pleading guilty. In the provincial offences context, your client must know if he or she would face, for example, demerit points upon a conviction, a license suspension, potential civil liability, and an increase of insurance premiums. In the criminal context, clients must be aware of the what impact a plea of guilty will have on the individual, specifically, if the person will have a criminal record, be subject to deportation, will lose his or her driver’s license, and any other employment and/or travel consequences. These are the very things that members of the Law Society must have in mind and direct their attention to in every given case. If you are unable to advise on the issue, request that your client seek independent legal advice and/or representation on that issue. As a member of the Law Society, doing what is right by your client, following the Rules of Professional Conduct and the law, and upholding the integrity of the legal profession is what we all have been called upon and bound to do.
Anthony Rabba (Author)
Barrister & Solicitor

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