R v. Cerna: Setting Aside Guilty Pleas - by N McRae

Application to set aside a guilty plea is one of the primary issues for appeal in this case. The reason for wanting to set aside these pleas is that they have disentitled the appellant to his right to apply the deportation order under s. 36(1) of the Immigration and Refugee Protection Act. Based on these guilty pleas, the appellant was convicted of crimes which carried a sufficient sentence to bring s. 36(1) of the Act into operation. Although there is every possibility that the convictions would have been given regardless of the pleas, the appellant is contending that he was not fully informed of the consequences of the convictions on his permanent resident status prior to giving his guilty pleas. His contention is that had he been fully informed he would have opted for the longer pre-trial custody, and that this misinformation deprived him of a fair trial. Both the application for setting aside the pleas and the motion for fresh evidence were original proceeding, which left the Court of Appeal free from their usual standard of review and principle of deference for the findings of fact at trial. Before there can be decision on whether to set aside the plea it must be established that there is evidence that the plea was not sufficiently voluntary, unequivocal, or informed and was therefore not a valid plea. The Court relied heavily on the case of R v. Wong, both for the requirements of a valid plea and the test for setting aside guilty pleas. In this case it appears that there is a significant issue with the informed nature of the plea. The Court in Wong held that to be informed the accused must be aware of the criminal and relevant collateral consequences which bear on serious legal interests of the accused. Immigration consequences were specifically mentioned in Wong as bearing on sufficiently serious legal interests of the accused, namely their ability to remain in Canada. Having established the defect in the guilty plea the court proceeded to apply the Wong test for setting aside the plea. In circumstances where the plea is sought to be set aside because it was uninformed, the accused must satisfy two requirements: (1) that they were unaware of a relevant legal consequence when they entered into the plea; and, (2) they must establish subjective prejudice, either on the basis they would reasonable have elected to plead not guilty or that they would have plead guilty but with different conditions. The first form of subjective prejudice is not determined by a probability that the accused would have not been found guilty had they gone to trial, only that the accused is sincere in their claim that their plea would have been different; the uncertain nature of trials may make proceeding a risk worth taking even in cases where there is almost no chance of success. The second form of subjective prejudice is not so lenient. The accused must establish that, more than the possibility of different condition, they would have insisted on different conditions that would have fully or partially prevented the effects of the unknown legal consequence. The credibility of an accused claims is not freely given by the courts, instead it is a measure of the subjective claims against the objective circumstances of the evidence. Given the reason for seeking early release was to care for his family, it appears that the appellant in this case would be granted this credibility base on a desire to not be deported. The burden of proof is however on the appellant, and the Crown in this case sought to rebut the credibility of the appellant, claiming that he had not sufficiently established subjective prejudice. The Crown claimed that the accused would not have actually elected to stay in custody while awaiting trial based on the repeated and emotional calls to his wife and mother, indicative of his desperation for release. This claim was defeated by the evidence that the appellant was desperate for release to care for his family, and to provide his income to ensure that they did not lose their house. It is clear that the motivation of the appellant to continue to care for his family, in which case it seems entirely believable that he would, despite clear agitation, elect to remain in custody if it meant he would not face permanent separation from his family. On the totality of the evidence, the appellant has satisfied the Wong test for his guilty plea to be set aside. The plea was clearly not fully informed of the criminal and collateral consequences; consequences which the trial counsel likely should have informed the appellant of. The subjective prejudice was proven on the basis of an overriding desire to remain in a position best suited to care for his family. Although that would be difficult to achieve after a conviction at trial, there remained a possibility of acquittal which the appellant could have reasonably wished to pursue. Even if the convictions were inevitable, and if he were informed of the entire consequences, the appellant could have been able to provide a guilty plea with different conditions regarding sentencing in an attempt to avoid the sentencing provisions in s. 36(1). The appellant should be permitted to withdraw his guilty plea and the pending deportation order should be stayed until the competition of either the trial or a different, informed guilty plea.

R v Cerna [2020] M.J. No. 44, Manitoba Court of Appeal