Voluntariness of Guilty Plea

What is the proper test for assessing whether a mental disorder affects the voluntariness of a guilty plea?

Yesterday’s Court of Appeal decision in R. v. M.A.W., 2008 ONCA 555 makes it clear that the standard is the same as the standard of fitness to stand trial: the accused must understand the process, communicate with counsel and make an active or conscious choice to plea.

The Court writes:

[23] The judgment of Doherty J.A. in R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), is the principal decision of this court on what an appellant must show to set aside a guilty plea on the ground that it is invalid. A guilty plea is valid if it is voluntary, informed and unequivocal; conversely a plea that is either not voluntary, not informed, or not unequivocal is invalid and may be set aside on appeal. An appellant has the onus of showing invalidity on a balance of probability: see p. 519.

[24] The issue on this appeal is whether the appellant’s depression amounted to a mental disorder that affected the voluntariness of his guilty plea. In T. (R.) Doherty J.A. said that “[a] voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: see p. 520. Doherty J.A. also recognized that mental disorder is one factor that may impair the voluntariness of a plea.

[25] Both sides, of course, accept these principles from T. (R.). However, they disagree on what standard should be applied when an appellant relies on mental disorder to invalidate a plea because of involuntariness. The Crown contends that we should apply the same standard we use to determine an accused’s fitness to stand trial: the “limited cognitive capacity” standard. That standard requires only that the court be satisfied an accused understands the process, can communicate with counsel and can make an active or conscious choice. Whether the accused’s choice is wise, rational or in the accused’s best interest forms no part of the limited cognitive capacity standard. See R. v. Taylor (1992), 77 C.C.C. (3d) 551 at 563-67 (Ont. C.A. ).

[26] The appellant, on the other hand, contends that we should adopt a higher standard of mental competency. The limited cognitive capacity standard advocated by the Crown, he argues, may produce miscarriages of justice. He relies on an article by Schneider and Bloom, “R. v. Taylor: A Decision Not in the Best Interests of Some Mentally Ill Accused” (1995) 38 Crim. L.Q. 183, in which the authors suggest that an accused who irrationally seeks self punishment because of severe depression may be mentally unfit. The appellant says that his guilty pleas were involuntary because his conduct was “irrational, hopeless and helpless” and because he “felt there was no other option than to plead guilty”.

[27] In my view, the Crown’s position is correct for two main reasons: first, consistency in the standard for mental competency; second, respect for an accused’s liberty interest. Moreover, the limited cognitive capacity standard is compatible with the voluntariness test in T. (R.).