Withdrawing a guilty plea

R. v. Mitchell, 2010 ONCA 692, released online today, deals with the ability of an accused, following a guilty plea, to withdraw the plea:

Did the motion judge err in dismissing the appellant’s motion to withdraw his guilty plea?

[23] The appellant submits that he was not manipulating the system in seeking to withdraw his guilty plea on the question of first degree murder. The trial judge erred in saying this and this view coloured his approach to the question.

[24] The appellant suggests that his plea was in fact involuntary because he panicked when told by counsel he would likely be found guilty. Even if the plea was voluntary and informed, there is still a residual discretion to strike the plea and that discretion should have been exercised in favour of the appellant. In the circumstances there was a miscarriage of justice. Had the motion judge given effect to the appellant’s request to withdraw his guilty plea, the appellant would have been in the situation where he faced greater jeopardy because he would have been tried for first degree murder. The motion judge should have taken this unique circumstance into account and weighed it in assessing the appellant’s credibility. Given the seriousness of the offence, the appearance of fairness would have been best served by allowing the appellant to withdraw his plea and to have a trial.

[25] The trial judge found the appellant’s plea to be voluntary, unequivocal, and informed. There was nothing qualified about his guilty plea. He was represented by Mr. Struthers, who was experienced counsel, and whom the trial judge found to be honest, credible, and reliable.

[26] The appellant’s guilty plea was not a last-minute, panicked decision, but the result of measured negotiations between him and Mr. Struthers, which began early in their relationship and continued over five days leading up to the plea. The testimony of Mr. Struthers at the motion hearing, coupled with the appellant’s written instructions confirming his intention to plead guilty to second degree murder, show that the plea was valid. The motion judge’s comment that the appellant was attempting to manipulate the system does not taint his conclusion.

[27] The appellant has failed to discharge the heavy burden of proving that his plea was somehow deficient. The appellant’s appeal from conviction based on his submission that his guilty plea should be set aside is dismissed.