Wednesday, April 30, 2014

A guilty plea does not ALWAYS reflect an agreement to actually committing the offence

{But note it is unethical for counsel to assist in the making of a guilty plea where an accused does not accept actual guilt - RPC 5.1-8(c))

Kumar, 2011 ONCA 120:

 [34]         As this court explained in R. v. Hanemaayer, (2008), 234 C.C.C. (3d) 3 and R. v. T. (R.) (1992), 10 O.R. (3d) 514, even though an appellant’s plea of guilty appears to meet all the traditional tests for a valid guilty plea, the court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the guilty plea and that demonstrate a miscarriage of justice occurred.  In our view, this is one of those cases.  The circumstances are compelling.  At the time he pleaded guilty, the appellant was facing a charge of second degree murder.  He was relatively new to Canada and was unfamiliar with the language and the legal system.  At the time of the infant’s death, his wife had just returned from hospital after major surgery for a brain tumour.  He was facing loss of his liberty for at least ten years, loss of custody of his remaining child and  deportation.  Competent counsel had been unable to obtain opinion evidence to refute the opinion of the then leading expert in the province that the appellant had intentionally caused the death of his child.  Like in Hanemaayer, the appellant faced a terrible dilemma.  The justice system now held out a powerful inducement: a reduced charge, a much-reduced sentence (90 days instead of a minimum of ten years), all but the elimination of the possibility of deportation, and access to his surviving child.  Given the persuasive value of the fresh expert evidence that shows that the conviction was unreasonable, this is a proper case to set aside the guilty plea to avoid a miscarriage of justice.

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