Accepting a guilty plea

Section 606 of the Criminal Code provides:

 Conditions for accepting guilty plea

 (1.1) A court may accept a plea of guilty only if it is satisfied that the accused
 (a) is making the plea voluntarily; and
 (b) understands
 (i) that the plea is an admission of the essential elements of the offence,
 (ii) the nature and consequences of the plea, and
 (iii) that the court is not bound by any agreement made between the accused and the prosecutor.

 R v Lewis, 2012 SKCA 81 considers the section and, in setingt aside two of five guilty pleas writes:

 [18]  Trial judges are granted a great deal of discretion to manage the process leading to the taking of a guilty plea.  See: s. 606(1.2) of the Criminal Code; Thibodeau v. The Queen, 1955 CanLII 57 (SCC), [1955] S.C.R. 646; R. v. Adgey, 1973 CanLII 37 (SCC), [1975] 2 S.C.R. 426; R. v. Arcand, 2000 SKCA 60 (CanLII), 2000 SKCA 60, 199 Sask. R. 4 at para. 3; R. v. Leonard, 2007 SKCA 128 (CanLII), 2007 SKCA 128, 307 Sask. R. 140 at paras 17-19;  Eide, supra at paras. 7-8; and E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed., vol. 1 (Toronto, Ont.: Canada Law Book, 2011) at §14:2080 and following. 

 [19]  In this case, however, cause for concern arises at several points in the process.  No attempt was made to comply with s. 606(1.1) when the plea was taken.  No inquiry of any sort was conducted to determine whether the plea was voluntary, unequivocal or informed.  The accused entered one guilty plea to all charges without any facts having been presented to the Court at any point prior to the guilty plea being registered.   

[20]  The plea was entered in a context of confusion where the record indicates that there was going to be a discussion about the waiving of the charges to Saskatoon, which discussion did not take place.  The charges include multiple weapons offences addressing the same facts, which may have contributed to the confusion.  The accused had recently been remanded for mental health issues.  

 [21]  To put the matter in context, the accused went from discharging his lawyer because he was not prepared to plead guilty—to pleading guilty in less than five minutes. Following his guilty plea, at all subsequent hearings the accused expressed his belief he had not entered a plea.   The expungement hearing could have remedied the matter, but not having the benefit of transcripts, the trial judge appears to have overlooked several salient features of this case.  

 [22]  Then, when the facts were finally read to the Court at the time of sentencing, Mr. Lewis disputed them.   Since the gun was not drawn when Mr. Lewis was by the car, or when he was arrested by the police five minutes later, and Mr. Lewis gave an alternative explanation for his presence by the car, the charges under ss. 334(b) and s. 88 of the Criminal Code were called into question.  Indeed, the Crown’s version of the facts in relation to those charges seemed to support Mr. Lewis’s explanation.  In such circumstances, the Provincial Court judge should have at the very least asked Mr. Lewis if he wanted to withdraw his plea and enter a plea of not guilty in relation to those charges, see: Ewaschuk, supra at §18:1065 (vol. 3); R. v. Fraser and Louie, reflex, [1972] 2 W.W.R. 248, 5 C.C.C. (2d) 439 (B.C.C.A.); Adgey, supra at 429-30 endorsing the reasoning of Cartwright C.J.C. in Brosseau v. The Queen, 1968 CanLII 59 (SCC), [1969] S.C.R. 181 at 188-90; and R. v. Hughes 1987 ABCA 69 (CanLII), (1987), 76 A.R. 294 (C.A.).  Instead, the trial judge resolved the disagreement by relying on Mr. Lewis’s record as the basis for concluding that he could not be believed.