{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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