Edelmann & Co. appealed the decision in R. v. Wong, 2016 BCCA 416 to the Supreme Court of Canada to seek clarification in the law on the test to withdraw a guilty plea for an accused who was not properly informed of consequences flowing from that plea – like deportation. The law on this issue had developed differently in provinces across Canada. In British Columbia the appellate court had held a person must demonstrate they would have a viable defence in order to withdraw their plea.
The Supreme Court clarified that for a guilty plea to be informed, defence counsel and trial judges must inform individuals of direct state-imposed consequences, like deportation, that flow from their plea. The accused need not show a viable defence to the charge and requiring them to do so is antithetical to the presumption of innocence. To that end, the accused must file an affidavit establishing a reasonable possibility that he or she would have either (1) opted for a trial and pleaded not guilty, or (2) pleaded guilty, but negotiated different conditions.
Most criminal cases are resolved by way of guilty plea. For the justice system to function, it is important that guilty pleas be final when they are entered. However, this is unjust when a guilty plea is made by an accused who is not fully informed of the consequences. This decision confirms that someone can withdraw a guilty plea by showing they did not have legally relevant information of a state-imposed consequence that would flow directly from their plea, and they would have done something differently if they had that information.
The Court found that the consequences to the Appellant in this case however, could be remedied by way of a sentence appeal and dismissed the appeal.