ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING (Respondent)
— AND —
AHMED ISSAK-HUSSEN (Applicant)
Ruling on Application to Strike the Guilty Plea
Before Justice Davin M.K. Garg
Heard June 25 and July 9, 2026
Reasons released July 23, 2026
Amber Lepchuk........................................................... counsel for the respondent Crown
Geneviève Eliany........................................ counsel for applicant Ahmed Issak-Hussen
Overview
1The applicant, Mr. Issak-Hussen,1 faces charges arising from two separate incidents: an alleged homicide and a shooting. In December 2025, he was in the midst of a preliminary inquiry on the shooting charges. The parties asked to conduct a judicial pre-trial before me and engaged in resolution discussions. Those discussions culminated in the applicant pleading guilty to two offences: discharging a firearm with intent to endanger the life of unknown persons; and possessing a firearm while prohibited. The resolution contemplated a joint submission on sentence and a stay of the homicide charge upon completion of sentencing.
2The applicant now asks to strike his guilty pleas. He argues that his pleas were neither voluntary nor informed. He says that the pressures surrounding the resolution process deprived him of a meaningful choice and that he pleaded guilty without understanding either the true nature of the charge or the facts that he was admitting.
3A guilty plea marks a turning point in a criminal prosecution. Rather than requiring the Crown to prove its allegations through evidence, the accused admits the facts and accepts criminal responsibility. By pleading guilty, the accused relinquishes fundamental rights, including the right to a trial and to insist that guilt be proven beyond a reasonable doubt. Given these profound consequences, courts must be satisfied before accepting a guilty plea that the decision is voluntary, informed, and unequivocal. Once a finding of guilt has been entered, important interests in finality, stability, and the integrity of the justice system come into play. Yet those interests do not render a guilty plea inviolable. Courts retain the authority to set aside a plea where the accused establishes that it cannot validly serve as the foundation for a conviction.
4For the reasons that follow, I am not satisfied that the applicant has met his burden. Pressures on the applicant did not prevent him from making a conscious and volitional choice to plead guilty. He pleaded guilty to the charges that he expected. He understood the nature of the allegations that would sustain a finding of guilt. The applicant’s guilty plea was sound. There has been no miscarriage of justice. The matter must proceed to sentencing.
Legal Principles
5To succeed on this application, the applicant must establish on a balance of probabilities that his guilty pleas were invalid: R. v. Eizenga, 2011 ONCA 113 at para. 4. A guilty plea is invalid when it lacked the three essential ingredients of being voluntary, informed, and unequivocal. Alternatively, a valid guilty plea can be set aside in the interests of justice to prevent a miscarriage of justice: R. v. McIlvride-Lister, 2019 ONSC 1869 at para. 7.
Voluntary
6A guilty plea was voluntary if it represented an accused’s conscious and volitional decision. An accused need only understand the process, communicate with counsel, and make an active choice. A plea entered in open court with the assistance of counsel is presumed voluntary. That presumption may be rebutted by evidence showing that the accused lacked the capacity to make an active choice, including because of limited cognitive functioning, mental disorder, or significant cognitive or emotional difficulties such as anxiety or depression. Whether the decision to plead guilty was wise, rational, or in the accused’s best interests is not part of the inquiry: R. v. Cherrington, 2018 ONCA 653 at para. 21.
Informed
7A guilty plea was informed if the accused was aware of the nature of the allegations, the effect of the plea, and its criminal and legally relevant collateral consequences. To strike a plea on the basis it was uninformed, an accused must establish both that they were unaware of information necessary to enter an informed plea and that the lack of that information resulted in subjective prejudice amounting to a miscarriage of justice. Subjective prejudice is established by demonstrating a reasonable possibility that, had the accused been properly informed, they would either have pleaded differently or would have pleaded guilty on different terms. In assessing that claim, the court may look to objective contemporaneous evidence: R. v. Wong, 2018 SCC 25 at paras. 3-6, 33-35; R. v. Espinoza-Ortega, 2019 ONCA 545 at paras. 34-36; Cherrington at paras. 23-24.
Unequivocal
8A guilty plea was unequivocal when the record demonstrates the accused’s clear and unqualified admission of guilt. The issue is whether the accused accepted the essential legal elements of the offence. A plea can be equivocal where it was confusing, qualified, modified, or uncertain. The inquiry focuses on whether the plea proceeding, viewed as a whole, discloses any genuine uncertainty about the accused’s intention to plead guilty and acknowledge criminal responsibility: R. v. Azzam, 2022 ONSC 834 at para. 23.
Miscarriage of justice
9Even when a guilty plea was voluntary, informed, and unequivocal, the court can set it aside to avoid a miscarriage of justice. In most cases, a court has intervened where a basis had been shown to cast doubt on the accused's factual guilt or the reasonableness of the conviction: see R. v. Hanemaayer, 2008 ONCA 580 at paras. 17-20 (“…proves beyond doubt that the appellant did not commit the offences to which he pleaded guilty”); R. v. Kumar, 2011 ONCA 120 at para. 34 (“…the conviction was unreasonable”); R. v. Shepherd, 2016 ONCA 188 at paras. 14, 20 (“…the conviction recorded on that basis [cannot] be considered reasonable or supported by the evidence”).
10The power to strike a plea to avoid a miscarriage of justice is informed by the well-recognized reality that innocent people sometimes plead guilty. A plea may be motivated by considerations wholly unrelated to actual culpability, including pressure, vulnerability, detention, deficient legal advice, or a perceived need to avoid more serious consequences. For example, a “deal offered by the prosecution may create an unhealthy and coercive disparity between the sentence on a plea and the likely sentence after trial”: McIlvride-Lister at para. 59. The law therefore does not treat a guilty plea as conclusive proof of guilt. Even where a plea was voluntary, informed, and unequivocal, the court retains the residual authority to intervene where necessary to prevent a miscarriage of justice, including where there is reason to question whether the conviction accurately reflects the accused’s factual guilt: McIlvride-Lister at paras. 57-61.
11Innocence is not always a pre-condition to striking a plea to avoid a miscarriage of justice. This is especially the case when the accused has not yet been sentenced and is looking to have a trial. The question becomes whether the accused pleaded guilty despite believing that they were innocent. It does not follow, however, that a plea will be struck whenever an accused asserts post-plea innocence. Something more than bald assertions of innocence will be required: McIlvride-Lister at paras. 69-78.
Procedural History
12I will briefly summarize the procedural history:
April 12, 2024: The applicant was charged in relation to the shooting, with an offence date of November 14, 2023. He has been in custody since his arrest.
September 11, 2024: The applicant and a co-accused were charged with first-degree murder in relation to a separate and unrelated incident.
December 9, 2025: The applicant commenced a 3-day preliminary inquiry for the shooting charges before Justice Gee.
December 10, 2025: The preliminary inquiry was not scheduled to proceed. His lawyer (not Ms. Eliany) visited the applicant at the jail. He signed handwritten instructions rejecting the Crown’s plea offer and directed a counter-offer.
December 11, 2025: The preliminary inquiry continued before Justice Gee. The parties also conducted a judicial pre-trial before me.
December 12, 2025: The preliminary inquiry was set to continue. Resolution negotiations continued as well. The applicant met with his family to discuss resolution, followed by further discussions with his lawyer. The applicant then signed typed instructions indicating his decision to plead guilty. The applicant pleaded guilty before me to discharging a firearm with intent to endanger the life of unknown persons and possessing a firearm while prohibited. The applicant was remanded to December 18 to set a sentencing date.
January 2026: The applicant raised concerns with his lawyer about the validity of his plea.
February 6, 2026: The lawyer was removed from the record.
February 10, 2026: The preliminary inquiry for the homicide case was set to begin, but the dates were vacated.
Analysis
13I will analyze each route to striking a guilty plea.
The plea was not involuntary
14The applicant’s voluntariness argument largely depends on accepting his account of the pressures that surrounded the guilty plea. If I accepted that evidence, particularly his claim that his lawyer threatened to remove herself from the record and that he was compelled into a family meeting, his claim would have more force. However, I do not accept important parts of his evidence, which significantly undermines the factual foundation of his claim that he was deprived of the ability to make a voluntary choice to plead guilty.
15I have certain credibility and reliability concerns with the applicant’s account that leads me to reject parts of his evidence:
(a) I do not accept the applicant’s chronology of events on December 12. If this discrepancy were limited to the sequence of events, it might be a minor reliability concern. However, it bears on his credibility because I find that the chronology was reconstructed in a way that exaggerated the pressure he faced. According to the applicant, he left the meeting with his family and “came back up to court”, where he pleaded guilty while experiencing what he described as an “out of body experience”. I do not accept that account. The evidence2 establishes that additional events occurred between the family meeting and the plea, including further discussions with counsel and continued negotiations regarding the terms of the resolution. By placing the family meeting almost immediately before the plea, the applicant overstated both the immediacy of that pressure and its connection to his decision to plead guilty.
(b) It went unchallenged that the applicant told his lawyer after pleading guilty “you just won a homicide, this is going to go viral”. I am mindful that the applicant was not given an opportunity to explain in these proceedings what he meant by that remark. Nevertheless, I find it significant that, in the immediate aftermath of the plea, the applicant did not express objection, confusion, or dissatisfaction with what had occurred in court. Instead, his comment reflected the perceived strategic consequences of the resolution.
(c) The applicant gave incredible testimony when asked about the facts that he had admitted during the guilty plea. The Crown asked straightforward questions about his intent based on facts that he had previously acknowledged. On multiple occasions, the applicant responded that he did not understand the Crown’s question. His professed lack of understanding was not genuine. The applicant understood what was being asked of him but was reluctant to provide an answer that might undermine his position. He demonstrated a willingness to claim confusion or misunderstanding when he perceived it was advantageous to him.
16Consequently, I do not accept that the circumstances surrounding the plea were entirely as described by the applicant. I specifically reject his evidence that his lawyer repeatedly threatened to remove herself from the record if he insisted on proceeding to trial. A detained accused facing serious charges might reasonably experience profound coercive pressure if the lawyer entrusted to protect their interests—their ally in the litigation—threatened to leave them without representation. However, I do not accept that any such threat was made. I find that the possibility of the lawyer getting off the record arose only after the plea had been entered.
17Rather, I accept the lawyer’s evidence on this issue. Her account is both credible and inherently more plausible. She was prepared for the preliminary inquiry and there is no sound basis to question her performance during it. Nor do I accept the suggestion that she wished to avoid taking the matter to trial. Although she was not on Legal Aid Ontario’s Extremely Serious Matters panel at the time of the preliminary inquiry, she expected to be approved before trial. Indeed, she has since been approved—well before the co-accused’s trial is scheduled to begin. She had no apparent incentive to pressure the applicant into pleading guilty. She had thorough written instructions protecting her if a trial did not end in the applicant’s favour. There was no reason for her to resort to the coercive tactic alleged by the applicant. I reject the claim that she threatened to abandon her client if he insisted on proceeding to trial.
18Furthermore, I reject the applicant’s evidence that he was placed into the meeting with his family against his wishes. I again accept the lawyer’s evidence on this issue. She would not have asked his family to come if he was refusing to speak with them. Her testimony that the meeting required advance arrangements, including securing an appropriate space within the courthouse, was both logical and persuasive. It is unlikely that the lawyer would have undertaken those efforts if her client had objected to meeting with his family. I find instead that the applicant agreed to the meeting.
19Applicant’s counsel raises how the lawyer failed to produce one set of instructions on request in advance of her testimony. This omission was made relevant given the applicant’s position that he also signed written instructions on the morning of December 12 rejecting the Crown’s offer—instructions that I have not seen. The absence of these instructions, while unfortunate, does not alter my analysis. I accept that the applicant received multiple resolution offers and consistently rejected them. But I also find that he actively participated in the resolution process by directing counter-offers.
20The question is not whether the applicant was under pressure. He plainly was. The question is whether the pressures were sufficiently coercive to deprive him of the ability to make a voluntary choice. In my view, they were not.
21The applicant faced considerable pressure in the days leading up to the plea. Resolution discussions continued while the preliminary inquiry was underway. The deadline attached to the Crown’s offer was rapidly approaching. The applicant’s family was concerned about the jeopardy he faced and the consequences of rejecting the offer. I accept that they, including his sister Juweira, conveyed those concerns to him. The applicant was confronting the possibility of the most severe sentence known to Canadian law if convicted of first-degree murder at trial.
22Those circumstances undoubtedly made the decision about whether to plead guilty difficult. However, they do not establish that the applicant lacked the capacity to make an active and voluntary choice. The applicant has failed to demonstrate that his will was overborne when he reviewed and signed the written instructions memorializing his decision to plead guilty, pleaded guilty in open court, and admitted the facts necessary to support the plea.
23The decision on whether to plead guilty is seldom made in comfortable circumstances. An accused must often choose between imperfect alternatives while facing serious jeopardy, uncertainty, and the prospect of significant consequences. The law therefore recognizes that pressure, anxiety, and emotional strain are inherent in many guilty pleas: R. v. Krzehlik, 2015 ONCA 168, at para. 35. It is not enough for an accused to establish that such pressures influenced their decision or made the choice more difficult. Rather, they must establish that their “emotions reached a level where they impaired [their] ability to make a conscious volitional choice”: R. v. T. (R.), 1992 CanLII 2834 (Ont. C.A.), 10 O.R. (3d) 514 at 520; see also R. v. Debouk, 2025 ONCA 427 at para. 8.
24The applicant has not met that standard. I reject that he relented in the face of persistent badgering or that his will was overborne by the resolution process. Rather, he remained an active participant in the negotiations throughout. The evidence shows the applicant directing his lawyer to advance counter-offers, even when she advised that the Crown or the court was unlikely to accept his position. This evidence is difficult to reconcile with his testimony that his lawyer would not take no for an answer.
25The authorities relied upon by the parties reinforce my conclusion. Similar to R. v. Ostashkov, 2024 ONCA 826, at para. 4, I accept that familial pressure may have played some role in the applicant’s decision-making. However, I do not find that it deprived him of the ability to make a conscious and volitional choice. Meanwhile, the circumstances in R. v. Carty, 2010 ONCA 237 show how pressures encumber many accused persons who plead guilty. The accused in that case was 21 years old, in custody for the first time, struggling with incarceration, facing a serious assault charge for which his lawyer advised that no viable defence existed, and had no realistic prospect of release. His lawyer did not encourage him to go to trial and thought a guilty plea was in the accused’s best interests. The accused told the trial judge that his decision to plead guilty was “not entirely” free from pressure. The Court of Appeal accepted that he was under considerable pressure but held that those circumstances did not deprive him of the ability to make a voluntary choice: paras. 34, 36-37.
26In sum, I am sufficiently confident that the applicant expressed his true and conscious wishes when he signed the lawyer’s detailed final written instructions indicating that he wished to plead guilty. The same applies to when the court asked, “Whose decision is it to plead guilty today?” and the applicant replied, “Mine, Your Honour”.
The plea was not uninformed
27The applicant argues that his guilty plea was uninformed because there was confusion over which charge he would plead guilty to and he never reviewed the facts that he would admit to support a finding of guilt. I have concerns that best practices were not followed in this case. Nevertheless, I am not satisfied that the applicant has shown that his plea was uninformed.
28Before analyzing the two paths that the applicant advances to argue that his plea was uninformed, I will briefly address the evidence of his sister. I place no weight on her evidence as it relates to whether the applicant was uninformed. Her evidence was too vague and imprecise to assist on that issue. She was not present for the final discussions between the applicant and his lawyer, nor for the review and execution of the written instructions. At its highest, her evidence reflected her own impressions of what was occurring and her expectations about the resolution process. It did not provide a reliable basis from which to determine whether the applicant’s understanding of the plea differed from what transpired in court.
The charge
29The applicant’s position is that he misunderstood which discharge firearm offence formed part of the resolution. He believed that he would be pleading guilty to “discharge firearm” or “reckless discharge”, rather than discharge firearm with intent. More specifically, he claims that he expected to plead guilty to count 6 on the information, “intentionally discharge a firearm into a place … knowing that or being reckless as to whether another person was present”. Instead, he pleaded guilty to count 1, “discharge a firearm with intent to endanger the life of unknown persons”. For simplicity, I will refer to the former as “discharge with recklessness” and the latter as “discharge with intent”.
30The most significant fact in the applicant’s favour is the ambiguity in the written instructions. On December 10, the applicant signed written instructions rejecting the Crown’s offer and directing a counter-offer. The lawyer described the offence simply as “discharge firearm”. That naming convention continued into the written instructions from December 12, which memorialized the applicant’s decision to plead guilty. For example, on the last page, it reads:
My instruction to counsel is to ACCEPT a plea to discharge firearm and breach of prohibition for 6.5 years less Summers credit. [underlining added]
31Despite the loose language, I do not accept that the applicant was under any confusion or misapprehension during the negotiations or at the time that he entered his plea. I outlined earlier my concerns with the applicant’s credibility. Those concerns apply here too. They lead me to reject the applicant’s evidence that he believed that he would be pleading guilty to discharge with recklessness or anything short of discharge with intent.
32The guilty plea proceedings support that the applicant was informed. In chronological order:
(a) His lawyer told the court that the applicant would be entering a guilty plea to count 1, and that the applicant accepted the Crown could prove the essential elements of count 1. The applicant said that he agreed with his lawyer’s comments.
(b) During the plea inquiry, the court asked the applicant, “You're prepared to admit that you discharged a firearm with intent to endanger the life of - of people?” [emphasis added]. The applicant responded, “Yes, Your Honour”.
(c) The applicant indicated that he did not have any questions before proceeding with the arraignment.
(d) The applicant was arraigned. The charge was read to him: “did discharge a firearm with intent to endanger the life of unknown persons” [emphasis added]. The applicant responded “Guilty”.
(e) Because the applicant was soft-spoken, the court asked him to confirm whether he pleaded guilty at the end of the arraignment. The applicant confirmed his plea.
(f) The Crown read out the facts in support of the plea. The facts included comments attributed to the applicant that demonstrated his intention. When asked by the court if he admitted the facts, the applicant responded, “Yes, Your Honour”.
33While the applicant typically gave short answers, he nevertheless demonstrated that he was capable of asserting himself when something required clarification. On two occasions, he got the court’s attention and requested an opportunity to consult with his lawyer. Those interventions show that he was not a passive participant in the proceedings. The applicant had the capacity to speak up if anything from the above chronology confused him or was inconsistent with his expectations. The applicant is articulate and familiar with courtroom proceedings. I do not accept that he was incapable of expressing confusion or seeking clarification about matters that were important to him.
34An important issue concerns the purpose of the applicant’s two consultations with his lawyer during the plea proceedings. I do not accept the applicant’s evidence that he used those discussions to express general confusion about the offences to which he was pleading guilty. Rather, I find that any uncertainty was confined to the second offence on the guilty plea, namely possession of a firearm while prohibited.3 This conclusion is supported by the timing of the consultations. Each occurred immediately after proceedings directly relating to that second offence. It is also supported by the lawyer’s contemporaneous comments to the court during the plea, which identified the issue as confusion about what “item” caused the discharge. That explanation is consistent with a question relating to the possession count and inconsistent with the applicant’s claim that he was confused about the discharge with intent offence more broadly.
35I find that the applicant and the lawyer only ever discussed a guilty plea to the offence of discharge with intent. In his affidavit, the applicant acknowledged having “a lot” of discussions with his lawyer about what kind of discharge offence would form part of a plea. In cross-examination, he went further and testified that he specifically asked her whether he was pleading guilty to discharge with intent and she told him he was not. I do not accept that evidence. If true, it would mean that the lawyer either misunderstood the very charge that formed the basis of the proposed resolution or misled her client about it. Neither proposition is supported by the evidence.
36The contemporaneous record demonstrates that the lawyer understood the offence precisely. In Exhibit 4, she proposed to the Crown a plea “to the discharge firearm with intent” offence. Likewise, the written instructions of December 12 appended the Crown’s email identifying the proposed offence by its Criminal Code section number (s. 244). To be clear, neither document assists in determining what the applicant himself understood. He was not privy to the Exhibit 4 email, and I would not expect a non-lawyer to distinguish offences by section numbers. However, the documents are relevant to whether the lawyer was confused about the charge. I am satisfied that she was not. That, in turn, supports her evidence that her discussions with the applicant concerned the discharge with intent offence.
37Applicant’s counsel pointed to one portion of the lawyer’s testimony where she initially referred to the s. 244 offence as “the reckless discharge of a firearm” before immediately correcting herself. I attach little weight to that fleeting misstatement. She recognized the error without prompting and then correctly identified the offence as discharge with intent. I am satisfied that she simply misspoke while testifying more than six months after the events in question. I do not regard that exchange as evidence that she was confused about the charge at the material time.
38This issue likely would have been avoided had the written instructions identified the offence with greater precision. Precision was warranted in this case because there were two discharge offences on the information. However, the issue is not whether the applicant was uninformed or misinformed about the charge to which he pleaded guilty. I accept the lawyer’s explanation that she used abbreviated language because the resolution discussions were always directed at what she described as the “leading” count and that discharge with recklessness was never part of those discussions. As she explained, “We’ve never discussed reckless at all”. The shorthand references in the written instructions reflect the reality that the discussions between the applicant and the lawyer had consistently centred on a plea to the offence of discharge with intent.
39Taking the evidence as a whole, I am not satisfied that the applicant lacked awareness about the charge to enter an informed plea. I reject his evidence that he misunderstood the offence to which he pleaded guilty. The more convincing inference is that he did not raise any concern during the plea proceedings because the offence identified during the plea was the same offence that had been discussed throughout the resolution process.
The facts
40The second path to the claim of an uninformed plea is that the applicant did not know the facts that would sustain a finding of guilt. There is no dispute that the applicant and his lawyer did not review a discrete document setting out the precise facts that the Crown intended to read into the record and that the applicant would be asked to admit.
41In the circumstances of this case, that was not ideal. An agreed statement of facts would have been appropriate. In many guilty pleas, especially those that fill a busy docket in guilty plea court, such a step is unnecessary and often impractical. This case was different. The charges were extraordinarily serious. The proposed resolution was intertwined with a homicide prosecution and carried significant consequences for the applicant. In those circumstances, it would have been preferable had the applicant not heard the precise collection of facts for the first time during the guilty plea proceeding.
42Nevertheless, the question is not whether the process could have been better. The question is whether the test for an uninformed plea has been met. It has not.
43For a plea to be informed, an accused must be aware of “the nature of the allegations”: R. v. Hummer, 2026 ONCA 185 at para. 21. The inquiry does not turn on whether the accused knew in advance the exact facts that the Crown would read out. It turns on whether the accused understood the nature of the allegations that would ground the admission of guilt.
44The applicant understood the nature of the allegations well before the guilty plea. He confirmed that he reviewed the disclosure. He was nearing the conclusion of a preliminary inquiry on the very offence to which he ultimately pleaded guilty. I accept the lawyer’s evidence that she reviewed the Crown’s s. 540(7) materials with him, page by page, including the synopsis.4 Although those materials were not entered as exhibits on this application, the only reasonable inference is that they related to the charges of the preliminary inquiry and therefore the nature of the allegations. I also accept the lawyer's evidence that she advised the applicant that the facts supporting the plea would be drawn from the evidence elicited during the preliminary inquiry.
45The applicant’s own evidence supports that proposition. The factual basis for the plea included statements attributed to him on intercepted communications in which he claimed responsibility for the shooting. The applicant acknowledged that he had listened to those wiretaps when they were played during the preliminary inquiry.
46It is true that the applicant could not have known exactly which facts the Crown would recite during the plea proceeding. His lawyer advised him that she intended to negotiate a factual narrative that would temper or water down some aggravating features of the case. That raises the question: what is the baseline version of events that would be watered down? What details would be omitted, and which would remain?
47However, that degree of specificity was not required. The evidence establishes that the applicant understood the essential allegations underlying the offences. He heard the preliminary inquiry evidence and knew that the Crown relied on intercepted communications in which he claimed responsibility for the shooting. He would have known that his boasts about the shooting, and his claimed knowledge that people were present at the residence, were relevant to the allegation that he intentionally endangered others. I infer that he understood the central allegation underlying the offences: that he participated in a shooting in which at least 52 shots were fired at the Muhammed family residence, knowing that people were present.
48Taking the evidence as a whole, I am satisfied that the applicant understood the nature of the allegations against him. Although he did not review a finalized statement of the facts before the plea, he had been extensively exposed to the Crown’s theory of the case through disclosure, the s. 540(7) materials, the preliminary inquiry, and his discussions with counsel. He has therefore failed to establish that he lacked “sufficiently serious information” about the facts to enter an informed plea: see Wong at para. 33.
49Given my conclusions that the applicant has not shown that he was unaware of information necessary to enter an informed plea, there is no need to examine the question of prejudice.
The plea was not equivocal
50In view of my findings with respect to the voluntary and informed nature of the applicant’s plea, there is no basis to find that the plea was equivocal. The transcript of the guilty plea proceedings reveals a plea that was decidedly unequivocal: see e.g., Carty at paras. 32-33.
There was no miscarriage of justice
51At the start of the second day of these proceedings, I raised whether the applicant was seeking to strike the plea on the standalone basis of preventing a miscarriage of justice. His counsel advised that this would not be the focus. No submissions were ultimately advanced with respect to a miscarriage of justice.
52I will nevertheless address the issue. Applicant’s counsel repeatedly invited a holistic assessment of the circumstances surrounding the plea. In my view, McIlvride-Lister recognizes that a miscarriage of justice analysis is not confined to rigid categories. Factors that do not establish that a plea was involuntary, uninformed, or equivocal may nevertheless, when considered together, justify intervention.5
53I have considered collectively the factors relied upon by the applicant, including for example the pressures associated with the resolution process, the absence of an agreed statement of facts, and the moments during the plea proceedings where he sought to speak with his lawyer. Considered together, those circumstances do not materially alter my earlier conclusions. I remain satisfied that the applicant made a conscious and volitional decision to plead guilty, understood the nature of the allegations against him, and pleaded guilty to the offences that he expected. The cumulative effect of the circumstances does not reveal any injustice that would warrant setting the plea aside.
54This case does not engage the core miscarriage of justice concern identified in McIlvride-Lister: that an accused may plead guilty, despite believing that they are innocent, for reasons unrelated to their criminal culpability. The applicant was not a passive participant in the resolution process. He advanced counter-offers and continued to negotiate the terms of a potential resolution. I certainly do not suggest that an innocent person would never engage in resolution discussions. Innocent people have pleaded guilty before. However, the evidence shows me that the applicant was keen to achieve a particular sentence. He chose to plead guilty once the negotiations produced a result that he found acceptable.
55To the extent that the miscarriage of justice analysis requires some basis to question the applicant’s factual guilt, or to conclude that he genuinely believed himself to be factually innocent, I find that neither proposition has been established: see McIlvride-Lister at paras. 71-72. There is no basis to doubt the applicant’s factual guilt. His own complaints implicitly acknowledge that he was the shooter. He maintained that he did not know whether he was pleading guilty to discharge with intent or what he described as “reckless discharge”. And he stated in his affidavit that he “wanted the facts to make clear that there was no intent to wound or harm”. Both positions assume his participation in the shooting.
56The applicant in his testimony did not dispute the essential features of the offence. He did not deny his involvement in the shooting. He did not dispute that at least 52 shots were fired at the residence. While he took issue with some of the comments attributed to him on the wiretaps, he did not deny his comment that people were present at the residence having a party. He suggested that he could have assumed that the residence was occupied.
57In those circumstances, there is no basis to conclude that the applicant genuinely believed himself to be factually innocent. Nor is there any basis to question his factual guilt. The only reasonable inference is an intent to endanger life.
58Finally, the Crown fairly recognizes the risks that accompanied the offer to stay the homicide charge in exchange for a guilty plea to the shooting. This was the definition of deep-discount plea bargaining. It ran the risk of the applicant pleading guilty to the shooting solely to eliminate the possibility of a murder conviction and the accompanying jeopardy of a life sentence without parole eligibility for 25 years.
59That risk, however, did not materialize on the evidence before me. The applicant did not rely on it as a basis for establishing a miscarriage of justice, likely because he testified that the prospect of a murder conviction was not what drove his decision-making. He understood that substantial procedural and evidentiary hurdles remained before he could be convicted of murder: “I knew that, you know, I’d have to have a preliminary inquiry, that I’d have to go to trial and all these things, right? So, I knew just because I didn’t take the deal that I wasn’t going to get life in jail, right?” His evidence reflects an appreciation that a plea removed a future risk, but not one that loomed large in his mind.
60Other evidence pointed in the same direction. The applicant’s sister deposed that the applicant “said he had nothing to do with the murder and … did not see [the proposed resolution] as a good deal”. Likewise, the applicant suggested that his lawyer was more concerned about the consequences of a murder conviction than he was. Referring to her repeated warnings about a life sentence, he testified: “What [my lawyer] is saying to me, that is — that doesn’t make sense. She is telling me that I’m going to get life in jail. I have to be convicted to get life in jail, right?” This evidence does not support a finding that the applicant was induced to plead guilty to the shooting by fear that he would be convicted of murder.
61In sum, striking the applicant’s guilty pleas is not required in the interests of justice to avoid a miscarriage of justice.
Conclusion
62The application to strike the guilty pleas is dismissed. The matter shall proceed to sentencing as soon as practicable.
Released: July 23, 2026
Signed: Justice Davin M.K. Garg
Footnotes
- The applicant’s last name was amended on the information to reflect the correct spelling.
- See e.g., the lawyer’s testimony and paragraph 15 of the written instructions from December 12.
- The applicant does not claim that his guilty plea to this second offence contributes to the plea being uninformed. The entire focus on this issue is on the discharge offence.
- Evidence is tendered by the Crown under s. 540(7) of the Criminal Code to establish the case for committal on the offences eligible for a preliminary inquiry. It often obviates the need for certain witnesses to testify.
- In McIlvride-Lister, Pomerance J. (as she then was) explained how a miscarriage of justice occurs where a person, who believes themselves to be innocent, pleads guilty for reasons unrelated to culpability (para. 72). The list of potential reasons is not closed and thus can include factors like pressure and absence of information.