Court File and Parties
COURT FILE NO.: CR-18-00004368-0000 DELIVERED ORALLY: March 26, 2019
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Johnathan McIlvride-Lister Accused
Counsel: Elizabeth Brown, for the Crown Laura L. Joy, for the Accused
HEARD: December 18, 2018 and February 13, 2019
RULING ON APPLICATION TO STRIKE A GUILTY PLEA
POMERANCE J. :
INTRODUCTION
[1] The criminal justice system offers various incentives designed to encourage guilty pleas. The vast majority of criminal prosecutions are resolved this way, often after discussions between the Crown and defence. Negotiated resolutions benefit both parties. Crown witnesses are spared the experience of testifying. There is certainty over a finding of guilt. Accused persons receive mitigating credit for the plea, and, perhaps, other concessions from the prosecution. It has been recognized that plea agreements are “commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large”: see R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 25.
[2] This process works until it doesn’t. Sometimes, the concessions and benefits become too enticing, creating an unhealthy disparity between the outcome of a plea and the likely outcome after a trial. Sometimes, an accused person will perceive that the cost of maintaining innocence is just too high. Sometimes a person will plead guilty for reasons that have nothing to do with criminal culpability.
[3] This presents a vexing problem for the criminal justice system. When a person who is factually innocent pleads guilty to a crime, the result is a wrongful conviction. So too when a person asserts factual innocence, but pleads guilty for purely pragmatic reasons, such as the offer of a deep discount on penalty, the prospect of release from custody, the inability to pay a lawyer for a trial, or other factors unrelated to guilt.
[4] It can be difficult for courts to identify “false guilty pleas”. Such pleas may be valid in the strict legal sense. They may resist exposure through traditional plea inquiries. When a false plea does come to light, the court has a duty to act. Even if the plea is valid – voluntary, informed and unequivocal - it may be necessary to strike the plea to prevent a miscarriage of justice.
[5] This is one of those cases. I will explain why in the reasons that follow.
THE PROCEEDINGS
[6] Johnathan (Casey) McIlvride-Lister wants to strike her guilty plea.
[7] The accused is transgender. In accordance with her wishes, I will refer to her as female.
The indictment
[8] On December 18, 2018, the accused pleaded guilty to one count of sexual assault against A.T. This was one of seven counts on the indictment, all of which concerned the same complainant. The other charges alleged sexual touching, sexual exploitation, assault, threatening to kill or injure animals, and the killing of animals kept by the complainant. The Crown advised that, while the accused was only pleading guilty to one count, the facts on all counts would be read in as aggravating factors. Counsel were going to offer a joint submission for a sentence of three years in jail.
The initial plea inquiry
[9] Before arraignment, I conducted a plea inquiry, asking questions aimed at determining whether the plea was voluntary, that the accused admitted the essential facts, and that the accused understood the nature and consequences of the plea. The accused’s responses led me to believe that her plea was voluntary, that she admitted the elements of the offence, and that she understood the consequences of the plea. On that basis, I directed that she be arraigned and she pleaded guilty to one count of sexual assault.
FACTS READ IN BY THE CROWN
[10] The Crown read in the facts. They may be summarized as follows.
[11] The complainant was placed in a foster home run by the accused’s mother. While there, she met the accused who was then 29 years of age. The accused gave her money and gifts and they developed a relationship. When the complainant turned 15 she went to live with the accused. She was worried that, if she stayed in the foster home, she might become a Crown ward. She did not want that to happen as she wanted to control her own life. She decided to live in the accused’s home so that the Children’s Aid Society would not know where she was.
[12] The accused’s mother reported the complainant missing. The accused was interviewed about the complainant’s whereabouts and lied to the police.
[13] When the complainant eventually turned herself into police, she told them that she was worried about her dog, who was still living in the accused’s residence. This was apparently why she decided to speak to the authorities. The complainant told police that she had been physically and sexually assaulted by the accused while she was living with her. She described non-consensual acts of sexual intercourse that commenced when she was 15 years of age and continued until she was 18 years old. She reported that on three occasions, the accused choked her into unconsciousness. During some of the events, the accused slapped her face or grabbed her throat during acts of intercourse. The complainant reported that, during this period, she was entirely dependent on the accused. She said that she had no identification, no money and no other source of food or shelter.
[14] The complainant told authorities that she was afraid of the accused. This was one of the reasons that she did not leave. She said that he threatened to kill or injure the animals in the house, and actually did kill some of the animals. This caused the complainant considerable fear. She reported that when she tried to assert herself or speak up about the animals, the accused got angry. He would harm the animals and threaten to harm her. She felt that she had nowhere to go.
[15] The facts read by the Crown included detailed, rather gruesome, particulars of how the accused killed certain animals.
[16] The complainant left the residence in June 2017. She went to police in November 2017, telling them that she came forward because she had left a dog at the accused’s residence and wanted to ensure the dog’s safety.
Inquiry on the facts
[17] The following exchange took place immediately after the facts were read in by the Crown:
THE COURT: Mr. Topp, are those facts correct?
MR. TOPP: Yes, there’s no issue. They, they obviously make out count one.
THE COURT: All right. Ms. McIlvride-Lister, please stand for a moment. You’ve heard the facts read by the crown. Are those facts correct?
MR. TOPP: Yes, you have to say yes.
THE COURT: I need, but…
MR. TOPP: Yeah, sorry. I, I wasn’t…
THE COURT: I need her to answer
THE ACCUSED: I don’t understand what I’m agreeing to. Am I agreeing to everything she said because I can’t in good conscience agree to things that never happened.
THE COURT: Well.
THE ACCUSED: Like, I would never hurt an animal, despite what anybody says about me and it just, it goes against everything I believe in and stand for and I don’t like, pleading guilty to something then saying that that all happened, that doesn’t make any sense to me because that’s not true.
THE COURT: Well, if something’s, so let us be clear that if something, if you disagree with something that was read in, into the facts, then you need to let me know that. I wonder if it’s, it’s appropriate to take a brief recess to give you an opportunity to speak with Mr. Topp…
[18] I directed a recess so that the accused could speak to her lawyer. Mr. Topp requested 10 minutes. I told counsel to take the time that was needed. When court resumed, Mr. Topp advised that he and the Crown were “ad idem now”. He advised that his client “does not admit to the harming of the animals” and that “the choking is an issue”, but that the other allegations were admitted. The discussion went as follows:
MR. TOPP: Thank you for that time, Your Honour. I, I’ve spoken with my client. I’ve also spoken with the Crown. I think we’re ad idem now. Um, if I may qualify the facts in this way, my client does not admit to the harming of the animals. That is a major issue in this case for my client and also the choking is an issue. Um, I think my friend is willing to accept those qualifications at this point . . .
THE COURT: Yes.
MR. TOPP: . . .as, as her. . . .
THE COURT: Is there an admission of threatening to harm the animals . . .
MR. TOPP: Yes.
THE COURT: . . .as distinct from actually harming them?
MR. TOPP: Yes, just not harming them.
THE COURT: So, the facts are admitted except, so the facts of non-consensual sexual intercourse. . .
MR. TOPP: Yes.
THE COURT: . . .is admitted and I’ll be asking the accused to confirm this as well. So, the acts of non-consensual sexual intercourse are admitted?
MR. TOPP: Yes.
THE COURT: Threats are admitted?
MR. TOPP: Yes.
THE COURT: Threats to harm the complainant?
MR. TOPP: Yes.
THE COURT: And threats to harm animals?
MR. TOPP: Yes.
THE COURT: But what is not admitted in terms of all of the facts that the Crown read in, actually harming the animals is not admitted?
MR. TOPP: Correct.
THE COURT: And choking the complainant is not admitted?
MR. TOPP: Correct.
THE COURT: What about other acts such as slapping the complainant?
MR. TOPP: I believe that’s admitted, if I may just . . .
THE COURT: Yes.
MR. TOPP: . . .double-check that issue.
THE COURT: Ms. Brown, do you have a copy, a written copy of the facts you read in?
MS. BROWN: It’s from two separate, uh, documents, but I do and I improvised a little bit . . .
THE COURT: Yes.
MS. BROWN: . . . you’ll see.
THE COURT: I, I wasn’t going to ask necessarily that I have them, though that’s of assistance. I wondered if it might assist for the accused . . .
MR. TOPP: The slapping . . .
THE COURT: . . . to have them.
MR. TOPP: . . .the slapping’s admitted.
THE COURT: All right. Um, is there anything else that is not admitted?
MR. TOPP: No, that’s, that’s it, thank you.
[19] I then asked questions of the accused, as set out below:
THE COURT: All right. So, um, I’m gonna ask Ms. McIlvride-Lister if you’d stand. So, I need to tell you that you are under no obligation to admit facts of any kind. It is up to you to either admit or not admit facts based on whether they are true or not. I need to understand from you directly what it is you are admitting. I understand that of the facts read in by the Crown, you do not admit actually hurting any animals. Is that correct?
THE ACCUSED: Yes.
THE COURT: And you do not admit ever choking the complainant?
THE ACCUSED: Yes.
THE COURT: Am I correct, though, that you admit that other facts that were read in?
THE ACCUSED: Yes.
THE COURT: And just to be clear, with respect to some of them, do you admit engaging in sexual activity with the complainant without her consent?
THE ACCUSED: Yes.
THE COURT: Do you admit engaging in sexual intercourse with the complainant without her consent?
THE ACCUSED: Yes.
THE COURT: Do you admit to threatening to harm the complainant and, or animals during the period that she was living with you?
THE ACCUSED: Yes.
THE COURT: And aside from the qualifications relating to not harming animals and not choking the complainant, do you admit all of the other facts that were read in by Crown counsel as true?
THE ACCUSED: Yes.
[20] On the basis of the accused’s admissions, I registered a finding of guilt on the sexual assault alleged in count #1.
SUBSEQUENT EVENTS
[21] After recording the finding of guilt, I directed that a pre-sentence report be prepared. The matter was put over to February 13, 2019 for sentencing. In the meantime, the accused retained a new lawyer, who filed an application to strike the plea. Mr. Topp filed an application to be removed as counsel of record.
[22] When the matter came back before me on February 13, 2019, I directed that there be a hearing on the question of whether the plea of guilt should be struck. The accused testified on her own behalf, and Mr. Topp was called as a witness by the Crown.
THE HEARING TO STRIKE THE PLEA
Testimony of the accused
[23] The accused testified on the hearing to strike the plea. She offered several reasons as to why she ultimately pleaded guilty. One was the prospect of a much reduced sentence. The Crown had offered a sentence of three years on a plea, but was going to ask for 8 – 10 years after a trial. Ms. McIlvride-Lister could not afford to pay a lawyer for a trial. She also understood from her lawyer that she did not have a good chance of success at a trial. She testified that she had always maintained her innocence on the charges.
[24] On the day of the plea, after the accused took issue with the facts, she and her lawyer stepped outside to discuss the matter. She testified that her lawyer told her: “I don’t want you to say anything you didn’t do. We’ll just go to trial”. The accused responded: “Fine. Then let’s go to trial”. When they re-entered the courthouse, the accused had to go through security. By the time she made it back into the courtroom, her lawyer told her that he had gotten the Crown to “dismiss everything about the animals”, and the “choking”. She testified that her lawyer told her “This is the best option. I really think you should take this”.
[25] Her testimony included the following:
At the time I didn’t have $30,000 that my lawyer wanted to go to trial and I didn’t have money to hire a new lawyer. He didn’t seem confident, and told me that he didn’t know whether I – he didn’t think I would win if we went to trial, and that my best option for getting through this and getting on with my life was to just take the deal that they were offering, that I would be out in as little as six months, and I could move on and put this behind me and everything else.
…under pressure of not having time to really be able to consider all this, what do you do when you have a noose around your neck and you feel like you’re being told if you fight this and you lose you’re looking at five to eight years, your life is over, or you take this deal and …you can be out in as little as six months and move on with your life.
I feel stuck in a corner. At the time I did not have options to proceed with another lawyer. How do I go to trial with a lawyer who doesn’t really seem confident that he wants to go to trial at all, or that I’m even going to have a chance at winning my innocence?
He told me we would go to trial. I said: “Okay that sounds good”. We came back upstairs and then he came back and said “This is your best option. I really think you should take it”
The meeting with the probation officer
[26] The accused testified that, on the night before she was to meet with the probation officer who would prepare the pre-sentence report, she spoke to Mr. Topp on the phone. He told her that she had to attend, that she should be polite, but that she could not deny any of the facts. She understood from Mr. Topp that if she denied the facts during the meeting with the probation officer, the deal would “go away”.
[27] On January 21, 2019, the accused met with the probation officer, Erin Kemp. Ms. Kemp prepared the pre-sentence report. The report asserts that the accused “reported minimal responsibility for the offence”. Ms. Kemp reported that the accused said she was guilty of being with the complainant when the complainant was under age. The accused denied making this statement, insisting that she did not admit guilt to anything while with the probation officer.
[28] After the meeting, the accused left Ms. Kemp a voice mail message, asserting her innocence. On January 24, 2019, Ms. Kemp documented the voice mail message in an e-mail sent to both Crown and defence. As she reported:
Client left me a voicemail after our interview indicating that she felt pressured to enter the guilty plea and did not commit the offence. The client did not express this to me during our in person interview. I have suggested to the client that she speak with her lawyer as soon as possible…
Testimony of Defence Counsel
[29] Mr. Topp was called as a witness for the Crown.
[30] He testified that he and the accused first discussed the possibility of a plea at the preliminary inquiry. That day, the Crown offered a joint submission for a three year sentence if the accused pleaded guilty. This offer was contingent on Mr. Topp not asking any questions of the complainant at the preliminary inquiry. Mr. Topp shared the offer with the accused while standing outside the courthouse. He told the accused that “this offer ends the second I ask one single question, so what is it that you want me to do?” The accused responded that he should not ask any questions and that he should continue with resolution discussions.
[31] In total, Mr. Topp met with the accused on nine occasions. Three of those meetings took place between the preliminary hearing and the trial date. Mr. Topp did not recall telling the accused what would happen on a guilty plea, but he testified that “that’s something I always go through”.
[32] Mr. Topp testified that, during this period, the accused was pre-occupied with a number of concerns. The accused was extremely concerned about whether she would be housed in a custodial facility that could accommodate her gender transition. The accused was also concerned because her mother did not know that she was transitioning from male to female, but would find out as a result of the proceedings.
[33] According to Mr. Topp, the accused’s position was “very fluid throughout, including on the date of the plea, December 18th”. As he put it, “the client was wavering”… “unsure but telling me to plead guilty”. He went on to say:
There was a lot going on, because this is not a simple case in the sense that a client comes in, is dealing with the issue of pleading guilty or having a trial. There was also the whole issue about the transformation (sic), if I may. That played a huge role in even the guilty plea discussions because of where the client would serve the sentence and so on. So there was a lot going on.
[34] Mr. Topp did not get any instructions in writing. He described the issues that were of concern on the day of the plea:
Q. And did you confirm those instructions at any point in writing?
A. Never – never – in writing. We spoke at length on multiple occasions. If I can fast-forward to December 18th for a moment, I think it’s an important point. We were going back and forth, and then there was recesses to deal with the facts, and at one point it specifically entered my mind, and I said to Mr. - or sorry, Ms. McIlvride-Lister that - “Should I get this in writing?” We were a little bit rushed getting back up to court. I didn’t - I didn’t get a chance to do it, but I was confident based on our discussions that I wouldn’t need that.
Q. So when you said to Ms. McIlvride-Lister, “Should I get this in writing?”, what if anything did she say?
A. My recollection is of that day that “No, it’s not an issue.” Our relationship was - it’s complicated because it was multi-levelled. We were dealing with not only the charges before the court but, because of where the sentence was gonna be served and all that, there was a lot of different issues, and him about telling his mom about the transformation (sic) and things like that, so....
[35] Mr. Topp described his conversation with the accused about the facts, just prior to the plea, as follows:
A. The client wasn’t willing to accept those facts, and that’s why we went outside to talk about it. At that point when we were outside I said, “If you’re not agreeing to anything, we’re going to put a stop to this”, and - and I mean by that the entire plea, because at this point now I’m getting concerns about everything, based on what the client is saying.
Q. What was she saying?
A. Just - she was scared. She seemed to be resiling from the process per se.
Q. In what way?
A. Well, I explained essentially, “It’s not like let’s make a deal. You can’t say, ‘Okay, we’ll take this word out, we’ll take that word out, and then it’ll be fine.’ If you don’t accept it, we don’t accept it, and we’re gonna go back there and say that.” Then we came back upstairs. At that point in my mind there was an issue, I can tell you that. I wasn’t so confident in the client’s instructions. However, the client talked to me at the counsel table - we were in courtroom number 1, I remember that - and said, “It’s okay, let’s do this” at that point.
Q. So the client said that to you?
A. Yes.
Q. Ms. McIlvride-Lister said that to you?
A. Yes, words to that effect. I’m not saying - but at that point that she wanted to continue with the plea.
Q. Okay. When you say “at that point in my mind there was an issue”, please tell us what you mean by that.
A. Well, just starting at the beginning of this whole process, when I met Ms. McIlvride-Lister, she was Mr. McIlvride-Lister, Johnathan, and then the day of it was Casey.
Q. Mm-hmm.
A. And she had her hair done and everything. It was the first time I had seen her like that, and we had 11 meetings, and these meetings are not short meetings. There truly was a lot going on with Ms. McIlvride-Lister now.
Q. But specific to “there was an issue” on December 18th, what was the issue that you were concerned about?
A. She was more concerned about - I don’t want to use the word “guarantee”, but about where she was going to serve her sentence. There was anxiety towards that, and that’s something we worked out with the court. I made submissions to the court about I was looking into that issue. She wanted me to - and we talked about this on the 18th - say to the court words to the effect, I don’t know if I specifically said it in court because Her Honour was taking this very seriously and respectfully of Ms. McIlvride-Lister. She was worried at some point that because she is now a woman in court this time, if that was - I guess the way to say it, and I don’t think she specifically said these things, was that people would think we were playing a game for sentencing purposes. But that was a big part of it too.
Q. Was there any issue, when you used that word, “at that point in my mind there was an issue”, specifically with the sexual assault guilty plea to that count? Was there any discussion on that day between you and your client, or any issue you were concerned about, regarding that count?
A. At that point I was concerned about everything.
Q. But was there anything specific?
A. Yes.
Q. What was it?
A. Well, she started going back on the facts. The animals was the biggest thing here, was the animals, and that’s why we got sent outside. But then she started talking about the totality of the whole thing and saying it’s, if I can quote, “bullshit”. But, based on our earlier discussions, I felt that still she was accepting of the sexual assault count. But we had a discussion after January 24th that put - or on January 24th that put some of our discussions at the courthouse in context, and she explained it, and it looks like we were talking about different things.
Q. So you say prior discussions, even though on the day of the guilty plea Ms. McIlvride-Lister was saying something about something being “bullshit”, you said prior discussions did what, sorry? You just said that fast.
THE COURT: No, I think it was a later discussion on January 24th put things into context.
MS. BROWN: Q. But prior to that, you said she started talking about the totality of the whole thing, saying it’s bullshit, but prior discussions....
A. She was willing to accept that she had sex with this person under the age of 16, but the surrounding circumstances were the issue.
Q. Okay. And how do you know she was willing to accept that she had sex with this person under the age of 16?
A. Well, specifically I put that to her at the preliminary hearing.
Q. You put that....
A. Proposition and part of the deal was that she would plead to a count of sexual assault.
Q. Okay.
A. So....
Q. And did you have instructions on that?
A. Yes.
Q. Which were?
A. At the preliminary hearing I had instructions, I had instructions specifically to set it for a resolution pre- trial only, and we would go from there. But as she progressed in her transformation (sic), things got a lot more unclear on all – on everything to the point where on December 18th was the first time I saw Johnathan being Casey.
[36] When Mr. Topp received the e-mail message from the probation officer, he directed his assistant to call the accused and have her attend at his office. He described his conversation with the accused that day as follows:
And we went on to talk - I mean, we kept talking about it, and I said, “But we went through this outside very, very clearly. I specifically said to you, ‘If there is anything you do not agree with me, tell me, because I’m going to put a stop to this.’” And she said that - I want to be careful how I phrase this. She said - because she’s talking - looking in hindsight now, just so that’s clear.
Q. Yeah, I understand.
A. That day there was a lot going on. I don’t know what’s going on with - and I don’t want to complicate things, but throughout this process there’s all kinds of different medication. I didn’t see anything that day to make me concerned. She wasn’t intoxicated. She’s never been intoxicated, alcohol or illegal drugs, anything like that. But she was telling me in my office that her meds are essentially, to quote, “screwing with her head”, and that she’s seeing a doctor and she’s diagnosed with depression and anxiety, which I said it could be specific anxiety, because people get that. I do a lot of mental health work about going to jail and things like that, generalized depression.
But she said that she did accept the facts, and she’s sorry that she did that, and when I came - when we came back up to the courtroom and she said, “Let’s do this”, she didn’t believe in her heart that she was doing the right thing, and she should have stood her ground. She was very clear that I didn’t pressure her at all. But we also talked about, and that’s what I alluded to earlier, was that maybe on December 18th we were having two separate discussions.
Q. In what way?
A. Well, in the way that when pressed with anxiety she would agree.
Q. To what?
A. Well, it seems to whatever, because after it was done she was telling me that she didn’t want to accept those facts, but she told me she did. And I was very concerned that, because the pressure that she said she was being put under could only be me, because I’m the only one there, and she specifically said, “It’s not you per se putting the pressure on, it’s just everything.” So that’s why I’m saying it looks like we’re having two separate conversations, because she was pretty clear to me, and I’ve known her for a long time throughout this, and she was no different that day than other days.
Q. Okay. And so when you were downstairs talking on December 18th, and you came back up to the courtroom, what was your understanding of what was going to happen?
A. That those specific facts that the Crown was willing to remove were being removed, and then I also said that “Her Honour’s gonna ask you a lot of questions now, and you be prepared to answer them, and truthfully.”
Q. Truthfully. Also, was there any discussion on December 18th that - other than what you’ve told us about, don’t - the words you used, I won’t go over them - about having a trial?
A. Yes. I’ve said multiple times, “If you don’t agree with this, I’ll have a trial”, and my specific words were, “I can tell your story if you want me to tell your story.” That’s what I kept saying, because I don’t - I’m speaking myself now as the way I practice law. Either you accept the facts, or you don’t and we have a trial. It’s not, “Let’s go see what we can do here, what we can do there.” It’s either, you did it or you didn’t do it.
Q. Okay. And what were your instructions?
A. When? The 18th?
Q. Well, believe you said, “I have said it multiple times. I can tell your story if you want me to tell your story.” What were your instructions to that?
A. They went back and forth.
Q. Okay. How about on the 18th?
A. They went back and forth.
Q. Okay.
A. But...
Q. So what discussions did you have about trial on the 18th?
A. When were outside downstairs I said, “If you don’t accept these facts you’re never gonna get this deal again. We’re going back up there. It’s going to be set down for trial. I will do the trial. That’s fine. But tell me one way or another what you want to do.”
Q. And what were your instructions?
A. They were unclear till we came into the courtroom, and then she said, “Let’s do this.”
THE ISSUES
[37] I must determine whether the accused has established a basis for striking her plea of guilt to one count of sexual assault. I must consider the whole of the evidence, including the testimony on the hearing, and the plea proceedings themselves. I must consider whether the plea was valid in the sense of being voluntary, informed and unequivocal. In this case, given the nature of the evidence and the arguments raised by counsel, I must also consider a second question. Even if the plea is found to be valid, I must consider whether it is nonetheless in the interests of justice to strike the plea, to prevent a miscarriage of justice.
ANALYSIS
Was the plea valid?
The requirements and effect of a valid guilty plea
[38] Guilty pleas carry significant consequences. As it was put by Trotter J.A. in the case of R. v. Lopez-Restrepo, 2018 ONCA 887, at para. 23:
It is well-known that a guilty plea may have profound and far-reaching consequences. A guilty plea involves a broad waiver, sometimes extending beyond an admission of criminal responsibility. In R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), Doherty J.A. said, at p. 519:
A guilty plea is a formal admission of guilt. It also constitutes a waiver of both the accused's right to require the Crown to prove its case beyond a reasonable doubt and the related procedural safeguards, some of which are constitutionally protected: Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 at p. 49, 65 C.C.C. (2d) 65 at p. 74; Brady v. United States, 397 U.S. 742 (1970), at p. 748, Fitzgerald, The Guilty Plea and Summary Justice (1990) at pp. 192-203. [Emphasis added.]
[39] To a similar effect is the majority decision in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 2:
The decision of an accused to plead guilty is plainly significant. By pleading guilty, an accused waives his or her constitutional right to a trial, relieving the Crown of its burden to prove guilt beyond a reasonable doubt. Taking this step is of such significance that it represents one of the very few decisions in the criminal process which an accused must personally take. Indeed, defence counsel are ethically bound to ensure that the ultimate choice is that of the accused.
[40] When guilty pleas are concerned there is a societal interest in finality. Finality is necessary to ensure “stability, integrity and efficiency of the administration of justice”: see Wong, at para. 3. However, the principle of finality must sometimes yield to other factors. In some cases, there will be reason to doubt the validity of the plea. As set out by Doherty J.A. in R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519, a valid plea is one that is voluntary, unequivocal, and informed. A voluntary plea refers to a “conscious volitional decision to plead guilty for reasons which he or she regards as appropriate”: see T. (R.), at p. 520. An informed plea requires that the accused be aware of the nature of the allegations, the effect of the plea, and the consequences of the plea, including collateral consequences. The question is whether it is safe to rely on a guilty plea as a basis for conviction and sentence.
[41] It is not a simple matter to strike a plea of guilt. The onus rests upon the accused to establish that it should be done. Where the issue concerns information about the consequences of the plea, the accused must also establish that the plea would have been different, had the circumstances been known at the relevant time: see Wong, at para. 25.
Was the plea valid in this case?
[42] The Crown argues that the plea entered by Ms. McIlvride-Lister on December 18, 2018 met the test set out in T. (R.) – it was voluntary, unequivocal, and informed.
a. Informed
[43] The plea was informed. There is no suggestion that the accused failed to appreciate the consequences.
b. Voluntary
[44] As for the requirement that the plea be voluntary, I accept that the accused felt pressured by circumstances when she pleaded guilty. However, courts have recognized that pressure alone will not negate the voluntariness of a plea. People usually feel anxiety and pressure when they decide to plead guilty to a crime.
[45] Doherty J.A. put it this way in T. (R.), at p. 253:
In his affidavit the appellant asserts that he was anxious and felt himself under pressure when he entered his pleas. No doubt most accused faced with serious charges and the prospect of a substantial jail term have those same feelings. Absent credible and competent testimony that those emotions reached a level where they impaired the appellant's ability to make a conscious volitional choice, the mere presence of these emotions does not render the pleas involuntary.
[46] Similar comments were made in R. v. Tryron, [1994] O.J. No. 332 (C.A.):
No doubt, the appellant, like most accused, felt various pressures in deciding to plead guilty. In this case the pressures stemmed from the difficult position the appellant had put his sureties (his parents) in as a result of his failure to abide by his bail conditions, the appellant’s incarceration pending trial and the wishes of his co-accused whose immediate fate was tied to the appellant’s willingness to plead guilty by the position taken by the crown during plea negotiations. None of these factors render the appellant’s plea involuntary in the sense that it was rendered under duress or was the product of coercion. The plea was a valid one and should stand.
[47] This principle was also endorsed in R. v. Carty, 2010 ONCA 237, 253 C.C.C. (3d) 469, at paras. 36-37:
The appellant claims in his affidavit and cross-examination that he was coerced into pleading guilty by the circumstances and, to some extent, by the attitude of his trial lawyer. I have no difficulty accepting that the appellant was under pressure at the time. He was 21 years old, and in custody for the first time with no real prospect of release. He was facing a series of criminal charges, one of which was a serious allegation. His lawyer had informed him that he had no defence on that serious charge. These factors no doubt weighed heavily on the appellant’s mind when he was trying to decide what to do.
However, the circumstances in which the appellant found himself were hardly unique, and are shared by many who must decide whether to plead guilty to criminal charges. That decision by its very nature must be made when individuals are under considerable pressure. That pressure is often the product of the grim realization that there is no viable alternative to a guilty plea, and that the consequences of a guilty plea will be immediate, serious and far-reaching. The pressures inherent in the nature and timing of the decision to plead guilty cannot in and of themselves invalidate a guilty plea on appeal. People are capable of deciding what is in their best interests even when they are under considerable pressure and none of the available options are attractive.
[48] The pressures experienced by Ms. McIlvride-Lister were very real. They did not, however, render the plea involuntary. Ms. McIlvride-Lister pleaded guilty for reasons unrelated to guilt, but her decision to do so was the product of a conscious and volitional choice.
c. Unequivocal
[49] Was the plea unequivocal? There was certainly equivocation when the facts were read in, the extent of which was not entirely clear. The accused explicitly denied killing animals, but beyond that, stated that she could not “in good conscience agree to things that never happened”. Her reference to “things” in the plural would indicate that she took issue with more than one factual allegation. According to Mr. Topp, there was equivocation outside of the courtroom, with the accused’s position being “fluid” until such time as she gave him his final instructions. On the other hand, once the accused decided to go ahead with the plea, her admissions lost their equivocal character. She expressly admitted the elements of the offence. Hindsight compels me to acknowledge that my inquiry at that stage might have been more extensive, given earlier events. In the circumstances, there might have been a place for open-ended, rather than leading questions. Be that as it may, the questions, as posed, elicited unequivocal answers.
[50] It is open to argument that the earlier equivocation is, itself, a sufficient basis for striking the plea. If so, that is the end of the matter. I propose, however, to go on and consider the second question, namely, whether the plea resulted in a miscarriage of justice. I will do this for two reasons. First, the earlier equivocation may not suffice for a remedy, given later events. Second, the miscarriage of justice inquiry more accurately captures why the plea in this case should not stand. It allows for a more fulsome and direct exploration of what went wrong in this case.
Should the plea be struck in the interests of justice?
Appellate authority
[51] The Court of Appeal for Ontario has, in various cases, recognized a discretion to receive fresh evidence which explains the circumstances of a guilty plea, and which demonstrates a miscarriage of justice. Where evidence establishes a miscarriage of justice, the plea will be set aside, even if it was valid in the sense of being voluntary, informed and unequivocal.
[52] For example, in R. v. Hanemaayer, 2008 ONCA 580, 239 O.A.C. 241, at para. 17, the late Justice Marc Rosenberg found that the appellant’s plea of guilt was voluntary, unequivocal and informed:
Doherty J.A. further explained that to constitute a valid guilty plea, the plea must be voluntary, unequivocal and informed. There is no suggestion in this case that the appellant’s plea almost twenty years ago did not meet these requirements. While the appellant speaks of advice from his lawyer to plead guilty, the fresh evidence makes clear that in the end the appellant came to his own decision. His plea was unequivocal and he understood the nature of the charges he faced as well as the consequences of his plea.
[53] Nonetheless, Rosenberg J.A. observed that the appellant pleaded guilty due to the “powerful inducement” of a reformatory sentence as compared to six years in the penitentiary. As he explained, at paras. 18-20:
On the other hand, the court cannot ignore the terrible dilemma facing the appellant. He had spent eight months in jail awaiting trial and was facing the prospect of a further six years in the penitentiary if he was convicted. The estimate of six years was not unrealistic given the seriousness of the offence. The justice system held out to the appellant a powerful inducement that by pleading guilty he would not receive a penitentiary sentence.
The fresh evidence proves beyond doubt that the appellant did not commit the offences to which he pleaded guilty. One miscarriage of justice would be compounded by another if this court had no power to intervene. As I have said, the Crown agrees that this is a proper case for setting aside the guilty pleas and entering acquittals.
[54] Justice Rosenberg took a similar approach in R. v. Kumar, 2011 ONCA 120, 273 O.A.C. 130, at para. 34. Mr. Kumar faced a “terrible dilemma”:
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
[55] In R. v. Shepherd, 2016 ONCA 188, the Court of Appeal allowed Ms. Shepherd to withdraw her guilty plea after Rosenberg J.A. granted an extension of time for the appeal. Ms. Shepherd, like Mr. Kumar, was advised by her lawyer that she could not rebut the opinion of Dr. Charles Smith that she was responsible for her stepdaughter’s death. Told that conviction was a certainty, Ms. Shepherd pleaded guilty to manslaughter believing that it was the only way that she could keep her remaining family members together. It was later determined that there had been no criminal wrongdoing in the death of Ms. Shepherd’s stepdaughter. She was fully exonerated by the court in reasons that included the following at paras. 14 and 20:
The justice system held out a powerful inducement to Maria Shepherd to change her plea to guilty of manslaughter. The evidence about cause and mechanism of death, as provided by Dr. Smith, pointed directly at her and at no one else. Efforts to locate a contrary opinion were pursued, but failed. Her conviction on the evidence assembled by the Crown approached near certainty.
Maria Shepherd pleaded guilty on the basis of the cause and mechanism of death advanced by Dr. Charles Smith – a significant blow, indeed a fatal blow to the back of the head while wearing a watch. The fresh evidence has thoroughly discredited that mechanism and cause of death. As a result, the plea of guilty, in our view, can no longer be said to be informed. Nor can the conviction recorded on that basis be considered reasonable or supported by the evidence. There is no demonstrated nexus between Maria Shepherd’s conduct and her stepdaughter’s death. It follows that the plea of guilty entered and the conviction the trial judge recorded must be set aside.
[56] More recently, in R. v. Catcheway, 2018 MBCA 54, the Manitoba Court of Appeal set aside a guilty plea and directed an acquittal after receiving evidence that the accused was in custody at the time of the offence to which he pleaded guilty.
The problem of false guilty pleas
[57] The above cases illustrate, in stark and concrete terms, that innocent people sometimes plead guilty; sometimes in the most serious of cases. It has been suggested that this phenomenon may be even more frequent when the stakes are lower, in cases involving less serious crimes.
[58] There has been increasing recognition of the problem false guilty pleas, stemming from a broader consciousness of, and concern about, wrongful convictions. People who are factually innocent may be motivated or induced to plead guilty for reasons unrelated to culpability. An erroneous plea may flow from incompetent advice, inappropriate pressure, or failure of the court to make the necessary inquiries of the accused person. The accused may have her own reasons for pleading guilty, independent of any negligence or wrongdoing.
[59] Some commentators have expressed concern over deep discount plea bargaining. 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. Likewise, a guilty plea may promise release from custody, a tempting prospect for a detained person waiting several months for a trial. Guilty pleas may be prompted by other factors, such as a desire to protect the family unit, financial limitations, a lack of understanding of the process, or personal vulnerabilities. It has been observed that false guilty pleas may be more prevalent among those who are “marginalized by race, ethnicity, socioeconomic status, intellectual disability or some combination thereof”: see Amanda Carling, “A Way to Reduce Indigenous Overrepresentation: Prevent False Guilty Plea Wrongful Convictions” (2017) 64 CLQ 415, at p. 419.
[60] The point is that a person who is factually innocent may perceive a plea of guilt to be the lesser of the two evils – a choice between a proverbial rock and a harder place. The cost of maintaining innocence – be it financial, emotional, familial, custodial or other – may be seen as too high. As Christopher Sherrin put it in his article “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev Legal Soc Issues 1, at 34:
False guilty pleas are an unfortunate reality of our criminal justice system. It is impossible to know how often they occur but there is good reason to believe they are fairly common. A number of false guilty pleas have been proven, many more have been alleged, and the innocent have a wide variety of understandable reasons for declining to dispute a charge. Perhaps highest on that list of reasons is the desire to avoid the higher penalty that will come with a conviction that seems likely to follow trial.
[61] Some might say that courts should respect the deliberate choice of an innocent person to plead guilty. Some might go so far as to say that the person who pleaded guilty to a crime they did not commit is the author of their own misfortune. However, the matter is not so simple. The decision of an innocent person to plead guilty may flow from impossible dilemmas posed by coercive circumstances. Moreover, to blithely accept false pleas would be to undermine the integrity of our justice system. A guilty plea offered by an innocent person is a wrongful conviction. That, in turn, is an intolerable prospect. “[I]t can never be in a defendant’s interest to be wrongly convicted”: see R. v. Pietrangelo, 2008 ONCA 449, 233 C.C.C. (3d) 338, at para. 6.
[62] In 1993, the Attorney General’s Advisory Committee looked into the plea bargaining process, resulting in the report of The Honourable G. Arthur Martin (Chair), Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Ontario Ministry of the Attorney, Queen’s Printer for Ontario, 1993) [the “Martin Report”]. The Martin Report, while recognizing the utility of plea bargaining, stressed that the integrity of the judicial process must be maintained. The Committee opined that “there can be no ulterior motive of an accused person, even a noble one such as saving a loved one from criminal prosecution” that can justify a false plea.” (p. 295). As explained in the Report at p. 294, the issue goes beyond the interests of an individual accused:
It would be, in the Committee’s view, compromising the integrity of the judicial process to permit a plea of guilty and sentencing to proceed where an accused person is not prepared to acknowledge the central precondition of a plea of guilty, namely his or her guilt. While an accused may have a valid interest in so doing, his or her narrow objectives, while perhaps very important, are not the sole focus of the administration of justice in this respect. As stated by the Supreme Court, the trial judge ought not to permit the integrity of the process over which he or she presides to be compromised.
[63] While the system cannot tolerate the innocent pleading guilty, false pleas can be difficult to detect. Canadian judges conduct plea inquiries, designed to ensure that the accused person understands the nature of his/her guilty plea and its consequences. These inquiries will sometimes expose confusion, misunderstanding, or a failure to admit an essential fact. The inquiry is an important safeguard. However, it only goes so far. It is relatively easy to divine what the “correct” answers are to the court’s questions. The accused will invariably have been asked the same questions by his or her lawyer in the discharge of counsel’s ethical obligations.
[64] Moreover, the traditional plea inquiry does not tend to concern itself with the substantive quality of a guilty plea. This point was made by Healy J. (as he then was) in Khanfoussi c. R., 2010 QCCQ 8687. He observed that the inquiry does not look behind an accused’s statement that the plea is free and voluntary and informed. It does not “ask if the accused was misinformed, or badly advised by counsel, when he made this decision” (para. 6; unofficial translation by Healy J.). It does not ask about the motive underlying the plea of guilt. In the absence of clear doubt, the statement of the accused demonstrates and establishes the validity of the plea. As Healy J. put it in para. 10 (unofficial translation):
There is a paradox with respect to guilty pleas. The Code, abundant jurisprudence and common sense require that the court conduct an inquiry into the quality of a guilty plea. Is this choice free, clear and informed? The importance of this inquiry is obvious given that the accused who pleads guilty waives the presumption of innocence, and full answer and defence, while admitting the truth of the charges against him. But there is nothing in our law that requires proof, not even proof on a balance of probabilities, of the substantive quality of a guilty plea. Of course, a judge may – and must – refuse it if she is not satisfied that a guilty plea is not free, voluntary and informed with a full understanding of the decision. But ultimately the Code, the jurisprudence and daily practice require only the appearance of a guilty plea that is free, voluntary and informed. The law does not require the parties or the judge to examine the accused on the motive or the reasons that might explain a plea. The judge is not required to be persuaded, or to persuade herself, that the accused is pleading guilty with a full understanding of all questions of fact and law that are relevant to resolution of the file. She may reject the plea but she is not obliged to be persuaded of its substantive quality. [Emphasis added.]
[65] False pleas tend to be shielded from scrutiny. It is impossible to know how often they occur.
The Standard Before the Plea Court
[66] The plea court, like the appellate court, has jurisdiction to strike a plea that has resulted, or could result, in a miscarriage of justice: see R. v. W.B., [2001] O.J. No. 587 (S.C.); R. v. K. (S.) (1995), 99 C.C.C. (3d) 376 (Ont. C.A.); R. v. Downes, 2012 ONCJ 45; R. v. Dodge, 2005 NSPC 24, 234 N.S.R. (3d) 85. The onus rests upon the accused to establish that the plea should be set aside.
[67] In the appellate cases cited above, the courts were presented with evidence of actual innocence. While that is obviously a compelling basis for striking a plea, it is not, I suggest the standard to be met in all cases.
[68] In Wong, at para. 23, the Supreme Court of Canada stressed that innocence is not the test when a plea is challenged on procedural grounds:
Parenthetically, we observe that the accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds. “[T]he prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial” (R. v. Rulli, 2011 ONCA 18, at para. 2). Requiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty. An accused is perfectly entitled to remain silent, advance no defence, and put the Crown to its burden to prove guilt beyond a reasonable doubt. It does not make sense to let an accused proceed to trial at first instance without any defence whatsoever, but to insist on such a defence to proceed to trial when withdrawing an uninformed plea. Though the decision to go to trial may be unwise or even reckless, we are not seeking to protect an accused from himself or herself. Rather, we seek to protect an accused’s right to make an informed plea.
[69] The same reasoning must apply where there is an alleged miscarriage of justice. The accused need not demonstrate innocence as a pre-condition for striking a plea.
[70] In this case, the accused seeks to strike the plea before a conviction has been registered, and before a sentence has been imposed. She asks, not that she be acquitted, but that she be given the right to a trial. To require a showing of innocence in this context is to set the bar too high. An accused need not prove innocence at a trial. She should not have to prove innocence to have a trial. Moreover, the issue of guilt or innocence is the very issue to be determined at a trial if the plea is struck. To require a showing of innocence would render the trial superfluous. Worse, it would supplant the trial with a process in which the onus is placed on the accused rather than on the prosecution.
[71] Therefore, the question is not whether the person who offered the plea is actually innocent, or can prove innocence. The question is whether the person who offered the plea believed that she was innocent and pleaded guilty despite that belief.
[72] A belief in factual innocence cannot co-exist with a plea of guilt. Where a person, who believes herself to be innocent, pleads guilty for reasons unrelated to culpability, the result is a miscarriage of justice. The system can only convict and sentence persons who have genuinely admitted guilt, or have been proven guilty by the prosecution. A person who adheres to a belief that they are innocent is entitled to have a trial.
[73] This proposition finds support in authority. In K. (S.), Carthy J.A. ruled that a trial judge ought to have inquired into a plea when it came to light that the accused had emphatically declared his innocence to the authors of pre-sentence reports. In striking the plea on appeal, the court observed that the accused’s “state of mind was induced by his trial counsel and perpetuated by the trial judge who failed to intervene and make inquiry as to the validity of the guilty pleas when he read the pre-sentence reports”. Carthy J.A. sounded a note of caution about the process of plea bargaining, saying:
The system was tilted askew by the simple fact that a person protesting innocence became engaged in plea bargaining.
Plea bargaining is an accepted and integral part of our criminal justice system but must be conducted with sensitivity to its vulnerabilities. A court that is misled, or allows itself to be misled, cannot serve the interests of justice.
[74] In Dodge, the court struck a guilty plea on the basis that the motivation for pleading guilty had nothing to do with actual guilt, noting at para. 16:
This is one of those rare circumstances where the motivation for pleading guilty appears to have had nothing to do with admitting guilt. The absence of an admission of guilt, despite a voluntarily tendered guilty plea, renders the guilty plea unsustainable as a basis for a conviction and sentence. In this case that sentence would be a minimum of one year of incarceration for the S.95(2)(a) offence above. There is a real possibility in this case that if the Accused was convicted based upon his guilty pleas, that it would be a wrongful conviction and thereby a miscarriage of justice.
The interest in finality
[75] I do not suggest that pleas should be struck whenever an accused person asserts post-plea innocence. The realities of a guilty plea may become very tangible when sentence is imposed, or is being served. Valid pleas are not vitiated by disappointment in the outcome or other after-the-fact regret. It is not enough to find that the accused wishes, in retrospect, that he or she had not pleaded guilty.
[76] In Wong, the dissent agreed with the majority that guilty pleas should not be too lightly set aside, noting in para. 65 that “the benefits associated with guilty pleas will be lost and the very functioning of the criminal justice system will be threatened”. This concern has been expressed in various cases. In R. v. Moore, 2004 BCPC 560, the court commented at para. 22:
To permit accused persons to vacillate between claims of innocence, guilt and renewed claims of innocence would cause great mischief. It would create chaos in the criminal justice system if it were permitted to occur regularly because it would interfere with the willingness of Crown to enter into discussions with counsel for the accused surrounding resolution of outstanding charges.
[77] In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J. wrote at p. 372:
Subsequent dissatisfaction with the "way things turned out" or with the sentence received is not, in my view, a sufficient reason to move this Court to inquire into the reasons behind the election or plea of an offender, particularly where there is nothing to suggest that these were anything other than informed and voluntary acts; see, e.g., Antoine v. R. (1984), 40 C.R. (3d) 375 (Que. C.A.)
[78] Where a miscarriage of justice is alleged, the court must consider the whole of the evidence, in assessing whether the plea was based on something other than a genuine acknowledgment of guilt. A plea should only be disturbed in the face of credible and cogent evidence. It will not be a simple matter for an accused person to counter admissions voluntarily offered at the time of the plea. Something more than a bald assertion of innocence will likely be required in most cases. The testimony of counsel who acted on the plea will be important, as will the plea proceedings themselves. Pressures that fall short of negating voluntariness may also be relevant at this stage of the inquiry. The determination is, by necessity, case and fact specific. It engages an element of judicial discretion, but sets a high bar for judicial intervention.
Application to this case
[79] In this case, the accused maintains that the events alleged by the complainant never happened. She testified that she pleaded guilty for a variety of reasons, including the following:
a) The difference between the prosecutor’s position on a plea and the prosecutor’s position after a trial: the Crown agreed to join in a submission for a three year sentence on a plea of guilt; the Crown was going to ask for up to eight years in prison following a trial;
b) The accused’s concern about whether her transgender status would be accommodated in a custodial setting. This was a matter of grave concern to the accused, as was the prospect of her mother discovering that she was transitioning to become a female;
c) The accused’s perception that she did not have the funds to pay for a trial;
d) The accused’s perception that her lawyer believed that she would not likely succeed at a trial;
e) Counsel’s advice that the plea deal was her best option: and
e) The accused’s perception that the deal would no longer be available if she did not plead guilty on the day in question.
[80] There is evidence to support the accused’s testimony. First, while Mr. Topp offered a different account of certain events, his testimony was consistent with that of the accused on key issues, including the fact that, as he put it: “There was a lot going on”. He confirmed that the accused was concerned about many contingencies, including accommodation of her transgender status. He confirmed that the accused was uncertain about whether to plead guilty up until the very last moment before the plea. He confirmed the pressure of the prevailing circumstances and the vulnerability of the accused, perhaps increased by the fact that she was, for the first time, presenting as female in court. He confirmed that he did not cross examine the complainant at the preliminary inquiry, explaining that it was a condition of the Crown’s resolution offer. He confirmed that he believed that the deal offered by the Crown was the accused’s best option.
[81] According to the accused, she always maintained and protested her innocence. According to Mr. Topp, the accused’s position was ever fluid, though she instructed him to consider the plea deal offered by the Crown. I do not see these accounts as inconsistent. The accused was willing to consider the plea deal for fear of facing a lengthy term of incarceration after a trial. The accused was willing to admit certain facts because it was a necessary part of the deal.
[82] The accused’s testimony finds support in the conduct of the plea proceedings, and the expression of concern about the facts. Her reaction would indicate that she was troubled by the plea. So too does the evidence of her voice mail message, left for the probation officer, in which she asserted her innocence.
[83] On the basis of the whole of the evidence, I accept that the accused never wavered from her belief that she is innocent. I accept her testimony that, despite that belief, she chose to plead guilty for reasons that have nothing to do with criminal culpability. In these circumstances, the plea cannot stand.
[84] The Crown may or may not be able to prove Ms. McIlvride-Lister’s guilt at a trial. She will be tried on all seven counts, rather than just one. She will no longer benefit from a joint submission on sentence. She is aware of those consequences. She has chosen to put the Crown to the strict proof of the case against her.
[85] I close with two observations.
[86] The first concerns the Crown’s resolution offer on the date of the preliminary inquiry. The Crown advised that it would be content with a three year sentence on one condition: that Mr. Topp not ask any questions of the complainant in cross-examination. Mr. Topp took this offer to the accused, who instructed Mr. Topp to keep the deal alive. Therefore, Mr. Topp refrained from asking any questions of the complainant during the preliminary inquiry.
[87] I am most uncomfortable with the terms of the “deal” offered by the Crown. I expect that the Crown was concerned about subjecting the complainant to cross examination. However, it would have been preferable to not call the complainant to testify at all. To call the complainant, yet foreclose cross-examination, is to prevent the evidence from being tested in any way whatsoever. In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 63, the Supreme Court of Canada held that an accused’s refusal to be cross-examined on an affidavit reduced it to the status of an unsworn statement:
As Cory J. put it more recently in Osolin, supra, cross-examination “is of essential importance in determining whether a witness is credible” (p. 663). This applies to all witnesses who offer testimony, whether for the Crown or for the defence.
[88] Absent cross-examination, there could be no meaningful assessment of the actual strength of the Crown’s case, or the likely outcome of a contested trial. I question whether it is ever appropriate for the prosecution to hold the ability to test evidence hostage as part of a plea negotiation.
[89] Finally, I note that Daniel Topp is an experienced criminal lawyer in the city of Windsor, who often represents clients hailing from vulnerable and marginalized communities. He is a champion of those he represents. Sensitive to the unique challenges that his clients face, he offers valuable assistance to the court. Mr. Topp took his duties to Ms. McIlvride-Lister very seriously. I accept that he was intent on achieving the best result possible in the circumstances. His candid testimony on the hearing to strike the plea offered valuable insight into the critical and complex dynamics at play in this case.
CONCLUSION
[90] The application to strike the plea is allowed. Ms. McIlvride-Lister’s plea of guilt is set aside, and a trial is ordered on the indictment.
Original signed by “ Pomerance J. ” Renee M. Pomerance Madam Justice Released orally: March 26, 2019
