Court of Appeal for Ontario

Date: 2025-10-20

Docket: COA-24-CR-0445

Judges: Gillese, Zarnett and Thorburn JJ.A.

Between

His Majesty the King Respondent

and

Terry Lynn Bardwell Appellant

Counsel

Terry Lynn Bardwell, acting in person

Ian Bell, for the respondent

Heard: October 7, 2025

On appeal from the conviction entered by Justice Nicole E. Redgate of the Ontario Court of Justice, on January 18, 2023.

Reasons for Decision

A. Overview

[1] The appellant, Ms. Bardwell, pleaded guilty to possession of cocaine and methamphetamine for the purpose of trafficking, and possession of a concealed weapon. Ms. Bardwell appealed both her conviction and sentence. The sentence appeal was heard and dismissed by this court in December of 2024.

[2] These reasons relate to the conviction appeal.

[3] Ms. Bardwell appeals her conviction resulting from a guilty plea. She claims her guilty plea was invalid as it was not voluntary, unequivocal, and informed. She also alleges ineffective assistance by the lawyer she retained to bring an application to strike her plea, on the basis that counsel (1) failed to assist her in striking her plea; and (2) failed to oppose the Crown's request for a no-contact order between herself and her co-accused, Brendan Hitchcock-Hearst. Duty counsel did not offer to assist with this appeal.

[4] Ms. Bardwell was asked but declined to make oral submissions in respect of her appeal. The Crown then made submissions, after which the court invited Ms. Bardwell to respond to the Crown's submissions. She again chose not to make any oral submissions. The court registrar confirmed that she was in attendance over the telephone when these invitations were made.

[5] In this case, the police conducted surveillance of Ms. Bardwell over several days. She was arrested leaving a motel and was found in possession of 67.73 grams of cocaine, 8.58 grams of methamphetamine, and a collapsible baton.

B. The Decision to Enter a Guilty Plea

[6] After charges were laid, the Crown had several discussions with Ms. Bardwell about entering a guilty plea.

[7] During a break in the preliminary hearing, a judicial pre-trial was held. The Crown reiterated its proposal to resolve the matter, which was extended several times because Ms. Bardwell was self-represented. The Crown indicated that they wanted to make sure she had the opportunity to consult with counsel, family, or friends to consider her position.

[8] After some time, Ms. Bardwell advised that she had spoken with family members and that if the Crown's extended offer were still available, she would like to accept it.

[9] On June 21, 2022, the parties appeared in the Superior Court, at which time the re-election took place, and the parties were set to return to the Ontario Court of Justice to enter a guilty plea based on the discussions between them. On July 22, 2022, Ms. Bardwell agreed to plead guilty. The trial judge told her that she could only plead guilty if she was in fact guilty of the offences charged.

[10] After pleading guilty but before sentencing, Ms. Bardwell retained counsel and indicated that she was considering withdrawing her guilty plea. However, after meeting with counsel, she did not proceed with the application to withdraw.

[11] Accordingly, the parties jointly recommended a conditional sentence of two years less a day although Ms. Bardwell's counsel did not join the Crown's request for a no-contact order between Ms. Bardwell and her co-accused, Mr. Hitchcock-Hearst.

[12] The trial judge agreed with the Crown's submissions and ordered her not to communicate with Mr. Hitchcock-Hearst.

C. Analysis of the Grounds of Appeal

1. The Plea was Voluntary, Unequivocal, and Informed

[13] To be accepted by a court, a guilty plea must be voluntary, unequivocal and informed. A guilty plea is informed if the accused understands the nature of the allegations, the effect of the plea, and the consequences of the plea: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3, citing R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519. The onus rests on the appellant to show the guilty plea should be set aside: R. v. Francis, 2023 ONCA 760, at para. 28.

[14] Before accepting her plea, the trial judge conducted an extensive inquiry with Ms. Bardwell to ensure that she understood the plea, the significance of the plea, and the effect of pleading guilty.

[15] Ms. Bardwell confirmed to the trial judge that there was no part of what the Crown said with respect to the circumstances of the offences that she disagreed with, and that she had no questions regarding the process. The trial judge went on to have the following exchange to ensure the informed consent and voluntariness of the unequivocal plea:

THE COURT: All right, I'm going to ask you a number of questions because ultimately, I have to be satisfied that you're entering your pleas voluntarily. Do you know what that means?

TERRY BARDWELL: Yes, I do.

THE COURT: Can you describe in your own words what "voluntarily" means?

TERRY BARDWELL: That what I say comes from me. It's my choice. It didn't have anything to do with anyone else.

THE COURT: Okay, yeah, that's pretty much the bottom line. Ultimately, I need to be satisfied you're doing this because it's what you want to do.

TERRY BARDWELL: Yeah.

THE COURT: And that you truly are – so that you truly feel that you are guilty of the offences to which you plead guilty to. And I appreciate that as a self-represented person, I need to take particular care to make sure that you're not feeling overwhelmed by the pressure of the system. That at the end of the day, it is entirely up to you. I don't want you to feel any pressure from Mr. Bond as he describes himself as the bad guy. Anybody involved in the court including myself, that choice is up to you and there's – it's completely okay if you decide that at any moment leading up to your pleas that you've had a change of heart.

TERRY BARDWELL: No.

[16] The trial judge confirmed that Ms. Bardwell understood that she had a right to a trial, and that by entering a guilty plea she was giving up that right and the right to raise a defence to the charges.

[17] She was also advised that if she wanted, the plea could proceed in front of another judge, because the judge hearing the plea also heard the evidence at the preliminary inquiry. When asked if she was uncomfortable with that arrangement, Ms. Bardwell stated that she did not have a problem.

[18] A full description of the circumstances of the offences were also read out. Ms. Bardwell agreed with the description of the facts.

[19] The trial judge thereby confirmed that Ms. Bardwell fully understood and agreed to enter pleas of guilty to the two counts of possession for the purpose of trafficking under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and one count of possession of a concealed weapon contrary to s. 90 of the Criminal Code, R.S.C. 1985, c. C-46.

[20] Based on the above, we see no basis upon which to find that Ms. Bardwell's plea was not voluntary, unequivocal, and informed.

2. Counsel's Assistance Was Not Ineffective

[21] The appellant has not discharged her burden of proof on the ineffective assistance of counsel claim.

[22] The appellant bears the onus of proof to establish ineffective assistance of counsel. The appellant must establish: (1) the facts on which the claim is grounded; (2) the incompetence of the representation provided by trial counsel; and (3) a miscarriage of justice resulting from the incompetent representation by trial counsel: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. 582, at para. 48.

[23] In his affidavit, counsel confirmed that he reviewed the disclosure with Ms. Bardwell and advised her that he did not see any viable trial issues. They discussed the fact that counsel did not believe she was likely to successfully strike her plea and, if the plea was struck, she was likely to be found guilty after a trial and would likely face a custodial sentence. Counsel indicated however that if she accepted the Crown's proposed resolution, the Crown would recommend a conditional sentence.

[24] At the plea hearing, Crown counsel gave a comprehensive summary of the events leading to the plea. He then advised the court that Ms. Bardwell was aware of and confirmed the joint recommendation for sentence:

I'm prepared to agree with her to jointly recommend to the court a conditional sentence. It would be jail that could be served – I'm saying this for Ms. Bardwell's benefit. It would be jail to be served in the community; that I will be asking the court to impose a curfew. House arrest effectively subject to some exceptions as well as electronic monitoring. Ms. Bardwell was aware of that when we appeared before Justice Epstein. She was aware of that when we appeared in the Superior Court before she made her re-election and I confirmed with her again this morning and she's aware of that. It would be a joint recommendation.

[25] At all times, counsel appeared to follow Ms. Bardwell's instructions. Counsel confirmed with Ms. Bardwell that she wanted to proceed with the conditional sentence and no longer wished to withdraw her guilty plea, but she did not agree to the Crown's proposed conditions that she not buy, possess or consume substances, and that she have no contact with her co-accused.

[26] Counsel agreed to make submissions on the conditions, but advised Ms. Bardwell that it would ultimately be up to the trial judge to decide the appropriate conditions. Counsel raised with the trial judge, the point that it would be difficult for Ms. Bardwell to comply with the condition as she was a drug user. The trial judge agreed not to impose the condition sought by the Crown that Ms. Bardwell not buy, possess or consume substances given the rehabilitative components and her personal circumstances but ordered that she attend and participate in all assessment, counselling or rehabilitative programs as directed by her supervisor.

[27] However, the trial judge did not agree to remove the Crown's condition that Ms. Bardwell have no contact with her co-accused in the drug trafficking offences. The trial judge did so as, notwithstanding their close relationship, the circumstances of the offence and the co-accused's current and criminal antecedents were such that Ms. Bardwell should have no contact with him.

[28] Following sentencing, counsel spoke to Ms. Bardwell and reviewed the conditions with her, and she did not indicate any concerns.

[29] Based on the above uncontradicted evidence, we do not agree that counsel's assistance was ineffective.

D. Conclusion

[30] For the above reasons, we do not accept Ms. Bardwell's submission that her plea was not voluntary, unequivocal, and informed or that there was ineffective assistance on the part of her counsel or that counsel's actions resulted in a miscarriage of justice.

[31] For these reasons, the appeal is dismissed.

"E.E. Gillese J.A."

"B. Zarnett J.A."

"Thorburn J.A."