Today, the Supreme Court of Canada (SCC) released its decision in R v Wong, a case exploring the implications of uninformed guilty pleas in the criminal justice system. In this case, the defendant pled guilty to one count of trafficking cocaine, and was sentenced to nine months in prison. However, he was not informed of the significant consequences to his immigration status that would result from such a plea.  Under the Immigration and Refugee Protection Act, the defendant, a permanent resident for over 20 years, was rendered inadmissible to Canada because he had been sentenced to more than six months of incarceration, and he was unable to appeal his removal order on the same grounds. Thus, as a result of his uninformed guilty plea, the defendant may be subject to removal from Canada.
The SCC was split 4-3 in ruling on this appeal, with the majority and the minority disagreeing over the appropriate standard for voiding defendants’ guilty pleas. According to the majority, the defendant needed to show subjective evidence to confirm that knowing of the immigration consequences of a guilty plea would have changed his decision.  Defendants would need to produce affidavit evidence stating either that they would not have pleaded guilty if they were fully informed, or would only have done so under different circumstances, in order to successfully void an uninformed guilty plea.  As the defendant had not done so, his guilty plea was maintained.
The three dissenting judges, however, argued for a different standard to void the defendant’s plea, focusing on an objective, rather than subjective, assessment. Instead of requiring evidence to show that the defendant himself would have actually changed his plea based on the information, instead, this standard relies on analyzing whether a reasonable person in the defendant’s situation would have acted differently knowing the consequences to their immigration status. Because the possibility of deportation would likely affect a reasonable person’s decision if in the defendant’s situation, his guilty plea would have been found void according to this standard, and his case would have been retried, with the ability to make a fully informed decision.
This decision will likely carry negative implications for those who cannot afford legal representation. Requiring defendants to produce affidavit evidence in order to void uninformed guilty pleas adds a procedural step that defendants without legal counsel may not know they need to take. According to the CCLA, this “places a significant procedural burden on blameless individuals who have been deprived of their right to a fair trial, a burden that will fall most heavily on self-represented and other marginalized accused.” A fair criminal justice system requires impartiality both in outcome and in process; in placing a disproportionate burden on those who cannot afford legal representation, this decision arguably undermines both.
The CCLA intervened in this case before the Supreme Court of Canada.
This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.
 2018 SCC 25 [Wong (SCC)]
 R v Wong, 2016 BCCA 416 at para 6.
 Ibid at para 2.
 Wong (SCC), supra note 1 at paras 30, 32.
 Ibid at 39.
 Ibid at para 27.
 Ibid at para 81.
 Ibid at para 105.