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R v Wong: Affidavit of Subjective Hindsight a Useless Boilerplate Inhibiting Substantive Scrutiny

Written by Tobey Xiang


Introduction

Guilty pleas are considered formal admissions of the necessary facts constituting the offences alleged by the Crown.[1] They often occur following a plea bargaining process where the accused and the Crown negotiate and agree on the offences that the accused should be convicted of, instead of proceeding to a full trial. Guilty pleas speed up the process to convictions and thereby free up limited court resources.[2] In return, accused individuals who plead guilty as part of a plea bargain usually receive preferential treatments such as a shorter sentence, or a conviction based on a lesser included offence instead of a more serious one. Nonetheless, for a non-citizen accused, the decision to enter a guilty plea is not to be made lightly, as a finding of guilt may carry negative immigration consequences.


Facts

R v Wong is a case dealing with an accused who pleaded guilty to a drug trafficking offence without being aware of the collateral immigration consequences. Wong was a permanent resident, having immigrated to Canada from China in 1990.[3] In the spring of 2012, as a permanent resident, he was charged with one single count of trafficking in cocaine, to which he ultimately pleaded guilty.[4] Under the Controlled Drugs and Substances Act, trafficking in cocaine carries a maximum penalty of life imprisonment.[5] As a result of his plea, Wong was convicted and sentenced to 9 months in prison.[6] Unfortunately, Wong’s defence lawyer had never advised him of any immigration consequences that would follow from a guilty plea.[7] It was after he started serving his sentence that Wong became aware that his immigration status had been put in jeopardy by his conviction and sentencing.[8] He appealed his conviction on the basis that the plea was not sufficiently informed and that it resulted in a miscarriage of justice.[9]


Immigration Provisions

Under the Immigration and Refugee Protection Act (“IRPA”), non-citizens in Canada including permanent residents can face removal from the country for criminal convictions. Specifically, a permanent resident is deemed inadmissible to Canada for a conviction of an offence under an Act of Parliament (1) that carries a maximum prison sentence of at least 10 years, or (2) for which an actual prison sentence of more than 6 months has been imposed.[10] Wong’s circumstance—conviction of an offence punishable by life imprisonment coupled with an actual imposed sentence of 9 months—had made him inadmissible under either ground. His inadmissibility fulfilled the condition of a removal order.[11] Wong could have been eligible to appeal his removal order under s.63(3) of the IRPA on humanitarian and compassionate grounds, but he lost that eligibility because his actual sentence of 9 months surpassed the 6-month bar, above which no appeals are allowed.[12]


SCC Decision in Wong

The Supreme Court was unanimous in holding that Wong was required to establish prejudice to succeed in his appeal.[13] As a result, in raising that he was not aware of the immigration consequences at the time of his plea, Wong needed to show that he would have proceeded differently—either by entering a different plea or making the same plea but with different conditions—had he been sufficiently informed of the immigration consequences of a guilty plea.[14] However, the court was split between an objective standard and a subjective standard when it comes to determining the existence of such prejudice. The dissent proposed to require objective prejudice by asking whether there is a reasonable possibility that a reasonable and similarly situated person would have proceeded differently had he been sufficiently informed, and found that such a possibility existed in Wong’s case.[15] The majority, on the contrary, insisted on a two-step test to establish subjective prejudice, which they implied would help preserving the finality of guilty pleas in the interest of the public.[16] The test first starts by asking whether the accused—as opposed to a reasonable person—would have personally proceeded differently, which is to be answered by an affidavit of the accused.[17] Next, the subjective test is modified by adding an objective assessment of the credibility of the accused’s affidavit based on objective and circumstantial evidence.[18] As Wong’s affidavit had failed to exactly mention how he himself would have proceeded differently, the majority of the court held that he failed the first step of the subjective test, and the appeal was dismissed.[19]


Analysis and Criticisms

From the outset, the subjective test proposed by the majority seems to be largely derived from conceptual ideals without regard to practical considerations. The test is premised on the proposition that since the initial decision to plead guilty reflects the subjective and personal decision of the accused, the test used to undo the very plea should still remain subjectively centred on the accused rather than a reasonable person.[20] Although seemingly sound, this proposition does not address the reality that subjective hindsights claimed to exist in the mind of an accused are impossible to be directly accessed for verification. The impracticality of the subjective test is reflected by its reliance on the added second step that objectively evaluates the credibility of the accused’s claim. Practically speaking, the second step has already modified the subjective test into something not much different from the objective test proposed by the dissent. After all, under either approach, courts are likely to look at the same set of evidence to decide whether there was prejudice. The primary difference is that under the majority’s approach, an accused is required to say certain things in the correct form in an affidavit to trigger the second step of the subjective test. This requirement serves no practical purpose and, as correctly pointed out by the dissent, risks putting unnecessary and excessive emphasis on form.[21]


Second, contrary to what’s implied by the majority, the subjective test does not seem to be any more effective than the objective test in terms of preserving the finality of guilty pleas.[22] Admittedly, the majority’s decision had the effect of preserving the finality of Wong’s guilty plea. However, beyond Wong’s case, it is difficult to imagine how the subjective approach will keep contributing to this goal, at least differently than would an objective approach. This is because both approaches equally involve objective assessments of the same set of evidence, with the only difference being that an affidavit attesting to hindsight is required for the subjective approach. The majority held as if producing an affidavit of this nature would be a significant bar in the process of withdrawing a guilty plea, while in fact such an affidavit can be easily produced due to the subjective nature of its required content. More importantly, even under the subjective approach, what’s to make or break the request to withdraw a guilty plea is not going to be the affidavit anyway, since courts would still be bound by the objective evidence. All of this goes to show that little rational connection exists between the subjective test and its claimed superior function in preserving the finality of guilty pleas.


Lastly, it is also problematic that the majority’s over-emphasis on form, which is already unnecessary to begin with, created additional prejudice against Wong. At the time of his appeal, Wong essentially did not have the benefit of knowing the case to be met.[23] Had he known the case to be met in terms of how to draft his affidavit, it is almost certain that he would have drafted it differently. Despite this, the majority did not feel the urge to provide any special remedy or relief in their judgement to address the marked unfairness. This may be because aside from his conviction appeal, Wong had also appealed his sentencing decision and the Crown indicated the intention to reduce the 9-month sentence to 6 months less a day.[24] This would result in Mr. Wong at least regaining his eligibility to appeal his removal order. However, it would be inappropriate to dispose of an appeal in a certain way based on the likely outcome of another appeal by the same accused. This approach risks distracting the court from the relevant issues before it and compromising the independent nature of the judicial decision-making process, not to mention that regaining the eligibility to appeal a removal order is still fundamentally different from avoiding one in the first place.


Conclusion

In the end, the Charter guarantees the right to a fair trial.[25] Like other rights related to criminal procedures such as the right to counsel and the right to be protected from unreasonable search and seizure, it is part of our constitution. The fundamental nature of the right dictates that it cannot be waived easily. Additionally, plea bargaining itself is a process dominated by the power imbalance between the state and the accused. Often, such power imbalance is among the causes behind many situations of abuse such as psychological detention and involuntary waivers of the right to counsel. Hence, although guilty pleas technically waive a trial,[26] adjudicating later requests to withdraw them based on mere form would have a profound impact—mostly negative—on the criminal justice system.


[1] R v Gardiner, [1982] 2 SCR 368 at 414, 140 DLR (3d) 612 [Gardiner]. [2] R v Wong, 2018 SCC 25 at para 61 [Wong]. [3] Ibid at para 46. [4] Ibid at para 47. [5] Controlled Drugs and Substances Act, SC 1996, c 19, s 5. [6] Wong, supra note 2 at para 47. [7] Ibid at paras 48-49. [8] Ibid at para 53. [9] Ibid at paras 1, 53. [10] Immigration and Refugee Protection Act, SC 2001, c 27, s 36(1)(a). [11] Ibid, s 44(2). [12] Ibid, s 64. [13] Wong, supra note 2 at paras 5-6. [14] Ibid. [15] Ibid, at paras 44-45. [16] Ibid, at paras 3, 19. [17] Ibid, at para 6. [18] Ibid. [19] Ibid, at paras 39-40. [20] Ibid, at paras 2, 12. [21] Ibid, at para 94. [22] Ibid, at paras 3, 19. [23] Ibid, at para 38. [24] Ibid. [25] Canadian Charter of Rights and Freedoms, s 11, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [26] Wong, supra note 2 at para 2.


 

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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