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Social Factors Affecting Voluntariness - Caitlin Madden

How does the court determine if something is truly voluntary? Are all individuals held to the same standard? This blog will focus on the case of R. v. Thomas, a 2022 decision of the Manitoba Court of Appeal which deals with an analysis of whether a plea is voluntary. I will discuss the flaws in the Court’s approach and argue that a reasonable person test that considers the social factors of the accused should be used instead. In the case at hand, the accused asserted that due to mental health issues and wanting to escape the poor conditions in remand custody, she pled guilty to murder, and that this plea was not voluntary. The court concluded that the plea was voluntary, using the same standard that determines whether an accused is fit for trial.[1] I argue that this analysis is not nearly thorough enough and disregards many important factors such as race relations that may influence voluntariness.


Before moving on, I will provide definitions for certain terms that will be mentioned throughout the blog. Firstly, a “guilty plea” is a formal admission of guilt that waives the “right to require the Crown to prove its case beyond a reasonable doubt.”[2] Guilty pleas, in order to be valid, must be unequivocal, voluntary, and informed.[3] Furthermore, a “voluntary plea” is defined by the court as a “conscious, volitional decision of an accused to plead guilty for reasons which he or she regards as ‘appropriate.’”[4] A voluntary plea must be informed of the nature of the allegation, effect of the plea, and the plea’s consequences.[5] Next, “race relations” describe the behaviour and interactions between people of different races within the community.[6] Specifically, in this blog, I will be discussing race relations in the context of law enforcement and racialized individuals’ unique experiences within the criminal justice system.

The Case:

On July 30, 2010, the accused, Thomas, had gone to the victim’s residence for the purpose of exchanging sexual services for money. After asking to be paid, the victim could not find his wallet and accused Thomas of stealing it. Thomas said the victim became angry and began throwing around objects to find it. Soon after, there was an altercation in the kitchen. The accused stated that she kicked the victim and “lost it,”[7] and she was unable to stop herself. She proceeded to beat the victim and pushed him down the basement stairs. It was later discovered in the autopsy report that the victim died from a fracture of the cervical spine.[8] Thomas argued that, due to her mental illness and level of intoxication on the night of the killing, she did not possess the requisite intent for murder. She also contended that her guilty plea was not voluntary since she was not thinking clearly due to her mental illness. These mental health problems, which were untreated and unmedicated at the time, were also exacerbated by “thoughts of a miscarriage” and suicidal thoughts.[9] Thomas also stated that her guilty plea was motivated by a desire to escape the poor conditions she faced in remand custody, believing that conditions in a federal institution would be more favourable.[10]

The Court’s Analysis:

The Court found that there was no evidence suggesting Thomas did not possess the requisite intent for murder. Therefore, the Court focused on the second question of determining the voluntariness of the accused’s guilty plea. While there is no standard framework used to determine voluntariness, in the case at hand, the Court used factors set out in R. v. Moser (2002) to determine if the guilty plea should be set aside, which included:

1. Whether the accused had experience with the criminal justice system;

2. whether the accused was represented by counsel and whether there is a challenge to the adequacy of that representation;

3. any medical issues of the accused at the time of the guilty plea;

4. any pressure, duress or coercion from the accused’s own counsel, the prosecution or anyone else;

5. whether the court conducted a thorough and careful plea inquiry; and

6. the viability of any defence.

The court in R v. Moser provided that this is not a closed list to satisfy, but that the analysis should “consider the totality of the circumstances.”[11] After reviewing these factors, the court determined that the accused’s guilty plea was not vitiated and dismissed the appeal. I argue, however, that this method does not fully constitute a consideration of the total circumstances and looks over important social factors.

The Impact of Race

In my opinion, the method the court used in their analysis is not thorough enough and disregards many important factors that may influence voluntariness. I believe the court should determine if a plea is voluntary based on if a reasonable person in like circumstances of the accused would understand their plea to be a free and volitional decision. Like circumstances of the accused should extend to social factors of the accused, including race, historical factors, and past criminality.

Race relations have only recently begun to be considered in the court’s analyses. The first notable instance of this being done was in the 2019 Supreme Court of Canada case of R. v. Le, where, in order to determine if an arbitrary detention had occurred, the court took into account race relations of the accused. Using this, they determined that race relations affect how a reasonable person would perceive police interactions and further noted the idea of “learned helplessness,”[12] which describes the genuine belief of being helpless in certain situations and having no other option than to comply. In the context of R. v. Le, it was described that visible minorities may “feel especially unable to disregard police actions,”[13] and I believe this phenomenon also applies to racialized individuals within the court process and criminal pleadings.

Thomas, being an Indigenous woman who was abused in day school and whose parents were victims of residential schools,[14] surely has different experiences with police and the justice system compared to non-racialized offenders. Studies have found that Indigenous people today, as a result of colonialism and other traumas, face “psycho-social issues … [resulting] in a diminished capacity to trust.”[15] This lack of trust is especially evident between Indigenous people and the Canadian government, along with other authority figures.[16] It is very possible that Thomas, believing that a guilty plea was her only option, involuntarily pled guilty to murder as a result of learned helplessness. The court, however, used the fact that Thomas was “familiar with the criminal justice system as a result of her prior involvement”[17] as a reason to support that her plea was voluntary. A similar thought process, that past criminality results in a “level of sophistication,”[18] was presented by the trial judge in R. v. Le but was rejected at the Supreme Court who stated that it would, in fact, have the opposite effect. Indigenous people in Canada, as a result of over policing, experience “more contact with courts than non-Indigenous people.”[19] Because of these frequent interactions, Indigenous individuals may genuinely believe they are helpless in situations involving law enforcement and the criminal justice system in general, and they therefore choose the path of least resistance.

Thomas also stated that she faced “very difficult conditions … in segregation while in remand custody,”[20] and that part of her motivation to plead guilty was so that she could be transferred to better living conditions. This claim is not unfounded, as it has been shown that individuals in remand custody often experience “conditions which are more restrictive and punitive than those experienced by convicted criminals.”[21] Indigenous individuals, in particular, are held in remand “more frequently and for longer than non-Indigenous accused”[22] and face discrimination while in custody, disproportionately experiencing “use of force interventions, segregation placements and self-injurious behaviour.”[23] Not only should the court consider that the average person experiencing harsh conditions in remand would likely be motivated to plead guilty, but they should also specifically look at how an Indigenous individual is being treated in these circumstances. Failing to do so would unfairly overlook the very different way racialized individuals are treated by the justice system.

Overall, I believe that the current methods used to determine if a guilty plea should be set aside based on voluntariness are insufficient. I argue that the court should use an objective reasonableness test that takes social factors of the accused into account. Race relations and the phenomenon of learned helplessness, along with the very undeniable discrimination that racialized individuals face in the Canadian court system, should be considered when deciding voluntariness. I believe that implementing this more comprehensive analysis is just the first step of many to address systemic racism within the criminal justice system. More specifically, I believe that this would help address the massive overrepresentation of Indigenous peoples within the system overall.

[1] R v Thomas, 2022 MBCA 19 at para 21. [2] R v Nevin, [2006] NSJ No.235 at para 7. [3] R v Moser , [2002] 163 CCC (3d) 286 at paras 32-34. [4] R v MAW, 2008 ONCA 555 at para 21. [5] Moser, supra note 3 at para 7. [6] “Definition of ‘race relations’”, online: Collins Dictionary <>. [7] Thomas, supra note 1 at para 11. [8] Ibid at para 9. [9] Ibid at para 27. [10] Ibid at para 24. [11] Ibid at para 33. [12] R v Le, 2019 SCC 34 at para 109. [13] Ibid at para 72. [14] Thomas, supra note 1 at para 27. [15] Steven Thibodeau & Faye North Peigan, “Loss of Trust Among First Nation People” (2007) 3:4 First Peoples Child Family Rev 50 at 50. [16] Ibid at 54. [17] Thomas, supra note 1 at 37. [18] Le, supra note 12 at para 70. [19] “Understanding the Overrepresentation of Indigenous people in the Criminal Justice System” (10 November 2021), online: Government of Canada <> [“Understanding”]. [20] Thomas, supra note 1 at para 28. [21] “Report of the Aboriginal Justice Inquiry of Manitoba” (29 June 2001), online: The Aboriginal Justice Implementation Commission <>. [22] Scott Clark, “Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses” (2019), online (pdf) at 20: Department of Justice Canada <>. [23] “Understanding”, supra note 19.



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