Withdrawing a Guilty Plea in Criminal LawAndrew Captan
One of the most important decisions in a criminal case is the the decision to plead guilty or not guilty. This decision dictates a whole series of steps to follow, which can have a significant impact on one’s life and liberty. So, what happens if a situation arises in which an individual enters a plea of guilty, then later on decides they want to change or withdraw that plea?
The Law Surrounding Withdrawing a Guilty Plea
The law on striking pleas was set out by the Court of Appeal in R. v. T. (R.), 1992 CanLII 2834, , 17 C.R. (4th) 247 (Ont. C.A.). Subsequent Superior Court of Justice judgments followed the law set out in that decision, including, but not limited to, R. v. K. (S.)  O.J. No. 1627, R. v. W.B.  O.J. No. 587 and R. v. Petrenko 2009 CanLII 66612 (ON S.C.).
At any time before a sentence has been imposed, a judge has the authority to permit a plea of guilty to be withdrawn. Where an attempt is made to strike a plea prior to sentence being imposed, as opposed to on appeal, consideration should be given to the fact that the accused is obviously not attempting to revisit the issue of a harsh sentence by asking that the plea be withdrawn: R. v. K. (S.) (1995), 99 C.C.C. (3d) 377 (Ont. C.A.), at 380
The onus is on the application to establish that the guilty plea is invalid. The standard of proof is on a balance of probabilities: R. v. T. (R.) 1992 CanLII 2834, at para 12; R. v. Petrenko (2009) CanLII 66612 (ON S.C.), at para 5
Validity of guilty plea
The overarching question when assessing the validity of a guilty is whether or not the withdrawal of a given guilty plea would be in the interests of justice: R. v. Jawbone  M.J. No. 235, at para 6.
When assessing whether the withdrawal of a plea would be in the interests of justice, the court must keep in mind that for a guilty plea to be valid, it must have “minimally sufficient characteristics in order to provide an assurance that the forfeiture of a trial is fair”: R. v. Petrenko (2009) CanLII 66612 (ON S.C.) , at para 5
There are at least three characteristics which have been accepted as being necessary for a guilty plea to be viewed as valid. More specifically, it is recognized that a plea must be: (1) informed, (2) unequivocal and (3) voluntary: R. v. T. (R.), 1992 CanLII 2834, at para 14; R. v. Petrenko (2009) CanLII 66612 (ON S.C.), at para 5.
A plea is uniformed if the accused is not aware of the nature of the allegations against him, the effect of the guilty plea, the consequences of the plea, as well as the relevant facts of the case: R. v. Petrenko (2009) CanLII 66612 (ON S.C.), at para 5.
The question of whether the accused has full knowledge of the relevant facts turns on, in part, whether the Crown has discharged its disclosure obligations. In a case where the Crown breaches its duty to disclose and the accused has pleaded guilty to the relevant charge(s), a court may find that it is in the interests of justice to withdraw a guilty plea where there is a reasonable possibility that: (1) the accused’s choice to plead guilty would have been different or (2) the undisclosed information undermines the validity of the guilty plea: R. v. Taillefer  S.C.J. No. 75
Another way in which a plea can be uniformed is if it made without effective counsel, or any, assistance of counsel: R. v. Armstrong  O.J. No. 45, cited in R. v. W.B.  O.J. No. 587, at para 7
A plea is involuntary where it is obtained by inducements, pressures, threats or other coercion: R. v. W. B.  O.J. No. 587, at para 7
R. v. Petrenko (2009) CanLII 66612 (ON S.C.), at para 5
Most pleas involve some external stresses and pressures. The question is whether the plea of guilty was based on a volitional decision of the accused. Pressure may develop to an extent that the accused can no longer appreciate the effect of the guilty plea. Where an accused is in a situation in which, on the day scheduled for his or her trial, he or she is informed that pleading guilty is the only way to avoid a lengthy custodial term, the pressure may be sufficient to render a guilty plea as invalid: R. v. Sampson  N.J. No. 331, 112 Nfld. & P.E.I.R, 335 (S.C.)