Criminal Law

Test is high when appealing a guilty plea: Daviau

By Peter Small, Contributor

Lawyers thinking of appealing a guilty plea should make sure they have strong grounds because the barriers to success are high, says Toronto criminal lawyer Lindsay Daviau.

“You have an obligation to your client to be sure you are not wasting their time and money,” says Daviau, who practises with Rosen & Company Barristers and frequently argues appeals.

Canadian courts tend to be skeptical of defendants appealing guilty pleas, Daviau tells They have an interest in finality, she says.

“Is it insurmountable? No. But is there a good reason to assume that when someone pleads guilty, they mean to plead guilty? I think so.

“It’s assumed they had competent counsel. It’s assumed that any decision that new counsel disagree with were strategic decisions by trial counsel. And that’s why the test for admission is so high,” Daviau says.

Section 606 of the Criminal Code sets out the preconditions under which a judge can accept a guilty plea.

They must be satisfied the accused is making the plea voluntarily and understands it is an admission of the essential elements of the offence, Daviau explains. The accused must also appreciate the nature and consequences of the plea and understand that the court is not bound by any agreement they made with the prosecutor.

“If you’re going to appeal a guilty plea, you'd have to be able to demonstrate a failure in the plea inquiry,” she says. “Perhaps you didn’t understand the nature or the consequences of the plea. Perhaps you weren’t making the plea voluntarily.”

Even if the sentencing judge did not make inquiries into whether the defendant was fully aware of what they were doing, the guilty plea will usually withstand a later appeal, Daviau says. In practice, many judges simply ask the defendant’s lawyer if their client understands the facts and all the possible consequences of the plea and, if the answer is yes, proceed on that basis, she says.

It’s an unfortunate fact that many defendants plead guilty to avoid the uncertainty of a trial and a possible lengthy prison sentence, Daviau says.

“They want to plead guilty whether they’ve done it or not because it means they get out tomorrow versus wait in jail for trial,” she says.

But if they are later going to stand up in court and say their conviction should be overturned despite their having accepted the facts, they have to show there was a failure along the way and that they didn’t understand what was happening, Daviau says.

“Many times that involves an allegation that your lawyer was ineffective,” she says.

But proving ineffective assistance by counsel is a tall order, says Daviau, who frequently acts for lawyers whose former clients have alleged just that.

Ontario courts have established a protocol for dealing with such allegations.

As an appellate lawyer, you must first satisfy yourself that your client’s ineffective assistance complaints are based on a factual foundation, Daviau says. You need to provide the lawyer in question with informal notice of the general allegations and give them a reasonable opportunity to respond.

Before the appeal, you must give the lawyer an affidavit outlining the grounds of the complaint against them. The lawyer is expected to reply with an affidavit giving their side, on which they are subject to cross-examination. A transcript of this cross-examination would be part of the fresh evidence on the appeal, she says.

Proving another lawyer was ineffective is difficult, Daviau says. In a contest of credibility with unhappy former clients, trial lawyers have the edge, she adds.

“Barring a credibility issue, I think counsel is going to be believed every time,” Daviau says.

Whatever the grounds for appeal, defendants have to file fresh evidence, which can be an expensive undertaking, she says.

“You can’t just walk into the appeal court and say, ‘Oh, by the way, I didn’t understand my plea,’" Daviau says. "There’s a process by which that information has to go before the court. There are issues with respect to how fresh evidence should be filed.”

For such evidence to be admitted at the Ontario Court of Appeal, it must meet a test rendered in the Supreme Court of Canada's 1980 decision, Daviau says.

The test bars appeal lawyers from admitting evidence that should have been adduced by diligent counsel at trial, she says.

“If it’s obvious that your lawyer should have done something, the court assumes that he didn’t do it for strategic reasons and they’re not going to relitigate it,” Daviau says.

Also under the test from the 1980 case, the evidence must be relevant and bear upon a decisive or potentially decisive issue at trial, she says.

“So you can’t all of a sudden show up with an affidavit from your new spouse who says you’re a great guy because your being a great guy doesn't say anything about whether or not you committed the crime,” Daviau says.

In addition, the appeal court must be satisfied that a trial judge or jury would believe the new evidence and that it would have made a difference in the outcome of the case, she says.

At the outset, lawyers should consider carefully if the fresh evidence will meet the test laid out in the 1980 decision, Daviau says.

“You don’t want to go all the way down the road only to find out that the court’s not even going to entertain it.”

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