Errors and omissions by defence counsel, the Crown prosecutor and even the trial judge were not “determinative” after a man who sought to withdraw his guilty plea to sexual assault failed to establish that he sustained subjective prejudice, ruled the Quebec Court of Appeal.

The unusual case has spurred at least one criminal lawyer to state that the justice system failed the appellant and his family while another held that the Quebec Court of Appeal issued a fair and reasonable decision that heeded guidance by the Supreme Court of Canada in the 2018 leading decision in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. In Wong, the SCC held that guilty pleas must be informed.

“Without trivializing the charges that were laid, the penal justice system, including all of its actors, did not deliver on its promise to afford the appellant, and consequently his family, the law’s full protection,” remarked Quebec City criminal lawyer Julien Grégoire with Gagnon & Associés, avocats.

That is a position that Jean-Claude Lagacé, the appellant’s lawyer, partly shares. “The decision is well-founded but I still feel that up to a certain point the justice system let him down,” said Lagacé. “I decided to help him out not to make money but for justice.”

But criminal lawyer Félix-Antoine Doyon believes that even though the appellant had suffered collateral consequences, it was not in the interest of the justice system to order a new trial given that he had no chance of winning at trial.

“Since the Wong decision was issued in 2018, the Quebec Court of Appeal has been swamped with Wong-type motions,” said Doyon, with Quebec City based Labrecque Doyon Avocats. “I myself have lodged some. But the appeal court decision clearly states that it is all very well to order a new trial but if the person in question has no chance of succeeding, even if he was not aware of the legal consequences of his plea, then it is not in the interest of justice to order a new trial.”

S.Z., a French citizen who lived in Quebec with his wife and three children since 2014, plead guilty to sexually assaulting his wife in April 2016 after reaching a plea agreement with the prosecution. He also plead guilty to obstructing justice for writing a 17-page letter to his wife asking her to withdraw her complaint, and to failure to comply with a condition of a recognizance after he texted his wife even though he was forbidden to do so. Under the plea deal, he was going to serve six months’ imprisonment for the sexual assault, minus the time he had served in pre-sentence custody, and three months to be served concurrently for each of the two other offenses. All told, he was going to spend five months in prison plus serve a two year probation.

But when he appeared before Court of Quebec Judge Louise Leduc on April 2016 for his sentencing, he discovered that as a non-citizen he would be deemed to be inadmissible under the Immigration and Refugee Protection Act (Act) on the ground of serious criminality for having been convicted of two offences — sexual assault and obstructing justice — punishable by a maximum term of imprisonment of at least 10 years. Under the Act, a permanent resident or a foreign national is also inadmissible after being convicted in Canada of an offence by way of indictment. After serving his prison sentence, S.Z. would also be the subject of a deport order.

S.Z., who originally thought that he would be able to renew his Canadian work permit after he had served his sentence, sought leave to appeal his guilty pleas under section 675 (1)a(iii) of the Criminal Code. The French citizen argued that his guilty pleas were vitiated because he was unaware of their consequences and by the inadequate assistance of his counsel. He added that he wanted to invoke a sleepwalking defence against the charge of sexual assault but that it was rejected by his counsel.

A cumbersome and lengthy procedural process then ensued, which highlighted yet again the ineptitude of defence counsel. Originally S.Z. sought to appeal only the sexual assault guilty plea, believing that it would spare him the fate of being declared inadmissible and deported. His defence counsel, a new lawyer who represented him at the appeal court, was not initially aware that the two other pleas (obstruction and failure to comply with a condition of a recognizance) would also lead to the deportation of S.Z.

The analytical framework that should be applied when someone is seeking to withdraw a guilty plea is set out in Wong, pointed out the Quebec Court of Appeal. The accused is required to establish subjective prejudice, that is, that they were unaware of the legal consequences at the time of their plea. To that end, the accused must also establish a “reasonable possibility” that he or she would have either opted for a trial and pleaded not guilty or pleaded guilty but under different circumstances. “Courts should therefore carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility,” said the majority in Wong.

The Quebec Court of Appeal found that nobody informed S.Z. of the legal consequences of his guilty pleas, and therefore his guilty pleas were not informed. “The ignorance of the appellant’s former lawyer is hard to understand given that the issue of repercussions following a conviction of person under the Act is the subject of abundant and lengthy jurisprudence well before Wong, case law that all criminal lawyers should know,” said Quebec Court of Appeal Justice Marie-France Bich in 2020 QCCA 841. Both Justices Lorne Giroux and Patrick Healy concurred with the reasons outlined in the 32-page decision.

The Crown prosecutor too was castigated by the Appeal Court. She was aware of the legal consequences S.Z. faced, and “it must certainly be deplored that she did not mention it to her counterpart during the plea bargaining negotiations, or at the very least, before the appearance of the appellant before the trial judge,” said Justice Bich. The trial judge too was not spared. Once Judge Leduc realized that S.Z. and his lawyer were unaware of the legal ramifications of his guilty pleas, she should have suspended the proceedings, added Justice Bich.

But Justice Bich added that even if the appellant had been able to show prejudice resulting from his lack of knowledge of the consequences of the pleas regarding the charges of obstruction and failure to comply, the fact remains that the Crown’s case on the charge of sexual assault was a priori solid. On top of that, S.Z.’s proposed defence, which rested on automatism induced by sleepwalking, had “no air of reality.”

But Grégoire, as does Lagacé, believes that the Appeal Court examined S.Z.’s proposed defence substantively even though the majority in Wong held that an accused “need not show a viable defence to the charge in order to withdraw a plea on procedural grounds… It does not make sense to let an accused proceed to trial at first instance without any defence whatsoever, but to insist on such a defence to proceed to trial when withdrawing an uninformed plea.”

“What is the applicable criteria?” asked rhetorically Grégoire. “Does the appellant have to establish the merits of his defence or rather the realistic possibility that his defense, after an analysis by the trial judge, be admissible for it to be ultimately upheld or not? It seems to me that it is for a trial judge to decide the credibility of the appellant on the merits of his defence.”

Doyon disagrees. He believes that it is well within the Appeal Court’s jurisdiction to analyze the “air of reality” of S.Z.’s defence.

“There is a cardinal principle in Canadian law that states one must maintain the definitive character of decisions in the name of stability, integrity and efficiency of the justice system,” said Doyon. “The Appeal Court examined S.Z.’s reasonableness of his defence and came to the conclusion that it was not objectively credible because it had no air of reality. Therefore in the name of the stability of judgments, the Appeal Court held that there was no reason to order a new trial even though there were errors that the Appeal Court specifically denounces.”

S.Z., who has four children, three with his ex-wife who lodged the complaint and another with a new spouse, was deported on April 2016 after serving his sentence. Justice Bich said it was not impossible for S.F. to be obtain an authorization to enter into Canada “The children’s best interests as well as the fact that he is de facto rehabilitated, leads a crime-free life, holds a job and present apparently no danger to the security of Canadians and Canadian society may be in his favour,” said Justice Bich. But an immigration lawyer that Lagacé consulted with said that it would be extremely difficult for S.Z. to be able to come back to Canada.

P.S. The name of the accused cannot be cited as it is covered by a publication ban as it a sexual assault case.

This story was originally published in The Lawyer’s Daily.