R. v. Rai, 2022 ONCA 703

WHAT YOU NEED TO KNOW

- Guilty pleas must be voluntary, unequivocal and informed.

- Where an appellant seeks to challenge the validity of their guilty plea, on the basis that it was uninformed, they must establish, on a balance of probabilities:

(1) The guilty pleas were not sufficiently informed; and

(2) They were subjectively prejudiced.

- Prejudice refers to the reasonable possibility that the appellant would have gone to trial and not pleaded guilty, or would have pleaded guilty to different conditions had they had certain information.

- In the absence of subjective prejudice, there is no need to consider whether the pleas were informed. There is no basis to interfere with the guilty plea in the absence of established prejudice.

BACKGROUND

The appellant, Gurkirat Rai, was charged with numerous driving and related offences in 2016 and 2017. The appellant advised his trial counsel he wished to resolve his matters rather than go to trial. He simply wanted to serve his sentence and “get out of jail as quickly” as he could. During pre-trial discussions, the Crown indicated it would be seeking a lifetime driving prohibition given the appellant’s lengthy driving record. The trial judge advised she was not inclined to impose the lifetime prohibition given how young the appellant was (22 years old).

The appellant’s trial counsel advised him that while it was not likely he would get a lifetime driving prohibition, his licence would be suspended indefinitely under the Highway Traffic Act. He then told the appellant he would be entitled to apply to have his licence reinstated after 10 years if he maintained a positive track record. In hindsight, this last piece of advice was in error.

The appellant ultimately pleaded guilty and was convicted of a number of driving offences. The judge imposed a sentence of one year in custody, followed by 12 months’ probation and a ten-year driving prohibition. As a result of the nature and number of driving offences, the Ministry of Transportation suspended the appellant’s license for life with no possibility of reinstatement (s. 41(1)(h) of the HTA).

ISSUE ON APPEAL

This appeal raises a single, discrete question:

(1)   Were the appellant’s guilty pleas uninformed insofar as they related to the possible reinstatement of his license?

Disposition – Appeal dismissed.

DRIVING SUSPENSIONS

Prior to his guilty pleas, the appellant’s trial counsel informed him he would be eligible to apply for re-instatement after 10 years.

Section 19(2) of the relevant regulation under the HTA permits the Registrar to lift a lifetime suspension where the individual has two convictions under the HTA. The appellant, however, had three or more subsequent convictions and as a result, was not entitled to avail himself of the reinstatement procedure. No similar section exists under the HTA for three or more subsequent convictions. As a result, given the number of the appellant’s convictions, his license was automatically suspended for life with no eligibility for reinstatement.

It is also important to note that “driving while disqualified” convictions carry consecutive mandatory two-year license suspensions, consecutive to any other period of suspension: s. 42 of the HTA. The appellant pleaded guilty to five counts of driving while disqualified. As a result, his licence would automatically be suspended for 10 years in addition to the 10-year driving prohibition imposed by the trial judge.

That is to say, even if the appellant’s convictions did fall under s. 19(2) of the HTA, his license would have been suspended for at least 20 years in any event.

GUILTY PLEAS

Guilty pleas must be voluntary, unequivocal and informed. An informed plea requires an accused to be aware of the nature of the allegations made against him, the effect of the plea and the consequences of the plea. This includes the accused understanding any relevant collateral consequence: R. v. Wong, 2018 SCC 25.

Where an accused seeks to challenge the validity of their plea on appeal, on the basis that the plea was not informed, the accused bears the onus of establishing on a balance of probabilities that:

(1)   The guilty pleas were not sufficiently informed; and

(2)   They were subjectively prejudiced.

The second component can be established by showing a reasonable possibility that, but for the erroneous information, they would have opted for a trial and not pleaded guilty, or would have pleaded guilty but with different conditions. This requires the appellate court to determine whether this particular accused would have preferred to go to trial or seek a different plea deal had he been adequately informed; the court must not ask what a “reasonable person” or any other person in the circumstances would have done.

APPLICATION TO THE CASE AT BAR

Whether or not the pleas were uninformed in this case is irrelevant given the appellant has failed to establish any subjective prejudice.

The Court of Appeal ultimately concludes that, in this case, it is not credible that the appellant would have gone to trial had he known about the driving suspension.

It is clear from the appellant’s own evidence that he had every intention to avoid trial and resolve his matters as soon as possible. The appellant was also prepared to plead guilty knowing that the Crown was seeking a lifetime driving prohibition and that despite the judge’s reluctance to impose the same, it remained a possibility. Moreover, the appellant’s subsequent conduct post-pleas significantly undermine any assertion that the possibility of driving again was of crucial importance to him. Within a year of his pleas, he has been charged and convicted of nine additional driving offences. All of the above undermine any assertion by the appellant that he would have acted differently had he known about the permanent suspension.

As a result, the appeal is dismissed. There is no reasonable possibility that, but for the error relating to possible license reinstatement, the appellant would not have pleaded guilty. In the absence of any subjective prejudice, there is no need to consider whether the pleas were uninformed and no basis to interfere with the appellant’s guilty pleas.

Read the full case here.

For more information on challenging guilty pleas, check out Emond’s Sentencing: Principles and Practice, chapter 3, Volume 12 of the Criminal Law Series.