Subjective prejudice analyzed in Manitoba Court of Appeal theft decision

Law360 Canada (December 11, 2024, 2:23 PM EST) --

John L. Hill

In a first-year criminal law class, it is taught that ignorance of the law is no excuse. However, does ignorance of the collateral consequences of a guilty plea provide a situation where there can be a miscarriage of justice? Should an accused person’s sentence be upheld if that person has not been fully appraised of the collateral consequences of a sentence to which a guilty plea is entered? That was the question before the Manitoba Court of Appeal in the case of R. v. Simpson, 2024 MBCA 82.

An agreed statement of facts was presented to the appeal court. Those facts included that in March 2016, the police received a tip that the accused was selling stolen trailers and altering their VINs for resale. Simpson had sold two trailers through new vehicle accounts in his wife’s name.

Police investigated an ad for a stolen trailer and met Simpson and his accomplice. Both men were arrested. Simpson pleaded guilty on the first day of his preliminary hearing. The guilty pleas were entered by the accused on June 21, 2017, the first day of his preliminary inquiry, to five counts (reduced from 15 counts) of tampering with a vehicle identification number, four counts of possession of property obtained by crime over $5,000 and one count of trafficking property obtained by crime.

A positive presentence report was later received, an agreement to a range of sentences was reached and the parties presented a joint recommendation on sentence, which the sentencing judge accepted. On Sept. 28, 2017, he received a global sentence of a 15-month conditional sentence order, followed by a nine-month supervised probation order, a standalone restitution order of $10,265.32 and victim surcharges totalling $2,000.

It was never mentioned that a finding of guilt on some of the charges could result in a lifetime suspension of a driver’s licence under Manitoba’s Highway Traffic Act. Nor was it mentioned that a Licence Suspension Appeal Board would consider any licence suspension appeal. Not until five years later did Simpson receive notice of his lifetime suspension of driving privileges.

Instead of appealing to the board, he sought to bring a motion to provide fresh evidence at the Court of Appeal to withdraw the guilty pleas and have an acquittal entered or go to trial. His position was that had he known that his guilty pleas might cause him to face a lifetime driving suspension, he would never have pleaded guilty. He would have gone to trial.

During the appeal, the Crown admitted that a lifetime licence suspension would be a legally relevant collateral consequence, and Simpson was unaware of this when he entered his pleas.

The Manitoba Court of Appeal stated it was guided by R. v. Wong, 2018 SCC 25, which stated that the inquiry is subjective to the accused but allows for an objective assessment of the credibility of the accused’s subjective claim using tests enunciated in R. v. Girn, 2019 ONCA 202. The test determines whether there was subjective prejudice by finding a realistic possibility that the accused would have run the risk of a trial if the collateral consequences had been known (R. v. Taillefer, 2003 SCC 70).

Here, Simpson provided an affidavit stating that he would have fought the charges had he known that he would suffer a lifetime driving prohibition if convicted.

In assessing the credibility of Simpson’s subjective account, the court looked to the Girn tests.

The first is the strength of the Crown’s case. At the time of his arrest, Simpson provided a detailed statement admitting his guilt in falsifying the VINs of the stolen trailers. Although he could go to trial, any defence would amount to throwing a “Hail Mary.” The likelihood of acquittal would be remote. Even if the appeal court were to order a new trial, the automatic consequence of a licence suspension would be reimposed upon a new conviction, which would be likely.

The second circumstance involves the availability and potential utility of an appeal to the board. Simpson’s circumstances suggest he was in a position to argue strongly that he had a case to reduce or cancel the automatic licence suspension. With this appeal mechanism in place, it weighs in favour of accepting that Simpson would have avoided trial and risked arguing the continuance of his licence before the board.

There is no evidence before the court that he would not have pleaded guilty if he had understood the full consequences and fought for different conditions to be imposed. The court could not find objective credibility in Simpson’s claim of subjective prejudice.

The appeal court held that Simpson had not established any subjective prejudice because he was unaware of the collateral consequences of his guilty pleas.

Subjective prejudice did not give rise to a miscarriage of justice because he was not advised that some of his guilty pleas would trigger a lifetime suspension of his driver’s licence. His appeal was dismissed.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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