In R. v. Quick, 2016 ONCA 95, the Court of Appeal overturned a guilty plea because the accused was not aware that an indefinite driver’s license suspension would be imposed under Ontario’s Highway Traffic Act.

Quick’s counsel had not told him that because he had two previous drinking and driving convictions, his driver’s licence would be suspended indefinitely under the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA). Quick told the Court of Appeal that had he known his driver’s licence would be suspended indefinitely, he would not have pleaded guilty; he would have asked for a trial.

The Court of Appeal stated:

[30]      In the appeal before us, there can be no doubt that the indefinite suspension of Quick’s driver’s licence under the HTA, though a collateral consequence of his plea, was a “legally relevant” penalty. The suspension was imposed by the state. Indeed, the standard caution given to Quick when he was arraigned on the dangerous driving charge told him that on his conviction his licence would be suspended under the HTA. And that suspension, though under a provincial statute, was imposed automatically on his Criminal Code conviction. Thus, I conclude that an accused’s unawareness of a driver’s licence suspension under provincial legislation for a Criminal Code driving offence is a clear example of a collateral consequence that may render a plea uninformed.

[31]      This is not to say that an informed plea requires an accused to understand every conceivable collateral consequence of the plea, even a consequence that might be “legally relevant”. Some of these consequences may be too remote; other consequences not anticipated by the accused may not differ significantly from the anticipated consequences; or, the consequence itself may be too insignificant to affect the validity of the plea.

[32]      Even an accused’s unawareness of the HTA consequences of a guilty plea to a driving offence under the Criminal Code in some cases may not render the plea uninformed. For example, suppose an accused pleaded guilty to a driving offence, unaware of the indefinite suspension of his or her licence that would automatically follow, but say for health reasons could never drive again. In such a case the collateral consequence of the plea would likely be too insignificant to render the plea uninformed.

[33]      What is called for is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateral consequence to the accused. A simple way to measure the significance to an accused of a collateral consequence of pleading guilty is to ask: is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would the information have mattered to the accused? If the answer is yes, the information is significant. I draw support for this approach from the reasons of Lebel J. in R. v. TailleferR. v. Duguay2003 SCC 70 (CanLII); [2003] 3 S.C.R. 307 and the reasons of Watt J.A. in R. v. Henry2011 ONCA 289 (CanLII).

[34]      In Taillefer; LeBel J. discussed the impact of the Crown’s breach of its duty to disclose relevant evidence on the validity of an accused’s guilty plea. When the non-disclosed evidence is tendered as fresh evidence on appeal, LeBel J. held that the accused must demonstrate that “there is a reasonable possibility that the fresh evidence would have influenced his or her decision to plead guilty, if it had been available before the guilty plea was entered”: Taillefer, at para. 90. He emphasized, however, that the test is objective. The question is not whether the accused would have declined to plead guilty, but whether a reasonable and properly informed person in the same situation would have done so: see also R. v. Meehan2013 ONSC 1782 (CanLII).

[35]      Although I would follow the general approach in Taillefer, I would apply a subjective test, not an objective test. An informed plea requires that the accused pleading guilty be aware of the significant collateral consequence. In Quick’s case, the question is whether the consequences of his plea he was unaware of would have mattered to him.

[36]      In Henry, Watt J.A. also applied a subjective test when he set aside a guilty plea because the accused was misinformed about the viability of a constitutional challenge. And the standard he used was “realistic likelihood”, not “reasonable possibility”. Watt J.A. concluded at para. 37:

Had the true state of affairs been communicated to the appellant, there was a realistic likelihood that he would have run the risk of a trial. In my opinion, under reasoning analogous to that applied in Taillefer;Duguay, the appellant should be given leave to withdraw his plea of guilty.

[37]      In the case before us, using the standard in Henry, there is a realistic likelihood, Quick would not have pleaded guilty and would have asked for a trial had he known that on his conviction for dangerous driving his driver’s licence would be automatically and indefinitely suspended. He is a truck driver, so, as he testified, his licence is his “livelihood”. For him, the consequences of losing his licence indefinitely instead of for one year (as he was told), were undoubtedly significant. They were drastic. Had he not asked for a trial, at the very least he would have sought to postpone his plea for six months to take advantage of the ten-year limitation period in the HTA.

[38]      In now asking that his plea be set aside Quick need not show a viable defence to the charge of dangerous driving. Whether he has a defence is irrelevant: “the prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial.” R. v. Rulli2011 ONCA 18 (CanLII) at para. 2.

[39]      I thus conclude that Quick’s unawareness when he pleaded guilty of the automatic indefinite suspension of his driver’s licence under the HTA, rendered his plea uninformed. The answer to the question posed at the beginning of this section – did Quick have to understand the HTA consequences of his guilty plea for his plea to be informed – is “yes”.

[40]      I add one final observation. The implication of answering “yes” to this question for the trial judge’s mandatory plea inquiry under s. 606(1)(1.1) of the Criminal Code was not raised before us. Because this issue was not raised, it would not be appropriate to resolve it. I simply observe, that before an accused pleads guilty to a driving offence, a trial judge would be well advised to ensure that the accused understands the nature and length of any licence suspensions.

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