



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Quick, 2016 ONCA 95

DATE: 20160202

DOCKET: C59755

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Ross Quick

Appellant

Breese Davies and Owen Goddard, for the appellant

Roger Shallow, for the respondent

Heard: June 17, 2015

On appeal from the conviction entered on April 15, 2010
    by Justice Guy F. DeMarco of the Ontario Court of Justice.

Laskin J.A.:

A.

Overview

[1]

The appellant Marc Quick pleaded guilty to criminal harassment, breach
    of a court order, and dangerous driving. On his appeal, we must decide whether
    to quash his conviction for dangerous driving on the ground that, when he
    pleaded guilty to that charge, he did not understand that his drivers licence
    would be indefinitely suspended.

[2]

The charges against Quick arose out of an incident in which he
    repeatedly drove his car too close to a car in which his ex-girlfriend was a
    passenger and her new boyfriend was the driver. After a judicial pre-trial,
    Quicks counsel told him that if he pleaded guilty to the three charges, the
    Crown would seek a reformatory term and probation and would withdraw other
    charges against him. Quicks counsel also told him that he would lose his
    drivers licence for one year. Quick decided to plead guilty and he was
    convicted on the three charges.

[3]

Quicks counsel, however, had not told him that because he had two
    previous drinking and driving convictions, his drivers licence would be
    suspended indefinitely under the
Highway Traffic Act
, R.S.O. 1990, c.
    H.8 (
HTA
). In an affidavit filed as fresh evidence, Quick said that
    had he known his drivers licence would be suspended indefinitely, he would not
    have pleaded guilty; he would have asked for a trial.

[4]

To be valid, a guilty plea must be voluntary, unequivocal, and informed.
    Quick admits that his guilty plea was voluntary and unequivocal. This appeal
    turns on whether his plea was informed. For an accuseds plea to be informed,
    the accused must be aware of the nature of the allegations and the effect and
    consequences of the plea: see
R. v. T.(R.)
(1992)
, 10 O.R. (3d) 514 (C.A.). The requirement that a
    guilty plea be informed gives rise to three issues on this appeal:

1.

Did Quick understand the
HTA
consequences of his guilty plea
    from his previous convictions and from the court clerks caution when he
    pleaded guilty?

2.

If the answer to the first question is no, did Quick have to
    understand the
HTA
consequences of his guilty plea for his plea to be
    informed?

3.

If Quick succeeds on the first two issues, should this court quash all
    three convictions or only the conviction for dangerous driving?

I would answer no to the first question, yes to the
    second question, and quash only the conviction for dangerous driving.

B.

Background

1.

History of the proceedings

[5]

The incident giving rise to the dangerous driving charge against Quick
    occurred in December 2009. He pleaded guilty on April 10, 2010; as I will
    discuss, this date is significant for the operation of the
HTA
suspension. On his plea, Quick was found guilty of dangerous driving, criminal
    harassment, and breach of a court order. He was sentenced to six months
    imprisonment and three years probation (in addition to three months of pre-sentence
    custody credited on a two-for-one basis) on the dangerous driving conviction,
    and six months imprisonment on each of the other two convictions, to be served
    concurrently. The sentencing judge did not impose any driving suspension under
    the
Criminal Code
, R.S.C. 1985, c.
    C-46
.

[6]

In May 2010, Quick filed an inmate notice of appeal. He said that he was
    appealing his conviction for dangerous driving. Several months later, however,
    he abandoned his appeal. Quicks appeal was later restored and was heard by a
    panel of this court in November 2014. In a brief endorsement, the panel
    concluded that it would not be in the interests of justice to consider the
    validity of the plea to dangerous driving in isolation: see
R. v. Quick
,
    2014 ONCA 771. The plea to dangerous driving was part of a plea bargain, which
    included pleas to criminal harassment and disobedience of a court order and a stay
    of other charges. The panel dismissed Quicks application but without prejudice
    to his right to apply to set aside all three convictions.

[7]

Quick then filed an amended notice of appeal, challenging all three
    convictions. On this appeal, he has filed as fresh evidence both his own
    affidavit and the affidavit of his trial counsel. Both Quick and his counsel have
    been cross-examined. Both sides accept that the fresh evidence is admissible.
    It is in the interests of justice to admit the fresh evidence because it is
    needed to fairly decide the appeal.

2.

Quicks previous convictions and the suspension under the
HTA

[8]

On September 26, 1997, Quick was convicted of driving over 80. And on
    September 25, 2000, he was convicted of impaired driving. Under s. 41(1)(h) of the
HTA
, on a third conviction for a
Criminal Code
driving
    offence, a persons drivers licence is suspended indefinitely. Thus, once
    Quick pleaded guilty to dangerous driving in April 2010, he lost his drivers
    licence indefinitely. The indefinite suspension is automatic and mandatory,
    though it may be reduced to ten years if the person takes prescribed remedial
    programs.

[9]

Section 41(3) of the
HTA
, however, contains a limitation period.
    The indefinite suspension does not apply when the later conviction is more than
    ten years after the previous conviction. Quicks previous conviction was on
    September 25, 2000. If he had pleaded guilty to dangerous driving on September
    26, 2010, instead of on April 10, 2010, the indefinite suspension would not have
    come into effect.

C.

Analysis

1.

Did Quick understand the
HTA
consequences of his guilty plea
    from his previous driving offences and from the court clerks caution?

[10]

In
    her fresh evidence affidavit and on cross-examination, Quicks trial counsel
    admitted that she did not discuss with her client the
HTA
consequences
    of his pleading guilty. She merely told him that his licence would be suspended
    for one year.

[11]

Quick
    also said that his lawyer never told him that his drivers licence would be
    suspended indefinitely. He first learned of the indefinite suspension after he
    had pleaded guilty.

[12]

Despite
    this evidence, the Crown submits that Quick must have been or should have been
    aware that his drivers licence would be administratively suspended
    indefinitely under the
HTA
in either of two ways: from his previous
    driving convictions or from the court clerks standard caution when he was
    arraigned on the dangerous driving charge. I do not accept the Crowns
    submission.

[13]

Under
    s. 219(1) of the
HTA
, when an accused is arraigned on a driving
    offence, including dangerous driving, the court clerk is required to give the
    accused the following notice:

The Highway Traffic Act provides that upon conviction of
    the offence with which you are charged, in the circumstances indicated therein,
    your drivers licence shall be suspended for the period prescribed by statute
.

[14]

In
    his cross-examination on his fresh evidence affidavit, Quick acknowledged that
    after his two previous drinking and driving offences, his licence had been
    suspended by the Ministry of Transportation, first for one year, and then for
    three years. And he acknowledged that he was given that standard caution before
    pleading guilty. But he thought this caution referred to the one-year suspension
    he had discussed with his counsel.

[15]

I
    do not think that on this appeal we are in a position to disbelieve Quick. It
    seems reasonable for him to have relied on his lawyers advice about the length
    of his drivers licence suspension. Although the mandatory administrative
    suspension of ones drivers licence under the
HTA
may generally be
    well known, I doubt that the provision for an indefinite suspension is well
    understood. On the record before us, certainly Quick did not understand his
    licence would be suspended indefinitely. Thus, I conclude that Quick did not
    understand the
HTA
consequences of his guilty plea to dangerous
    driving.

2.

Did Quick have to understand the
HTA
consequences of his guilty
    plea for his plea to be informed?

[16]

This
    is the most important issue on this appeal. Quick submits that the collateral
    consequences of a guilty plea, including drivers license suspensions under the
Highway Traffic Act
, are part of the consequences of a plea an
    accused must understand before his plea will be valid. When an accused is
    unaware of these consequences in pleading guilty, the plea is uninformed. And
    to deny the accused a trial on the merits when the plea is uninformed would be
    a miscarriage of justice.

[17]

The
    Crown, on the other hand, submits that the only consequences an accused must
    understand for the plea to be informed are the criminal consequences of the
    plea or the punishment. A failure to understand a provincially mandated
    suspension is a civil or collateral consequence, which will not invalidate
    a guilty plea to a
Criminal Code
offence. I generally agree with Quicks
    submission.

[18]

For
    an offender, a plea of guilty will invariably have criminal consequences, the
    punishment for the offence. But a guilty plea may also have non-criminal
    consequences: for example, immigration consequences, employment consequences, a
    civil action for damages, or, as in this case, a provincially mandated suspension
    of ones drivers licence. The parties used the term collateral consequences
    for these non-criminal consequences and I will as well. The general question
    underlying this appeal is whether an accuseds unawareness of a collateral
    consequence can render a guilty plea uninformed. On the specific collateral
    consequence in issue  an automatic licence suspension under provincial
    legislation  the cases go both ways.

[19]

In
    Ontario, trial judges have come to different conclusions on whether an accuseds
    unawareness of the length of an
HTA
licence suspension renders a
    guilty plea uninformed and invalidates the plea. The only provincial appellate
    court to consider the issue, the Court of Appeal of Alberta, has ruled against
    Quicks position.

[20]

I
    begin with the Alberta case,
R. v. Slobodan
(1993)
, 135 A.R. 181 (C.A.). There, the
    appellant had pleaded guilty to dangerous driving causing bodily harm because her
    counsel told her that she would lose her drivers licence for a maximum of
    three years. Although her sentence included only a one-year driving
    prohibition, the appellant faced an automatic five year licence suspension
    under
that provinces
Motor Vehicle
    Administration Act
,
    R.S.A. 1980, c. M-22, as amended by S.A. 1996, c. 29
. She sought
to change her plea because of the
    unexpected additional two years loss of driving privileges:
Slobodan
,
    at para. 4. In a very brief judgment, the Court of Appeal of Alberta rejected
    the appellants position, at para. 4: An unexpected penalty dictated by law
    after a voluntary and
informed
plea of guilty does not now justify a
    change of plea (emphasis added). Implicitly, the court held that an accuseds
    unawareness of a provincially mandated licence suspension does not render the
    plea uniformed. It is a collateral consequence and irrelevant to the validity
    of the plea.

[21]

Slobodan
has been followed in Ontario in
R. v. Sumbler
, [1997] O.J. No. 1953
    (Gen. Div.), and
R. v. D.(B.)
(2009)
,
    84 M.V.R. (5th) 39 (Ont. S.C.).

[22]

But
    Glass J. in
R. v. Stewart
(2002)
,
    33 M.V.R. (4th) 103 (Ont. S.C.), and McDermot J. in
R. v. Grewal
, 2011
    ONSC 4288, took a different view.

[23]

In
Stewart
, the accused pleaded guilty to impaired driving. The parties
    put forward a joint submission for a two-year licence suspension under the
Criminal
    Code
. But, as the accused had a previous driving conviction, his licence
    was automatically suspended for three years under the
HTA
. His lawyer
    had not told him about the provincial suspension, and the accused had been unaware
    of it. Glass J. held that the accuseds plea was not informed. He wrote, at
    para. 14:

I conclude that this information never came to the attention of
    Mr. Stewart. The statutory suspension is an integral part of the whole process
    when a person is concluding the prosecution of impaired driving offences. It is
    an empty victory to strike a deal with the Crown for a two year loss of driving
    privileges in court when in fact there will be an automatic three year loss
    under the provincial statute. Mr. Stewart entered his guilty plea uninformed
    and in effect not voluntarily because of his lack of information. His legal
    representative was a barrister who was governed by the Rules of Professional
    Conduct which require the lawyer to advise the client fully of the implications
    of a guilty plea and the possible consequences of that plea. That did not occur.
    A miscarriage of justice occurred and must be addressed.

[24]

Grewal
was a similar case. There, the appellant pleaded guilty to impaired driving.
    When he entered his plea, he thought his licence would only be suspended for
    one year. But, because he had one previous conviction that was less than ten
    years old, his licence was automatically suspended for three years under the
HTA
.
    His lawyer did not discuss with him the
HTA
consequences of his plea,
    and, importantly, did not tell him that a guilty plea entered fourteen days
    later would only attract a one-year suspension under the
HTA
because, by
    that date, ten years would have passed since his last conviction. On the
    appellants summary conviction appeal, McDermot J. held that the appellants
    guilty plea was not informed and set it aside.

[25]

On
    this appeal, it is unnecessary to endorse the result in
Stewart
or in
Grewal
.
    It is sufficient to say that I agree with the principle underlying each
    decision: an accuseds unawareness of the collateral consequences of a guilty
    plea may render the plea uninformed. I do not believe that principle is
    foreclosed by the reasons of Doherty J.A. in
T.(R.)
.

[26]

In
T.(R.)
my colleague said, at p. 519: The plea must also be informed,
    that is the accused must be aware of the nature of the allegations made against
    him, the effect of his plea, and the consequences of his plea. Quick
    undoubtedly was aware of the nature of the allegations against him and aware of
    the effect of his plea  he would be giving up his right to a trial. He was
    also aware of the
Criminal Code
consequences of his plea. Thus, this
    appeal focuses narrowly on Quicks unawareness of the
HTA
consequences
    of his plea.

[27]

In
T.(R.)
Doherty J.A. elaborated on the meaning of consequences of his
    plea, at p. 523: By an understanding of the consequences of his pleas, I mean
    the realization that convictions would flow from his pleas, as well as
an appreciation of the nature of the potential penalty he faced
.
    (emphasis added) In the next paragraph of his reasons he limited consequences
    to those that are legally relevant.

[28]

What
    flows from
T.(R.)
is that where, as in this case, an appellant raises
    the validity of a plea for the first time on appeal and claims the plea is
    uninformed, the appellant must show a failure to appreciate or an unawareness
    of a potential penalty that is legally relevant.
T.(R.)
does not
    define the ambit of penalties that may be legally relevant. But, I think
    legally relevant penalties would at least include penalties imposed by the
    state. Thus, non-criminal penalties imposed by the state for a
Criminal
    Code
offence would be legally relevant.

[29]

And
    for some accused the collateral or non-criminal consequences of a guilty plea
    to a criminal offence may have a more significant impact than punishment under
    the
Criminal Code
. So, for example, recently this court has suggested
    that an appellants failure to understand the immigration consequences of a
    guilty plea under the
Criminal Code
may render the plea uninformed:
    see
R. v. Aujla
, 2015 ONCA 325; and
R. v. Shiwprashad
, 2015
    ONCA 577, 328 C.C.C. (3d) 191.

[30]

In
    the appeal before us, there can be no doubt that the indefinite suspension of
    Quicks drivers 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 accuseds unawareness of a drivers
    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 accuseds 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. Taillefer
;
R. v. Duguay
,
    2003 SCC 70; [2003] 3 S.C.R. 307 and the reasons of Watt J.A. in
R. v. Henry
,
    2011 ONCA 289.

[34]

In
Taillefer
;
LeBel J.
    discussed the impact of the Crowns breach of its duty to disclose relevant
    evidence on the validity of an accuseds 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. Meehan
, 2013 ONSC 1782.

[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
    Quicks 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 drivers
    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. Rulli
, 2011 ONCA 18 at para. 2.

[39]

I
    thus conclude that Quicks unawareness when he pleaded guilty of the automatic
    indefinite suspension of his drivers 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 judges 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.

3.

Should we quash all three convictions or only the conviction for
    dangerous driving?

[41]

Quick
    submits that only his plea and conviction for dangerous driving should be set
    aside. Only his plea to dangerous driving was uninformed and therefore only the
    conviction on which it was based gives rise to a miscarriage of justice. The
    other convictions are not tainted. Thus, it would not be in the interests of
    justice to set aside those as well, especially as Quick has already served his
    sentence for those convictions.

[42]

The
    Crown agrees with Quicks submission, and I do as well. I also agree with
    Quicks counsel that we have the jurisdiction to allow the appeal only on the
    conviction that resulted in a miscarriage of justice.

D.

Conclusion

[43]

Quicks
    guilty plea to dangerous driving was not informed because he was not aware of
    the indefinite suspension of his drivers licence that automatically followed under
    the
HTA
. Thus, his conviction for dangerous driving gives rise to a
    miscarriage of justice.

[44]

I
    would allow Quicks appeal, set aside his guilty plea and conviction on the
    dangerous driving charge, and order a new trial on that charge.

Released: February 2, 2016 (J.L.)

John Laskin J.A.

I agree. E.E. Gillese J.A.

I agree. K. van Rensburg J.A.


