Appellant pled guilty to s 5(2) (cocaine) and s 4(1) (oxycodone) CDSA offences. Trial Judge found breaches of Charter ss 8 and 9 but declined to exclude evidence under 24(2). Appellant pled guilty following that voir dire decision, in part because defence counsel at trial told him he could still appeal the conviction on the 24(2) issue.
Held: Appeal allowed; guilty pleas set aside; acquittals entered.
Following Wong, 2018 SCC 25, “a guilty plea must be voluntary, unequivocal and informed”. Trial counsel believed the Appellant could still appeal the trial judge’s 24(2) ruling after he pled guilty, and that is what he advised him. This was a legally relevant consequence which vitiated the guilty plea. Further, the s 24(2) analysis was grounded in error. The trial judge based her decision on “a misapprehension about when police may conduct a ‘safety search’ incident to an investigative detention.” The Court undertook its own Grant analysis and found the evidence should be excluded. Strekaf, JA dissented.
A. Serink – Defence Counsel