) ) Her Majesty The Queen) ) ) ) ) ) ) ) ) ) ) Elizabeth Brown, For The Crown

CITATION: R. v.
McIlvride-Lister, 2019 ONSC 1869

COURT FILE NO.: CR-18-00004368-0000
DELIVERED ORALLY: March 26, 2019
2019 ONSC 1869 (CanLII)

ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: )
)
HER MAJESTY THE QUEEN )
) Elizabeth Brown, for the Crown
– and – )
)
Johnathan McIlvride-Lister )
Laura L. Joy, for the Accused
Accused )
)
)
)
)
)
)
) HEARD: December 18, 2018 and
) February 13, 2019
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information
that may identify the person described in this judgment as the complainant may not
be published, broadcasted or transmitted in any manner. This judgment complies with
this restriction so that it can be published.
RULING ON APPLICATION TO STRIKE A GUILTY PLEA
POMERANCE J.:
Page: 2
INTRODUCTION

[1] The criminal justice system offers various incentives designed to encourage
guilty pleas. The vast majority of criminal prosecutions are resolved this
way, often after discussions between the Crown and defence. Negotiated
resolutions benefit both parties. Crown witnesses are spared the experience
of testifying. There is certainty over a finding of guilt. Accused persons
receive mitigating credit for the plea, and, perhaps, other concessions from
the prosecution. It has been recognized that plea agreements are
“commonplace and vitally important to the well-being of our criminal justice
system, as well as our justice system at large”: see R. v. Anthony-Cook,
2016 SCC 43, [2016] 2 S.C.R. 204, at para. 25.
[2] This process works until it doesn’t. Sometimes, the concessions and benefits
become too enticing, creating an unhealthy disparity between the outcome of
a plea and the likely outcome after a trial. Sometimes, an accused person
will perceive that the cost of maintaining innocence is just too high.
Sometimes a person will plead guilty for reasons that have nothing to do
with criminal culpability.

Page: 3
[3] This presents a vexing problem for the criminal justice system. When a
person who is factually innocent pleads guilty to a crime, the result is a
wrongful conviction. So too when a person asserts factual innocence, but

pleads guilty for purely pragmatic reasons, such as the offer of a deep
discount on penalty, the prospect of release from custody, the inability to
pay a lawyer for a trial, or other factors unrelated to guilt.
[4] It can be difficult for courts to identify “false guilty pleas”. Such pleas may
be valid in the strict legal sense. They may resist exposure through
traditional plea inquiries. When a false plea does come to light, the court
has a duty to act. Even if the plea is valid – voluntary, informed and
unequivocal - it may be necessary to strike the plea to prevent a miscarriage
of justice.
[5] This is one of those cases. I will explain why in the reasons that follow.
THE PROCEEDINGS
[6] Johnathan (Casey) McIlvride-Lister wants to strike her guilty plea.
[7] The accused is transgender. In accordance with her wishes, I will refer to
her as female.
Page: 4
The indictment
[8] On December 18, 2018, the accused pleaded guilty to one count of sexual

assault against A.T. This was one of seven counts on the indictment, all of
which concerned the same complainant. The other charges alleged sexual
touching, sexual exploitation, assault, threatening to kill or injure animals,
and the killing of animals kept by the complainant. The Crown advised that,
while the accused was only pleading guilty to one count, the facts on all
counts would be read in as aggravating factors. Counsel were going to offer
a joint submission for a sentence of three years in jail.
The initial plea inquiry
[9] Before arraignment, I conducted a plea inquiry, asking questions aimed at
determining whether the plea was voluntary, that the accused admitted the
essential facts, and that the accused understood the nature and consequences
of the plea. The accused’s responses led me to believe that her plea was
voluntary, that she admitted the elements of the offence, and that she
understood the consequences of the plea. On that basis, I directed that she
be arraigned and she pleaded guilty to one count of sexual assault.
FACTS READ IN BY THE CROWN

Page: 5
[10] The Crown read in the facts. They may be summarized as follows.
[11] The complainant was placed in a foster home run by the accused’s mother.

While there, she met the accused who was then 29 years of age. The
accused gave her money and gifts and they developed a relationship. When
the complainant turned 15 she went to live with the accused. She was
worried that, if she stayed in the foster home, she might become a Crown
ward. She did not want that to happen as she wanted to control her own life.
She decided to live in the accused’s home so that the Children’s Aid Society
would not know where she was.
[12] The accused’s mother reported the complainant missing. The accused was
interviewed about the complainant’s whereabouts and lied to the police.
[13] When the complainant eventually turned herself into police, she told them
that she was worried about her dog, who was still living in the accused’s
residence. This was apparently why she decided to speak to the authorities.
The complainant told police that she had been physically and sexually
assaulted by the accused while she was living with her. She described non-
consensual acts of sexual intercourse that commenced when she was 15
years of age and continued until she was 18 years old. She reported that on
three occasions, the accused choked her into unconsciousness. During some
Page: 6
of the events, the accused slapped her face or grabbed her throat during acts
of intercourse. The complainant reported that, during this period, she was
entirely dependent on the accused. She said that she had no identification, no

money and no other source of food or shelter.
[14] The complainant told authorities that she was afraid of the accused. This
was one of the reasons that she did not leave. She said that he threatened to
kill or injure the animals in the house, and actually did kill some of the
animals. This caused the complainant considerable fear. She reported that
when she tried to assert herself or speak up about the animals, the accused
got angry. He would harm the animals and threaten to harm her. She felt
that she had nowhere to go.
[15] The facts read by the Crown included detailed, rather gruesome, particulars
of how the accused killed certain animals.
[16] The complainant left the residence in June 2017. She went to police in
November 2017, telling them that she came forward because she had left a
dog at the accused’s residence and wanted to ensure the dog’s safety.
Inquiry on the facts

Page: 7
[17] The following exchange took place immediately after the facts were read in
by the Crown:

THE COURT: Mr. Topp, are those facts correct?
MR. TOPP: Yes, there’s no issue. They, they obviously

make out count one.
THE COURT: All right. Ms. McIlvride-Lister, please stand

for a moment. You’ve heard the facts read by the crown. Are
those facts correct?
MR. TOPP: Yes, you have to say yes.
THE COURT: I need, but…
MR. TOPP: Yeah, sorry. I, I wasn’t…
THE COURT: I need her to answer
THE ACCUSED: I don’t understand what I’m agreeing to. Am

I agreeing to everything she said because I can’t in good
conscience agree to things that never happened.
THE COURT: Well.
THE ACCUSED: Like, I would never hurt an animal, despite

what anybody says about me and it just, it goes against
everything I believe in and stand for and I don’t like, pleading
Page: 8
guilty to something then saying that that all happened, that

doesn’t make any sense to me because that’s not true.
THE COURT: Well, if something’s, so let us be clear that if

something, if you disagree with something that was read in, into
the facts, then you need to let me know that. I wonder if it’s, it’s
appropriate to take a brief recess to give you an opportunity to
speak with Mr. Topp…
[18] I directed a recess so that the accused could speak to her lawyer. Mr. Topp
requested 10 minutes. I told counsel to take the time that was needed.
When court resumed, Mr. Topp advised that he and the Crown were “ad
idem now”. He advised that his client “does not admit to the harming of the
animals” and that “the choking is an issue”, but that the other allegations
were admitted. The discussion went as follows:
MR. TOPP: Thank you for that time, Your Honour. I, I’ve
spoken with my client. I’ve also spoken with the Crown. I think
we’re ad idem now. Um, if I may qualify the facts in this way,
my client does not admit to the harming of the animals. That is a
major issue in this case for my client and also the choking is an
issue. Um, I think my friend is willing to accept those
qualifications at this point . . .
THE COURT: Yes.
MR. TOPP: . . .as, as her. . . .

Page: 9
THE COURT: Is there an admission of threatening to harm

the animals . . .
MR. TOPP: Yes.

THE COURT: . . .as distinct from actually harming them?
MR. TOPP: Yes, just not harming them.
THE COURT: So, the facts are admitted except, so the facts
of non-consensual sexual intercourse. . .
MR. TOPP: Yes.
THE COURT: . . .is admitted and I’ll be asking the accused

to confirm this as well. So, the acts of non-consensual sexual
intercourse are admitted?
MR. TOPP: Yes.
THE COURT: Threats are admitted?
MR. TOPP: Yes.
THE COURT: Threats to harm the complainant?
MR. TOPP: Yes.
THE COURT: And threats to harm animals?
MR. TOPP: Yes.

Page: 10
THE COURT: But what is not admitted in terms of all of the

facts that the Crown read in, actually harming the animals is not
admitted?

MR. TOPP: Correct.
THE COURT: And choking the complainant is not

admitted?
MR. TOPP: Correct.
THE COURT: What about other acts such as slapping the

complainant?
MR. TOPP: I believe that’s admitted, if I may just . . .
THE COURT: Yes.
MR. TOPP: . . .double-check that issue.
THE COURT: Ms. Brown, do you have a copy, a written

copy of the facts you read in?
MS. BROWN: It’s from two separate, uh, documents, but I

do and I improvised a little bit . . .
THE COURT: Yes.
MS. BROWN: . . . you’ll see.

Page: 11
THE COURT: I, I wasn’t going to ask necessarily that I have

them, though that’s of assistance. I wondered if it might assist
for the accused . . .

MR. TOPP: The slapping . . .
THE COURT: . . . to have them.
MR. TOPP: . . .the slapping’s admitted.
THE COURT: All right. Um, is there anything else that is

not admitted?
MR. TOPP: No, that’s, that’s it, thank you.
[19] I then asked questions of the accused, as set out below:
THE COURT: All right. So, um, I’m gonna ask Ms.
McIlvride-Lister if you’d stand. So, I need to tell you that you are
under no obligation to admit facts of any kind. It is up to you to
either admit or not admit facts based on whether they are true or
not. I need to understand from you directly what it is you are
admitting. I understand that of the facts read in by the Crown, you
do not admit actually hurting any animals. Is that correct?
THE ACCUSED: Yes.
THE COURT: And you do not admit ever choking the

complainant?
THE ACCUSED: Yes.

Page: 12
THE COURT: Am I correct, though, that you admit that other

facts that were read in?
THE ACCUSED: Yes.

THE COURT: And just to be clear, with respect to some of
them, do you admit engaging in sexual activity with the
complainant without her consent?
THE ACCUSED: Yes.
THE COURT: Do you admit engaging in sexual intercourse

with the complainant without her consent?
THE ACCUSED: Yes.
THE COURT: Do you admit to threatening to harm the

complainant and, or animals during the period that she was living
with you?
THE ACCUSED: Yes.
THE COURT: And aside from the qualifications relating to

not harming animals and not choking the complainant, do you
admit all of the other facts that were read in by Crown counsel as
true?
THE ACCUSED: Yes.
[20] On the basis of the accused’s admissions, I registered a finding of guilt on
the sexual assault alleged in count #1.

Page: 13
SUBSEQUENT EVENTS
[21] After recording the finding of guilt, I directed that a pre-sentence report be

prepared. The matter was put over to February 13, 2019 for sentencing. In
the meantime, the accused retained a new lawyer, who filed an application to
strike the plea. Mr. Topp filed an application to be removed as counsel of
record.
[22] When the matter came back before me on February 13, 2019, I directed that
there be a hearing on the question of whether the plea of guilt should be
struck. The accused testified on her own behalf, and Mr. Topp was called as
a witness by the Crown.
THE HEARING TO STRIKE THE PLEA
Testimony of the accused
[23] The accused testified on the hearing to strike the plea. She offered several
reasons as to why she ultimately pleaded guilty. One was the prospect of a
much reduced sentence. The Crown had offered a sentence of three years on
a plea, but was going to ask for 8 – 10 years after a trial. Ms. McIlvride-
Lister could not afford to pay a lawyer for a trial. She also understood from
Page: 14
her lawyer that she did not have a good chance of success at a trial. She
testified that she had always maintained her innocence on the charges.

[24] On the day of the plea, after the accused took issue with the facts, she and
her lawyer stepped outside to discuss the matter. She testified that her
lawyer told her: “I don’t want you to say anything you didn’t do. We’ll just
go to trial”. The accused responded: “Fine. Then let’s go to trial”. When
they re-entered the courthouse, the accused had to go through security. By
the time she made it back into the courtroom, her lawyer told her that he had
gotten the Crown to “dismiss everything about the animals”, and the
“choking”. She testified that her lawyer told her “This is the best option. I
really think you should take this”.
[25] Her testimony included the following:
At the time I didn’t have $30,000 that my lawyer wanted to go

to trial and I didn’t have money to hire a new lawyer. He didn’t
seem confident, and told me that he didn’t know whether I – he
didn’t think I would win if we went to trial, and that my best
option for getting through this and getting on with my life was to
just take the deal that they were offering, that I would be out in
as little as six months, and I could move on and put this behind
me and everything else.
Page: 15
…under pressure of not having time to really be able to consider

all this, what do you do when you have a noose around your
neck and you feel like you’re being told if you fight this and you

lose you’re looking at five to eight years, your life is over, or
you take this deal and …you can be out in as little as six months
and move on with your life.
....
I feel stuck in a corner. At the time I did not have options to

proceed with another lawyer. How do I go to trial with a lawyer
who doesn’t really seem confident that he wants to go to trial at
all, or that I’m even going to have a chance at winning my
innocence?
....
He told me we would go to trial. I said: “Okay that sounds

good”. We came back upstairs and then he came back and said
“This is your best option. I really think you should take it”
The meeting with the probation officer
[26] The accused testified that, on the night before she was to meet with the
probation officer who would prepare the pre-sentence report, she spoke to
Mr. Topp on the phone. He told her that she had to attend, that she should
be polite, but that she could not deny any of the facts. She understood from
Page: 16
Mr. Topp that if she denied the facts during the meeting with the probation
officer, the deal would “go away”.

[27] On January 21, 2019, the accused met with the probation officer, Erin Kemp.
Ms. Kemp prepared the pre-sentence report. The report asserts that the
accused “reported minimal responsibility for the offence”. Ms. Kemp
reported that the accused said she was guilty of being with the complainant
when the complainant was under age. The accused denied making this
statement, insisting that she did not admit guilt to anything while with the
probation officer.
[28] After the meeting, the accused left Ms. Kemp a voice mail message,
asserting her innocence. On January 24, 2019, Ms. Kemp documented the
voice mail message in an e-mail sent to both Crown and defence. As she
reported:
Client left me a voicemail after our interview indicating that she

felt pressured to enter the guilty plea and did not commit the
offence. The client did not express this to me during our in
person interview. I have suggested to the client that she speak
with her lawyer as soon as possible…
Testimony of Defence Counsel

Page: 17
[29] Mr. Topp was called as a witness for the Crown.
[30] He testified that he and the accused first discussed the possibility of a plea at

the preliminary inquiry. That day, the Crown offered a joint submission for
a three year sentence if the accused pleaded guilty. This offer was
contingent on Mr. Topp not asking any questions of the complainant at the
preliminary inquiry. Mr. Topp shared the offer with the accused while
standing outside the courthouse. He told the accused that “this offer ends
the second I ask one single question, so what is it that you want me to do?”
The accused responded that he should not ask any questions and that he
should continue with resolution discussions.
[31] In total, Mr. Topp met with the accused on nine occasions. Three of those
meetings took place between the preliminary hearing and the trial date. Mr.
Topp did not recall telling the accused what would happen on a guilty plea,
but he testified that “that’s something I always go through”.
[32] Mr. Topp testified that, during this period, the accused was pre-occupied
with a number of concerns. The accused was extremely concerned about
whether she would be housed in a custodial facility that could accommodate
her gender transition. The accused was also concerned because her mother
Page: 18
did not know that she was transitioning from male to female, but would find
out as a result of the proceedings.

[33] According to Mr. Topp, the accused’s position was “very fluid throughout,
including on the date of the plea, December 18th”. As he put it, “the client
was wavering”… “unsure but telling me to plead guilty”. He went on to
say:
There was a lot going on, because this is not a simple case in the
sense that a client comes in, is dealing with the issue of pleading
guilty or having a trial. There was also the whole issue about the
transformation (sic), if I may. That played a huge role in even the
guilty plea discussions because of where the client would serve
the sentence and so on. So there was a lot going on.
[34] Mr. Topp did not get any instructions in writing. He described the issues
that were of concern on the day of the plea:
Q. And did you confirm those instructions at any

point in writing?
A. Never – never – in writing. We spoke at length

on multiple occasions. If I can fast-forward to December 18th for
a moment, I think it’s an important point. We were going back
and forth, and then there was recesses to deal with the facts, and
at one point it specifically entered my mind, and I said to Mr. - or
Page: 19
sorry, Ms. McIlvride-Lister that - “Should I get this in writing?”

We were a little bit rushed getting back up to court. I didn’t - I
didn’t get a chance to do it, but I was confident based on our

discussions that I wouldn’t need that.
Q. So when you said to Ms. McIlvride-Lister,

“Should I get this in writing?”, what if anything did she say?
A. My recollection is of that day that “No, it’s not

an issue.” Our relationship was - it’s complicated because it was
multi-levelled. We were dealing with not only the charges before
the court but, because of where the sentence was gonna be served
and all that, there was a lot of different issues, and him about
telling his mom about the transformation (sic) and things like
that, so....
[35] Mr. Topp described his conversation with the accused about the facts, just
prior to the plea, as follows:
A. The client wasn’t willing to accept those facts,

and that’s why we went outside to talk about it. At that point
when we were outside I said, “If you’re not agreeing to anything,
we’re going to put a stop to this”, and - and I mean by that the
entire plea, because at this point now I’m getting concerns about
everything, based on what the client is saying.
Q. What was she saying?

Page: 20
A. Just - she was scared. She seemed to be

resiling from the process per se.
Q. In what way?

A. Well, I explained essentially, “It’s not like let’s
make a deal. You can’t say, ‘Okay, we’ll take this word out,
we’ll take that word out, and then it’ll be fine.’ If you don’t
accept it, we don’t accept it, and we’re gonna go back there and
say that.” Then we came back upstairs. At that point in my mind
there was an issue, I can tell you that. I wasn’t so confident in the
client’s instructions. However, the client talked to me at the
counsel table - we were in courtroom number 1, I remember that -
and said, “It’s okay, let’s do this” at that point.
Q. So the client said that to you?
A. Yes.
Q. Ms. McIlvride-Lister said that to you?
A. Yes, words to that effect. I’m not saying - but

at that point that she wanted to continue with the plea.
Q. Okay. When you say “at that point in my mind

there was an issue”, please tell us what you mean by that.
A. Well, just starting at the beginning of this

whole process, when I met Ms. McIlvride-Lister, she was Mr.
McIlvride-Lister, Johnathan, and then the day of it was Casey.
Page: 21
Q. Mm-hmm.
A. And she had her hair done and everything. It

was the first time I had seen her like that, and we had 11

meetings, and these meetings are not short meetings. There truly
was a lot going on with Ms. McIlvride-Lister now.
Q. But specific to “there was an issue” on

December 18th, what was the issue that you were concerned
about?
A. She was more concerned about - I don’t want

to use the word “guarantee”, but about where she was going to
serve her sentence. There was anxiety towards that, and that’s
something we worked out with the court. I made submissions to
the court about I was looking into that issue. She wanted me to -
and we talked about this on the 18th - say to the court words to the
effect, I don’t know if I specifically said it in court because Her
Honour was taking this very seriously and respectfully of Ms.
McIlvride-Lister. She was worried at some point that because she
is now a woman in court this time, if that was - I guess the way to
say it, and I don’t think she specifically said these things, was that
people would think we were playing a game for sentencing
purposes. But that was a big part of it too.
Q. Was there any issue, when you used that word,

“at that point in my mind there was an issue”, specifically with the
sexual assault guilty plea to that count? Was there any discussion
Page: 22
on that day between you and your client, or any issue you were
concerned about, regarding that count?
A. At that point I was concerned about

everything.
Q. But was there anything specific?
A. Yes.
Q. What was it?
A. Well, she started going back on the facts. The

animals was the biggest thing here, was the animals, and that’s
why we got sent outside. But then she started talking about the
totality of the whole thing and saying it’s, if I can quote,
“bullshit”. But, based on our earlier discussions, I felt that still
she was accepting of the sexual assault count. But we had a
discussion after January 24th that put - or on January 24th that put
some of our discussions at the courthouse in context, and she
explained it, and it looks like we were talking about different
things.
Q. So you say prior discussions, even though on

the day of the guilty plea Ms. McIlvride-Lister was saying
something about something being “bullshit”, you said prior
discussions did what, sorry? You just said that fast.
THE COURT: No, I think it was a later discussion on January

24th put things into context.
Page: 23
MS. BROWN: Q. But prior to that, you said she started

talking about the totality of the whole thing, saying it’s bullshit,
but prior discussions....

A. She was willing to accept that she had sex with
this person under the age of 16, but the surrounding
circumstances were the issue.
Q. Okay. And how do you know she was willing

to accept that she had sex with this person under the age of 16?
A. Well, specifically I put that to her at the

preliminary hearing.
Q. You put that....
A. Proposition and part of the deal was that she

would plead to a count of sexual assault.
Q. Okay.
A. So....
Q. And did you have instructions on that?
A. Yes.
Q. Which were?
A. At the preliminary hearing I had instructions, I

had instructions specifically to set it for a resolution pre- trial
only, and we would go from there. But as she progressed in her
Page: 24
transformation (sic), things got a lot more unclear on all – on

everything to the point where on December 18th was the first time
I saw Johnathan being Casey.

[36] When Mr. Topp received the e-mail message from the probation officer, he directed
his assistant to call the accused and have her attend at his office. He described his
conversation with the accused that day as follows:
And we went on to talk - I mean, we kept

talking about it, and I said, “But we went through this outside
very, very clearly. I specifically said to you, ‘If there is anything
you do not agree with me, tell me, because I’m going to put a
stop to this.’” And she said that - I want to be careful how I
phrase this. She said - because she’s talking - looking in
hindsight now, just so that’s clear.
Q. Yeah, I understand.
A. That day there was a lot going on. I don’t

know what’s going on with - and I don’t want to complicate
things, but throughout this process there’s all kinds of different
medication. I didn’t see anything that day to make me
concerned. She wasn’t intoxicated. She’s never been
intoxicated, alcohol or illegal drugs, anything like that. But she
was telling me in my office that her meds are essentially, to
quote, “screwing with her head”, and that she’s seeing a doctor
and she’s diagnosed with depression and anxiety, which I said it
Page: 25
could be specific anxiety, because people get that. I do a lot of

mental health work about going to jail and things like that,
generalized depression.

But she said that she did accept the facts, and
she’s sorry that she did that, and when I came - when we came
back up to the courtroom and she said, “Let’s do this”, she
didn’t believe in her heart that she was doing the right thing, and
she should have stood her ground. She was very clear that I
didn’t pressure her at all. But we also talked about, and that’s
what I alluded to earlier, was that maybe on December 18th we
were having two separate discussions.
Q. In what way?
A. Well, in the way that when pressed with

anxiety she would agree.
Q. To what?
A. Well, it seems to whatever, because after it

was done she was telling me that she didn’t want to accept those
facts, but she told me she did. And I was very concerned that,
because the pressure that she said she was being put under could
only be me, because I’m the only one there, and she specifically
said, “It’s not you per se putting the pressure on, it’s just
everything.” So that’s why I’m saying it looks like we’re having
two separate conversations, because she was pretty clear to me,
Page: 26
and I’ve known her for a long time throughout this, and she was
no different that day than other days.
Q. Okay. And so when you were downstairs

talking on December 18th, and you came back up to the
courtroom, what was your understanding of what was going to
happen?
A. That those specific facts that the Crown was

willing to remove were being removed, and then I also said that
“Her Honour’s gonna ask you a lot of questions now, and you be
prepared to answer them, and truthfully.”
Q. Truthfully. Also, was there any discussion

on December 18th that - other than what you’ve told us about,
don’t - the words you used, I won’t go over them - about having
a trial?
A. Yes. I’ve said multiple times, “If you don’t

agree with this, I’ll have a trial”, and my specific words were, “I
can tell your story if you want me to tell your story.” That’s
what I kept saying, because I don’t - I’m speaking myself now as
the way I practice law. Either you accept the facts, or you don’t
and we have a trial. It’s not, “Let’s go see what we can do here,
what we can do there.” It’s either, you did it or you didn’t do it.
Q. Okay. And what were your instructions?
A. When? The 18th?

Page: 27
Q. Well, believe you said, “I have said it

multiple times. I can tell your story if you want me to tell your
story.” What were your instructions to that?

A. They went back and forth.
Q. Okay. How about on the 18th?
A. They went back and forth.
Q. Okay.
A. But...
Q. So what discussions did you have about trial

on the 18th?
A. When were outside downstairs I said, “If you

don’t accept these facts you’re never gonna get this deal again.
We’re going back up there. It’s going to be set down for trial. I
will do the trial. That’s fine. But tell me one way or another
what you want to do.”
Q. And what were your instructions?
A. They were unclear till we came into the

courtroom, and then she said, “Let’s do this.”
THE ISSUES
Page: 28
[37] I must determine whether the accused has established a basis for striking her
plea of guilt to one count of sexual assault. I must consider the whole of the
evidence, including the testimony on the hearing, and the plea proceedings

themselves. I must consider whether the plea was valid in the sense of being
voluntary, informed and unequivocal. In this case, given the nature of the
evidence and the arguments raised by counsel, I must also consider a second
question. Even if the plea is found to be valid, I must consider whether it is
nonetheless in the interests of justice to strike the plea, to prevent a
miscarriage of justice.
ANALYSIS
Was the plea valid?
The requirements and effect of a valid guilty plea
[38] Guilty pleas carry significant consequences. As it was put by Trotter J.A. in
the case of R. v. Lopez-Restrepo, 2018 ONCA 887, at para. 23:
It is well-known that a guilty plea may have profound and far-

reaching consequences. A guilty plea involves a broad waiver,
sometimes extending beyond an admission of criminal
responsibility. In R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.),
Doherty J.A. said, at p. 519:
Page: 29
A guilty plea is a formal admission of guilt. It also

constitutes a waiver of both the accused's right to
require the Crown to prove its case beyond a

reasonable doubt and the related procedural safeguards,
some of which are constitutionally protected: Korponay
v. Canada (Attorney General), [1982] 1 S.C.R. 41 at p.
49, 65 C.C.C. (2d) 65 at p. 74; Brady v. United States,
397 U.S. 742 (1970), at p. 748, Fitzgerald, The Guilty
Plea and Summary Justice (1990) at pp. 192-203.
[Emphasis added.]
[39] To a similar effect is the majority decision in R. v. Wong, 2018 SCC 25,
[2018] 1 S.C.R. 696, at para. 2:
The decision of an accused to plead guilty is plainly significant.

By pleading guilty, an accused waives his or her constitutional
right to a trial, relieving the Crown of its burden to prove guilt
beyond a reasonable doubt. Taking this step is of such
significance that it represents one of the very few decisions in
the criminal process which an accused must personally take.
Indeed, defence counsel are ethically bound to ensure that the
ultimate choice is that of the accused.
[40] When guilty pleas are concerned there is a societal interest in finality.
Finality is necessary to ensure “stability, integrity and efficiency of the
administration of justice”: see Wong, at para. 3 However, the principle of

Page: 30
finality must sometimes yield to other factors. In some cases, there will be
reason to doubt the validity of the plea. As set out by Doherty J.A. in R. v.
T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519, a valid plea is one that is

voluntary, unequivocal, and informed. A voluntary plea refers to a
“conscious volitional decision to plead guilty for reasons which he or she
regards as appropriate”: see T. (R.), at p. 520. An informed plea requires
that the accused be aware of the nature of the allegations, the effect of the
plea, and the consequences of the plea, including collateral consequences.
The question is whether it is safe to rely on a guilty plea as a basis for
conviction and sentence.
[41] It is not a simple matter to strike a plea of guilt. The onus rests upon the
accused to establish that it should be done. Where the issue concerns
information about the consequences of the plea, the accused must also
establish that the plea would have been different, had the circumstances been
known at the relevant time: see Wong, at para. 25.
Was the plea valid in this case?
[42] The Crown argues that the plea entered by Ms. McIlvride-Lister on
December 18, 2018 met the test set out in T. (R.) – it was voluntary,
unequivocal, and informed.

Page: 31
a. Informed
[43] The plea was informed. There is no suggestion that the accused failed to

appreciate the consequences.
b. Voluntary
[44] As for the requirement that the plea be voluntary, I accept that the accused
felt pressured by circumstances when she pleaded guilty. However, courts
have recognized that pressure alone will not negate the voluntariness of a
plea. People usually feel anxiety and pressure when they decide to plead
guilty to a crime.
[45] Doherty J.A. put it this way in T. (R.), at p. 253:
In his affidavit the appellant asserts that he was anxious and felt
himself under pressure when he entered his pleas. No doubt
most accused faced with serious charges and the prospect of a
substantial jail term have those same feelings. Absent credible
and competent testimony that those emotions reached a level
where they impaired the appellant's ability to make a conscious
Page: 32
volitional choice, the mere presence of these emotions does not

render the pleas involuntary.
[46] Similar comments were made in R. v. Tryron, [1994] O.J. No. 332 (C.A.):

No doubt, the appellant, like most accused, felt various
pressures in deciding to plead guilty. In this case the pressures
stemmed from the difficult position the appellant had put his
sureties (his parents) in as a result of his failure to abide by his
bail conditions, the appellant’s incarceration pending trial and
the wishes of his co-accused whose immediate fate was tied to
the appellant’s willingness to plead guilty by the position taken
by the crown during plea negotiations. None of these factors
render the appellant’s plea involuntary in the sense that it was
rendered under duress or was the product of coercion. The plea
was a valid one and should stand.
[47] This principle was also endorsed in R. v. Carty, 2010 ONCA 237, 253
C.C.C. (3d) 469, at paras. 36-37:
The appellant claims in his affidavit and cross-examination that

he was coerced into pleading guilty by the circumstances and, to
some extent, by the attitude of his trial lawyer. I have no
difficulty accepting that the appellant was under pressure at the
time. He was 21 years old, and in custody for the first time with
no real prospect of release. He was facing a series of criminal
Page: 33
charges, one of which was a serious allegation. His lawyer had

informed him that he had no defence on that serious
charge. These factors no doubt weighed heavily on the

appellant’s mind when he was trying to decide what to do.
However, the circumstances in which the appellant found

himself were hardly unique, and are shared by many who must
decide whether to plead guilty to criminal charges. That
decision by its very nature must be made when individuals are
under considerable pressure. That pressure is often the product
of the grim realization that there is no viable alternative to a
guilty plea, and that the consequences of a guilty plea will be
immediate, serious and far-reaching. The pressures inherent in
the nature and timing of the decision to plead guilty cannot in
and of themselves invalidate a guilty plea on appeal. People are
capable of deciding what is in their best interests even when
they are under considerable pressure and none of the available
options are attractive.
[48] The pressures experienced by Ms. McIlvride-Lister were very real. They did
not, however, render the plea involuntary. Ms. McIlvride-Lister pleaded
guilty for reasons unrelated to guilt, but her decision to do so was the
product of a conscious and volitional choice.
c. Unequivocal
Page: 34
[49] Was the plea unequivocal? There was certainly equivocation when the facts
were read in, the extent of which was not entirely clear. The accused
explicitly denied killing animals, but beyond that, stated that she could not

“in good conscience agree to things that never happened”. Her reference to
“things” in the plural would indicate that she took issue with more than one
factual allegation. According to Mr. Topp, there was equivocation outside
of the courtroom, with the accused’s position being “fluid” until such time
as she gave him his final instructions. On the other hand, once the accused
decided to go ahead with the plea, her admissions lost their equivocal
character. She expressly admitted the elements of the offence. Hindsight
compels me to acknowledge that my inquiry at that stage might have been
more extensive, given earlier events. In the circumstances, there might have
been a place for open-ended, rather than leading questions. Be that as it
may, the questions, as posed, elicited unequivocal answers.
[50] It is open to argument that the earlier equivocation is, itself, a sufficient
basis for striking the plea. If so, that is the end of the matter. I propose,
however, to go on and consider the second question, namely, whether the
plea resulted in a miscarriage of justice. I will do this for two reasons. First,
the earlier equivocation may not suffice for a remedy, given later events.
Page: 35
Second, the miscarriage of justice inquiry more accurately captures why the
plea in this case should not stand. It allows for a more fulsome and direct
exploration of what went wrong in this case.

Should the plea be struck in the interests of justice?
Appellate authority
[51] The Court of Appeal for Ontario has, in various cases, recognized a
discretion to receive fresh evidence which explains the circumstances of a
guilty plea, and which demonstrates a miscarriage of justice. Where
evidence establishes a miscarriage of justice, the plea will be set aside, even
if it was valid in the sense of being voluntary, informed and unequivocal.
[52] For example, in R. v. Hanemaayer, 2008 ONCA 580, 239 O.A.C. 241, at
para. 17, the late Justice Marc Rosenberg found that the appellant’s plea of
guilt was voluntary, unequivocal and informed:
Doherty J.A. further explained that to constitute a valid guilty

plea, the plea must be voluntary, unequivocal and
informed. There is no suggestion in this case that the
appellant’s plea almost twenty years ago did not meet these
requirements. While the appellant speaks of advice from his
lawyer to plead guilty, the fresh evidence makes clear that in the
Page: 36
end the appellant came to his own decision. His plea was
unequivocal and he understood the nature of the charges he
faced as well as the consequences of his plea.

[53] Nonetheless, Rosenberg J.A. observed that the appellant pleaded guilty due
to the “powerful inducement” of a reformatory sentence as compared to six
years in the penitentiary. As he explained, at paras. 18-20:
On the other hand, the court cannot ignore the terrible dilemma
facing the appellant. He had spent eight months in jail awaiting
trial and was facing the prospect of a further six years in the
penitentiary if he was convicted. The estimate of six years was
not unrealistic given the seriousness of the offence. The justice
system held out to the appellant a powerful inducement that by
pleading guilty he would not receive a penitentiary sentence.
The fresh evidence proves beyond doubt that the appellant did
not commit the offences to which he pleaded guilty. One
miscarriage of justice would be compounded by another if this
court had no power to intervene. As I have said, the Crown
agrees that this is a proper case for setting aside the guilty pleas
and entering acquittals.
[54] Justice Rosenberg took a similar approach in R. v. Kumar, 2011 ONCA 120,
273 O.A.C. 130, at para. 34. Mr. Kumar faced a “terrible dilemma”:
Page: 37
At the time he pleaded guilty, the appellant was facing a charge

of second degree murder. He was relatively new to Canada and
was unfamiliar with the language and the legal system. At the

time of the infant’s death, his wife had just returned from
hospital after major surgery for a brain tumour. He was facing
loss of his liberty for at least ten years, loss of custody of his
remaining child and deportation. Competent counsel had been
unable to obtain opinion evidence to refute the opinion of the
then leading expert in the province that the appellant had
intentionally caused the death of his child. Like in
Hanemaayer, the appellant faced a terrible dilemma. The
justice system now held out a powerful inducement: a reduced
charge, a much-reduced sentence (90 days instead of a
minimum of ten years), all but the elimination of the possibility
of deportation, and access to his surviving child. Given the
persuasive value of the fresh expert evidence that shows that the
conviction was unreasonable, this is a proper case to set aside
the guilty plea to avoid a miscarriage of justice
[55] In R. v. Shepherd, 2016 ONCA 188, the Court of Appeal allowed Ms.
Shepherd to withdraw her guilty plea after Rosenberg J.A. granted an
extension of time for the appeal. Ms. Shepherd, like Mr. Kumar, was
advised by her lawyer that she could not rebut the opinion of Dr. Charles
Smith that she was responsible for her stepdaughter’s death. Told that
conviction was a certainty, Ms. Shepherd pleaded guilty to manslaughter

Page: 38
believing that it was the only way that she could keep her remaining family
members together. It was later determined that there had been no criminal
wrongdoing in the death of Ms. Shepherd’s stepdaughter. She was fully

exonerated by the court in reasons that included the following at paras. 14
and 20:
The justice system held out a powerful inducement to Maria

Shepherd to change her plea to guilty of manslaughter. The
evidence about cause and mechanism of death, as provided by
Dr. Smith, pointed directly at her and at no one else. Efforts to
locate a contrary opinion were pursued, but failed. Her
conviction on the evidence assembled by the Crown approached
near certainty.
Maria Shepherd pleaded guilty on the basis of the cause and

mechanism of death advanced by Dr. Charles Smith – a
significant blow, indeed a fatal blow to the back of the head
while wearing a watch. The fresh evidence has thoroughly
discredited that mechanism and cause of death. As a result, the
plea of guilty, in our view, can no longer be said to be informed.
Nor can the conviction recorded on that basis be considered
reasonable or supported by the evidence. There is no
demonstrated nexus between Maria Shepherd’s conduct and her
stepdaughter’s death. It follows that the plea of guilty entered
and the conviction the trial judge recorded must be set aside.
Page: 39
[56] More recently, in R. v. Catcheway, 2018 MBCA 54, the Manitoba Court of
Appeal set aside a guilty plea and directed an acquittal after receiving
evidence that the accused was in custody at the time of the offence to which

he pleaded guilty.
The problem of false guilty pleas
[57] The above cases illustrate, in stark and concrete terms, that innocent people
sometimes plead guilty; sometimes in the most serious of cases. It has been
suggested that this phenomenon may be even more frequent when the stakes
are lower, in cases involving less serious crimes.
[58] There has been increasing recognition of the problem false guilty pleas,
stemming from a broader consciousness of, and concern about, wrongful
convictions. People who are factually innocent may be motivated or
induced to plead guilty for reasons unrelated to culpability. An erroneous
plea may flow from incompetent advice, inappropriate pressure, or failure of
the court to make the necessary inquiries of the accused person. The
accused may have her own reasons for pleading guilty, independent of any
negligence or wrongdoing.
Page: 40
[59] Some commentators have expressed concern over deep discount plea
bargaining. A deal offered by the prosecution may create an unhealthy and
coercive disparity between the sentence on a plea and the likely sentence

after trial. Likewise, a guilty plea may promise release from custody, a
tempting prospect for a detained person waiting several months for a trial.
Guilty pleas may be prompted by other factors, such as a desire to protect
the family unit, financial limitations, a lack of understanding of the process,
or personal vulnerabilities. It has been observed that false guilty pleas may
be more prevalent among those who are “marginalized by race, ethnicity,
socioeconomic status, intellectual disability or some combination thereof”:
see Amanda Carling, “A Way to Reduce Indigenous Overrepresentation:
Prevent False Guilty Plea Wrongful Convictions” (2017) 64 CLQ 415, at p.
419.
[60] The point is that a person who is factually innocent may perceive a plea of
guilt to be the lesser of the two evils – a choice between a proverbial rock
and a harder place. The cost of maintaining innocence – be it financial,
emotional, familial, custodial or other – may be seen as too high. As
Christopher Sherrin put it in his article “Guilty Pleas from the Innocent”
(2011) 30 Windsor Rev Legal Soc Issues 1, at 34:

Page: 41
False guilty pleas are an unfortunate reality of our criminal

justice system. It is impossible to know how often they occur but
there is good reason to believe they are fairly common. A

number of false guilty pleas have been proven, many more have
been alleged, and the innocent have a wide variety of
understandable reasons for declining to dispute a charge. Perhaps
highest on that list of reasons is the desire to avoid the higher
penalty that will come with a conviction that seems likely to
follow trial.
[61] Some might say that courts should respect the deliberate choice of an
innocent person to plead guilty. Some might go so far as to say that the
person who pleaded guilty to a crime they did not commit is the author of
their own misfortune. However, the matter is not so simple. The decision of
an innocent person to plead guilty may flow from impossible dilemmas
posed by coercive circumstances. Moreover, to blithely accept false pleas
would be to undermine the integrity of our justice system. A guilty plea
offered by an innocent person is a wrongful conviction. That, in turn, is an
intolerable prospect. “[I]t can never be in a defendant’s interest to be
wrongly convicted”: see R. v. Pietrangelo, 2008 ONCA 449, 233 C.C.C.
(3d) 338, at para. 6.

Page: 42
[62] In 1993, the Attorney General’s Advisory Committee looked into the plea
bargaining process, resulting in the report of The Honourable G. Arthur
Martin (Chair), Report of the Attorney General’s Advisory Committee on

Charge Screening, Disclosure, and Resolution Discussions (Toronto:
Ontario Ministry of the Attorney, Queen’s Printer for Ontario, 1993) [the
“Martin Report”]. The Martin Report, while recognizing the utility of plea
bargaining, stressed that the integrity of the judicial process must be
maintained. The Committee opined that “there can be no ulterior motive of
an accused person, even a noble one such as saving a loved one from
criminal prosecution” that can justify a false plea.” (p. 295). As explained in
the Report at p. 294, the issue goes beyond the interests of an individual
accused:
It would be, in the Committee’s view, compromising the integrity

of the judicial process to permit a plea of guilty and sentencing to
proceed where an accused person is not prepared to acknowledge
the central precondition of a plea of guilty, namely his or her
guilt. While an accused may have a valid interest in so doing, his
or her narrow objectives, while perhaps very important, are not
the sole focus of the administration of justice in this respect. As
stated by the Supreme Court, the trial judge ought not to permit
the integrity of the process over which he or she presides to be
compromised.
Page: 43
[63] While the system cannot tolerate the innocent pleading guilty, false pleas can
be difficult to detect. Canadian judges conduct plea inquiries, designed to
ensure that the accused person understands the nature of his/her guilty plea

and its consequences. These inquiries will sometimes expose confusion,
misunderstanding, or a failure to admit an essential fact. The inquiry is an
important safeguard. However, it only goes so far. It is relatively easy to
divine what the “correct” answers are to the court’s questions. The accused
will invariably have been asked the same questions by his or her lawyer in
the discharge of counsel’s ethical obligations.
[64] Moreover, the traditional plea inquiry does not tend to concern itself with
the substantive quality of a guilty plea. This point was made by Healy J. (as
he then was) in Khanfoussi c. R., 2010 QCCQ 8687. He observed that the
inquiry does not look behind an accused’s statement that the plea is free and
voluntary and informed. It does not “ask if the accused was misinformed, or
badly advised by counsel, when he made this decision” (para. 6; unofficial
translation by Healy J.). It does not ask about the motive underlying the plea
of guilt. In the absence of clear doubt, the statement of the accused
demonstrates and establishes the validity of the plea. As Healy J. put it in
para. 10 (unofficial translation):

Page: 44
There is a paradox with respect to guilty pleas. The Code,

abundant jurisprudence and common sense require that the court
conduct an inquiry into the quality of a guilty plea. Is this choice

free, clear and informed? The importance of this inquiry is
obvious given that the accused who pleads guilty waives the
presumption of innocence, and full answer and defence, while
admitting the truth of the charges against him. But there is
nothing in our law that requires proof, not even proof on a
balance of probabilities, of the substantive quality of a guilty
plea. Of course, a judge may – and must – refuse it if she is not
satisfied that a guilty plea is not free, voluntary and informed
with a full understanding of the decision. But ultimately the
Code, the jurisprudence and daily practice require only the
appearance of a guilty plea that is free, voluntary and informed.
The law does not require the parties or the judge to examine the
accused on the motive or the reasons that might explain a plea.
The judge is not required to be persuaded, or to persuade herself,
that the accused is pleading guilty with a full understanding of
all questions of fact and law that are relevant to resolution of the
file. She may reject the plea but she is not obliged to be
persuaded of its substantive quality. [Emphasis added.]
[65] False pleas tend to be shielded from scrutiny. It is impossible to know how
often they occur.
The Standard Before the Plea Court

Page: 45
[66] The plea court, like the appellate court, has jurisdiction to strike a plea that
has resulted, or could result, in a miscarriage of justice: see R. v. W.B.,
[2001] O.J. No. 587 (S.C.); R. v. K. (S.) (1995), 99 C.C.C. (3d) 376 (Ont.

C.A.); R. v. Downes, 2012 ONCJ 45; R. v. Dodge, 2005 NSPC 24, 234
N.S.R. (3d) 85. The onus rests upon the accused to establish that the plea
should be set aside.
[67] In the appellate cases cited above, the courts were presented with evidence
of actual innocence. While that is obviously a compelling basis for striking
a plea, it is not, I suggest the standard to be met in all cases.
[68] In Wong, at para. 23, the Supreme Court of Canada stressed that innocence
is not the test when a plea is challenged on procedural grounds:
Parenthetically, we observe that the accused need not show a

viable defence to the charge in order to withdraw a plea on
procedural grounds. “[T]he 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 (CanLII)). Requiring the
accused to articulate a route to acquittal is antithetical to the
presumption of innocence and to the subjective nature of
choosing to plead guilty. An accused is perfectly entitled to
remain silent, advance no defence, and put the Crown to its
burden to prove guilt beyond a reasonable doubt. It does not
Page: 46
make sense to let an accused proceed to trial at first instance

without any defence whatsoever, but to insist on such a defence
to proceed to trial when withdrawing an uninformed plea.

Though the decision to go to trial may be unwise or even
reckless, we are not seeking to protect an accused from himself
or herself. Rather, we seek to protect an accused’s right to make
an informed plea.
[69] The same reasoning must apply where there is an alleged miscarriage of
justice. The accused need not demonstrate innocence as a pre-condition for
striking a plea.
[70] In this case, the accused seeks to strike the plea before a conviction has been
registered, and before a sentence has been imposed. She asks, not that she
be acquitted, but that she be given the right to a trial. To require a showing
of innocence in this context is to set the bar too high. An accused need not
prove innocence at a trial. She should not have to prove innocence to have a
trial. Moreover, the issue of guilt or innocence is the very issue to be
determined at a trial if the plea is struck. To require a showing of innocence
would render the trial superfluous. Worse, it would supplant the trial with a
process in which the onus is placed on the accused rather than on the
prosecution.
Page: 47
[71] Therefore, the question is not whether the person who offered the plea is
actually innocent, or can prove innocence. The question is whether the
person who offered the plea believed that she was innocent and pleaded

guilty despite that belief.
[72] A belief in factual innocence cannot co-exist with a plea of guilt. Where a
person, who believes herself to be innocent, pleads guilty for reasons
unrelated to culpability, the result is a miscarriage of justice. The system
can only convict and sentence persons who have genuinely admitted guilt, or
have been proven guilty by the prosecution. A person who adheres to a
belief that they are innocent is entitled to have a trial.
[73] This proposition finds support in authority. In K. (S.), Carthy J.A. ruled that
a trial judge ought to have inquired into a plea when it came to light that the
accused had emphatically declared his innocence to the authors of pre-
sentence reports. In striking the plea on appeal, the court observed that the
accused’s “state of mind was induced by his trial counsel and perpetuated by
the trial judge who failed to intervene and make inquiry as to the validity of
the guilty pleas when he read the pre-sentence reports”. Carthy J.A.
sounded a note of caution about the process of plea bargaining, saying:

Page: 48
The system was tilted askew by the simple fact that a person
protesting innocence became engaged in plea bargaining.
....

Plea bargaining is an accepted and integral part of our criminal
justice system but must be conducted with sensitivity to its
vulnerabilities. A court that is misled, or allows itself to be
misled, cannot serve the interests of justice.
[74] In Dodge, the court struck a guilty plea on the basis that the motivation for
pleading guilty had nothing to do with actual guilt, noting at para. 16:
This is one of those rare circumstances where the motivation for

pleading guilty appears to have had nothing to do with admitting
guilt. The absence of an admission of guilt, despite a voluntarily
tendered guilty plea, renders the guilty plea unsustainable as a
basis for a conviction and sentence. In this case that sentence
would be a minimum of one year of incarceration for the
S.95(2)(a) offence above. There is a real possibility in this case
that if the Accused was convicted based upon his guilty pleas,
that it would be a wrongful conviction and thereby a miscarriage
of justice.
The interest in finality

Page: 49
[75] I do not suggest that pleas should be struck whenever an accused person
asserts post-plea innocence. The realities of a guilty plea may become very
tangible when sentence is imposed, or is being served. Valid pleas are not

vitiated by disappointment in the outcome or other after-the-fact regret. It is
not enough to find that the accused wishes, in retrospect, that he or she had
not pleaded guilty.
[76] In Wong, the dissent agreed with the majority that guilty pleas should not be
too lightly set aside, noting in para. 65 that “the benefits associated with
guilty pleas will be lost and the very functioning of the criminal justice
system will be threatened”. This concern has been expressed in various
cases. In R. v. Moore, 2004 BCPC 560, the court commented at para. 22:
To permit accused persons to vacillate between claims of

innocence, guilt and renewed claims of innocence would cause
great mischief. It would create chaos in the criminal justice
system if it were permitted to occur regularly because it would
interfere with the willingness of Crown to enter into discussions
with counsel for the accused surrounding resolution of
outstanding charges.
[77] In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J. wrote at p. 372:

Page: 50
Subsequent dissatisfaction with the "way things turned out" or

with the sentence received is not, in my view, a sufficient
reason to move this Court to inquire into the reasons behind the

election or plea of an offender, particularly where there is
nothing to suggest that these were anything other than informed
and voluntary acts; see, e.g., Antoine v. R. (1984), 40 C.R. (3d)
375 (Que. C.A.)
[78] Where a miscarriage of justice is alleged, the court must consider the whole
of the evidence, in assessing whether the plea was based on something other
than a genuine acknowledgment of guilt. A plea should only be disturbed in
the face of credible and cogent evidence. It will not be a simple matter for
an accused person to counter admissions voluntarily offered at the time of
the plea. Something more than a bald assertion of innocence will likely be
required in most cases. The testimony of counsel who acted on the plea will
be important, as will the plea proceedings themselves. Pressures that fall
short of negating voluntariness may also be relevant at this stage of the
inquiry. The determination is, by necessity, case and fact specific. It
engages an element of judicial discretion, but sets a high bar for judicial
intervention.
Page: 51
Application to this case
[79] In this case, the accused maintains that the events alleged by the

complainant never happened. She testified that she pleaded guilty for a
variety of reasons, including the following:
a) The difference between the prosecutor’s position on a plea and the
prosecutor’s position after a trial: the Crown agreed to join in a submission
for a three year sentence on a plea of guilt; the Crown was going to ask for
up to eight years in prison following a trial;
b) The accused’s concern about whether her transgender status would be
accommodated in a custodial setting. This was a matter of grave concern to
the accused, as was the prospect of her mother discovering that she was
transitioning to become a female;
c) The accused’s perception that she did not have the funds to pay for a
trial;
d) The accused’s perception that her lawyer believed that she would not
likely succeed at a trial;
e) Counsel’s advice that the plea deal was her best option: and
Page: 52
e) The accused’s perception that the deal would no longer be available if
she did not plead guilty on the day in question.

[80] There is evidence to support the accused’s testimony. First, while Mr. Topp
offered a different account of certain events, his testimony was consistent
with that of the accused on key issues, including the fact that, as he put it:
“There was a lot going on”. He confirmed that the accused was concerned
about many contingencies, including accommodation of her transgender
status. He confirmed that the accused was uncertain about whether to plead
guilty up until the very last moment before the plea. He confirmed the
pressure of the prevailing circumstances and the vulnerability of the
accused, perhaps increased by the fact that she was, for the first time,
presenting as female in court. He confirmed that he did not cross examine
the complainant at the preliminary inquiry, explaining that it was a condition
of the Crown’s resolution offer. He confirmed that he believed that the deal
offered by the Crown was the accused’s best option.
[81] According to the accused, she always maintained and protested her
innocence. According to Mr. Topp, the accused’s position was ever fluid,
though she instructed him to consider the plea deal offered by the Crown. I
do not see these accounts as inconsistent. The accused was willing to

Page: 53
consider the plea deal for fear of facing a lengthy term of incarceration after
a trial. The accused was willing to admit certain facts because it was a
necessary part of the deal.

[82] The accused’s testimony finds support in the conduct of the plea
proceedings, and the expression of concern about the facts. Her reaction
would indicate that she was troubled by the plea. So too does the evidence
of her voice mail message, left for the probation officer, in which she
asserted her innocence.
[83] On the basis of the whole of the evidence, I accept that the accused never
wavered from her belief that she is innocent. I accept her testimony that,
despite that belief, she chose to plead guilty for reasons that have nothing to
do with criminal culpability. In these circumstances, the plea cannot stand.
[84] The Crown may or may not be able to prove Ms. McIlvride-Lister’s guilt at
a trial. She will be tried on all seven counts, rather than just one. She will
no longer benefit from a joint submission on sentence. She is aware of those
consequences. She has chosen to put the Crown to the strict proof of the
case against her.
[85] I close with two observations.

Page: 54
[86] The first concerns the Crown’s resolution offer on the date of the
preliminary inquiry. The Crown advised that it would be content with a
three year sentence on one condition: that Mr. Topp not ask any questions of

the complainant in cross-examination. Mr. Topp took this offer to the
accused, who instructed Mr. Topp to keep the deal alive. Therefore, Mr.
Topp refrained from asking any questions of the complainant during the
preliminary inquiry.
[87] I am most uncomfortable with the terms of the “deal” offered by the Crown.
I expect that the Crown was concerned about subjecting the complainant to
cross examination. However, it would have been preferable to not call the
complainant to testify at all. To call the complainant, yet foreclose cross-
examination, is to prevent the evidence from being tested in any way
whatsoever. In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para.
63, the Supreme Court of Canada held that an accused’s refusal to be cross-
examined on an affidavit reduced it to the status of an unsworn statement:
As Cory J. put it more recently in Osolin, supra, cross-

examination “is of essential importance in determining whether a
witness is credible” (p. 663). This applies to all witnesses who
offer testimony, whether for the Crown or for the defence.
Page: 55
[88] Absent cross-examination, there could be no meaningful assessment of the
actual strength of the Crown’s case, or the likely outcome of a contested
trial. I question whether it is ever appropriate for the prosecution to hold the

ability to test evidence hostage as part of a plea negotiation.
[89] Finally, I note that Daniel Topp is an experienced criminal lawyer in the city
of Windsor, who often represents clients hailing from vulnerable and
marginalized communities. He is a champion of those he represents.
Sensitive to the unique challenges that his clients face, he offers valuable
assistance to the court. Mr. Topp took his duties to Ms. McIlvride-Lister
very seriously. I accept that he was intent on achieving the best result
possible in the circumstances. His candid testimony on the hearing to strike
the plea offered valuable insight into the critical and complex dynamics at
play in this case.
CONCLUSION
[90] The application to strike the plea is allowed. Ms. McIlvride-Lister’s plea of
guilt is set aside, and a trial is ordered on the indictment.
Original signed by “Pomerance J.”

Renee M. Pomerance
Page: 56
Madam Justice
Released orally: March 26, 2019

) ) Her Majesty The Queen) ) ) ) ) ) ) ) ) ) ) Elizabeth Brown, For The Crown

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CITATION: R. v.

McIlvride-Lister, 2019 ONSC 1869

DELIVERED ORALLY: March 26, 2019

2019 ONSC 1869 (CanLII)

SUPERIOR COURT OF JUSTICE

RULING ON APPLICATION TO STRIKE A GUILTY PLEA

2019 ONSC 1869 (CanLII)

of testifying. There is certainty over a finding of guilt. Accused persons

the prosecution. It has been recognized that plea agreements are

“commonplace and vitally important to the well-being of our criminal justice

system, as well as our justice system at large”: see R. v. Anthony-Cook,

2016 SCC 43, [2016] 2 S.C.R. 204, at para. 25.

become too enticing, creating an unhealthy disparity between the outcome of

with criminal culpability.

person who is factually innocent pleads guilty to a crime, the result is a

wrongful conviction. So too when a person asserts factual innocence, but

2019 ONSC 1869 (CanLII)

discount on penalty, the prospect of release from custody, the inability to

pay a lawyer for a trial, or other factors unrelated to guilt.

unequivocal - it may be necessary to strike the plea to prevent a miscarriage

[6] Johnathan (Casey) McIlvride-Lister wants to strike her guilty plea.

2019 ONSC 1869 (CanLII)

touching, sexual exploitation, assault, threatening to kill or injure animals,

counts would be read in as aggravating factors. Counsel were going to offer

a joint submission for a sentence of three years in jail.

The initial plea inquiry

[9] Before arraignment, I conducted a plea inquiry, asking questions aimed at

be arraigned and she pleaded guilty to one count of sexual assault.

FACTS READ IN BY THE CROWN

2019 ONSC 1869 (CanLII)

would not know where she was.

interviewed about the complainant’s whereabouts and lied to the police.

consensual acts of sexual intercourse that commenced when she was 15

2019 ONSC 1869 (CanLII)

that she had nowhere to go.

of how the accused killed certain animals.

Inquiry on the facts

2019 ONSC 1869 (CanLII)

MR. TOPP: Yes, there’s no issue. They, they obviously

THE COURT: All right. Ms. McIlvride-Lister, please stand

MR. TOPP: Yes, you have to say yes.

THE COURT: I need, but…

MR. TOPP: Yeah, sorry. I, I wasn’t…

THE COURT: I need her to answer

THE ACCUSED: I don’t understand what I’m agreeing to. Am

THE COURT: Well.

THE ACCUSED: Like, I would never hurt an animal, despite

guilty to something then saying that that all happened, that

THE COURT: Well, if something’s, so let us be clear that if

2019 ONSC 1869 (CanLII)

were admitted. The discussion went as follows:

THE COURT: Yes.

MR. TOPP: . . .as, as her. . . .

THE COURT: Is there an admission of threatening to harm

MR. TOPP: Yes.

2019 ONSC 1869 (CanLII)

MR. TOPP: Yes, just not harming them.

MR. TOPP: Yes.

THE COURT: . . .is admitted and I’ll be asking the accused

MR. TOPP: Yes.

THE COURT: Threats are admitted?

MR. TOPP: Yes.