Ontario judge strikes ‘false guilty plea’ after defendant changes mind

Casey McIlvride-Lister didn’t have the $30,000 she needed to pay a lawyer to defend her in court against serious criminal charges.

So she pleaded guilty in December 2018.

A year earlier, McIlvride-Lister was charged with seven different counts, including sexual assault, sexual touching, and threatening to kill or injure animals. She pleaded guilty to one count of sexual assault, but soon regretted the decision. 

In a rare ruling, a judge recently struck McIlvride-Lister’s guilty plea on her request, saying that it resulted in a miscarriage of justice.

Criminal defence lawyers say that while guilty pleas are a necessary tool to keep the overburdened justice system in motion, there can often be overwhelming incentives that push innocent people to plead guilty.  

“If we start imprisoning innocent people for expediency because of resources, what does our system mean really?” said Laura Joy, a lawyer who represented McIlvride-Lister on a motion to strike her guilty plea (but not on the plea itself).

On the day of her plea, McIlvride-Lister’s lawyer at the time told her she should not plead guilty to anything she did not do. The two seemed to be in agreement that they would go to trial, but then before the proceedings, the Crown made a plea offer, which McIlvride-Lister’s lawyer advised would be her best option.

So she took the deal.

From the bail process onwards, lawyers say there are a number of factors that can motivate people to plead guilty even when they’re not. Criminal defence lawyer Michael Spratt said it isn’t uncommon for someone in custody, who would be released if they plead guilty, but would have to wait weeks or months for trial if they insist they’re innocent, to pursue a guilty plea.

“In those cases even if you’re innocent, it can often be an overpowering incentive to plead guilty, especially when the case may appear at first glance strong,” said Spratt, who was not involved in the McIlvride-Lister case.

One of the reasons McIlvride-Lister said she pleaded guilty was the prospect of a reduced sentence. The Crown had offered a three-year jail sentence on a plea and said they would pursue eight to 10 years if the case went to trial.

McIlvride-Lister also did not have the money she would need to pay her lawyer for a trial.

Lawyers say there are a growing number of people who do not qualify for legal aid funding, but also cannot afford a lawyer. They often end up pleading guilty or going to court unrepresented.

In order to qualify for legal aid in Ontario, an individual accused of a crime must face likely jail time and have an annual income less than $17,731.

“A guilty plea is cheaper than a lengthy and complex trial,” said Spratt. “I think quite often people know that they can’t win if they don’t have a lawyer, but can’t afford a lawyer, and sometimes trying to make the best out of a bad situation and minimize damage, might agree to things they aren’t guilty of and otherwise shouldn’t agree to.”

McIlvride-Lister also thought the plea deal would no longer be available if she did not plead guilty that day. Her lawyer testified that McIlvride-Lister was uncertain about pleading guilty until the very last moment.

In testimony, McIlvride-Lister said she felt “stuck in a corner.”

“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,” she said, according to the decision.

McIlvride-Lister was also in the middle of a gender transition at the time, which played a role in plea discussions and fuelled concerns over whether she would be properly accommodated in custody.

In her decision striking the guilty plea, Ontario Justice Renee Pomerance said sometimes people plead guilty for reasons that “have nothing to do with criminal culpability.” She said that when innocent people plead guilty, it presents a big problem for the criminal justice system — wrongful convictions.

“It can be difficult for courts to identify ‘false guilty pleas’,” Pemerance said in the decision. “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.”

The judge stressed that guilty pleas should not be struck lightly or every time someone tries to assert their innocence after a plea. She said courts must assess whether the plea was based on something other than a “genuine acknowledgement of guilt.”

McIlvride-Lister is now set to go to trial for the crimes she has been accused of committing.