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| John L. Hill |
The allegations against Gordon were horrendous. During the summer of 2019, Gordon, then 26, met with G.L., a 20-year-old dancer at an adult entertainment club. A three-month relationship did not work out. G.L. accused Gordon of coercing her into giving him all her earnings. She was threatened with physical assault and a firearm. In January 2020, G.L. was found on the street with head injuries. She reported Gordon’s behaviour to the police. He was charged with several offences related to human trafficking, including pointing a firearm and unlawful confinement, connected to his coercive relationship with G.L.
Gordon was arrested and charged on Feb. 12, 2020. He opted for a jury trial in the Superior Court. Denied bail, Gordon was held at both the Toronto South and Toronto East detention centres while awaiting his trial.
During pretrial discussions, Gordon’s trial counsel shared information about lockdown days and the conditions of his
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Gordon signed a document titled “Instructions to Counsel for a Guilty Plea,” acknowledging that:
- The Crown would seek an eight-to-10-year sentence.
- His defence would request a sentence of time served.
- Either side’s recommendation did not bind the judge, who could impose a harsher sentence.
- He could not withdraw his plea simply because he disliked the sentence.
He then pleaded guilty and informed the plea judge that he understood the judge could impose a higher or lower sentence than the one agreed upon in the joint submission.
At sentencing, the Crown requested a sentence of eight to 10 years, while the defence argued for time served, highlighting the harsh conditions of pretrial custody. The judge sentenced Gordon to seven years, granting credit for pretrial detention, which left two and half years remaining to serve.
Gordon later claimed he was “shocked” by the sentence and believed the judge had “promised” less. His lawyer advised him after sentencing that he would need to file an appeal. This appeal was presented to the Ontario Court of Appeal, which reviewed the sentence and rendered its decision on March 14, 2025 (R. v. Gordon, 2025 ONCA 201).
The legal principles for setting aside a guilty plea require that the plea be voluntary, informed and unequivocal (R. v. Wong, 2018 SCC 25). To succeed in his appeal, Gordon bears the onus of proving he was misinformed or unaware of crucial information when pleading (the “information” component), and that this caused prejudice amounting to a miscarriage of justice (the “prejudice” component). The burden of proof rests with him (R. v. Espinoza-Ortega, 2019 ONCA 545).
The Appeal Court acknowledged that Gordon’s plea was uninformed. He did not understand that he could be sentenced to more than six months in prison. In R. v. Girn, 2019 ONCA 202, it was established that if an accused demonstrates a lack of awareness of the plea’s consequences, the court will consider the severity of those consequences. Here, Gordon was assured by his trial counsel that a judge had promised, despite the confirmation he later signed, that the sentence would not exceed six months. His counsel’s affidavit was among the documents submitted to the Court of Appeal. The Instructions to Counsel seemed to be merely a formality.
The evidence clearly shows that Gordon’s trial counsel communicated information suggesting that Gordon believed the judge intended to impose only an additional six months of imprisonment. The informational component is established.
As a result, Gordon experienced prejudice. The Crown contended that Gordon was likely to receive a lesser penalty than eight to 10 years by entering a guilty plea, and his plea should be upheld. It was established in Wong that prejudice is assessed subjectively, rather than based on what a reasonable person would know or decide. The evidence indicates that Gordon would have refused to enter a guilty plea for more than six months.
The Appeal Court did provide advice to counsel should this situation arise in the future. It stated, “I note that it would have been preferable if, at that point, trial counsel brought the matter back before the plea judge. The plea judge could then have considered whether he was functus or whether he could entertain an application to strike the plea. Had the matter been raised with the plea judge at that time, at the very least, it would have resulted in the creation of a more complete record for review on appeal, including the views of the plea judge about what transpired during the judicial pretrial discussions.”
The guilty plea was set aside, and a trial was ordered.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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