criminal-law plea
If a plea was entered and later found the penalty for the charge was cruel and unusual, could the plea be withdrawn?
<p>If a plea was entered and it was later found that the penalty for the charge was cruel and unusual, could that plea be withdrawn?</p>

<p>If so, are there any authorities around this scenario?</p>

<p>As far as I understand, no. </p>

<p>In Canada, everyone has the <a href="http://laws-lois.justice.gc.ca/eng/const/page-15.html" rel="nofollow">constitutional right</a> to be free from any cruel or unusual punishment, under the Canadian Charter of Rights and Freedoms:</p>

<blockquote>
  <ol start="12">
  <li>Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.</li>
  </ol>
</blockquote>

<p>If you're guilty of a crime, well then, you're guilty. You're either going to be tried in court (and if you were guilty of that crime, then you will probably be found guilty), or you will plead as such. Before being tried, you could try to plea bargain with the prosecutor: plead guilty and be sentenced to a lesser charge.</p>

<p>Say you were charged with <a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/page-61.html#docCont" rel="nofollow">assault with a weapon or causing bodily harm</a>. You thought that the punishment was cruel or unusual - and thought that the trial judge had made an error in the law. In this case, you can make an appeal to a higher court.</p>

<p>There are also other things that can factor this: <em>mitigating</em> and <em>aggravating</em> circumstances. If many circumstances are mitigating, then it may make way for a lower punishment, and vice versa with aggravating circumstances, where punishment may be higher. Again, this is something where if something was erred, you can appeal to a higher court.</p>

<p>However, just because you think a sentence is too long won't constitute cruel or unusual punishment. In <a href="http://ojen.ca/resource/581" rel="nofollow">R. vs Latimer</a>, the Supreme Court of Canada ruled that minimum sentences, even if within special circumstances, will not constitute cruel or unusual punishment, and be upheld. Originally, he had been sentenced only to one year, based on the recommendation of the jury. He had been charged with second-degree murder. The Supreme Court reinstated the default punishment: A life sentence with no eligibility of parole for ten years.</p>
