Will guilty plea stick?

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Leslie McCulloch, left, and Rebekka White.

Leslie McCulloch must wait over a month before he knows if he's still guilty of making hundreds of fake Oxycontin pills at his auto restoration company in West Kelowna.

On Friday, McCulloch applied to withdraw the guilty pleas he submitted last February for production of a controlled substance and possession for the purpose of trafficking.

McCulloch and his girlfriend Rebekka White were arrested in March 2016 when police raided their home and commercial business on West Kelowna's Auburn Road and found evidence of a large-scale counterfeit OcyContin manufacturing plant.

McCulloch was denied bail and remained incarcerated until February 2017, when he pleaded guilty to possession for the purpose of trafficking and production of acetylfentanyl, an analogue of fentanyl.

As a result of the guilty pleas, the Crown consented to granting McCulloch bail, to allow him to “get his affairs in order,” prior to sentencing.

During his hearing Friday, McCulloch's lawyer Paul Gracia said Section 606 of the Canadian Criminal Code, which states the details of what the accused must be informed of before a guilty plea, was never mentioned when the plea was entered. Gracia says, because of this, the plea should be withdrawn. 

Crown prosecutor Clarke Burnett contended this is a “narrow thing that was not done,” and a different part of that section of the Code says that failure to “fully inquire” about this “does not affect the validity of the plea.”

Gracia said McCulloch made the pleas in exchange for the Crown dropping its charges against White, and to get him out on bail and that there's no evidence McCulloch knew “exactly what the consequences of entering those pleas were."

Burnett showed the court emails he exchanged with McCulloch's former lawyer that showed the Crown made it clear they would ask for a sentence of 13 years if McCulloch pled guilty.

Gracia said there was no evidence McCulloch's former counsel informed McCulloch of what was in those emails.

McCulloch has had three prior lawyers before retaining Gracia as counsel.

When police raided the industrial property on Auburn Road, where McCulloch ran his vehicle restoration company, police found two commercial pill presses, mixers, an industrial pill counter and binding agents.

In a shipping container on the property, police also found 406 grams of a powder they believed to be fentanyl, but turned out to contain the analogue of fentanyl.

At the couple's home, police found 938 fake Oxycontin pills.

An analysis of the substances found on the property, made after McCulloch's guilty plea, found that only a small percentage was actually acetylfentanyl, while the majority was binding agent.

Burnett argued this doesn't make a difference when it comes to the criminal charges.

“As to whether they contain 100 per cent acetylfentanyl or one per cent acetylfentanyl, makes no difference from the Crown's perspective,” Burnett said Friday.

Justice Cathaline Heinrichs deferred her judgement to Feb. 28.