R. v. A.A.
Her Majesty the Queen, respondent, and
 O.J. No. 2224
Court File No. 172/99
Ontario Superior Court of Justice
Heard: May 3 and November 14, 2001; February 13 and May 16,
Judgment: June 3, 2002.
Peter van den Bergh, for the respondent.
Tushar K. Pain, for the appellant.
¶ 1 On June 17, 1999, the appellant, A.A., pleaded guilty to two counts of fail to comply with recognizance, contrary to s. 508 of the Criminal Code. Based on a joint submission by the Crown and Mr. A.’s counsel, he was sentenced to a 90-day conditional term and one year probation.
¶ 2 Mr. A. appeals his convictions on the grounds that his guilty pleas were invalid, and that the trial judge failed to inquire into the validity of the pleas.
¶ 3 As a preliminary matter, Mr. A. requested that fresh evidence be allowed for the purposes of the appeal through affidavit, and cross-examination on the affidavits.
¶ 4 The request was granted, and affidavits were filed by Mr. A. and F.R., Mr. A.’s counsel at the time of his guilty pleas.
¶ 5 I would also note that Ms. R.’s file for Mr. A. was transferred to his counsel for the appeal, Mr. Tushar Pain, at Mr. A.’s request, and that Mr. A. waived solicitor-client privilege with respect to his representation by Ms. R.
¶ 6 On October 2, 1998, Mr. A. was charged with criminal harassment and making harassing telephone calls to A.S.. Ms. S. was Mr. A.’s wife at the time of the offences.
¶ 7 Following his arrest on Oct. 2, Mr. A. was released on a Promise to Appear and an Undertaking Given to the Officer in Charge. One of the conditions of the undertaking was that Mr. A. would have no contact with Ms. S..
¶ 8 On Oct. 23, 1998, Mr. A. was arrested again for criminal harassment of Ms. S. and was charged with two additional counts of breaching the undertaking made on Oct. 2.
¶ 9 On Oct. 27, 1998, Mr. A. was released on bail. Shortly after his release, he retained a lawyer to defend him on these charges. At this time, two separate trial dates had been set, one on June 1, 1999 for the first set of charges, and the second on June 17, 1999, for the second set of charges.
¶ 10 Mr. A. originally contacted A.B. to represent him, but Mr. B. referred Mr. A. to another lawyer in Mr. B.’s office, Ms. R., who agreed to represent Mr. A. When Mr. A. first met with Ms. R., he informed her that he disputed the charges and wished to proceed to trial.
¶ 11 On March 15, 1999, Ms. R. attended court for judicial pre-trial with Mr. A. There was no discussion of a guilty plea at this time.
¶ 12 On May 26, 1999, Mr. A. attended Ms. R.’s office to prepare for his trial. Again, there was no discussion regarding a guilty plea at this time.
¶ 13 On June 1, 1999, Mr. A. attended court for his trial on the original charges of criminal harassment. The matter was adjourned to June 17 at the request of the Crown so that all of Mr. A.’s charges could be tried together.
¶ 14 Following the adjournment, Ms. R. spoke with Mr. A. about the possibility of pleading guilty. In his affidavit, Mr. A. indicates that Ms. R. urged him to plead guilty at this time because of the potential for a lengthy jail sentence if convicted.
¶ 15 In cross-examination an her affidavit, Ms. R. indicated that she had no memory of this, but as a general practice, she would have advised a client if there was a possibility for a jail sentence.
¶ 16 On June 16, 1999, Mr. A. met with Ms. R. at her office, and informed her that he would not be pleading guilty. Mr. A. says that a heated discussion resulted, in which he eventually agreed to plead guilty because of Ms. R.’s persistence and her continued reference to the likelihood that he would go to jail if he did not plead guilty. At the end of this meeting, Mr. A. agrees that he signed a direction that he acknowledges that he fully understood that he agreed to plead guilty.
¶ 17 Mr. A. also states that he was told by Ms. R. at this time that if he plead guilty, there would be a joint-submission for a 90-day conditional sentence with very few terms and that the harassment charges would be withdrawn. However, he states that there he was not advised about anyprobationary period, the consequences of a criminal record, and that there were other lesser sentences he might qualify for.
¶ 18 On June 17, Mr. A. was arraigned and asked how he wished to plead. He made no response but remained silent. The trial judge, Justice Harris, said to Ms. R. that if there were any questions about the plea, she should take some time to discuss it with Mr. A.. Mr. A. and Ms. R. then stepped out of the courtroom to discuss the plea.
¶ 19 Once outside the courtroom, Mr. A. said that he told Ms. R. that he did not want to plead guilty. In response, Mr. A. said that Ms. R. threatened to have herself removed from his case if he did not plead guilty and that the Crown could make a motion to revoke his bail because he was a danger to Ms. S..
¶ 20 Ms. R. denies having ever made such a statement. However, she agreed that she told Mr. A. that if the two of them could not work things out at this time, that perhaps the best thing to do was to call Mr. B., who could take over Mr. A.’s representation.
¶ 21 Based on this conversation, Mr. A. stated that he felt that he had to plead guilty and returned to the courtroom to do so. Once inside, Mr. A. pleaded guilty and the facts were read in by the Crown. After Ms. R. indicted several denials of these facts, Mr. A. attempted to speak up and indicate his further disagreement of the facts. Mr. A. was stopped by Justice Harris who asked Ms. R. if she would like to meet with Mr. A. outside the courtroom once again. Justice Harris also indicated that he would probably have to strike the pleas if Mr. A. wished to derogate from the facts any further.
¶ 22 Outside the courtroom, Mr. A. and Ms. R. had a similar discussion about Mr. A.’s pleading guilty. Mr. A. states that as a result of this conversation, he felt even more pressure and fear to plead guilty and agreed to continue with the proceedings.
¶ 23 When Mr. A. and Ms. R. returned to court, Ms. R. stated to Justice Harris:
“I have never been in this position before, Your Honour, to be honest. I am really meticulous in getting instructions from my clients and written instructions at that, and I thought a lot of this had been dealt with yesterday in my office. I guess it had not been and I have had a chance to speak with Mr. A. now. He wishes to proceed as it is and we will go as far as we can go.”
¶ 24 Justice Harris then asked Mr. A. if he agreed with remaining facts. Mr. A. indicated that he did, his pleas were accepted, and he was sentenced according to the joint submission.
Grounds for Appeal
¶ 25 Mr. A. argues that his convictions should be set aside and a new trial should be ordered on two grounds:
His guilty pleas were not valid; and
Justice Harris erred in accepting his guilty pleas without first making due inquiry.
I) Were Mr. A.’s guilty pleas valid?
¶ 26 Both Mr. A. and the Crown agree that for Mr. A.’s guilty plea to be valid, they pleas must have been voluntary, unequivocal, and informed; R. v. T.(R.) (1992), 10 O.R. (3d) 514 (Ont. C.A.).
¶ 27 However, Mr. A. argues that his pleas were involuntary, equivocal, and uninformed.
¶ 28 Mr. A. bases this argument on his lack of proficiency in English and his representation by Ms. R.. In his affidavit, and in his testimony, he stated that he had a number of difficulties understanding the language of the court proceedings, and that he felt that he was pressured and intimidated by Ms. R. to plead guilty. He also stated that she did not inform him of the potential consequences of a criminal record, of a probationary period, and of the possible ranges of sentences.
¶ 29 Mr. A. also argued that his pleas were “qualified, modified, or uncertain” as shown by the various comments made by Justice Harris and his sending Mr. A. and Ms. R. out of the courtroom on two occasions to discuss the pleas.
¶ 30 In response to this argument, the Crown stated that it was inconsistent for Mr. A. to suggest that he did not understand English at that his pleas were qualified or uncertain. The Crown argued that Mr. A. is, by his own admission, an educated person, who refused the services of an interpreter, had all his dealings with Ms. R. in English, responded in English when questioned by Justice Harris, chose which facts to agree to in his guilty pleas that were read into the record in English, and completed his affidavit for the appeal in English. These facts, the Crown submitted, suggest that Mr. A.’s pleas were voluntary, unequivocal, and informed.
¶ 31 Having considered the record of Mr. A.’s guilty pleas, the additional material provided to the court by counsel, and the fresh evidence presented on appeal in its entirety, I am of the view that there is a question as to whether Mr. A.’s pleas were voluntary, unequivocal, and informed.
In T.(R.), supra, Doherty J.A. stated
“a voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate.”
¶ 32 In his affidavit and his testimony, Mr. A. stated that he felt that he had no other choice but to plead guilty. He wanted a trial, but he felt pressured by Ms. R. to plead guilty or she would withdraw from the case.
¶ 33 In her cross-examination, Ms. R. confirmed that she did suggest that she could withdraw and Mr. B. could act for Mr. A.. However, she also suggested that she only said this to Mr. A. because she found him to be a difficult client and felt that Mr. A. may have felt more comfortable being represented by a man. While this may have been true, in the context in which Ms. R. made these comments, I believe that it is reasonable that Mr. A. may have felt pressure to plead guilty. Mr. A. had already been sent out of the courtroom once by Justice Harris to confer with Ms.R. as to whether he needed an interpreter. Upon returning to the courtroom, he had been questioned at length on this subject by Justice Harris. When Justice Harris finally agreed that he would be allowed to proceed with assistance from the interpreter where needed, he was sent out a second time to confer with Ms. R. after he was arraigned and had not responded with a plea. Once outside, Ms. R. stated that she thought the matter was resolved, and added that if Mr. A. was uncomfortable with her representation, arrangements could be made to have Mr. B. represent Mr. A.. While Ms. R.’s intention may not have been to coerce Mr. A. to plead guilty, in my view, it is reasonable to conclude that such may have been the real effect on Mr. A..
¶ 34 For this reason, I find that Mr. A.’s pleas were not voluntary.
I am also of the opinion that Mr. A.’s pleas were not unequivocal. When first arraigned, he said nothing. When he did eventually plead guilty, a number of qualifications were made on the facts read in by the Crown. In my view, Ms. R., on behalf of Mr. A., came very close to denying the charges with these qualifications. Because Mr. A. still wanted to contest the facts further, Mr. A. was sent out by Justice Harris to confer with Ms. Rashid for the third time. When Justice Harris did so, he stated
“Well, Ms. R., here is the difficulty, if he wishes to derogate any further from these facts, I’m probably going to have to strike the plea.”
When Ms. Rashid and Mr. A. returned, Ms. R. stated:
“I have never been in this position before, Your Honour, to be honest, I am really meticulous in getting instructions from my clients and written instructions at that, and I thought a lot of this had been dealt with yesterday in my office. I guess it had not been and I have had a chance to speak to Mr. A. now. He wishes to proceed as it is and we will go as far as we can go.”
¶ 35 While Justice Harris questioned Mr. A. directly about his willingness to proceed following these remarks, in my view, Mr. A.’s pleas were already sufficiently “qualified, modified, or uncertain” at this time that their overall validity was tainted.
¶ 36 Accordingly, I find that Mr. A.’s pleas were also not unequivocal.
¶ 37 Finally, I also have doubts with respect to how informed Mr. A. was of the consequences of his pleas as well. Mr. A. indicated that Ms. R. did not inform him of other lesser dispositions that may have been available. As the Crown conceded in the joint submission that even the complainant in Mr. A.’s charges was not interested in Mr. A. receiving a criminal record, other options may have been available. Such options may have included a Peace Bond or some form of discharge. As Mr. A. was adamant about not receiving a criminal record, had Mr. A. been made aware of such options, in my view, I do not believe that he would have plead guilty as he did.
¶ 38 Therefore, as I am satisfied that the pleas were not voluntary, unequivocal, and informed, Mr. A. has met his burden of showing that his pleas were invalid. His appeal is granted, and his convictions will be quashed, and a new trial will be ordered accordingly.
II) Did Justice Harris err in accepting his guilty pleas without first making due inquiry?
¶ 39 Having granted Mr. A.’s appeal on the first ground advanced, there is no need for me to comment on whether Justice Harris erred in accepting Mr. A.’s guilty pleas without making sufficient inquiries.
¶ 40 However, I would note that in my opinion, Justice Harris made sufficient inquiries of Mr. A.. Justice Harris questioned Mr. A. directly several times, including asking him whether he needed the assistance of an interpreter and whether he wished to accept the facts as agreed to. In my view, this questioning should have been sufficient enough to establish the validity of the plea. Unfortunately however, the answers that Justice Harris received from Mr. A. to this questioning were tainted from the discussions of Ms. R. and Mr. A. outside of the courtroom to which Justice Harris was not privy.
¶ 41 Had I found than Mr. A.’s pleas were valid then, I would have also found that Justice Harris did not err in accepting the pleas, and dismissed the appeal.
¶ 42 The appeal is granted and a new trial is ordered.
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