Citation: R. v. Riley, 2011 NSCA 52
Date: 20110607
Docket: CAC 312177
Registry: Halifax
Between:
Michael William Riley
Appellant
v.
Her Majesty the Queen
Respondent
Judges: MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.
Appeal Heard: May 10, 2011, in Halifax, Nova Scotia
Held: Motion to adduce fresh evidence is denied and the appeal is dismissed, per reasons for judgment of Beveridge, J.A.; MacDonald, C.J.N.S. and Saunders, J.A. concurring.
Counsel: Mark T. Knox, for the appellant
Ann Marie Simmons, for the respondent
Reasons for judgment:
INTRODUCTION
[1] Life can be full of unpleasant surprises. The appellant says he got one when the trial judge imposed the mandatory minimum 10-year prohibition on possession of firearms at the sentence hearing following his guilty plea to production of marijuana. He argues his lawyer was incompetent because he did not tell the appellant about the firearm prohibition that was required by law to be imposed. The appellant now asks this Court to permit him to withdraw his guilty plea.
[2] To grant this relief this Court must be satisfied that there has been a miscarriage of justice. In my opinion, for the reasons that follow, he has not demonstrated that, in these circumstances, his failure to appreciate the judge would be required by law to impose the firearms prohibition order constitutes a miscarriage of justice.
FACTUAL BACKGROUND
[3] The basic facts of the offence are not in dispute. Before turning to those, I pause to mention that since the appellant alleged his trial counsel was incompetent, an application was made by the appellant to adduce fresh evidence. The evidence consisted of the appellant’s affidavit sworn May 25, 2009 and that of his trial counsel sworn June 15, 2010.[1] The Crown agrees that we admit these affidavits provisionally to provide context to the appellant’s claim. They are admitted for that purpose.
[4] Firefighters answered a call to the home of the appellant on August 13, 2007. The garage was on fire. It was quickly brought under control. The firefighters requested the assistance of the police in keeping the appellant out of the garage. It was not yet safe. The police observed a possible marijuana grow operation in the garage. Based on observations by the police and firefighters, the appellant and his wife were arrested for possession and production of marijuana. A search warrant was obtained. It confirmed the existence of indoor and outdoor cultivation of marijuana.
[5] The appellant and his wife were jointly charged with unlawfully producing marijuana contrary to s. 7(1) of the Controlled Drugs and Substances Act, S.C., 1996, c. 19 (CDSA). Initially, they were both represented by Donald Murray, Q.C. Mr. Murray says he was instructed to try to have the appellant’s wife released from the prosecution. Efforts failed. Independent counsel was then engaged to represent the wife. Elections were entered for trial in provincial court. Pleas of not guilty were entered and the trial was set for July 22, 2008. No notice of any Charter motion was given.
[6] As the trial date approached, the appellant instructed Mr. Murray to try again to have the appellant’s wife released, which included an offer by the appellant to plead guilty to a charge of simple possession. The Crown declined, but was prepared to discontinue proceedings against the appellant’s wife if the appellant pled guilty to the production offence. The appellant agreed. A guilty plea was entered before the Honourable Judge Barbara A. Beach on July 22, 2008. No evidence was offered against the appellant’s spouse and the charge against her was dismissed.
[7] Sentencing was spread over three dates. It started on July 22, 2008. The Crown set out the facts, and photographs were entered. No dispute was voiced to the facts outlined by the Crown. The appellant testified. He candidly admitted to the existence of the grow operation, how he produced the marijuana and why. I need not detail all of his evidence. The thrust of it was to explain that the marijuana that he grew was for his personal use. He testified that he had been suffering from chronic pain from an accident and used the marijuana as pain medication. Following the charge, he had to return to morphine which he did not like. An application to be allowed to purchase and use ‘medical marijuana’ was pending before the relevant government agency.
[8] A Presentence Report (PSR) was ordered and the hearing adjourned to September 29, 2008. The PSR was positive. The appellant had enjoyed a stable life. He was 47 years old, had no prior record and was employed full time. The Crown agreed that the production of marijuana by the appellant was small and unconnected to any commerce in the drug. Crown counsel recommended a sentence of four months. She was unopposed to it being served in the community – that is by way of a conditional sentence order.
[9] The Crown also alerted the Court to a number of ancillary orders it was “seeking”. She requested a DNA order, and then said “ I’d also seek a mandatory section 109 order with respect the firearm’s prohibition [sic]...”
[10] Mr. Murray made submissions as to why a DNA order should not be made, and advocated for a conditional discharge. With respect to the mandatory firearms prohibition, he said “We certainly have no difficulty with the s. 109 order under the Criminal Code with respect to the firearms.” The appellant was asked by the trial judge if he had anything to add. He did not. Judge Beach reserved her decision until November 12, 2008.
[11] On November 12, 2008 Judge Beach delivered thorough, well-crafted reasons. She referred to the relevant principles of sentence generally and in relation to when it may be appropriate to grant an offender a discharge. She granted the appellant a conditional discharge and placed him on probation for 18 months with conditions, imposed a victim fine surcharge but refused to make a DNA order.
[12] She announced that there would be a s. 109 order. A brief discussion ensued with counsel confirming that the Crown was not suggesting anything other than the minimum. Mr. Murray agreed the minimum would be appropriate. The trial judge then said:
THE COURT: All right. In this ‑‑ this order:
Pursuant to Section 109 prohibits you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance for a period of ten years.
[13] Immediately after Judge Beach instructed the appellant that he had to wait and sign the orders before he was free leave, the following exchange occurred:
MR. RILEY: Can I say something?
THE COURT: Yes, sir.
MR. RILEY: I don't understand the ten years for firearms.
THE COURT: I think Mr. Murray can explain that to you.
[14] The appellant, in his affidavits, swears he was never advised by anyone that a firearms prohibition order might be a condition of his sentence – let alone a mandatory one. The first time he was aware of such an order was on November 12, 2008 when the judge announced it. This led to his query that he says shows his surprise about the order. He also says he is an avid outdoors man, sportsman, hunter and a paid professional guide.
[15] In Mr. Murray’s affidavit of June 15, 2010, he acknowledges that he knew there were firearms on the property. He references his notes reflecting a discussion with the appellant about the existence of the guns - but that everything was legal and they were not seized. Mr. Murray deposed that as of the date of his affidavit of June 15, 2010 he had no current memory of discussing the mandatory firearm prohibition order that would be imposed on any finding of guilt on a charge of s. 7(1) of the CDSA. Although he has no notes or correspondence to shed light on this issue, he was not prepared to say he did not discuss the firearms prohibition order with the appellant prior to the date of sentence.
[16] There was no request by either the appellant or respondent to cross-examine on any of the affidavits.
ISSUES
[17] The parties differ on exactly how to frame the issues that should be addressed. In my view, the appropriate general questions or issues to be addressed are:
1. Is the fresh evidence admissible?
2. Has there been a miscarriage of justice that justifies this Court in permitting the appellant to withdraw his guilty plea?
Fresh Evidence
[18] As already noted earlier, the respondent concedes that the evidence should be provisionally admitted. It is an appropriate concession.
[19] Appeal courts are not the usual forum to hear evidence and make factual determinations. That is the province of trial courts or other tribunals. Nonetheless, in exceptional circumstances, an appeal court can consider evidence that was not before the trial court. Most frequently the motion to have the court do so is in relation to challenging a legal or factual conclusion. In R. v. G.D.B., [2000] 1 S.C.R. 520, the Supreme Court of Canada re-affirmed the well known Palmer test (Palmer v. The Queen, [1980] 1 S.C.R. 759) to be met when an appellant seeks admission of fresh evidence:
16 This appeal centers on the existence of fresh evidence. The well‑known criteria applicable to this issue were stated in Palmer, supra, and reaffirmed [page 528] recently in R. v. Warsing, [1998] 3 S.C.R. 579, at para. 50:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases. . . .
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[20] Here the evidence at issue does not bear on any determination made at trial. There was none. It does relate to the trial process. As such the strict dictates of the Palmer tests must be modified (see R. v. Hobbs, 2010 NSCA 53; R. v. West, 2010 NSCA 16). Provisional admission does not equate to ultimate admission. It simply permits the court to be able to properly examine the appellant’s claim of a tainted process. The affidavit evidence is therefore provisionally admitted for that purpose.
Miscarriage of Justice
[21] Whether a miscarriage of justice resulted is the overarching issue. The power of an appeal court to overturn a verdict is dictated by statute. Section 686(1) of the Criminal Code prescribes that an appeal court, on an appeal from conviction, may allow the appeal where the verdict is unreasonable or cannot be supported by the evidence, there has been an error in law, or on any ground there was a miscarriage of justice. Since there was no trial, there is no issue about the reliability of the verdict. There is no suggestion that the trial judge erred in law. This leaves one basis on which to disturb the conviction – that there was a miscarriage of justice.
[22] The ability of an appellant to challenge a trial outcome based on a failure of counsel to provide effective representation may well have constitutional roots in ss. 7 and 11(d) of the Charter, but the appellant’s hurdle comes back to the same test – the acts or omissions by trial counsel not only constituted incompetence, but also prejudice to the degree that a miscarriage of justice resulted. (See R. v. G.D.B., supra; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (C.A.), [1995] O.J. No. 2883; 85 O.A.C. 186.)
[23] Here the appellant has no ability to claim the verdict is unreliable. His claim is that trial counsel was incompetent in failing to fully advise him as to not only the likely consequences of a guilty plea, but to consequences that were certain and immediate. There is no dispute that s. 109 mandates that the court that sentences any offender for certain offences must make an order prohibiting that person from possessing a host of weapons or devices including any firearm. The minimum time period for such an order is ten years from the date of the offender’s release from prison, and, if not imprisoned, from the date of conviction or discharge.
[24] The putative failure by trial counsel, the appellant argues, makes the guilty plea not truly voluntary because it was not adequately informed. The respondent contends the plea was voluntary and insufficient grounds have been advanced to justify this Court finding a miscarriage of justice.
[25] Following the suggestion of the Supreme Court of Canada in G.D.B., supra, it is useful to first examine the question of prejudice said to have been caused by the alleged incompetence of trial counsel. If prejudice rising to the level of a miscarriage of justice is not shown, there is no need to go further.
[26] I will therefore assume for my analysis that the appellant was not advised, and was otherwise unaware, there would be a mandatory minimum 10-year order prohibiting him from possessing any firearm. Does that lack of information make what otherwise appears to be a perfectly valid guilty plea invalid? In the circumstances here presented, in my opinion, it does not.
[27] Most aspects of the law are well settled concerning the validity of a guilty plea, the discretion of a trial judge to permit its withdrawal, and requests by appellants on appeal to withdraw such a plea.
[28] A trial judge has a discretion whether to conduct an inquiry before accepting a guilty plea, or once tendered, to permit withdrawal. (See: Brosseau v. The Queen, [1969] S.C.R. 181, 3 C.C.C. 129; Thibodeau v. The Queen, [1955] S.C.R. 646; and Adgey v. The Queen, [1975] 2 S.C.R. 426.) The Criminal Code seeks to encourage an inquiry by trial judges before accepting a plea. Section 606 provides in part:
606.(1.1) A court may accept a plea of guilty only if it is satisfied that the accused
(a) is making the plea voluntarily; and
(b) understands
(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and the prosecutor.
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
[29] Here, the trial judge carried out the kind of inquiry suggested by s. 606 (1.1). The transcript reveals the following discussion:
MR. MURRAY: What we’d like to do this morning, Your Honour is – and I spoke with my friend about this. Mr. Riley will – having reviewed the disclosure and had discussion with me, he is prepared to enter a guilty plea to the single count under s. 7(1) of The Controlled Drugs and Substances Act.
THE COURT: You’ve had a chance to discuss the elements of the offence with your client?
MR. MURRAY: I have.
THE COURT: He understands them? He’s giving up his right to trial voluntarily? He knows that I’m not bound by a joint recommendation on sentence?
MR. MURRAY: Yes, and there is none. Yes, he does.
THE COURT: On that basis I’ll accept a guilty plea from Mr. Riley. ...
[30] An appeal court has the undoubted power to permit an appellant to change a guilty plea. Dickson J., as he then was, in Adgey v. The Queen, supra, wrote of this power as follows (p. 431):
This Court in The Queen v. Bamsey, at p. 298, held that an accused may change his plea if he can satisfy the Appeal Court “that there are valid grounds for his being permitted to do so.” It would be unwise to attempt to define all that which might be embraced within the phrase “valid grounds”. I have indicated above some of the circumstances which might justify the Court in permitting a change of plea. The examples given are not intended to be exhaustive.
[31] There are a number of circumstances that have been accepted as constituting valid grounds. They include a failure by the appellant to fully appreciate the nature of the charge, the effect of the plea, or a lack of intention to admit facts which are an essential element of the offence charged, or if on the admitted facts, he could not be convicted of the offence (see R. v. Melanson (1983), 59 N.S.R. (2d) 54 (C.A.) at para. 6). Other circumstances include improper inducements or threats by the police, defence counsel, or the trial judge (see R. v. Nevin, 2006 NSCA 72; R. v. Lamoureux (1984), 13 C.C.C. (3d) 101 (Que.C.A.); R. v. Laperrière (1995), 101 C.C.C. (3d) 462, [1996] 2 S.C.R. 284; R. v. Djekic (2000), 147 C.C.C. (3d) 572 (Ont.C.A.); R. v. Rajaeefard (1996), 104 C.C.C. (3d) 225 (Ont.C.A.).
[32] There can be little doubt that having important information before making any decision ensures that the decision maker is making a truly voluntary decision with complete knowledge of the relevant facts and the adverse consequences he or she is likely to face. The educational role of counsel is paramount in ensuring that an accused knows what it is he or she is giving up by pleading guilty. This includes not only the obvious consequences of the plea in terms of being a formal admission of the essential elements of the offence and waiving a variety rights, including the right to a trial and to be presumed innocent. It also encompasses ensuring the accused is aware of the likely ramifications in terms of the type of penalties and other orders the court may impose.
[33] Some ramifications that are attendant on a finding of guilt are extra-judicial. These may range from government sponsored repercussions such as tax liability, immigration status, and licencing – to private law responses impacting employment, professional qualification or insurance. Obviously, the better informed an accused is about all manner of consequences that may flow from a guilty plea, or a finding of guilt, the better. But the law does not demand an accused possess perfect knowledge about all of the myriad consequences for a plea to be valid.
[34] As already described, adequate knowledge of the immediate consequences (what the accused is giving up) by pleading guilty does not preclude a successful appellate attack on the plea. Improper inducements or threats may be such as to demonstrate the plea was not voluntary and to let it stand would be a miscarriage of justice. A voluntary and apparently informed plea was also struck in R. v. Taillefer; R. v. Duguay, 2003 SCC 70 where the Crown failed to fulfill its disclosure obligation. Taillefer and Duguay were jointly charged and convicted of first degree murder. The Quebec Court of Appeal upheld the conviction of Taillefer but ordered a new trial for Duguay on a charge of second degree murder. Prior to the retrial, Duguay negotiated a plea to the lesser and included offence of manslaughter and was sentenced to 12 years imprisonment. Some years later an investigation into the activities of the Sûréte du Québec revealed that the Crown had failed to disclose a considerable amount of relevant and material evidence to the defence.
[35] Both Taillefer and Duguay appealed. Duguay sought leave to withdraw his guilty plea on the basis that he would never have pled guilty had he been aware of the undisclosed evidence. He filed his own affidavit to that effect and deposed that he had not participated in any way in the acts that caused the death of the victim. This sworn evidence was supported by the affidavits of his trial counsel and his counsel on his first appeal, affirming Duguay’s claim of innocence and explaining that the reason he had pled guilty to manslaughter was Duguay’s inability to go through a second trial and the risk of a murder conviction – not because he admitted involvement in the death of the victim. The Quebec Court of Appeal did not believe Duguay or his lawyers – instead concluding Duguay had pled guilty because he was guilty and simply afraid of being convicted of murder.
[36] LeBel J. wrote the unanimous reasons for judgment of the Supreme Court. He reasoned that the Court of Appeal had incorrectly applied a subjective test in determining what the appellant would have done. Relying on the approach articulated in R. v. Dixon about how to assess the potential impact of a failure to disclose evidence discovered post conviction, LeBel J. wrote:
90 In my opinion, those decisions adopt an accurate statement of the Dixon test, adapted to the context of the impact of the breach of the duty to disclose on the validity of a guilty plea. In the context of a guilty plea, the two separate steps in the analysis required by Dixon must be merged, however. In that situation, it is impossible to separate them, because the entire analysis of the breach must bear on the accused’s decision to enter the guilty plea that he or she now wishes to be allowed to withdraw. The accused must demonstrate that there is a reasonable possibility that the fresh evidence would have influenced his or her decision to plead guilty, if it had been available before the guilty plea was entered. However, the test is still objective in nature. The question is not whether the accused would actually have declined to plead guilty, but rather whether a reasonable and properly informed person, put in the same situation, would have run the risk of standing trial if he or she had had timely knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already known. Thus the impact of the unknown evidence on the accused’s decision to admit guilt must be assessed. If that analysis can lead to the conclusion that there was a realistic possibility that the accused would have run the risk of a trial, if he or she had been in possession of that information or those new avenues of investigation, leave must be given to withdraw the plea.
[37] In applying this test to the facts before the Court, he found the test had been met:
111 ...In the circumstances of this case, having regard to the volume, weight and relevance of the undisclosed evidence and the new possibilities that the opportunity to use that evidence would have offered, it is not unreasonable to think that an accused, armed with a more solid defence than at his first trial, at which the jury deliberations had lasted fourteen days, would have hesitated to admit his guilt or would have had more confidence about standing trial a second time.
112 Without reiterating all of the facts previously analyzed in the Taillefer case, I would just reiterate that the fresh evidence would have enabled the appellant Duguay to impeach the credibility of a number of witnesses, and undermine the plausibility of the prosecution theory. In addition, it would have opened new avenues for investigation, which could have led to the discovery of new witnesses. In this context, the Crown’s breach of its duty to disclose all of the relevant evidence led to a serious infringement of the appellant’s right to make full answer and defence. That breach cast doubt on the validity of the appellant’s admission of guilt and the waiver of the presumption of innocence that pleading guilty involved.
[38] In the case at bar, the appellant does not frame his prayer for relief as a breach of his rights, but instead argues that he should now be permitted to withdraw his guilty plea because he was not fully informed in terms of what the sentencing court was required by law to do. In my opinion, a purely subjective test does not seem appropriate. Nonetheless, there should be at least some evidence from an appellant that had he been fully informed, he would not have pled guilty. A bald assertion by an appellant is not likely to be sufficient. There must be some objective basis to convince the Court there is a reasonable possibility that a reasonable person in those circumstances would have made a different decision.
[39] Here there is absolutely no evidence that had the appellant known of the mandatory firearms prohibition order, he would not have pled guilty. He filed two affidavits with this Court. His affidavits are silent on this point. Nor is there any evidence to suggest any reasonable possibility that a reasonable person in the circumstances of the appellant would have decided differently. There is no suggestion in the affidavits, nor was there in argument, of even a glimmer of a potential Charter motion, an affirmative defence, or any prospect of being able to raise a reasonable doubt on the charge of production of marijuana.
[40] I do not suggest that an appellant need always establish the existence of a viable defence at trial, or a reasonable shot at raising a reasonable doubt at trial, particularly where the guilty plea is tainted by improper inducements or threats or some other circumstance is present such as to call into question the fairness surrounding the decision to plead guilty.
[41] There were no such inducements or threats or any unfair aspect surrounding the decision by the appellant to plead guilty. In fact, he got what he bargained for. The appellant wanted to have his wife released from the prosecution. With his guilty plea, he achieved that. The Crown offered no evidence and she was acquitted. I am not satisfied that even if he had known of the mandatory minimum firearms prohibition he would not have pled guilty.
[42] The case heavily relied upon by the appellant in support of his submission that ignorance of the adverse ramifications from a guilty plea can be, without more, sufficient to constitute a miscarriage of justice is R. v. Stewart, [2002] O.J. No. 4904. Stewart was scheduled to go to trial on summary conviction offences of operating a motor vehicle while his ability to do so was impaired by alcohol and having the care or control of a motor vehicle while his blood alcohol exceeded 80 mg. of alcohol per 100 ml. of blood contrary to s. 253(a) and (b) of the Criminal Code. On the day of his trial, May 8, 2000, the appellant showed up with counsel and a toxicologist. Plea discussions took place. Stewart pled guilty to the impaired driving count. There would be a joint recommendation of a 90-day sentence, to be served intermittently, and a driving prohibition of two years. It was agreed that sentence would be adjourned to September 14, 2000, thereby permitting him to drive over the summer months. The appellant received the agreed upon sentence on September 14, 2000. However, he subsequently received notification from the province that his licence was suspended for three years.
[43] Fresh evidence was introduced on his appeal to the summary conviction appeal court to the effect that had he been aware of the provincial three-year licence suspension he would not have pled guilty. Glass J. heard the appeal. His conclusion was that in the circumstances before him, a miscarriage of justice had occurred. His reasons for this were:
14 I conclude that this information never came to the attention of Mr. Stewart. The statutory suspension is an integral part of the whole process when a person is concluding the prosecution of impaired driving offences. It is an empty victory to strike a deal with the Crown for a two year loss of driving privileges in court when in fact there will be an automatic three year loss under the provincial statute. Mr. Stewart entered his guilty plea uninformed and in effect not voluntarily because of his lack of information. His legal representative was a barrister who was governed by the Rules of Professional Conduct which require the lawyer to advise the client fully of the implications of a guilty plea and the possible consequences of that plea. That did not occur. A miscarriage of justice occurred and must be addressed.
[44] With respect, this case does not assist the appellant. In Stewart, it appears that his right to have a trial was relinquished on the basis of a negotiation that his loss of driving privileges would only be two years; and it is implicit in the circumstances outlined that Stewart had an affirmative defence he intended to adduce at trial. Here, there was no negotiation about any aspect of sentence, let alone the length of a firearms prohibition, and no inkling of any different outcome had the matter proceeded to trial. I note the different results in the subsequent Ontario cases of R. v. Rulli, [2008] O.J. No. 909 (S.C.) and R. v. B.D., [2009] O.J. No. 1562 (S.C.) where McIsaac J. accepted that the appellants were not properly advised of the statutory licence suspension that would occur on conviction, but found the failure did not result in prejudice to the appellant in light of the lack of any viable defence.
[45] Demonstrated or claimed lack of knowledge of the consequences of pleading guilty has not always resulted in consistent outcomes in Canadian jurisprudence (see R. v. Slobodan, [1993] A.J. No. 11 (C.A.); R. v. Tyler, 2007 BCCA 142; R. v. Hunt, 2004 ABCA 88; R. v. Hoang, 2003 ABCA 251; R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont.C.A.); R. v. Claveau, 2003 NBCA 52). Much appears to depend on the likely impact on the decision to plead guilty if the appellant been properly informed as to the consequences. I need not go further into the authorities because on any view as to the appropriate approach, the appellant has not satisfied me that, in these circumstances, he has actually suffered any prejudice.
[46] As a consequence there has been no miscarriage of justice and I would accordingly dismiss the motion to adduce fresh evidence and the appeal.
Beveridge, J.A.
Concurred in:
MacDonald, C.J.N.S.
Saunders, J.A.
[1] There was also an affidavit from the appellant sworn April 14, 2010 that adds little of substance. It was not to referred by either party in their written or oral submissions.