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Milligan’s Criminal Law Advisor | Guilty plea

Court of Appeal rejects unrepresented defendant’s argument that his guilty plea was involuntary

Milligan’s Criminal Law Advisor

By: Jeffrey Milligan

1. — The Ontario Court of Appeal declined to set aside guilty pleas of an unrepresented defendant

A sixty-five-year-old man, who had no criminal record, was arrested and was charged with, amongst other offences, assaulting his wife with a weapon and with assaulting his adult son.

It was alleged that he held a knife to his wife’s throat and threatened to slit it and that he punched his son in the shoulder. The Crown opposed his bail because, apparently, he did not have a satisfactory plan for his release. He was kept in a detention centre for the weekend and, after speaking to duty counsel some four days after his arrest, he pleaded guilty to assaulting with wife with a weapon and to assaulting his son, without the direct assistance of duty counsel. The judge accepted his plea, after conducting a plea inquiry, and imposed sentence.

The defendant then appealed, claiming that his guilty pleas were not voluntary and that his acknowledgment of the underlying facts was equivocal.

Affidavits both from him and from duty counsel were filed and both were cross-examined on their affidavits. Those affidavits were receivable by the appeal court, in addition to the transcripts of the guilty pleas and sentencing “in the interests of justice”, to determine if the appellant met the onus of satisfying the court that his guilty pleas were not valid. The Court of Appeal noted that the additional material filed need not meet or satisfy the admissibility criteria for “fresh evidence” in R. v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.) or R. v. Rajaeefard (1996), 104 C.C.C. (3d) 225 (Ont. C.A.).

He deposed that he entered his guilty pleas as a last resort to get out of custody because he was frightened that he would languish in jail for a prolonged period. Lack of food and sleep, poor health and anxiety impelled him, he said, to plead guilty when he really was not guilty. The transcript of the guilty plea indicated that duty counsel spoke to him and said that he would proceed to enter his pleas and be sentenced “on his own”. Duty counsel had no specific recollection of the matter but offered the opinion that she said this because he denied the allegations supporting the guilty plea and, thus, she would not act for him.

That duty counsel withdrew was, according to the appellant, a “red flag” that his pleas of guilty were not voluntary and should have been subjected to greater scrutiny.

The trial judge conducted a plea comprehension hearing. The appellant initially denied that the allegations read into the record were “basically correct” but then agreed, more than once, that the allegations truly set out the “basic gist” of what had happened. In the course of the sentencing hearing, the appellant said, of the assault to his wife, “I’ve been sort of ashamed about it”.

Justice Epstein, writing for a unanimous court, held, at paragraph 30, that after “some initial waffling . . . in the end the appellant made unequivocal admissions to the facts that supported the offences to which he pleaded guilty”. That he admitted his shame about his conduct with his wife supported the conclusion that his acknowledgment of liability was unequivocal.

Further, the court found that the appellant was not credible. The court did not accept his assertion that it was his understanding that an appeal, if commenced within 30 days of the sentencing, would nullify or overturn his pleas of guilty and admissions and the matter would be revisited anew. The court found that this was not credible. It was also contradicted by what duty counsel said and her evidence was to be preferred to his.

The Court of Appeal also found, at paragraph 35, that the stress he suffered did not “rise to a level that it impaired his ability to make a conscious choice” about pleading guilty.

Because the guilty pleas were both voluntary and unequivocal, the Court of Appeal dismissed the appeal.

R. v. Krzehlik (2015), 2015 ONCA 168, 2015 CarswellOnt 3383 (Ont. C.A.)

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