COURT OF APPEAL FOR ONTARIO
Weiler, MacPherson and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ryan William Mitchell
Appellant
James Carlisle, for the appellant
Michael Bernstein, for the respondent
Heard: October 8, 2010
On appeal from the conviction entered October 19, 2005 and the sentence imposed on March 2, 2006 by Justice John G.J. O'Driscoll of the Superior Court of Justice, sitting without a jury.
Nature of Appeal
1The appellant, Ryan Mitchell, and his co-accused Ameer El-Khashab, were charged with first degree murder. The victim, Mr. Taverner, died during the course of a robbery, extortion and unlawful confinement. At the plea hearing before the trial judge on October 19, 2005, the appellant pled not guilty to first degree murder, but guilty to second degree murder. The co-accused pled guilty to manslaughter.
2The appellant later brought a motion to have his plea struck, but the trial judge ultimately dismissed it. The appellant appeals that decision and, in support of his submission, seeks to have fresh evidence admitted in the form of a statutory declaration by the co-accused that exonerates the appellant from the murder.
3The trial judge imposed the mandatory sentence of life imprisonment for second degree murder but increased the period of parole ineligibility from 10 years to 18 years. The appellant appeals the period of parole ineligibility and seeks to have it reduced to 12 years.
Facts
4The appellant and Ameer El-Khashab were charged with first degree murder relating to the death of Mr. Taverner, who was found stabbed and cut over 60 times and left to bleed on the floor of his apartment.
5At the arraignment before the trial judge on October 19, 2005, Mr. Ameer El-Khashab pleaded not guilty to first degree murder but guilty to the lesser included offence of manslaughter. The appellant pleaded not guilty to first degree murder, but entered a guilty plea to the lesser included offence of second degree murder. In so doing the accused were accepting an offer by the Crown to accept pleas to lesser included offences provided that both co-accused pled guilty.
6The Crown read into the record a statement of facts that told of how, on the night of March 18, 2003, neighbours on the second floor of the victim’s apartment building heard a loud commotion coming from his unit. Someone ran up to the victim’s apartment to find him conscious but bleeding profusely on the floor. The victim was transported to the hospital. En route, the victim told the police officer in the ambulance that he had been attacked by two assailants. He confirmed that one of them was the appellant, while the other attacker was masked. The appellant’s cell phone was found inside the victim’s apartment. Mr. El-Khashab’s left thumbprint was found in the victim’s blood. The police were able to follow a trail of blood from the victim’s residence to another apartment building nearby at 52 Mabelle Avenue. A bloody knife was found at a side door of the apartment building, and swipes of blood were found on the stairwells all the way up to the 18th floor. Both accused were located and arrested several days later.
7Mr. El-Khashab’s counsel accepted the Crown’s statement of facts, but added that the reason why Mr. El-Khashab attended the victim’s home on the day of the killing was to intimidate him into repaying funds to settle a drug debt. Things got out of hand and when the victim tried to stab Mr. El-Khashab, the appellant produced a knife and stabbed the victim repeatedly. Mr. El-Khashab did none of the stabbing, and instead pulled the appellant off the victim. The two then ran to 52 Mabelle Avenue, where Mr. El-Khashab’s girlfriend lived. The police arrived at 52 Mabelle Avenue shortly after the incident and spoke to Mr. El-Khashab, who was not yet a suspect. He did not flee from the apartment building.
8Mr. Struthers, who was representing the appellant at the time, accepted the amended statement of facts on behalf of the appellant.
9The court accepted a joint submission to sentence Mr. El-Khashab to 12 years, minus credit for his pre-trial custody of 2 years, 7 months, for an effective sentence of 6 years, 10 months. Sentencing for the appellant was adjourned to November 15, 2005. The pre-sentence report that was eventually prepared was highly unfavourable to the appellant and said he was a serious threat to public safety.
10On November 15, 2005, the appellant appeared again before the trial judge and said he wished to discharge Mr. Struthers as his counsel. He wanted to be represented by another lawyer in order to bring a motion to strike his guilty plea. He stated that he disagreed with the Crown’s statement of facts and with the pre-sentence report. The trial judge ordered Mr. Struthers to be removed as counsel of record and the sentencing hearing was adjourned.
11The appellant’s new counsel brought the motion on January 5, 2006 and the matter was heard over two days. The appellant waived solicitor-client privilege and was cross-examined by Crown counsel. The appellant’s criminal record and his pre-sentence report were entered as exhibits. Also entered as an exhibit were the appellant’s written instructions to his previous counsel, Mr. Struthers, authorizing him to enter a guilty plea for second degree murder. Mr. Struthers was present at the motion hearing to give further testimonial evidence; he was cross-examined by the appellant’s new counsel.
12On January 6, 2006, after receiving submissions from counsel, the trial judge dismissed the appellant’s motion to strike his guilty plea. He found that the appellant’s written instructions – which Mr. Struthers had drafted and read to the appellant before the appellant signed them – were clear and blunt. The instructions were wide-ranging and covered various possible scenarios and consequences of a guilty plea. The trial judge held that the instructions were unequivocal, voluntary, and informed. He noted that the Crown’s plea bargain offer was a “package deal”, i.e. that both co-accused had to plead guilty or else there would be a trial against them.
13In assessing the credibility of Mr. Struthers as a witness, the trial judge found him to be honest, credible, and reliable. The evidence of Mr. Struthers showed that he and the appellant appreciated the strength of the Crown’s case for first degree murder and the effect the Crown’s evidence would have on a jury. The plea to second degree murder was intended to remove the possibility of a conviction of first degree murder.
14In assessing the credibility of the appellant’s testimony at the motion hearing, the trial judge found him to be “a stranger to the truth regarding his evidence as he attempts to renege on his written instructions.” The trial judge did not believe the appellant’s claim that he had lied to Mr. Struthers about his involvement in the murder. Mr. Struthers even said that the appellant re-enacted the killing for him before he signed his instructions authorizing the guilty plea. The trial judge held that the appellant’s efforts to have his plea struck were nothing more than “an attempt to manipulate the system.”
15In his oral reasons for sentencing the appellant to life imprisonment – with no eligibility for parole until 18 years have been served – the trial judge stated that the pre-sentence report, which was prepared by an experienced probation officer, was “one of the most damaging to an accused that I have ever seen.” The trial judge noted that the pre-sentence report described the appellant as a defiant, belligerent, and hostile young man who responded poorly to supervision. The report recommended that “society needs maximum protection from this offender and he needs all the rehabilitative assistance necessary for his positive adjustment.”
16The trial judge noted that the appellant had had more than 20 misconducts while in custody. The judge also quoted extensively from the psychiatric report, which he described as “nothing short of chilling”. The report found that the appellant suffered from an antisocial personality disorder and that he was at a high risk of future violent recidivism.
17The trial judge accepted the Crown’s submission of a minimum parole ineligibility period of 18 years rather than the defence’s proposal of 12 years. The judge stated that this was a case of “aggravated second degree murder … that comes much closer to first degree murder than it does to manslaughter.” He found that the record justified protecting the public from the appellant for a long time.
The Proposed Fresh Evidence
18On May 1, 2009, after his last application for parole was denied, Mr. El-Khashab affirmed a statutory declaration (“the Statutory Declaration”) that essentially states that the appellant had nothing to do with the murder and was not at the victim’s apartment when the victim was stabbed to death. Mr. El-Khashab states that the appellant sent him to collect the drug debt from the victim, but did not give instructions to harm the victim. Mr. El-Khashab attended the victim’s apartment with another individual whom Mr. El-Khashab declines to name, but he assures that it was not the appellant. Mr. El-Khashab explains that he chose not to correct the Crown’s statement of facts at his arraignment because his counsel and the Crown had already agreed that he could plead guilty to manslaughter rather than first degree murder; Mr. El-Khashab states that he believed that had he relayed the truth to the Crown, the plea deal his counsel had negotiated for him would no longer be available.
19Mr. El-Khashab was cross-examined on portions of his Statutory Declaration on March 22, 2010. He refused to waive solicitor and client privilege and also refused to answer the question of the identity of the other person who came with him to the victim’s apartment.
The Issues and our Resolution of them
I. The Admissibility of the Fresh Evidence
20The purpose for which the appellant seeks to have the fresh evidence admitted is to provide him with another defence, namely, that he was not at the scene of the crime.
21We would dismiss the application to admit fresh evidence for two reasons. It does not comply with the general rules for the admission of evidence, and it does not meet the Palmer test.
22Mr. El-Khashab’s unresponsiveness on the issue of the critical question of who was present with him at the scene of the crime coupled with his refusal to waive solicitor and client privilege deprived the Crown of an opportunity to test his credibility. The evidence cannot be regarded as credible having regard to the Crown’s inability to test the evidence. As such, it could not reasonably have been expected to affect the trial judge’s decision. The evidence should therefore not be admitted.
II. Did the motion judge err in dismissing the appellant’s motion to withdraw his guilty plea?
23The appellant submits that he was not manipulating the system in seeking to withdraw his guilty plea on the question of first degree murder. The trial judge erred in saying this and this view coloured his approach to the question.
24The appellant suggests that his plea was in fact involuntary because he panicked when told by counsel he would likely be found guilty. Even if the plea was voluntary and informed, there is still a residual discretion to strike the plea and that discretion should have been exercised in favour of the appellant. In the circumstances there was a miscarriage of justice. Had the motion judge given effect to the appellant’s request to withdraw his guilty plea, the appellant would have been in the situation where he faced greater jeopardy because he would have been tried for first degree murder. The motion judge should have taken this unique circumstance into account and weighed it in assessing the appellant’s credibility. Given the seriousness of the offence, the appearance of fairness would have been best served by allowing the appellant to withdraw his plea and to have a trial.
25The trial judge found the appellant’s plea to be voluntary, unequivocal, and informed. There was nothing qualified about his guilty plea. He was represented by Mr. Struthers, who was experienced counsel, and whom the trial judge found to be honest, credible, and reliable.
26The appellant’s guilty plea was not a last-minute, panicked decision, but the result of measured negotiations between him and Mr. Struthers, which began early in their relationship and continued over five days leading up to the plea. The testimony of Mr. Struthers at the motion hearing, coupled with the appellant’s written instructions confirming his intention to plead guilty to second degree murder, show that the plea was valid. The motion judge’s comment that the appellant was attempting to manipulate the system does not taint his conclusion.
27The appellant has failed to discharge the heavy burden of proving that his plea was somehow deficient. The appellant’s appeal from conviction based on his submission that his guilty plea should be set aside is dismissed.
III. Appeal of Sentence
28The appellant’s position is that he should have received life imprisonment with 12 years parole ineligibility, rather than 18 years ineligibility. If a joint submission as to sentence had been made the Crown was content to seek a period of parole ineligibility in relation to the appellant of 14 years.
29The appellant submits that his period of parole ineligibility offends the principle of parity of sentencing. Although Mr. El-Khashab pleaded guilty to the lesser offence of manslaughter and was somewhat less responsible for the death of the victim, both he and the appellant pleaded guilty to essentially the same facts. Yet Mr. El-Khashab was sentenced to six years, 10 months, while the appellant was sentenced to life imprisonment. The appellant submits that a fit sentence for the appellant must take into account the similarity of his situation to that of Mr. El-Khashab.
30We disagree. Manslaughter does not carry a mandatory sentence. Second degree murder does. The offence to which the appellant pled guilty was much more serious than the offence to which Mr. El-Khashab pled guilty. In sentencing the appellant the trial judge was entitled to take into account and did take into account the individual circumstances of each offender, including the appellant’s pre-sentence report.
31A trial judge has a discretion to extend the period of parole ineligibility for second degree murder in order to reflect the appellant’s culpability and to express social condemnation of the offence committed. The appellant has not met his burden of showing that the trial judge erred in principle in the manner in which he exercised his discretion.
32Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.
RELEASED: Oct. 21, 2010
“KMW” “K.M. Weiler J.A.”
“J.C. MacPherson J.A.”
“Robert P. Armstrong J.A.”
