COURT OF APPEAL FOR ONTARIO
Cronk, Lang and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ainsley Henry
Applicant/Appellant
Paul Burstein, for the applicant/appellant
Sarah Shaikh, for the respondent /Crown
Heard: April 1, 2011
On appeal from a conviction entered by Justice Frank N. Marrocco of the Superior Court of Justice, sitting without a jury, on January 18, 2010.
1On the scheduled trial date, Ainsley Henry (the appellant) re-elected trial by a judge of the Superior Court of Justice, sitting without a jury, and pleaded guilty to a single count of possession of cocaine for the purpose of trafficking.
2When he pleaded guilty, the appellant was 35 years old. There is no suggestion that he suffered from any intellectual or linguistic deficit. He was represented by very experienced counsel who had been his lawyer for more than two years on this and several related charges.
3The trial judge accepted the appellant’s plea of guilty and recorded a conviction. At the appellant’s request, sentencing proceedings were adjourned for several weeks to permit preparation of a pre-sentence report. Counsel were not of the same mind about the nature and quantum of sentence that was fit for the appellant in the circumstances.
4Before proceedings resumed on the date set for sentencing, the appellant discharged his trial counsel, retained new counsel and filed an application with the trial judge to set aside his guilty plea.
5The appellant moved to set aside his guilty plea on the grounds that the plea was uninformed and involuntary. It was uninformed because the appellant had not been permitted to listen to recordings of police surveillance activities leading to his arrest. These recordings had been subpoenaed to the trial court by his trial counsel on the date fixed for trial. The plea was involuntary because of “the pressure” faced by the appellant on the date he entered the plea.
6The trial judge reserved judgment on the appellant’s motion. He eventually dismissed the motion and provided counsel with written reasons for his decision. On a later date, the trial judge sentenced the appellant to a term of imprisonment of 12 months after awarding him a credit of six months for the three months that the appellant had been detained in custody prior to conviction and sentence.
THE GROUNDS OF APPEAL
7In this court, the appellant challenges the trial judge’s decision not to set aside his guilty plea. In his factum, he advanced several grounds of appeal. Each alleged a discrete error in the trial judge’s decision rejecting the appellant’s motion to set aside his guilty plea. However, in his oral argument, Mr. Burstein concentrated his submissions on the requirement that, to be valid, a plea of guilty must be informed. He submitted that the appellant’s plea of guilty was not informed because it was based on a mishearing of the police communications by trial counsel that led trial counsel to an erroneous conclusion about the viability of a constitutional challenge to the appellant’s arrest and subsequent search. As the direct result of counsel’s advice about the futility of the constitutional challenge, the appellant decided to plead guilty.
ANALYSIS
8The argument advanced here by Mr. Burstein was not raised before the trial judge. Some further background and procedural history is necessary to provide context for the argument now raised.
The Preliminaries to Arrest
9The appellant was not the target of police surveillance on May 31, 2008, but his appearance in the surveilled area attracted the attention of at least one of the officers who had had previous dealings with him. Typically, several officers took part in the surveillance.
10When police apprehended the appellant, he bolted from their custody. After a brief foot chase, officers captured the appellant. In his possession they found 29 grams of cocaine and $250 in a plastic bag. The cocaine was wrapped in separate packages. The appellant also had a cell phone, an item he was prohibited from having under the terms of a prior judicial interim release order.
The Defence Position
11From the outset, the appellant’s experienced trial counsel took a common approach to all the charges the appellant then faced. Counsel challenged the legality of the appellant’s arrest in each of the three incidents that gave rise to three separate sets of similar charges.
12Trial counsel reviewed the notes of the surveillance officers provided as part of Crown disclosure. He considered it possible, if not likely, that the disclosed notes would not coincide with the radio communications taking place among the officers contemporaneous with the appellant’s arrest. As a result, counsel subpoenaed the recorded communications from the Toronto Police Service. In this case, the subpoena was returnable on the trial date. Counsel would then listen to the recordings to determine how they compared to the written disclosure. Any discrepancies and deficiencies that appeared would support the application to exclude the search findings at trial. Exclusion of the evidence would lead to an acquittal, provided the prosecutor, apprised of the discrepancies, could not be persuaded to withdraw the charges prior to trial.
The Trial Date
13On the scheduled trial date, counsel for the appellant indicated to the trial judge that he wished to listen to a CD of the police communications after the prosecutor had listened to it and determined whether any editing was required. Defence counsel pointed out what he heard on the recording would “in all likelihood be determinative”. The trial judge adjourned the proceedings to permit counsel to listen to the recording.
14Trial counsel for the appellant listened to the CD on a computer in the prosecutor’s consulting room. The appellant wanted to listen to the recording himself, but no facility was available for him to do so. Trial counsel advised the appellant that the recording demonstrated that an officer believed she had seen the appellant using his cell phone, which eliminated any prospect of success on their anticipated constitutional challenge.
15Trial counsel made it clear to the appellant that he (the appellant) had to decide whether to plead guilty to the charge. A few moments later, the appellant decided to do so, but instructed his counsel to advocate for a conditional sentence rather than join the Crown in a submission for a custodial sentence.
The Plea of Guilty
16The prosecutor, trial counsel and the appellant returned to the courtroom where the appellant entered his plea of guilty. Among the facts read by the prosecutor and not disputed by the appellant was that the original apprehension of the appellant was for breach of recognizance because a police officer had seen the appellant apparently talking on a cell phone while under police surveillance.
17Trial counsel affirmed the importance of the content of the tapes in the resolution of the case by a guilty plea. The trial judge was not invited to listen to the CD or to read a transcript of the conversations. Neither the CD nor the transcript was filed as an exhibit.
The Motion to Set Aside the Guilty Plea
18The evidence on the motion to set aside the plea of guilty as uninformed and involuntary included the appellant’s affidavit, on which he was cross-examined before the trial judge, and the evidence of the appellant’s trial counsel. The appellant waived solicitor-client privilege. The CD was filed as an exhibit and the transcript made available to the trial judge. The CD was not played during the hearing of the motion.
The Positions of the Parties on Appeal
19For the appellant, Mr. Burstein submits that trial counsel had little time to listen to the police communications recording. He had no transcript to assist him. In the end, trial counsel simply misheard some of the words spoken on the recording. Nothing on the recording supports the trial counsel’s conclusion that any police officer reported having seen the appellant with a cell phone up to or held to his ear. The absence of such an observation and the overall tenor of the recording leaves open a viable argument that the officers lacked reasonable and probable grounds to arrest the appellant.
20Mr. Burstein argues that the appellant’s plea of guilty was uninformed because it was based on misinformation provided quite inadvertently by trial counsel. Mishearing the recording led trial counsel to advise the appellant that his constitutional complaint, for all practical purposes his only “defence”, was doomed. A plea of guilty entered on the basis of erroneous information about the viability of a defence is uninformed, thus should be set aside.
21Ms. Shaikh sees it differently. An accused has no absolute right to review every item of disclosure. The appellant’s experienced counsel subpoenaed the police communications to determine whether they revealed a viable constitutional claim. He formed the impression that what everyone agreed was the only possible defence, exclusion of the prosecution’s evidence, was no longer viable. Counsel advised the appellant accordingly, and the appellant decided to plead guilty when confronted with this reality.
22Ms. Shaikh says that the appellant wants to second guess the assessment made by his experienced trial counsel who had represented him for over two years. To countenance such a claim would work great mischief in the administration of criminal justice by putting at risk the finality of trial proceedings.
The Recording
23On the application before the trial judge to set aside the guilty plea, the CD of the police communications was filed as an exhibit at the conclusion of argument. The CD was not played in open court, nor did counsel contend that the transcript of the communications did not accurately represent what was said or what trial counsel claimed to have heard.
24On the hearing of the appeal, Mr. Burstein played the critical portions of the police communications. We also had the benefit of the transcription prepared by civilian members of the Toronto Police Service. The recording lacks concert hall clarity, understandably in the circumstances, but several features predominate. Neither the recording nor the transcript disclose a communication by any police officer reporting an observation of the appellant with a cell phone up or close to his ear. Further, the officers appear to recognize that their observations of the appellant do not rise to the threshold of reasonable and probable grounds for a belief that the appellant was in possession of controlled substances for the purpose of trafficking. And finally, the communications afford some indication that the officers are casting about in search of some pretext to detain the appellant.
The Applicable Principles
25Among the requirements for a valid plea of guilty is the prerequisite that the plea of guilty be informed. An accused must be aware of the nature of the allegations made against him or her, as well as the effect and consequences of the plea of guilty: R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519; and R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 85.
26An informed plea is one based on sufficient information concerning the nature of the charges against an accused. We impose disclosure duties on the prosecutor to ensure that any decision made by an accused about his or her case, including whether to plead guilty, is made with full knowledge of the relevant facts: Taillefer; Duguay at para. 86.
27A breach of the duty to disclose can impact on the validity of a guilty plea where it affects the basis upon which the accused decides to plead guilty: Taillefer; Duguay at para. 88. Where non-disclosure is advanced as a basis for a claim that a plea of guilty was uninformed, an accused must demonstrate a reasonable possibility that the undisclosed material would have influenced his or her decision to plead guilty, if it had been provided prior to entry of the plea. In cases of non-disclosure, the question is whether a reasonable and properly informed person, put in the same position, would have run the risk of standing trial had she or he received timely disclosure of the undisclosed information, when it is assessed along with the previously disclosed information: Taillefer; Duguay at para. 90. In cases of non-disclosure, where there is a realistic possibility that an accused would have run the risk of a trial, had she or he been in possession of the undisclosed information or new avenues of investigation, then the accused should be given leave to withdraw the plea of guilty: Taillefer; Duguay at para. 90.
The Principles Applied
28When the police arrested the appellant he was in possession of 29 grams of cocaine in separately packaged plastic bags inside another plastic bag that also contained $250 in cash. The appellant also had a cell phone. If this evidence were admitted at trial, the appellant faced a significant risk of conviction of possession of cocaine for the purpose of trafficking.
29The appellant’s trial strategy, common to three sets of similar charges, was to seek exclusion of the real evidence that constituted the prosecutor’s case. The appellant sought to establish that his arrest was arbitrary because the police lacked reasonable and probable grounds to arrest him. The real evidence was found on a search incident to that arrest.
30It is beyond argument that prior to the arrest, the police had no reasonable and probable grounds to believe that the appellant had controlled substances in his possession for the purpose of trafficking.
31The surveillance officers knew that the appellant was bound by the terms of a recognizance not to possess a cell phone. Any observations of the appellant with a cell phone, for example speaking into it while driving his car, could afford reasonable and probable grounds to arrest the appellant for breach of his recognizance. If the appellant could establish the absence of the essential reasonable and probable grounds, proof of a constitutional infringement was an essential hurdle overcome on a path towards exclusion of the products of the search as evidence in the proceedings.
32The police communications were critical to the appellant’s trial strategy. If the communications failed to support any sighting of a cell phone during surveillance, counsel could advance an argument that the arrest was arbitrary, unsupported by the essential, reasonable and probable grounds. The content of the recording could also prove a valuable source for cross-examination in the event that the officers’ testimony was inconsistent with their contemporaneous words. On the other hand, if the recording confirmed the required reasonable and probable grounds, any claim of arbitrary arrest was, at best, problematic.
33Trial counsel listened to the recording. So far as we are aware, he did not have the benefit of a transcript with which to follow the conversations. The circumstances in which trial counsel listened to the recording were not ideal, but he raised no concern about their adequacy.
34Trial counsel concluded that the recording confirmed the written disclosure he had received. Of particular importance to him was a passage that, in his opinion, revealed that a police officer reported having seen the appellant with a cell phone up to or close to his ear. In the mind of trial counsel, this comment interred the argument about arbitrary arrest. He told the appellant that he was “dead in the water” on his challenge to the admissibility of the prosecution’s evidence and should consider a change of plea. A few minutes later, the appellant pleaded guilty.
35Without objection from Ms. Shaikh for the respondent, we listened to the recording of the relevant police communications on the hearing of the appeal. The recording reveals no reported observation by any of the officers that the appellant had or was using a cell phone. The recording reveals an early uncertainty about whether the person under observation was, in fact, the appellant, and could also be taken as supporting an assertion of a pretextual stop.
36An informed guilty plea requires that the accused who enters it has sufficient information about the charge to make an informed decision about his or her plea: Taillefer; Duguay at paras. 85-86. If the plea is not informed, leave may be given to set it aside. A plea may not be informed if it was entered without timely knowledge of information that is relevant to the decision of whether to plead guilty or run the risk of a trial: Taillefer; Duguay at para. 90.
37The appellant does not complain of a failure on the part of the prosecutor to meet the disclosure obligations imposed upon her under R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. Thus, the factual matrix differs from that in Taillefer; Duguay. But the decision to plead guilty here was grounded on a misapprehension of information critical to the viability of the appellant’s only “defence”. Had the true state of affairs been communicated to the appellant, there was a realistic likelihood that he would have run the risk of a trial. In my opinion, under reasoning analogous to that applied in Taillefer; Duguay, the appellant should be given leave to withdraw his plea of guilty.
CONCLUSION
38For these reasons, I would allow the appeal from conviction, set aside the guilty plea entered below, and order a new trial on the indictment.
RELEASED: April 12, 2011 “EAC”
“David Watt J.A.”
“I agree E.A. Cronk J.A.”
“I agree S.E. Lang J.A.”
