R. v. Yasotharan, 2019 ONCA 568

Court of Appeal for Ontario

Date: 2019-07-04 Docket: C64215

Judges: Doherty, MacPherson and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Meera Yasotharan Appellant

Counsel

For the Appellant: Ryan MacIsaac and Simon G. Cameron

For the Respondent: Mabel Lai

Heard: July 2, 2019

On Appeal

On appeal from the conviction entered on September 22, 2016 by Justice Russell J. Otter of the Ontario Court of Justice.

Reasons for Decision

[1]

Overview

The appellant alleges that her guilty plea to a charge of fraud was uninformed and involuntary primarily because she received ineffective assistance from her then counsel.

[2]

Background

The Crown alleged that the appellant misrepresented the status of her cohabitation and was overpaid by the Ontario Works programme when she received social assistance. She was criminally charged with one count of fraud over $5,000.

3As set out in the psychiatric report of Dr. Joseph Regan, the appellant suffers from a permanent intellectual development disorder and has an IQ of 42. She speaks limited English and can neither read nor write in English or her native Tamil.

4A Tamil paralegal and interpreter directed her family to a lawyer, John Guoba, with whom he had previously worked. Mr. Guoba testified that, when working with members of the Tamil community, he would generally meet with the family as well as the client. He did so here. The appellant's father gave Mr. Guoba a retainer. Mr. Guoba met with the appellant three times, in the presence of her father and the interpreter.

5Mr. Guoba, having reviewed the Crown disclosure, concluded that there was a strong case against the appellant. He also concluded that, despite her disability, the appellant was capable of organizing and conducting her affairs.

6At the judicial pretrial, Mr. Guoba advised the judge about the appellant's disability and referenced Dr. Regan's report. The Crown proposed resolution of a guilty plea and a restitution order. Mr. Guoba negotiated a restitution order of $14,400, down from a total alleged overpayment of $27,992.

7Mr. Guoba met with the appellant and her father to discuss the proposal. The meeting was mostly in English although the Tamil interpreter was there. Mr. Guoba told the father that a trial would be expensive and advised her to plead guilty. The father said she would. Mr. Guoba testified that it is common in the Tamil community for a father to speak for family members. Mr. Guoba asked the appellant if she would plead guilty, and she simply nodded.

8The parties advised the court that there would be a guilty plea and joint submission. When the trial judge asked the appellant how she pleaded, she responded "I plead guilty". The trial judge accepted the joint submission.

[9]

Analysis

We recognize that Mr. Guoba had a difficult situation before him. His client did not speak English. Even in Tamil, she understood only 50% of what was said to her. This required extraordinary care and patience to be sure that the appellant understood the consequences of the plea.

10The fresh evidence, including the updated report of Dr. Regan, make it clear that the appellant did not understand the implications of the plea. In particular, the impact that the restitution order would have on her ability to access Ontario Works payments in the future was never explained to her. Nor did she grasp that she would have to pay the money back. She was dependent upon her father and essentially did what he said.

11Mr. Guoba frankly acknowledged that he should have met with the appellant alone. We agree. She also should have been told that the plea would impact her future payments for social assistance.

12The appellant was not informed about the consequences of her guilty plea. Her conviction therefore gives rise to a miscarriage of justice: see R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334, at para. 43.

[13]

Disposition

The appeal is allowed, the conviction is set aside, and a new trial is ordered. However, in the interests of justice, taking into account the appellant's intellectual disability, the financial hardship she has endured, and the strides she has made to improve her circumstances in life, we exercise our discretion under s. 686(8) of the Criminal Code to enter a stay of proceedings against the appellant.