WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2015-03-11
Court File No.: Dufferin County (Orangeville) Number 004101
Between:
Her Majesty the Queen
— and —
Dakotah Frederick King
Before: Justice Douglas B. Maund
Heard on: February 11th and February 13th, 2015
Counsel
Mr. R. Feldstein — counsel for the Crown
Ms. L. Morgan — counsel for the accused Dakotah King
Ruling
[1] Introduction
This is my Ruling on the Application by the accused, Dakotah King to strike his guilty pleas in the Ontario Court of Justice on April 11, 2014. This Application was heard on February 10th and February 13th last. I have already indicated to counsel that the relief sought by Mr. King in this matter is granted. On February 13th he was permitted to strike his plea of guilt to both charges and re-elect to his original mode of trial. These are my reasons. A second preliminary hearing has been scheduled for July 23 and 30th, 2015.
Facts and Chronology
[2] The Charges
Dakotah Frederick King was charged that between August 1 and October 31, 2009 at the Town of Orangeville he committed a sexual assault on A.J.T. contrary to Section 271 of the Criminal Code of Canada. He was also charged during the intake period with failure to appear in court on June 14th, 2011 contrary to Section 145(2)(b) of the Criminal Code.
[3] Initial Proceedings and Arrest
The original information in relation to the sexual assault charge was sworn on February 18th, 2011. Mr. King was arrested earlier on February 8, 2011 and appeared initially in intake court on March 11th. It is alleged that he subsequently failed to appear on June 14, 2011 and he was later arrested on his outstanding bench warrant on April 5, 2013. During his five further appearances before the Ontario Court Justice after April 6th, the accused was assisted by Duty Counsel pending his retainer of counsel.
[4] Retention of Counsel and Pre-Trial Proceedings
On August 1st, 2013, Mr. King first met his counsel, Lisa Cherry, and she confirmed her retainer. With Ms. Cherry as counsel the matter proceeded promptly through the intake phase including meetings with the Crown and a judicial pre-trial on September 6th. The original election was for a trial before the Superior Court of Justice and a preliminary hearing was scheduled to be held on April 11, 2014 for one day.
[5] The Morning of April 11, 2014 — New Disclosure
I was the presiding Justice on April 11, 2014. When the matter commenced at 9:30 am that morning, the Court was advised by the Crown Attorney that Ms. Cherry needed to seek instructions from her client. Additional information had been received that morning from the complainant. The Crown required and was granted an opportunity to review this new disclosure and provide it to counsel so she might obtain further instructions.
[6] The Guilty Plea
Court recessed and was recalled at 10:40 am. The Court was advised that Mr. King had given instructions that he would plead guilty to both charges of sexual assault and failure to attend. Ms. Cherry confirmed that she was satisfied that there had been a full and informed plea inquiry within the meaning of Section 606 of the Criminal Code. Counsel also indicated that she was in receipt of written instructions from her client. On the basis of that, the Court confirmed with Ms. Cherry that the presiding Justice would not make any further plea inquiry directly with Mr. King. Mr. King was then asked on the Record whether he wished to proceed as discussed and he indicated "yes". The accused was then arraigned on both charges after counsel confirmed his re-election to proceed before the Ontario Court for the purpose of the plea. Mr. King then pleaded guilty to both charges.
[7] Facts Read In and New Allegations
The Crown read in the alleged facts in relation to both counts. The facts included the new information received by the Crown that morning which were submitted as potential aggravating factors. These new incidents were said to have occurred between August and November, 2011, after the date of the original charge. I will not set out these new allegations, beyond indicating that they suggested unlawful contact with the complainant which might constitute a breach of his original release terms. They would also support a further charge of sexual assault. There is no issue that this new and significant information was not available to the Crown or the Defence until just before the commencement of Court on April 11th.
[8] Acknowledgment of Facts and Remand for Sentencing
Ms. Cherry advised the Court that all of the facts read in were acknowledged to be substantially correct by her client. On that basis, Mr. King was found guilty. He was remanded for sentence pending the preparation of a pre-sentence report and also a Gladue Report in view of his First Nations status.
[9] Immediate Post-Plea Confusion
Immediately after entering his plea, the evidence is clear that Mr. King showed confusion and expressed misgivings about the plea procedure. Ms. Tara Nixon was the intake probation officer in Orangeville who met Mr. King immediately after court and gave him direction about the pre-sentence procedure. According to Ms. Nixon's evidence, Mr. King became emotional and told her that he had not committed these offences. He said he felt under pressure to enter a plea of guilt. Ms. Nixon advised him to discuss this with his lawyer and the assigned probation officer in Brantford.
[10] Reaction of Friend and Employer
Mr. King's friend and employer, Derek Kraay had driven him to court that morning. According to his evidence, Mr. King was surprised and upset when told by Mr. Kraay afterward that taking the plea deal meant that he was admitting his criminal guilt. It was clear to Mr. Kraay that his friend could not grasp what had just taken place at court at all.
[11] Text Message to Counsel
According to Ms. Cherry's evidence, Mr. King sent her a text on April 12, the day after the plea, which said that he was upset about what had happened in court. While he did not tell his counsel that he wanted to change his plea in this text, the accused did indicate that he did not want to go to jail for something he did not do.
[12] Gladue Report Preparation — Disclosure of Innocence
Ms. Lisa Van Every first encountered Mr. King on June 4, 2014. She was the intake worker with Aboriginal Legal Services who was assigned to prepare a Gladue report. Ms. Van Every was told by Mr. King immediately during her intake procedure that he did not commit the offences. She advised him that he had options and that he should immediately tell his lawyer and obtain advice. On the basis of what she had been told by the client, she could not proceed further with the report. This was confirmed by the letter to the Court from Jonathan Rudin of Aboriginal Legal Services dated June 18th, 2014.
[13] Change of Plea and Removal of Counsel
On June 8th the accused sent a text message to Ms. Cherry indicating that he wished to change his guilty plea to not guilty. When the matter returned to court for sentence on June 20, 2014, Ms. Cherry advised the court she had just learned for the first time from her client that morning that Mr. King had a learning disability, dyslexia and a speech impediment. And these affected his understanding of the plea procedure. Ms. Cherry filed an application to be removed as counsel of record on behalf of Mr. King given his change in instructions. After some discussion Ms. Cherry was removed as counsel of record. Ultimately Mr. King retained new counsel and this application to strike his plea was scheduled to be heard.
[14] Accused's Evidence — The Plea Bargain and Time Pressure
According to the viva voce evidence of Mr. King and his affidavit, prior to April 11th he had been advised by Ms. Cherry that the Crown had offered a plea bargain in relation to his original charges. What was proposed was an eighteen month sentence on a plea to both charges which would be submitted to the Court as a joint submission. Mr. King indicates that he did not understand that a preliminary hearing was scheduled to begin that morning or what a preliminary hearing was. The new allegations were presented to Ms. Cherry and her client with very little detail. This new disclosure created time pressure to make a decision due to the position of the Crown that the plea bargain proposal would remain open to Mr. King and they would not proceed on the second count of sexual assault only if he entered his plea before the commencement of the preliminary. However, the offer would be withdrawn once the complainant was obliged to begin her testimony at the hearing. Mr. King was told that the Crown would be seeking a sentence and a four to six year penitentiary range if convicted after trial.
[15] Accused's Mental State and Lack of Disclosure to Counsel
Mr. King testified that he was feeling anxious and depressed and was entirely confused about what he was being asked to decide before his plea. He was aware that he had very little time to make a decision. Mr. King indicated that he felt overwhelmed and found it very difficult to focus on the choices that he had to make. However he did not tell his counsel Ms. Cherry that he had these difficulties in processing all of the information to make this important decision. The accused also did not ask Ms. Cherry, nor was it suggested to him, that he might seek an adjournment to consider the new disclosure.
[16] Lack of Understanding of Written Instructions
In relation to Mr. King's written instructions to counsel, he indicated that his general reading comprehension is not good and that was made worse by the time pressures on him that morning. He testified that he did not understand the contents of this document despite his review with counsel. Specifically he did not understand that by signing the document he would be admitting that he committed a sexual assault. Although he remembers saying the word "guilty" in court, Mr. King testified that he never understood that it was an admission to having committed the offence.
[17] Lack of Understanding of Options and Panic Attack
Mr. King also indicated in his evidence that he did not understand that he had further options in criminal court beyond accepting either the eighteen month or the four to six year sentence options offered to him. He did not understand that he could proceed to trial and contest the allegations which he says he did not agree with. Nor did Mr. King understand that the new allegations would be read in by the Crown as aggravating factors which might affect his sentence. During the plea procedure he did not comprehend what was being discussed by counsel in court. He believes he was in the middle of a panic attack at the time. He did not understand what he was apparently agreeing to and could not focus. Mr. King indicated that what he was focused on is trying to breath and not losing consciousness.
[18] Counsel's Evidence — Waiver of Privilege
Mr. King's counsel, Ms. Lisa Cherry, gave evidence in this Application. Solicitor and client privilege in relation to her dealings with D. King and what took place in court on April 11th was specifically waived by her former client.
[19] Ms. Cherry's Testimony — Plea Inquiry and Accommodation
Ms. Cherry testified that she conducted a full Section 606 plea inquiry with Mr. King and obtained his written instructions concerning the plea. As an experienced criminal practitioner, Ms. Cherry testified that she would not proceed with a plea of guilt without being satisfied that all of the elements of the plea inquiry were understood by her client. She indicated that she fully explained Mr. King's options to him including holding the preliminary hearing which would test the evidence for the Crown. Ms. Cherry was clear that she did her best to accommodate Mr. King as a client. He had significant transportation problems to travel to her office and the court which required that all interviews were conducted in the courthouse.
[20] Ms. Cherry's Testimony — Lack of Prior Knowledge of Disabilities
Counsel indicated that while she believed Mr. King had understood what she presented to him on the morning of the plea, it was not until June 20th that he revealed his learning disability and other comprehension problems. She did not have more than a few minutes to present him with the significant new allegations. And Ms. Cherry acknowledged that these new facts put pressure upon Mr. King to accept the plea bargain. She believed that she received his informed instructions and that he had understood his written instructions to enter the guilty plea. Mr. King did not tell her before June 20th that he did not understand the procedure and that pleading guilty would amount to an admission of having committed the offence. Counsel appreciated that this was a very difficult and emotional decision for Mr. King at the time.
[21] Counsel's Lack of Awareness of Cognitive Issues
Significantly, Ms. Cherry was not aware of any learning disabilities and cognitive issues which may have limited his understanding of the plea procedure. While she asked her client generally if he had any medical issues, she believed he presented normally given his verbal skills. She was not and, in my view could not, have been aware of the cognitive impairments described in the subsequent medical report of Dr. Sandra Jackson.
[22] Psychological Assessment — Dr. Sandra Jackson's Report
The psychological assessment report of Dr. Sandra Jackson dated January 3, 2015 is filed at Tab 8(B) of the Application Record. Her conclusions are summarized at page ten of the Assessment and can be summarized as follows:
(a) Mr. King has suffered from attention deficit disorder and dyslexia since early childhood. He continues to suffer significant cognitive difficulties in the areas of information processing and comprehension.
(b) Mr. King has a borderline IQ of 77. He understands basic vocabulary. However, he is often literal in his understanding of what is being presented to him. Concepts involving abstract understanding can be a struggle for Mr. King.
(c) Anxiety can interfere with the ability of Mr. King to process information. His difficulty can be increased when time pressures to make a decision are brought to bear. Instructions for Mr. King need to be repeated and his understanding tested, as evidenced by his employer Derek Kraay and his test results.
[23] Dr. Jackson's Conclusion on Information Processing
Given her psychological testing and interviews, the collateral information and Dr. Jackson's understanding of the circumstances, she concludes at page eleven of her report:
"… it is plausible that Mr. King would have had a difficult time processing the information as I understand it was presented to him on April 11, 2014. First, he would have had to have been able to attend to the information he was given and then shift his attention between information sets. For example, the information itself, his own beliefs and understanding of the events he is being accused of and/or the evidence for or against his case, his lawyer's opinion, the pros and cons of each option, as well as consideration of alternative options. Given Mr. King's presentation on testing it is likely he would have had a great deal of difficulty processing all this information, regardless of whether it was presented verbally or in a written format in a short period of time."
[24] Dr. Jackson's Final Conclusion
Based on all of these factors, Dr. Jackson concluded that Mr. King had little, if any, understanding of the plea bargain or his options in the criminal process on the morning of April 11, 2014.
[25] Verbal Skills Masking Deficits
Dr. Jackson also indicated that while Mr. King's verbal reasoning skills appear to be in the average range, he can express himself fluently. Those verbal skills can mask his significant intellectual deficits. That is to say that Mr. King may present with a degree of understanding that he does not in fact possess. While Mr. King has the ability to make choices, his choices need to be clearly articulated and repeated so that he has sufficient time to think them through.
Analysis
[26] Legal Principles Governing Striking of Guilty Pleas
The legal principles which govern the striking of a guilty plea are comprehensively set out in the Factum filed on behalf of the Applicant. To be valid, a plea must be voluntarily, unequivocal and informed. The onus rests upon the accused to establish that his plea of guilty was invalid. The Defence concedes that a plea made in open court with the assistance of legal counsel is presumptively valid. The presiding Judge has a discretion to inquire into the circumstances of the plea to determine whether it may be struck.
[27] The Standard: Real Doubt as to Validity
In R v Adgey, [1975] 2 S.C.R. 426, the Supreme Court of Canada did not comprehensively define "valid grounds" which might permit the withdrawal or striking of a plea of guilty. The nature of the persuasive burden upon an accused in these circumstances is also not well defined in the caselaw. As Justice Hill of the Superior Court of Justice notes in R v Moser, [2002] O.J. No. 552"the standard of persuasion should not be to the point where adjudicative fairness may be offended." His Honour notes at paragraph 43:
"Whatever the standard for appellate intervention, I am content that where a trial judge has a real doubt as to the plea's validity the Court should strike the plea and send the case to trial."
[28] Application of the Standard
I adopt this statement as the standard to be applied in this Application. I find that I am satisfied on all of the evidence that I am left with a real doubt as to the validity of the plea entered by Mr. King on April 11, 2014.
[29] Findings on the Evidence
The facts establish that Mr. King was not fully aware of his legal options despite how he may have presented to his counsel, Ms. Cherry. He lacked the ability to process the information provided and instruct his counsel in a meaningful way. I also find that the new allegations on the morning of the plea significantly changed the jeopardy of the accused. He did not have sufficient opportunity to consider this new disclosure or to understand how it might affect his sentence. Only the most basic of information was made available to the Crown and Defence immediately before the preliminary hearing was scheduled to begin. In the circumstances, the time pressures experienced by Mr. King had an impact upon his ability to make a fully informed and rational choice. I also find that the medical evidence from the psychological assessment supports the position of the Applicant.
[30] Articulate Presentation Masking Cognitive Deficits
What is unique about the facts of this Application is that Mr. King presented in his evidence and during his appearances before this Court as a relatively articulate person. As noted by Dr. Jackson, his verbal skills can mask his lack of comprehension. Indeed, I have noticed this from my own exchanges with Mr. King in court and found it is necessary to test his understanding of questions put to him and what may be required to do. I can now understand the challenges faced by Ms. Cherry as his counsel. Mr. King did not volunteer the critical information about limits to his cognitive functioning and his inability to understand the plea process. This was because he was embarrassed to tell his own lawyer. Ordinary diligence would not have revealed this to Ms. Cherry who is an experienced and competent criminal counsel. No issue has been or should be taken with her representation of Mr. King in this criminal process.
[31] Conclusion — Plea Struck
In all the circumstances I find that it would be unsafe and unfair to allow this plea of guilty to stand. While Mr. King said the word guilty in answer to his plea, I am satisfied that he had no real intention to admit the facts which were the basis for a finding of guilt. He also had no real understanding about the plea procedure. I am left with a real doubt as to the validity of his plea.
Released: March 11, 2015
Justice Douglas B. Maund