Court File and Parties

Date: November 17, 2017

Information No.: 2111-N13-4146, 2111-N16-4284

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Christopher Goodnough

Before: Justice L.P. Thibideau

Heard on: July 21, 2017

Reasons for Judgment released: November 17, 2017

Counsel

R. Mahler ............................ Counsel for the Crown

G. Parker ............................ Counsel for Christopher Goodnough

Judgment

THIBIDEAU, J.:

Application to Withdraw Guilty Plea

1Christopher Goodnough has an application before the court dated the 4th of May 2017. He requests that his plea of guilty to one count of sexual assault be struck. He asserts that he did not plead guilty voluntarily, that he was persuaded to do so, and that he "did not understand the legal consequences of the plea inquiry provisions of section 606 of the Criminal Code".

2He founds his application on the following:

1. He acknowledges a section 606 plea inquiry with defence counsel prior to plea took place on the 27th of September 2016, but he did not understand the legal consequences of the plea. He did not understand he was pleading guilty to sexual assault. He did believe he was pleading to a lesser charge. His counsel told him he had no other choice but to plead guilty to sexual assault. He had a limited capacity to understand the process and defend himself.

Background and Procedural History

3There is a lengthy history to this matter. The arrest and charge date is 21st of October 2013; the plea of guilty date is the 27th of September 2016. In the interim much occurred. In 2013 and 2014 there were various adjournments in the Ontario Court of Justice, leading to a preliminary hearing date scheduled for January 8th and following, in 2015. The hearing went ahead and evidence was heard. The result was that Mr. Goodnough was committed to stand trial on this and one other charge in Superior Court.

4One year later, on January 28th, 2016, some pretrial motions were before that court. Counsel of record, Andrew Burton, advised the Superior Court on that day, that Mr. Goodnough had instructed him to plead guilty to the sexual assault charge as charged. Later, on the same day in the same court, Mr. Burton advised the court there was a breakdown of the solicitor-client relationship, and that Mr. Goodnough now did not wish to plead guilty. Mr. Burton was removed from the record and a trial date was set for the 3rd of June 2016, without counsel, in the Superior Court, with two weeks being set aside for that trial.

5On the 24th of May 2016 Mr. Goodnough appeared in Superior Court with his new retained counsel Brandon Chase. At a previous 10th of May 2016 court appearance, Justice Turnbull of the Superior Court indicated that if Brandon Chase became retained counsel for the June trial those dates would be vacated and new dates in 2017 would be set, peremptory on the defence.

6At the 24th of May 2016 court appearance Mr. Chase advised Justice Ramsey in Superior Court that there might be a re-election to the Ontario Court of Justice for purposes of a guilty plea. Unlike the first notification of a guilty plea by the first lawyer, this time there were no clear instructions indicated to the court.

7Following, on the 20th of June 2016 the matter was once again before the Superior Court. At this time Mr. Chase advised the court that he now had written instructions for Mr. Goodnough to resolve the charges by way of a re-election and a guilty plea in the Ontario Court of Justice. The seized Crown was not present so the matter was put over to the 25th of July 2016 assignment court, so that Mr. Chase could speak to the assigned Crown in the interim period.

8The matter finally arrived in the Ontario Court of Justice on the 27th of September 2016 with the assigned Crown, Mr. Chase, and Mr. Goodnough before the court.

9It is noteworthy that on all the court dates, including the multi-day preliminary inquiry referred to, Mr. Goodnough was present, in court, to hear what was said. The exception is the assignment court date of 20 June, 2016 when Mr. Goodnough was not present.

The Plea Proceeding

10On the 27th of September 2016 the following occurred. A very short summary of the case was stated in court by the Crown. A preliminary inquiry had taken place, original counsel was excused, and Mr. Chase had taken over the file. Crown and defence resolution discussions had taken place; there was to be a plea of guilty. The facts read in would consist of what was heard at the preliminary inquiry and the statement of Mr. Goodnough himself, while questioned upon arrest by the police.

11Mr. Chase put on the record that after a chambers meeting with the judge, Crown counsel and defence counsel, that particular day, counsel "reviewed with Mr. Goodnough what would be occurring and he understands and is content to proceed today". A notice of re-election signed by Mr. Goodnough, consented to by the Crown, was filed to allow the matter to be dealt with in the Ontario Court of Justice by indictment.

12Mr. Chase on behalf of Mr. Goodnough indicated he wished to be tried in the Ontario Court of Justice, the charge was read out, and Mr. Goodnough pled guilty.

13The detailed facts were then read out before a finding of guilt. Mr. Chase spoke to his client regarding the facts, asking for the court's indulgence to do so. Mr. Chase advised the court after consultation with Mr. Goodnough that the facts were acknowledged by him except for the stated fact that a person named Kathy was his girlfriend, which was not correct. All other facts were not commented upon. The result was a finding of guilt on the acknowledged facts. A pre-sentence report was ordered for the agreed sentencing date of 6 January 2017, which did not take place.

14Thus, we now have the 4th of May 2017 application by Mr. Goodnough before this court.

Jurisdiction

15It is not argued that this application cannot be brought in the Ontario Court of Justice. Sentencing has not occurred. While Justice Colvin took the plea and is seized, he has recused himself, with the result that another judge of the Ontario Court of Justice now has jurisdiction to hear this matter; in this particular case, myself.

16No one before this court on this application argues a lack of jurisdiction.

The Evidence

17This history is augmented by in court evidence and the affidavit evidence of the applicant, his friend Crystal Thompson, and the lawyer Brandon Chase. The affidavit evidence of the applicant and the witness Crystal Thompson is similar but not identical. The applicant and Ms. Thompson attended the lawyer Chase's appointments together; they recall them in compatible terms. They were told the damning evidence consisted particularly of photos of the victim, forwarded from the victim's phone to the applicant's phone. This was serious evidence implicating the applicant in the crime of sexual assault. But the applicant denied taking the pictures. Mr. Chase advised them the situation was that the applicant would have to show he did not take the pictures. No applicant's evidence to show that he did not take the pictures was available. Mr. Chase assessed the case as poor for the applicant. Mr. Chase told the applicant it was his choice to plead guilty or not. These are the comments in summary of each of the applicant and his friend.

18The crux of the issue occurs during the second and third appointments with Mr. Chase. From the evidence of Mr. Chase it is clear he believed he was speaking about a sentence change from a likely four years after trial for sexual assault, to a likely two years less a day sentence for a guilty plea for the same charge of sexual assault.

19The applicant and Crystal Thompson say they believed the lawyer was speaking about a sentence change from a likely four years after trial for sexual assault to a likely two years less a day for a guilty plea to a lesser charge, related to taking photos of the victim, not to sexual assault.

20Both of them also agree that Mr. Chase told the applicant it was his choice to plead guilty or not guilty, but it was in his best interest to take the plea. The applicant states he chose to take the plea. It is at this point that the mind of the lawyer Chase is apparently not ad idem with the mind of the client Goodnough.

21On the evidence, if believed, Mr. Chase had in mind a plea to sexual assault to lower the sentence; Mr. Goodnough had in mind a plea to some lesser charge than sexual assault, particularly in relation to the photos, in order to lower the sentence.

22The mindset of the applicant and Crystal Thompson regarding a lesser charge unspecified, has some traction. In their view Mr. Chase had pointed out the main evidence leading to conviction was the photo evidence. It was, according to them, not in their words, the elephant in the room.

23The applicant states after discussions with his lawyer on two occasions before plea, the applicant formed the belief he would have to show in court that he did not take the pictures on his phone sent from the victim's phone. He could not disprove his involvement in taking the pictures. This factored into his decision according to him.

24On the 27th of September 2016 the plea date, before court, there was a final plea conversation between Mr. Chase, the applicant, and Crystal Thompson. Mr. Chase confirmed the probable sentence of two years less a day for a plea in court. But the applicant and Crystal Thompson mentioned to Mr. Chase, two years less a day was the original sentence offered for a plea to sexual assault, early on, when Mr. Burton was the lawyer. How could two years less a day for pictures, found on Goodnough's phone, result in the same sentence, and not a lesser sentence? Mr. Chase, speaking from his mindset, said, during the conversation, Two years less a day for a plea was better than four years after trial for sexual assault.

25It is in this context that the sexual assault charge was received. The applicant apparently looked to Mr. Chase for direction during the taking of the plea, physically in court. Mr. Chase nodded "yes" and the applicant pleaded guilty. The facts were read in to make out the charge of sexual assault and the applicant accepted all the facts except the minor one regarding the status of the person named Kathy.

Facts Accepted on Plea

26The facts read in included the following:

1. the victim was intoxicated by alcohol and drugs at the apartment occupied by the applicant;

2. the victim became sick and needed cleaning up;

3. the applicant took her to a bathroom, and removed her soiled shirt and cleaned her off;

4. the victim was taken to a bedroom by the applicant, where she passed out;

5. the applicant then removed her clothes while she was unconscious, and performed cunnilingus;

6. the victim awoke to find the applicant touching her breasts while she was naked;

7. the victim saw herself on her own cell phone, three pictures of her nude in the bedroom, sent by text from her own cell phone to the applicant's cell phone.

27"What was apparent is that Mr. Goodnough had taken photos from Rebecca's phone and sent them to himself". These photos were found on his phone. DNA evidence from the left breast of the victim was the same as the DNA of the applicant on a "could not be excluded" basis. All of this evidence was not objected to or complained of by the applicant, only the erroneous reference to Kathy as his girlfriend, was said by the applicant at the time to be in error, after speaking to his lawyer.

Analysis of Evidence

28The applicant states he had a good idea of the facts of the case against him from the beginning. His admissions to police were a result of being high at the time, and being hounded by the police; he told them what they wanted to hear. That is his explanation for the confession that he gave to the police at the time. In cross-examination the applicant corroborates the Chase version of the choices available:

1. a guilty plea to the same charge for a lesser penalty;

2. a not guilty plea to the same charge, with trial, and the risk of a longer sentence.

29However in his own mind he believed a plea with less penalty meant plea to a lesser unspecified offence. There is no evidence that at any time did the original lawyer Burton, the lawyer Chase, or the applicant, or Crystal Thompson bring up for specific discussion the idea of a plea to a lesser charge than sexual assault, or any specific charge other than sexual assault, until the applicant stated in court on the application that he gave instructions to plead only to the "pictures", not the sexual assault.

30This instruction is not set out in either of the two affidavits filed by the applicant and his friend. It is not corroborated by Mr. Chase. On the contrary, he gave Mr. Chase written instructions to plead to sexual assault, prior to the plea being taken, and the facts amply supported that charge, and they were not questioned or contradicted by the applicant in court when he clearly had an opportunity to do so after they were read in.

31The result is that the applicant's statement in court on this application, "not once did I understand I was pleading to sexual assault", is contrary to the facts, and contrary to the terms of the written instructions for plea, dated the 27th of May 2016, signed by the applicant and witnessed by Crystal Thompson. Those written instructions were clear and detailed, and contradicted the oral evidence of the applicant.

32All options were considered. Other evidence makes it clear this is so. The options were trial with a high risk of guilty finding and a likely four year sentence, or a guilty plea to sexual assault with a reduced sentence of two years less a day, referred to in the written document instructions as two - three years.

33The usual statements regarding voluntariness, appreciating the nature and consequences of the plea, the necessity of admitting facts to make out the sexual assault offence, were present in the document. Additionally, the matter was being returned to the Ontario Court of Justice from the Superior Court for the express purpose of a plea, not a trial.

34The breach of probation charge was also to be resolved by guilty plea. In fact it appears not to have been preceded with, in the end in any event.

35In court the applicant said Mr. Chase told him to agree to plead to sexual assault before the next step of lesser charges in court. There are three problems with this statement.

1. Mr. Chase denies this was so;

2. perhaps more importantly, the court process does not work that way, and Mr. Chase would have known this as a lawyer familiar with the criminal court process. That is, there is no known mechanism whereby a person pleads guilty to one offence in order to set up a second plea to a second substituted lesser offence;

3. if this stated scenario were true there would be no need for the applicant to look over at the time of plea to Mr. Chase "with a confused look" before entering his plea. In this stated scenario the applicant would have expected the charge as read, and would have pled guilty as the first step in the lesser charge plea scenario that he puts before the court in his evidence.

36The applicant and Crystal Thompson say early on they understood a plea to sexual assault could well result in a two-year less a day sentence. That being so the sentence option on the table was still two years less a day for sexual assault. There is no evidence that any lesser sentence was actually discussed, and the plea instruction document states the charge to be pled to and the likely sentence, sexual assault and two - three years. The inference to be drawn is that there was no discussion with counsel in any concrete way about a lesser charge and a lesser penalty.

37In short, the assertions, by the applicant and Crystal Thompson concerning a plea to a lesser charge scenario, is contrary to common sense and the whole of the evidence in context, and is simply not believed.

38The applicant says, "I was under a different understanding than everybody else". On the facts a better way to state it is that the applicant may have wished for a lesser charge option but it was not offered and never actually discussed with Mr. Chase. The applicant says it was not his job to jump up and complain about the facts as read in at plea. However, it was his job, when asked by his lawyer immediately after the facts were read in, to complain or inform about facts he did not agree with. The only fact objected to was the reference to Kathy as a girlfriend; a trivial fact.

39To follow it further, if he thought that he was pleading next, or following, to a lesser charge regarding the pictures or anything else, he would have mentioned it and not accepted the facts as read out in court regarding the specific details of the sexual assault.

40Consent was never an open issue with respect to the victim, although it came up at the application hearing. The applicant states that Mr. Chase told him that if he wanted to go through with the plea he had to acknowledge the facts. This is true only in the sense there could be no accepted plea to sexual assault without acknowledging the facts that make out the essential ingredients of that particular offence. This is set out in the written instructions to plea and was made clear by Mr. Chase, more than once, in discussions with the applicant and Crystal Thompson from time to time. However, this does not validate a secret interior wish on the part of the applicant to plead to a lesser offence. On a reasonable person standard, the non-expressed to lawyer wish, to plead to a lesser offence was not a reasonable belief, even for an anxiety-prone stressed person as the applicant may well have been at the time.

41There is clearly a credibility issue between the applicant and his witness Crystal Thompson on the one hand, and the lawyer Chase on the other, on key points regarding an informed voluntary plea.

42For the above reasons I accept the Chase version and reject the applicant's version of the evidence.

Barrister Negligence vs. Plea Validity

43On the application hearing Mr. Chase was questioned as to tactics, for instance, did he focus on accepting the incriminating statement of the applicant at face value? Did he accept at face value the strength of the Crown case in general, not its weaknesses? Was not consent to sexual act in issue? These are proper lines of inquiry, but the issue before me here to be decided is not barrister negligence, it is simply whether or not there was an informed voluntary consent to plea for sexual assault.

44The response is as stated by Mr. Chase, in his affidavit, "I was prepared to conduct a trial if I was instructed to do so, I was not. It was his choice to plead guilty and to delay sentence as long as possible". The incentive for plea was to avoid the risk of a longer jail sentence, where at the end of the day the Crown case was strong, as stated by the lawyer to his client and the client's friend, several times. This was a reasonable assessment of the situation and Mr. Chase had a duty to convey his assessment of the case to his client. Finally, Mr. Chase says he was very cautious in taking instructions from Mr. Goodnough because of the history of the case with the previous lawyer Mr. Burton and the applicant's issues over going to trial or pleading guilty.

The Law

45The onus is on the applicant to demonstrate that his plea should be permitted to be withdrawn. The standard of persuasion is unclear. The applicant argues in his material, Regina v. Moser, 2002 CanLII 4969 para 43, which canvasses the law on the issue, while not ostensibly adopting any of the standards of proof that were reviewed in that case, including a balance of probabilities standard. That standard, a balance of probabilities, is supported by cases chiefly in Ontario and British Columbia, including R. v. T.(R). 1992 CanLII 2834 (ON CA), 1992, 10 O.R. (3d) 514 (O.C.A.) in 1992 in our Court of Appeal. A heavy onus or heavy burden standard is also demonstrated in Regina v. Dallaire, [2001] O.J. No. 1722 (O.C.A.) para 7, again in our Court of Appeal in 2001. Cases in Québec and Newfoundland also support the heavy burden standard.

46However, as we shall see, the standard and in this case, as it was in Regina v. Moser, supra, is academic. It is argued that there are four deficiencies in plea comprehension that alone or together invalidate the applicant's plea of guilty.

1. the plea was not voluntary, he was persuaded to plea;

2. the plea was not unequivocal;

3. the plea was not informed; and

4. the applicant did not understand the legal consequences of the plea.

1) Voluntariness of the Plea

47The plea was not voluntary:

The plea was not voluntary, it is argued, because there was undue pressure to plead guilty by counsel Chase.

On the facts this is not so. The Chase evidence and the written instruction to plea both support the conclusion that two options were put to the applicant. He was free to choose either one. He did choose one, a plea of guilty to sexual assault. Any pressure that existed came only from the limited choice available to the applicant; have a trial and risk a sentence in the range of four years, or plead guilty to the sexual assault charge that was on the table, and expect a sentence minimally of two years less a day. In fact the applicant himself recounted conversations where the counsel told him the choice was his before the plea was taken. The thought process of the trial judge in Regina v. Carrier [2015] A.J. No. 1077 Prov. Ct. J. D.M. Groves, is helpful. He discusses voluntariness at paragraphs 40 and following. He states, "in assessing whether the guilty plea was voluntary the court may consider the following questions:

1. was the accused represented by an experienced counsel? In our particular case he was;

2. was the accused apprised of his position in law? In our case there were detailed and ongoing conversations between counsel and the applicant over a considerable period of time to help the applicant make his choice. This involved an assessment of the Crown case, evidence and strategy, and the putting of two possible pleas as likely results.

3. did the accused have a defence? In our particular case the only defence to the issue that was main in the mind of Mr. Goodnough, was that someone else took the photos. The applicant made counsel aware of the consent issue regarding whether or not the victim consented to what was being done, but a professional assessment of all the evidence as a whole - the statement likely to be admitted; the DNA evidence; the intoxicated victim unable to consent; the phone photos; the evidence the victim and one other would give in court, all explained in a lengthy preliminary hearing over several days, with actual evidence before the court heard by Mr. Goodnough, caused counsel to reasonably conclude that a trial created a very substantial risk of conviction.

4. was the plea given in an atmosphere of pressure? From counsel or anyone else. Counsel had no self-interest in a guilty plea to sexual assault. The instruction document and the evidence of Mr. Chase was unequivocal on this point. The evidence of the applicant was not unequivocal. He and his friend both acknowledged that at different times before plea Mr. Chase clearly said the choice was the client's not the lawyer's. Any pressures were internally generated by the applicant, caused by the need to choose one of two choices of plea, both with significant negative consequences.

5. was the applicant experienced in the criminal justice system? He had criminal convictions as a youth in 2004 and multiple convictions as an adult in 2010 and 2011. It was not controverted that some of these were the result of guilty pleas. There were some 10 convictions in all; the applicant qualifies as an experienced participant in the system.

2) Equivocation of the Plea

48The plea was not unequivocal:

It may be true that the applicant was conflicted internally about what to do. He was presented with two unappealing alternatives. His wish was to plead to a lesser charge with a lesser sentence, but this was never a real consideration. The Crown did not offer, the defence counsel did not list it as an alternative for consideration, because it was simply not such an alternative available to the applicant. Once the applicant came to understand the inevitable was one of two unappealing alternatives that had to be chosen, he chose one – a guilty plea for sexual assault. There is a difference between the natural internal conflict that arises with choice and the legal test for equivocation.

3) Informed Nature of the Plea

49Was the plea informed?:

On the evidence he was fully aware of the nature of the charges of sexual assault and the Crown evidence in support of that charge.

He was present at a lengthy preliminary hearing when the evidence was detailed. He had several conversations with his counsel about the evidence. He heard the evidence summary in open court at time of plea, and was asked to comment upon it to his counsel before a finding was made after plea. He had made no comment about the nature of the charge or the allegations, and he said nothing that would suggest confusion in his mind. As stated, the lesser charge scenario is discounted for the reasons given.

It is argued that the applicant was confused as to what was being plead to. The facts of the offence as put by the Crown never changed from disclosure in 2013 to preliminary hearing at a year or more later, to discussions with counsel over a period of two years, to the plea day in 2016. In total a course of conduct of some three years. The applicant was actively engaged in all phases of the charge and trial process. He was aware of the Crown facts, his lawyer's assessment of those facts, the two realistic options that were open for choice, and the probable penalties attached to those two choices.

His third alternative, plea to a lesser charge, said to be known to him and his friend, was not known to anyone else. It was never a real consideration given the consistent Crown position.

Over three years the unchanging facts were discussed with counsel and counsel's assessment of them was clearly put to the applicant. These facts covered witness statements, physical and DNA evidence, and an incriminating statement. There is no ambiguity with respect to his knowledge of the Crown's case as read out in court to make out the charge.

4) Understanding of Legal Consequences

50He did not understand the legal consequences of his plea:

The facts do not support this argument. The consequences included admitting the facts to make out the offence, being found guilty of sexual assault, and receiving a sentence in the two-three year range. Certainly no less than two years less a day was ever discussed as a likely outcome. The plea of guilty was made in court after a very long process, beginning with disclosure, including the preliminary conversations and ultimately the written instructions and plea before the court.

This also included a process in Superior Court where his original counsel put on the record the intention to return to the Ontario Court of Justice for a plea to the offence, that is, sexual assault.

It is uncontroverted that there were multiple discussions with counsel, with recommendations of counsel that included a plea with a lesser penalty outcome. The core of the discussions with counsel leading to the written instructions to plead guilty on the 27th of March 2016, was the guilty plea itself. Months later, on the 27th of September 2016 that plea was entered into by the applicant himself.

The course of conduct from end of process in Superior Court to the time of plea in the Ontario Court of Justice shows a defendant consistently provided with two choices, fully informed, as to what was being plead to, and the likely sentence outcomes from those two available choices.

Sentencing has not taken place, but the likely outcomes have been clear from early on. The Crown was originally seeking a four year sentence after trial; the defence, with plea of guilty, was seeking two years, and the Crown was amenable to a reduction from what was being sought at trial. The plea consequence alternatives for a sentence were in place for a lengthy period of time and they were consistent.

Other Factors

51Other factors:

1. The applicant in his application argues he had, "a limited capacity to understand and defend himself", referring to his understanding of what a guilty plea to sexual assault was, and what it meant. It is clear the applicant was ambivalent over time. It is clear his wish was for a plea to a lesser charge. However, there is no evidence, formal or otherwise, of emotional, psychological, intellectual, or psychiatric impediments to the applicant taking part in an informed process to instruct counsel over three years. The stated belief that the lawyer would, after a guilty plea to sexual assault, manage an outcome of a sentence to a lesser crime, without any pre-discussion with that lawyer, is not a reasonable belief, even for an anxiety-prone, stressed person, otherwise in possession of his faculties.

2. The Chase version of events related to conversations with the client and client instructions at the crucial times, is supported by external evidence like the change from Superior Court to Ontario Court of Justice for a plea, the written instruction, the actual plea to the charge in court, the acceptance of facts as read in at the time of plea in court. The Goodnough version is only supported by the oral evidence of a non-impartial friend. Even the evidence of the applicant and his friend does not explain in any rational way, how the lawyer was to address a lesser charge when it was never discussed by the applicant with the lawyer, nor was it ever offered by the Crown.

3. As in Regina v. M.A.W., 2008 ONCA 555, it has not been shown that any failure to understand the process and make a conscious volitional decision results from lack of capacity to make an active or conscious choice, such as depression, in that case, or, in our case, stress.

4. The applicant argues the standard of proof required to be successful is this: Is there a real doubt as to the validity of the plea where the onus is on the accused to demonstrate such doubt? In fact, as in Regina v. Moser, supra paras 42 and 43 canvassed by Justice Hill in that case, there are possible variations in proof required, ranging from a heavy onus to a heavy burden, to evidence that is more than merely speculative, suspect, or lacking in credibility or reliability. The middle ground appears to be that where the judge has a real doubt as to the plea's validity, the court should strike the plea.

5. As in Regina v. Moser, supra I am satisfied that whatever the test the applicant's application fails. The evidence in support of the application does not rise above a request to speculate concerning evidence that is lacking in credibility and that even if believed does not affect the outcome. If there was an internal belief that somehow a reduced charge would be addressed by the court, either before or after plea, such a belief was secretly held and not communicated to counsel or the court. There is no credibility or reliability in moving forward over many months with a guilty plea to sexual assault while harboring an undisclosed wish that something else would come along.

Disposition

52For these reasons the application is dismissed.