Court File and Parties
File Numbers:
- 4817-998-08-70019277-00
- 4811-998-14-10013352-00
Ontario Court of Justice
Her Majesty the Queen
v.
Safdar Ali Chaudhry
Ruling on Application
Before the Honourable Madam Justice B. Brown
On November 22, 2018, at Toronto, Ontario
Appearances
- E. Winocur, Ms. – Counsel for the Crown
- N. Jamaldin, Ms. (present in a.m.) – Agent for counsel P. Genua
- P. Genua, Esq. (present in p.m.) – Counsel for the Accused
Thursday, November 22, 2018
Ruling on Application
(To Strike Plea of Guilt)
(Orally, Brown J.)
This case has a very long and protracted history. It stems from guilty pleas which were entered by Mr. Chaudhry to three counts of knowingly using forged documents on June 23 and July 2 (which was two counts), of 2008 – that is over ten years ago – in the amounts of $24,807.30, $71,821.87, and $42,230.84. These guilty pleas were entered before this court on April 13, 2016, after a number of judicial pre-trials were conducted by Mr. Chaudhry's counsel, the Crown, and this Court.
The Applicant was represented by counsel on the day of the guilty plea, who assisted in the guilty plea. Following that, a pre-sentence report was ordered by the court. This report disclosed statements by Mr. Chaudhry to the author, acknowledging that he had pled guilty to the charges, but then adamantly denied any wrongdoing on his part, stating, "I didn't commit fraud", and that he had pled on lawyer's advice. Ultimately, his lawyer was granted a request to be removed from the record, and after a very long drawn-out process wherein Mr. Chaudhry retained new counsel, an application was brought to set aside the guilty plea. The Court now releases its reasons in response to this application.
In large measure, the evidence of the application consists of the transcript at the time of the guilty plea, affidavit material of Mr. Safdar Chaudhry, and of Mr. Granic, who was former counsel, and cross-examination of the affiants, being viva voce testimony in court.
History of Proceedings
The guilty plea was entered after this case was in the intake phase of proceedings, commencing with the first appearance on July 7, 2014. After many judicial pre-trial hearings, attended by the Assistant Crown Attorney and counsel for Mr. Chaudhry, this led to a final judicial pre-trial on April 13, 2016. At this event, defence counsel advised the court that Mr. Chaudhry was probably going to enter a guilty plea in court that morning. A comprehensive guilty plea inquiry was conducted in court prior to the entry of the guilty plea. Following the guilty plea, a pre-sentence report was ordered by the court, together with a technology report, and this case was put over to July 13, 2016 for sentence.
The pre-sentence report was sent to the court. It was at that time that the court and counsel became aware that the Applicant was making statements to the author of the pre-sentence report with respect to the prior guilty plea.
When the Applicant returned to court on July 13, 2016, defence counsel for Mr. Chaudhry, Mr. Granic, indicated that the information in the pre-sentence report was troubling. He indicated he had spoken to his client about his prior guilty plea. After the court gave an opportunity for Mr. Granic to speak with his client outside of the courtroom on July 13, 2016, Mr. Granic indicated to the court that he was no longer able to assist Mr. Chaudhry as counsel. He indicated he was not able to obtain appropriate instructions. He indicated there had been a breakdown of the solicitor/client relationship, and on that basis he requested that he be removed from the record. The court removed his counsel from the record on that date.
The case was put over to August 2, 2016 to set a date. On that date, and many other dates, Mr. Chaudhry appeared before the court indicating the nature of various attempts and discussions to retain potential new counsel. The court will not at this time summarize the various court appearances. However, on one of those court appearances – January 16, 2017 – the Crown indicated that it was in possession of a letter from Mr. Paul Genua, who is now counsel for the Applicant before the court today. The court would note that counsel who is appearing today has been sent on behalf of Mr. Genua to receive this set of Reasons. This letter was dated in January of 2017, and indicated that Mr. Chaudhry had approached Mr. Genua with a view to having him represent Mr. Chaudhry. Mr. Genua indicated he had instructed Mr. Chaudhry to apply for legal aid immediately, and he requested that the matter be remanded some time for the legal aid application. He indicated he would be at Old City Hall court on February 2 and could speak to the matter to give an update regarding the legal aid application.
The case was before the court later on February 6, 2017, at which time Duty Counsel assisted Mr. Chaudhry with respect to a legal aid application. The court was advised that the Legal Aid office wanted more information, and that Mr. Chaudhry still needed to contact this office regarding financial disclosure. The case was put over.
On February 14, the court was advised that Mr. Chaudhry had attended at the Legal Aid office, that Legal Aid needed some additional material, and a further two weeks to process the application after it obtained the information. The court was told that Mr. Chaudhry's brother had all of the proof that was being sought by the Legal Aid office, and that it would be available soon. The case was put over.
On March 8, 2017, the court was advised by Duty Counsel, assisting Mr. Chaudhry, that his application had been transferred to the district office, but that a decision was not expected until March 13. The court strenuously suggested that Mr. Chaudhry continue to take steps to choose counsel and have counsel available should the certificate come through from the Legal Aid office. The case was then put over for three weeks, to March 29, 2017.
Many, many appearances were set and marked to set a date wherein the process of Mr. Chaudhry retaining new counsel was drawn out. The court was concerned about this matter not proceeding expeditiously, as far as providing material for the Legal Aid application.
Finally, in May of 2017, the court was advised that Mr. Genua was fully retained, and he understood, based on his preliminary discussions and instructions from his client, that there had been a guilty plea. He indicated to the court that he wished to bring an application to strike the guilty plea. He advised the court he had ordered a copy of the Information to get the dates the case had been before the court, to order transcripts for an application to strike the guilty plea.
Over the strenuous objections of the Crown on multiple dates leading up to this date, wherein the Crown had made the valid objection that Mr. Chaudhry had not been proceeding expeditiously, the court put the matter over to May 11, 2017 for Mr. Genua to bring a proper application to strike the guilty plea.
Counsel for the Applicant then brought an application, dated May 9, 2017, which was an application to strike the prior guilty plea based upon what was noted as Charter infringements of ss. 7, 11(d) and 24, and for an order abridging the time for serving and filing the application. The application indicated that the Applicant would rely upon the affidavit and viva voce evidence to be advanced at the hearing, together with transcripts and case law. This application was served on short notice on the Crown's office on May 9, 2017, and received by the court on the same date.
As scheduled, the case returned back to court two days later on May 11, 2017. On that court date, the court was advised Mr. Genua had been retained on April 29, and that he had not contacted the Crown after that date. He advised the court he had ordered a copy of the Information, with a view to ordering transcript material, and indicated he was waiving s. 11 of the Charter. He also indicated that he needed a waiver of solicitor/client privilege from his client as far as any comments relating to the prior defence counsel. The Crown advised the court that it would contest any application to set aside the guilty plea. On May 11, the matter was put over to June 1, 2017.
On June 1, 2017, Mr. Genua advised the court he had ordered and received two transcripts. He also advised the court he had sent a pretty comprehensive letter to Mr. Granic regarding an overview of the allegations. He also advised that he sent a copy of this to the Crown, Ms. Winocur. He also advised the court that he had given to Mr. Granic a pretty comprehensive waiver of solicitor/client privilege in order to permit Mr. Granic to speak with the Crown in response to the application to set aside the guilty plea. He also advised the court that he was in the process of doing an affidavit to go along with the application. This would be an affidavit from his client. He advised the court that he needed to get an interpreter to his office to have his client execute the affidavit. In the meantime, Mr. Granic had already provided various materials to Mr. Genua, after he received a waiver of solicitor/client privilege. Those materials had not been given to the Crown.
Along the way, this court indicated, at various points in time, to counsel for the Applicant that it would be requiring strict adherence to a protocol that had been developed by Justice David Doherty of the Ontario Court of Appeal with respect to applications to set aside guilty pleas wherein the applicant sought to make reference to the actions of prior defence counsel and potentially criticize or complain about the conduct of that counsel. In that regard, this court advised counsel for the Applicant that it was strenuously requiring that the full application be prepared before the Respondent be called upon to provide any material in response. In other words, the court made it clear that any material upon which the Applicant would rely relating to the prior guilty plea, including any criticisms of the conduct of prior counsel, Mr. Granic, would need to be contained in a full application, to be served on the Crown, to which the Crown would be called upon to respond.
The case was next in court on June 8, 2017. On that date, counsel for the Applicant indicated that he had not finished the affidavit of his client, but that he was working on it. He was coordinating this affidavit with his interpreter to get it done. Mr. Genua indicated he had summer holidays that were coming up. Counsel agreed that the next date would be July 21, 2017 to speak to the matter. Mr. Genua advised the court that he would have this affidavit material done by that date. The court indicated that it would not be presiding on that date, and that the court would not be back until July 24, 2017. The court inquired as to whether anyone was going to be getting an affidavit from former counsel, Mr. Granic. It appeared that Mr. Genua would not be putting any material from Mr. Granic before the court. The Crown indicated that she wished to have the material in the application from the Applicant before making a decision as to whether the Crown would contact Mr. Granic to obtain any materials to put before the court in response to the application. The Crown also advised the court she might need approval to call defence counsel as a witness in this proceeding. The court understood that there is a Crown approval system. The Crown again indicated she was not happy with the delay that had arisen in this matter. The court put the matter over to July 7, 2017, even though the Crown was not available on that date, in order for the court to be updated as to the progress.
On July 7, 2017, Mr. Genua appeared for Mr. Chaudhry. It was at that time that the court was told by Mr. Genua that a copy of his client's affidavit had been provided in draft, but he still needed to meet with an accredited interpreter to go over a finalized version, to be signed. Defence counsel again confirmed he had no intention of calling Mr. Granic as a witness, or putting material from him to go before the court. Mr. Genua advised the court on that day, July 7, that it was his intention to forward all material for serving and filing. He indicated that once his client's affidavit was finalized, which he hoped to do in the next week or so, he would provide a copy to the Crown. The Crown advised she was not permitted to call the defence lawyer as a witness, that is Mr. Granic, without having approval by the Ministry of the Attorney General. She had started the process informally, since defence counsel Mr. Genua had indicated earlier that he was not intending to call Mr. Granic. However, the Crown advised that she did need all materials in order to make a formal request for approval, including any draft affidavit, that she received the night before, which was at that point still only a draft. It was at that late point that defence counsel, Mr. Genua, advised the court that there could be another witness, with material to be added to the application. This material was to be from the brother-in-law of Mr. Chaudhry, who this court was advised had been involved in the proceedings from the start. Mr. Genua advised that he would need an affidavit from him. In light of the substantial delay to date, the court advised Mr. Genua on July 7, 2017 that this affidavit needed to be done right away. The Crown referred to the fact that the Applicant prepared a Form 1 application sometime ago, indicating it was going to rely on affidavit and viva voce evidence to be advanced at the hearing. Defence counsel was seeking to have the matter set aside for one day. The Crown was very concerned that the defence had been given many opportunities to perfect its application and still had not done so. The court had been clear that the matter was to proceed in an expeditious manner, and the delay was continuing. The Crown was concerned that Mr. Genua mentioned that Mr. Chaudhry's brother might be a witness, but still there had been no affidavit from this potential witness. The matter was then put over to July 13, 2017 to be spoken to. The court noted that the matter was peremptory on the defence for July 13, 2017 to file all material it sought to rely upon in the application to strike the guilty plea.
Following the court appearance on July 7, 2017, Mr. Genua swore an affidavit with Mr. Safdar Chaudhry on July 10, 2017, which was served on the Crown Attorney's office on July 12, 2017, and filed with the court on that date. This affidavit made reference to the fact that the affidavit and supporting material had been reviewed with a certified translator in the Urdu language.
The following day, July 13, the case was before the court. Defence counsel referred to the fact that he had served and filed the material, and that he was seeking to call one witness, the Applicant, in relation to this application. The court was advised that the Crown had not yet had an opportunity to review the materials received the day before this court appearance. This court was told by the Crown that the Crown would be seeking permission to obtain an affidavit from the former counsel, Mr. Granic. Both parties were agreeable, on that basis, to setting the matter down for a hearing. At that point, the case was put over to August 10, 2017 for the hearing to take place.
On August 10, 2017, the parties appeared before the court for the hearing with respect to the application to set aside the guilty plea. Mr. Genua appeared for the Applicant, and Ms. Winocur appeared for the Crown. Mr. Granic also appeared in person, given that he had executed an affidavit in response to the application materials, and he was making himself available to be cross-examined on that affidavit, should the Applicant seek that opportunity. The Crown was advised at that time, the day of the hearing, that defence counsel was providing some last minute materials for the motion to the witness, Mr. Granic. The Crown advised that she had some awareness of what those materials were, but had no opportunity to review those materials. The Crown repeated her understanding that the case had been set from the middle of July to August 10 on the understanding that the Applicant was to have all of his materials provided by July 13, that it had been peremptory on the Applicant to serve and file materials by that date. It was on that basis that the case was put over to August 10, 2017 for the hearing. There had been some earlier discussion as to whether the defence would rely solely on the affidavit of the Applicant, or additional materials such as potentially from the Applicant's brother. In the end, the Crown indicated that defence counsel, Mr. Genua, indicated that he would not be relying on any additional affidavit material. He indicated that the Crown had, on the earlier date in July, all of the materials that were the substance of the application.
The Crown advised the court on August 10, 2017 that she had filed materials on August 4, including the affidavit of former counsel, Mr. Granic. She had sent an electronic version of those materials to Mr. Genua, and filed those materials with the Trial Co-ordinator. The court was told by the Crown that it was her understanding that after Mr. Genua's office received the Respondent's materials, that the Applicant sent some materials by courier to Mr. Granic. As of August 10, 2017, the date for the hearing, the Crown had not seen those materials. The court was advised by the Crown at that point that those new materials were audio recordings of conversations between Mr. Granic and what was understood to be Mr. Chaudhry, sometime prior to the guilty plea and sometime after the guilty plea. The Crown had not heard those recordings as of August 10, 2017. The Crown was very concerned that defence counsel, Mr. Genua, did not send those materials until after the receipt of the Crown's full response to the application, which included Mr. Granic's affidavit. The Crown also advised the court that Mr. Granic did not have, for review, those materials prior to completing his affidavit which was served by the Crown on the Applicant.
The Crown also raised, on that date, August 10, that there might be issues with respect to authentication of the recording. She advised the court that she did not know if those audio-taped recordings might affect the Crown position. She had not had an opportunity to review the recordings. The Crown indicated that given the extraordinary defence delay in proceeding with the application and materials, and given the nature of the materials, she was concerned that the defence was acting at the last minute in giving his materials to Mr. Granic, after his affidavit had been prepared and served on the Applicant. The Crown was concerned that Mr. Genua's office had those audio recordings for some period of time, and had intentionally held onto the recording, yet not referred to it in his application. The Crown made the submission that the inescapable inference from defence counsel holding onto those audiotape recordings, and not making mention of it in the application materials, suggested that the timing of releasing those audiotape recordings so late in the proceedings was a matter of choosing of the Applicant. The Crown also took the strenuous position that counsel for the Applicant had not followed the court's direction with respect to perfecting its application by July 13. The Crown also took the position that the failure to perfect the application was done for strategic reasons, and that the defence should be prohibited from filing new material at this late stage in proceedings.
It was at that time that Mr. Genua told the court there had been a misunderstanding. He said the audiotape recordings were not of conversations between his client and Mr. Granic, but rather conversations between his client's brother-in-law and Mr. Granic. At that point, Mr. Genua advised the court he had already filed all the materials he wanted to rely upon for the application to set aside the guilty plea. He advised the court that he proposed to use the new materials, which were the audio recordings, for the sole purpose of cross-examination, which the court understood to be cross-examination of former defence counsel, Mr. Granic. He indicated that credibility had become an issue once he received the Crown's response to his application and the affidavit of Mr. Granic on August 4, 2017. It was clear, Mr. Genua told the court, that he had those audiotape recordings prior to the Crown perfecting its response to the application. He advised the court that he had no obligation to provide these audiotape recordings earlier than after the Crown served the response. The court indicated that it was quite upset with respect to the conduct of counsel for the Applicant intentionally holding back the information relating to the audiotape recording of a conversation and not putting it in the application material, or making any reference to it, particularly in the context where the court had previously directed the Applicant to perfect its application by gathering and putting all of the material in the application to serve on the Crown before the Crown was called upon to respond to it.
The court indicated quite clearly that the idea of having an application perfected before the Respondent is called upon to respond, is to permit the Respondent to know the material that will be before the court and commented upon. It is only after the application is complete that a Respondent is expected to obtain any affidavit, or other material, to put before the court in response. It was clear to the court that defence counsel, Mr. Genua, was splitting his application. The court understood that the audiotape recordings related centrally to the issue before the court in the application as relating to the circumstances of knowledge, comprehension, and understanding prior to a guilty plea being entered by the Applicant. In issue was whether Mr. Chaudhry had been told that there might be a freestanding restitution order made as part of the sentence, if he did not pay the restitution up front. The court indicated that the Applicant had not properly put before the court the record, as directed, that he had direct evidence of conversations that went to the issues that needed to be decided in the application to set aside the guilty plea, and that the Applicant had strategically decided to not include this information in the application record. It was a material point and not a collateral issue. Nonetheless, the court, at that late stage of proceedings, not wanting to penalize Mr. Chaudhry, gave Mr. Genua seven days within which to have prepared any other affidavit, such as from the Applicant's brother.
The matter was then returned to court on September 7, 2017 to be spoken to. The Applicant was seeking to put before the court additional evidence with respect to authentication issues regarding the audiotape recording. It is to be recalled that the Crown indicated much earlier on that it had a concern with respect to the authentication and accuracy of any audiotape recording being sought to be put before the court in the course of that step. In the course of the Applicant endeavouring to put before the court additional information in his record to address authentication issues, it became apparent that the earlier affidavit, which Mr. Safdar's brother or brother-in-law had signed and sworn, was not done with the use of an interpreter. It became apparent in the viva voce testimony of Mr. Chaudhry that he should have had an interpreter in doing this affidavit.
The Crown took the position that the affidavit, which had been signed and executed by this person, should not be in evidence, given that there had been no interpreter for that affidavit.
The court has stated its view that the affidavit that was signed and sworn by Mr. Chaudhry, without an interpreter, that is to say his brother or brother-in-law, was not a proper affidavit and should not be before the court. It was at that time that counsel for the Applicant, Mr. Genua, at the end of proceedings that morning, requested that the proceedings be adjourned for him to obtain additional material in the form of another affidavit from this relative of the Applicant, Mr. Chaudhry, with the assistance of an interpreter.
The court would note in considering this application for adjournment, that Mr. Genua had known from the time that he had the affidavit prepared, given the comments made, this witness did not understand English sufficiently. He had, therefore, put before the court a sworn affidavit by a witness who was not given the benefit of an interpreter. He knew that this witness needed an interpreter and yet chose to have sworn an affidavit executed without a proper interpreter, which he subsequently put before the court. From the court's perspective, it was not clear previously that this witness needed an interpreter until matters developed in court that day. It was also not clear from the affidavit whether an interpreter had been used or not used. It is also important to note that on an earlier date, defence counsel had already found and utilized an interpreter in the same Urdu language for his client, the Applicant. So, he had available to him knowledge as to how to get an interpreter in this language for an affidavit. Yet, for whatever reason, he did not do so for the affidavit for Mr. Chaudhry's brother, as has been briefly outlined in the reasons.
As indicated, this case had gone on for a protracted period of time. The Applicant had been given deadlines with respect to perfecting material. The court had even, after deadlines passed, given additional opportunities for the application to be expanded. At this late stage in the proceedings, the court denied the Applicant's request to adjourn the proceedings on that day. Accordingly, the application to set aside the guilty plea went ahead, with the proper materials before the court, which included the Applicant's application, which is before the court, the affidavit of the Applicant, Mr. Safdar Chaudhry, the transcript evidence, and the Respondent's material.
Following that appearance, the case went over additional dates. On some of those occasions, former counsel attended for cross-examination, yet the case did not go ahead.
Mr. Safdar Chaudhry, the Applicant, was cross-examined on November 23, 2017. Ultimately, the cross-examination was not able to be completed on that day and had to go over. After various court appearances, Mr. Chaudhry was further cross-examined and re-examined on August 2, 2018, when the case was put over to October 3, 2018 for the first counsel, Mr. Granic, to be cross-examined and submissions to be made by counsel. At the conclusion of the hearing of the case that day, the case was put over to November 20 for the court to release its reasons.
On November 20, 2018, counsel for the Applicant, Mr. Genua, advised the court that the prior evening, which would be November 19, his client's brother telephoned him to indicate, at about 8:00 p.m. on November 19, that Mr. Safdar Chaudhry had gone to the hospital because he had some heart pains. Mr. Safdar Chaudhry did not attend in court for his reasons on November 20, and Mr. Genua sought to adjourn the matter until today's date.
TRANSCRIPTIONIST'S NOTE: At this time, the Ruling on this application was held down in order to allow staff a break, and to speak to other matters on the court docket.
Upon Resuming
Ruling on Application
(Counsel, Mr. Genua now present)
Analysis
The issue in this case is whether Mr. Chaudhry entered a guilty plea which was voluntary, unequivocal, and informed when he was represented by his first counsel, Mr. Granic on April 13, 2016.
The Law
Long after the guilty pleas were entered in this case – April 13, 2016 – the Supreme Court of Canada released its judgment in R. v. Wong, [2018] SCC 25, following the previous seminal case in Ontario of R. v. T. (R.), 1992 CanLII 2834 (ON CA), [1992] O.J. No. 1914. R. v. Wong is now the seminal case related to an application to withdraw a guilty plea. In the context of that case, the court considered the Applicant's position that he was unaware of a collateral consequence stemming from that plea, which was an immigration consequence, such that holding him to the plea would amount to a miscarriage of justice. In the majority judgment, the court noted at paragraph 3:
The plea resolution process is also central to the criminal justice system as a whole. The vast majority of criminal prosecutions are resolved through guilty pleas, and society has a strong interest in their finality. Maintaining their finality is therefore important to ensuring the stability, integrity, and efficiency of the administration of justice. Conversely, the finality of a guilty plea also requires that such a plea be voluntary, unequivocal, and informed. And to be informed, the accused "must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea". (R. v. T. (R.).)
The Supreme Court followed what had previously been the seminal case in Ontario of R. v. T. (R.). Accordingly, the test is that a guilty plea must be: (1) voluntary; (2) unequivocal; (3) informed. For a plea to be informed, the court held that the accused must be aware of both the criminal consequences of the plea, as well as the legally relevant collateral consequences (which bears on sufficiently serious legal interests of the accused). In R. v. Wong, the Applicant was not aware of the immigration consequences of his conviction and sentence, and in that sense was uninformed.
For an application to set aside a guilty plea to succeed, on the basis of being unaware of legally relevant consequences at the time of the plea, as noted in paragraph 6, an accused must file an affidavit:
Establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused's subjective claim.
The majority judgment of the court specifically disagreed with the proposed modified objective test proposed in the minority judgment.
In essence, on an application the accused must first show that he was unaware of a legally relevant collateral consequence at the time of pleading guilty. Such a consequence will typically be state imposed, flow from conviction or sentence, and impact serious interests of the accused.
In this application, the Applicant has stated that he was not aware that the court might impose, as part of the sentence, a freestanding restitution order for the amounts of the losses in this case. This court would find that such an order would be an aspect of an actual sentence, that is to say a criminal consequence, and in that respect would be certainly legally relevant. Counsel have agreed in this application in that respect. Essentially, it would be akin to a civil judgment upon which the victim might be able to institute proceedings for collection at some point in the future.
There is no doubt in this case, as far as what the court has been told, that the Applicant has no current ability to pay restitution, and frankly no predicted future ability to pay restitution, given the information to date with respect to his situation.
In an application, as noted in paragraph 19 of R. v. Wong, an accused seeking to withdraw a guilty plea must demonstrate prejudice by filing an affidavit:
Establishing a reasonable possibility that he or she would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions. This approach strikes what we see as the proper balance between the finality of guilty pleas and fairness to the accused.
The court contemplated the first scenario where an accused would have opted for a trial, even with limited or no chance of success at trial, akin to a "Hail Mary" throw. The court held that where a court accepts the veracity of an accused making such a statement, prejudice is demonstrated and the plea should be withdrawn. In the second scenario, the court considered conditions for entering the plea, which would have alleviated, in whole or in part, the adverse effects of the legally relevant consequence. The court contemplated potential conditions as being accepting a reduced charge to a lesser included offence, a withdrawal of other charges, a promise of the Crown not to proceed on other charges, or a joint submission on sentencing. In other words, the accused must credibly assert that he would have insisted on additional conditions but for which he would not have pleaded guilty. There must be the articulation of a meaningfully different course of action to justify vacating the plea, and an accused must satisfy the court that there is a reasonable possibility that he would have taken that course. An accused need not show that there would have been a viable defence at trial. The court does not require the articulation of a route to acquittal. Even though the decision of going to trial may be unwise, the court does not seek to protect an accused from himself. Rather, the court seeks to protect his right to make an informed plea. Where an accused makes assertions, the court must make a credibility determination. The claim about what his subjective and fully informed choice would have been is measured against objective circumstances. The court must carefully scrutinize an accused's assertion, looking to objective circumstantial evidence, to test its veracity against a standard of reasonable possibility. Such factors include: the strength of the Crown's case; any concessions or statements from the Crown regarding the case, including a willingness to pursue a joint submission or reduce the charge; and any relevant defence that may exist.
In this case, the consequence is not triggered by the length of a sentence that might be imposed, as can happen in the context of some immigration consequences. The question is what the accused would have done knowing the legally relevant consequence.
Following this judgment of the Supreme Court of Canada, the Court of Appeal for Ontario in R. v. Cherrington, [2018] ONCA 653 released a judgment considering Wong. In that case, the accused also argued that he had ineffective assistance of counsel. Ultimately, the court dismissed the appeal. With respect to the claim related to the conduct of counsel, the court found that the representation of the accused was not ineffective and did not fall below a standard of reasonableness. The court also noted in that regard that the case against the accused was formidable. In that case, the accused had unique medical issues, arising from a very serious prior motor vehicle accident, which caused issues related to his ability to retain information, memory, mood, and speech. The court considered the application to set aside the guilty plea on the ground that it was involuntary, the product of improper pressure from trial counsel, and the accused's compromised mental state. Ultimately, looking at the record, the court found that the Appellant's medical issues did not render his plea involuntary. In addition, the court rejected his submission that the guilty plea should be set aside as uninformed. The appeal was dismissed.
Evidence on Application
1. Evidence of Safdar Chaudhry
In his affidavit, the Applicant stated at paragraph 4 that in meetings with his lawyer, Mr. Granic, he was advised that he would receive an insignificant sentence, or a three or four month house arrest. He stated that Mr. Granic advised that if he did not plead guilty, he would get more time in jail. He stated that it was not until after the guilty plea that Mr. Granic advised him that the Crown was seeking a sentence of 9 months jail. The Applicant maintained he told Mr. Granic that he was innocent. The Applicant also stated that on the day of the guilty plea that was entered, he told Mr. Granic that he was not going to plead guilty, but that Mr. Granic told him that he must plead guilty. The Applicant also stated that Mr. Granic told him if he was not going to plead guilty, he, that is Mr. Granic, would abandon him then and there. The Applicant also stated that Mr. Granic told him that there would be no restitution compensation, that the Crown and Judge had "agreed" to this. He ultimately explained he went into court and pled guilty, as he did not want to contradict Mr. Granic in front of the Judge.
In cross-examination of the Applicant, the Crown asked Mr. Chaudhry about the inquiry into the guilty plea, which was done in court prior to the guilty plea being taken. In that regard, the court asked Mr. Chaudhry two times if he wished to plead guilty, and he said "yes", relating to the two dates of the offences. He was asked if the Judge asked him if he was entering those guilty pleas of his own free will, and Mr. Chaudhry stated "yes". He was asked about the Judge then asking him if anyone had put any pressure on him to plead guilty, to which he responded "no". The Crown also asked Mr. Chaudhry if the Judge asked him if he understood that if he pled guilty, he would not be able to have a trial in this matter, to which he responded "yes". The Judge then asked him if he had spoken to his lawyer, Mr. Granic, about the nature and consequences of a guilty plea, to which Mr. Chaudhry replied, "Yes, I do".
The Crown asked him three times if he understood, from his discussions with Mr. Granic, that he was accused of a crime involved in taking a lot of money from a bank. He was very reluctant to admit this. On the third occasion, he admitted he understood that. He admitted he knew that the Crown was alleging he had received over $130,000 by way of fraudulent activities, from the bank. He also admitted he knew that from Mr. Granic reviewing the case with him.
He admitted he knew that by pleading guilty he was admitting to having taken the money illegally. He was very reluctant to admit that he knew that there would be consequences imposed by the Judge if he pled guilty to the charges of taking the money from the bank. He agreed that Mr. Granic told him that if he entered a guilty plea, the sentence would likely be less than if he went to trial and was found guilty after trial. He was also very reluctant to admit that he knew that the Judge was going to sentence him. Initially, he seemed to question how the Judge could sentence him when the case was not proven by any witness or anything that is reliable. He was reminded from the transcript that the Judge asked him, prior to the guilty plea: "Do you understand with respect to sentence that I will consider the submissions of your lawyer today, Mr. Granic, and the submissions of the Crown Attorney, but that it will be for the Judge to decide the sentence in this case?" To which he replied: "Okay", he understood. And he was reminded that the Judge then asked again, Did he want to go ahead with his pleas today? To which he responded, "yes". He admitted that Mr. Granic advised him that they were asking for a lump sum amount which related to the loss to the bank, and he said he didn't have that much money. He responded that he had proposed to pay a fine or work to get rid of a punishment amount that he stated "I am liable to pay". He clearly admitted in the cross-examination that he knew the Crown was asking for a lump sum amount, but he responded he did not have the money. He also testified that he is a labourer, that he is disabled, that it would be impossible for him to give that amount of money. He also finally admitted that he knew that if he was able to pay some of the money back, it would be better for him to get a lesser sentence, as compared to if he paid no money back. He admitted that Mr. Granic told him that.
He also clearly admitted, at a key point in the cross-examination, that Mr. Granic told him that the Crown would ask for the money back. Then, when he was asked virtually the same question moments later, he stated that before the guilty plea, he did not know the Crown was asking for the money back. As Mr. Granic had told him everything was resolved, why would he have pled guilty, and he did so rhetorically as a question. He also clearly admitted that he knew before he pled guilty the sentence would be better for him if he paid the money back, compared to if he did not pay the money back. That cross-examination continued on a future date.
He was cross-examined about the written instructions he gave Mr. Granic prior to the guilty plea, with the benefit of translation by the fully accredited court Urdu interpreter. He modified what he said earlier in that he testified that Mr. Granic told him that his jail time could be two or three months. He maintained that his understanding that day was that his lawyer was going to enter a guilty plea on his behalf, but, again, Mr. Chaudhry did not want to enter a guilty plea.
It is interesting that Mr. Chaudhry testified that Mr. Granic had suggested he speak to an immigration lawyer to get advice regarding the immigration consequences of pleading guilty. This is relevant because this is one of the issues that might arise from a guilty plea. Mr. Chaudhry testified that he did speak to that lawyer, but that he did not tell the lawyer that Mr. Granic was pressuring him to plead guilty. He testified that he did not tell the Judge, when asked about whether anyone was pressuring him to plead guilty. His evidence was the first person he told about pressuring to plead guilty was the probation officer for the pre-sentence report.
He also testified, notwithstanding that he indicated in his cross-examination that he knew the Crown was seeking jail, and Mr. Granic was seeking a few months of house arrest, that he had "no idea" of the resolution for the case. Yet, he advised the court that Mr. Granic was doing something in his interest to benefit him, Mr. Chaudhry, in representing him.
At various times Mr. Chaudhry indicated that he was innocent, that another party had committed the offence. He did admit that he had a role with respect to the bank account, but stated that another party had benefitted and had the money from the offence. A clear contradiction that emerged was that Mr. Chaudhry admitted that he knew that the Crown was going to ask him to pay back the money. At another point he indicated that Mr. Granic had not told him that he would have to pay the money back. When he was confronted with this contradiction in the cross-examination, he essentially refused to answer the question as the Crown put the scenario to him numerous times. Then, in the end, he asked how it was contradictory. It was clear throughout the line of questioning, however, that Mr. Chaudhry admitted that the Crown was asking that Mr. Chaudhry be required to pay the money. That is the whole issue as to whether Mr. Chaudhry was made aware by his defence counsel, Mr. Granic, that the Crown would be seeking a restitution order for the loss. Mr. Chaudhry admitted that he knew the Crown would be seeking payment of the lost money.
At one point Mr. Chaudhry indicated he told Mr. Granic that if he had to pay restitution he would be able to pay restitution of $1,000 a month. In an odd way, Mr. Chaudhry testified that he told Mr. Granic that if the case could be resolved, that he was "ready to pay", he was working, he had a job. All of this speaks to his clear appreciation and knowledge that the Crown was going to request an order that he pay for the loss. Oddly, at this point Mr. Chaudhry seemed to paint a portrait of himself at the time of the guilty plea of not only knowing he might be ordered to pay for the loss, but also at that time having the willingness to do so.
There was another very material inconsistency in the evidence of Mr. Chaudhry with respect to whether he had spoken to an immigration lawyer at the suggestion of Mr. Granic prior to pleading guilty. In court, at the time of the guilty plea, he advised Mr. Granic that he had spoken to an immigration lawyer, and Mr. Granic advised the court of same. The indication from Mr. Chaudhry was that this legal advice as to immigration consequences was obtained prior to the day of the guilty plea. It was clear that the court wanted that situation clarified prior to the guilty plea. Then, in court, in this application, on his cross-examination, Mr. Chaudhry initially testified that he had in fact spoken to an immigration lawyer at the suggestion of Mr. Granic, prior to the guilty plea. Later, he went on to state that he had not spoken to an immigration lawyer, that Mr. Granic said they would speak to an immigration lawyer afterwards, that is to say at some future point in time after the guilty plea. This was another direct contradiction of Mr. Chaudhry contradicting himself on a key issue within a single day of cross-examination with respect to the aspect of knowledge of the consequences of a guilty plea.
Moreover, the court considers the written instructions, which Mr. Chaudhry signed, with the benefit of the court fully accredited Urdu interpreter interpreting all of it. That is before the court. It is very relevant to the assessment of the evidence of Mr. Chaudhry as to what he knew and was told before pleading guilty.
Overall, the court found Mr. Chaudhry to be lacking in credibility. The court makes this finding considering two very key issues of inconsistency in his own evidence. As noted above, he contradicted himself with respect to his knowledge on the very key issue that had been raised in the application that he knew the Crown would be seeking a restitution order. That was contrary to his clear position, which was a lynchpin in his application, that Mr. Granic had not advised him of the potential legal consequence as an aspect of sentence that the Crown would ask that he be ordered to pay for the loss in a restitution order.
Secondly, as far as the various opportunities he had to disclose that his lawyer, Mr. Granic, was improperly pressuring him to plead guilty, it is clear that he lied to this court in the guilty plea inquiry in court prior to the guilty plea, if one were to assume the honesty of his statement in the application that Mr. Granic was pressuring him to plead guilty. In the inquiry in court, he effectively indicated that no one had put any pressure on him to plead guilty.
He also contradicted himself with respect to the opportunity he took in getting advice from an immigration lawyer before the guilty plea, later stating he had not done so. That was another particularly relevant piece of information, as it would have provided yet another opportunity for Mr. Chaudhry to disclose to a lawyer the improper pressure he says Mr. Granic put on him to plead guilty. Moreover, it showed how far Mr. Granic had gone in trying to protect Mr. Chaudhry, such that he would be fully aware of all significant consequences of pleading guilty, including those relating to his immigration status. Mr. Chaudhry was, this court would find, shading the truth to put Mr. Granic in a bad light.
Overall, the court found the evidence of Mr. Chaudhry to be lacking in credibility and reliability. The court does not accept any of Mr. Chaudhry's evidence. The court rejects his testimony where it is not corroborated by other credible evidence.
2. Evidence of Mr. Granic
The court also considered the evidence of Mr. Granic, both through his affidavit and cross-examination. Mr. Granic has been a lawyer since 2001 and has practised primarily in criminal law. He never had any concerns when he spoke to Mr. Chaudhry through an interpreter with respect to his client's ability to understand what he was saying to him. He also spoke to his client, Mr. Chaudhry, through Mr. Chaudhry's brother, who sometimes translated for him, and as well through his brother's son. He also, on occasion, spoke with Mr. Chaudhry in English, using simple English words. Mr. Granic was of the view that Mr. Chaudhry understood what he was being told. They had two meetings which were more substantial in nature, and approximately four or five other meetings prior to the date of the guilty plea. The second of the two more substantial meetings was on April 11, 2016, just two days before the April 13 last judicial pre-trial and date of the guilty plea.
Mr. Granic stated that he was retained on November 8, 2014, which was a very long time before the guilty plea was entered on April 13, 2016. He met with Mr. Chaudhry a number of times over that period. Mr. Chaudhry had substantial disclosure materials prior to this retainer. Mr. Granic explained in detail to Mr. Chaudhry the witness statements, copies of cheques, and photographic evidence, pointing to Mr. Chaudhry having made significant fraudulent transactions. He described the evidence as significantly pointing to Mr. Chaudhry. Mr. Granic described in cross-examination the nature of the Crown's case against Mr. Chaudhry as being "quite compelling". He agreed that he advised Mr. Chaudhry that he had a small chance of an acquittal. Mr. Granic advised that he proceeds with the starting point that his client is innocent until proven guilty. He went through the disclosure with Mr. Chaudhry in great detail. In cross-examination, Mr. Granic advised that he explained the advantages and disadvantages, strengths and weaknesses in the case, and the overall substantial evidence pointing to Mr. Chaudhry as the guilty party. During these earlier meetings, before the day of the guilty plea, Mr. Chaudhry advised Mr. Granic that there was another individual who led him astray and told him what to do. Mr. Granic indicated that he had discussions subsequently with the Crown about this other individual, Kamra, and raised it in the judicial pre-trial forum. Mr. Granic asked the Crown to ask the police to investigate this other person whom Mr. Chaudhry stated had taken advantage of him. In the end, the Crown tried to initiate an investigation through the police, but advised they were unsuccessful in finding this person or getting any further information.
Mr. Granic also advised Mr. Chaudhry that as a foreign national in Canada, his immigration status was in jeopardy, as he would be deemed inadmissible to Canada if he pled guilty and was convicted of the charges. He indicated he referred Mr. Chaudhry to an immigration lawyer in this regard. On the day of the guilty plea, in the middle of the inquiry by this court, at a point of reviewing whether there were any potential immigration consequences, both Mr. Granic and Mr. Chaudhry stepped out of the court. It was on that occasion that Mr. Chaudhry telephoned the immigration counsel and ostensibly got further advice at that time before re-entering the court and entering the guilty plea.
The first time after the JPT on August 5, 2015, Mr. Granic advised Mr. Chaudhry that the Crown was seeking, on a guilty plea, a period of custody of 6 to 9 months, and a freestanding restitution order for the monetary loss. Mr. Chaudhry had told Mr. Granic that a man had instructed him to do the fraudulent transactions. Mr. Granic also suggested, although it was Mr. Chaudhry's decision, to potentially see a doctor regarding the role of this man in relation to Mr. Chaudhry. This was ostensibly for a few purposes, to help Mr. Chaudhry in his defence. Mr. Granic stated in his affidavit that he made a number of court appearances in 2016 to allow for ongoing discussion, and he always gave to Mr. Chaudhry the option of how to proceed with the matter, and at no point did he pressure Mr. Chaudhry to resolve the matter by pleading guilty.
Mr. Granic also stated in his affidavit that he attended multiple judicial pre-trials before this court, including the final one on April 13, 2016. On the day of this last JPT, which was just prior to the guilty plea being entered in court on April 13, Mr. Granic left it to Mr. Chaudhry as to whether he wanted to plead guilty or set a trial date. He met with Mr. Chaudhry again after the JPT and advised him that the decision was entirely his, that is the decision of Mr. Chaudhry, whether he wanted to set a trial date or plead guilty. Mr. Granic advised Mr. Chaudhry that the Crown's position on a guilty plea, in the absence of restitution being paid at that time, was jail between 6 and 9 months, and that there would be a freestanding restitution order for the entire amount of the loss. Mr. Granic advised that he would be requesting a 6 month conditional sentence. As far as any restitution order, Mr. Granic was not going to take any position in response to the Crown's request for the restitution order.
The issue of the restitution was first mentioned after the first JPT in 2015, explaining the need for restitution in cases like the one involving Mr. Chaudhry. As discussions continued between the defence and the Crown, and concurrently with Mr. Granic and Mr. Chaudhry, the amount claimed by the Crown was updated as changes arose. The understanding of Mr. Granic during this period was that Mr. Chaudhry did not object to the Crown requesting a freestanding restitution order in the amount of $138,000. That would be part of the sentencing, as conveyed by Mr. Granic to Mr. Chaudhry, if he had not made restitution.
He also advised Mr. Chaudhry that the Judge was open to the possibility of sentencing Mr. Chaudhry to a conditional sentence of at least 6 months.
The discussions that day left open the option of setting a trial date at that time. The decision was left with Mr. Chaudhry. It was his ultimate decision whether to plead guilty. This was in the context of Mr. Granic stating that there was substantial evidence pointing to Mr. Chaudhry as the guilty party. On that date, Mr. Chaudhry advised Mr. Granic that he had the intention to commit the fraud, and this was not the first time that Mr. Chaudhry admitted this to Mr. Granic. Mr. Chaudhry had also admitted this to Mr. Granic in Mr. Granic's office two days before the guilty plea. That was when Mr. Chaudhry told Mr. Granic straight out that he wanted to resolve the case with a guilty plea. He was definitive in making that choice and giving those instructions. He wanted to plead guilty and to deal with the consequences that would come with that. He said: "I am going to admit guilt to this, to these offences, and I want to resolve this with a guilty plea." He was taking full responsibility for what happened. Whether he was thinking at that point he still had been taken advantage of by this other person, Mr. Granic did not know. It was not mentioned at that late stage. Mr. Granic noted as well that even if Mr. Chaudhry was taken advantage of, he could still be guilty of the offence.
The court notes the law in the parties' provisions in the Criminal Code that might apply in that regard. That is quite relevant in this case. Mr. Granic understood those instructions of Mr. Chaudhry to plead guilty without any equivocation or doubt. He took Mr. Chaudhry's statement of admitting guilt as indicative of the mental element, which is something only Mr. Chaudhry would know. Mr. Granic testified that he did explain, in the course of getting instructions, the mental elements for the offence, "absolutely". Mr. Granic wanted to be satisfied that this was a proper admission of guilt. He was going to admit the factual and mental elements of guilt on the day of the guilty plea. Mr. Chaudhry was not anxious about finishing the case, and Mr. Granic was not anxious about being counsel finishing the case on that date.
Mr. Granic testified the door was always open for Mr. Chaudhry to go to trial. He did not exert any pressure on Mr. Chaudhry in his decision. Mr. Chaudhry did not say that he wished to plead not guilty. If Mr. Chaudhry had said he had done nothing wrong, Mr. Granic would have adjourned the case that day. At no point that day did Mr. Chaudhry indicate he did not wish to plead guilty. Mr. Granic never said he must plead guilty, and as well, Mr. Chaudhry gave Mr. Granic written instructions with respect to a guilty plea that day that had been prepared following the April 11 meeting and prior to the April 13 guilty plea.
The court must assess the credibility and reliability of the evidence of Mr. Granic in this application. It was consistent, and he withstood a fairly probing cross-examination by defence counsel. He did not contradict himself in his steadfast evidence that he in no way forced Mr. Chaudhry to plead guilty. His evidence made sense. He always offered to Mr. Chaudhry the option of setting a date for a preliminary hearing or a trial. Mr. Chaudhry advised Mr. Granic in the meeting in his office a couple of days before the last judicial pre-trial and guilty plea, that he wished to plead guilty. He wanted to resolve the matter and plead guilty, and that is what happened on the day of the guilty plea. There was effectively no wavering by Mr. Chaudhry as to his previous decision to plead guilty according to the testimony of Mr. Granic, and no suggestion that he did not want to plead guilty after telling Mr. Granic his decision.
The evidence of Mr. Granic is consistent as well with the written instructions provided by Mr. Chaudhry, and as well the guilty plea inquiry process as noted in the transcript on the day of the guilty plea.
The court found the testimony of Mr. Granic to be credible and reliable. The court accepts his version of events related to the knowledge and actions of Mr. Chaudhry as providing an accurate report of the relevant aspects of this application. As noted above, the court rejects the testimony of Mr. Chaudhry as not being credible.
Analysis: Applying the Law, Findings of Fact
In the end, the Applicant argued that the plea was not voluntarily entered. The Crown responded, took the position that the plea was entered properly, and that there was no pressure placed on Mr. Chaudhry by Mr. Granic to plead guilty. The Respondent also argued, given that the Applicant had originally also raised the application in the context of Mr. Chaudhry not knowing that the Crown would be seeking a freestanding restitution order, the related issue of knowledge and the consequences of pleading guilty was addressed by the Crown/Respondent.
Applying the law, the guilty plea must be voluntary, unequivocal, and informed. There is no doubt that the guilty plea was unequivocal. No party challenged that aspect. The Applicant challenged that the guilty plea was not voluntary based upon the position of Mr. Chaudhry that his lawyer, Mr. Granic, forced him to enter the guilty plea or he would abandon him. As noted above, the court rejects the version of events provided by Mr. Chaudhry as being totally lacking in credibility. The court accepted the evidence of Mr. Granic. Mr. Granic's evidence is to the effect that Mr. Chaudhry entered a totally voluntary guilty plea, after getting legal advice from Mr. Granic, and that Mr. Chaudhry made the decision to plead guilty two days before he did so, and again he was asked and confirmed this on the day of the guilty plea. He was again asked if he wanted to plead guilty on that date. There was an extensive guilty plea inquiry, which included questions in court as to whether he was pleading guilty voluntarily, of his own free will, and without pressure from anyone. All of the responses of Mr. Chaudhry were to the effect of a free and voluntary guilty plea, consistent with the evidence of Mr. Granic and findings of fact in this application.
The burden on an Applicant in setting aside a guilty plea is not entirely clear from the appellate case law. Nonetheless, this court finds beyond a reasonable doubt that Mr. Chaudhry entered the guilty plea voluntarily.
As to whether it was informed, in the sense of Mr. Chaudhry being aware of the consequences as to the Crown wanting to make an application for a restitution order, the court would note the following: This was not a case as to collateral consequences. Although there may be immigration consequences flowing from this guilty plea, that was in no way a basis for the application before this court to set aside the guilty plea, Mr. Chaudhry having received advice from an immigration lawyer prior to the day of the guilty plea, and what appears to be again on the day of the guilty plea as to immigration consequences. The consequences which were related earlier in this aspect relate to his knowledge, or having been informed by Mr. Granic, his counsel, that the Crown would be seeking a freestanding restitution order. The court finds in that regard, accepting the evidence of Mr. Granic and rejecting the evidence of Mr. Chaudhry, that Mr. Chaudhry was clearly informed on multiple occasions by his lawyer that the Crown would be seeking a restitution order.
He was also told of the inter-relationship between the amount of restitution that he might pay in the nature of sentence sought by the Crown. He was also made aware of the amount of the restitution that would be sought by the Crown if it wasn't paid, that amount being $138,000.
The court rejects the earlier position of the Applicant that he would have either opted for a trial, or pled guilty with different conditions. The court is extrapolating this somewhat from the application, applying the law in Wong, and trying to do so in the best way possible for this application. The court makes this finding in light of the position that Mr. Chaudhry was told throughout that the Crown was always seeking a restitution order. Even if he sought to plead guilty, only if the Crown declined to request restitution, it was made clear by counsel to Mr. Chaudhry that the Crown would not waiver on her request for restitution, and in fact the amount of restitution sought by the Crown had actually gone up over time as this was further clarified. The court rejects any position of Mr. Chaudhry that he would have pled guilty with a condition of the Crown not seeking restitution.
There is also, in this case, to be noted no cognitive deficiency of Mr. Chaudhry that could have adversely affected his ability to understand what Mr. Granic was telling him during their discussions, unlike another appellate case which has been referred to in these reasons. He had his brother and brother's son assist in interpreting when there was no accredited interpreter present, such as in Mr. Granic's office. He also had a fully accredited court interpreter who assisted in court on the day of the guilty plea, and as well out of court when he gave written instructions. There has been no complaint whatsoever made with respect to the nature of that interpretation.
Overall, the court finds that Mr. Chaudhry would not have pled differently. Moreover, the court finds that this would not have been a case where Mr. Chaudhry could have imposed a condition on the Crown of pleading guilty only if the Crown resiled from its ongoing position of seeking a restitution order in the event that Mr. Chaudhry decided to plead guilty. There has never been any indication or wavering whatsoever from the Crown with respect to its ongoing position that it will be seeking a full restitution order.
As well, as has been noted, and has been uncontradicted, this was a very strong Crown case.
Overall, the court finds that the guilty plea was voluntary and informed, and as noted above, unequivocal. The application is denied. The guilty plea stands. Mr. Chaudhry is guilty of the charges for which he entered guilty pleas. The case is now before the court for the matter of sentence.