Ontario Court of Justice
Date: September 13, 2022 Court File No.: 0911-998-22-0025
Parties
BETWEEN: HIS MAJESTY THE KING
— AND —
THOMAS DONOVAN
Before
Justice A. Wheeler
Heard
July 8, 2022 and September 12, 2022
Ruling
Ruling on Application to Set Aside Guilty Plea released on September 13, 2022
Counsel
J. Tekenos-Levy; N. Beitman Brener...................................................... counsel for the Crown V. Rishea............................................................................................... counsel for the defendant
Endorsement
1Thomas Donovan pleaded guilty before me on April 5, 2022 to a charge of possession of fentanyl for the purpose of trafficking. Mr. Donovan has applied to set that guilty plea aside.
2The facts as read in were that Mr. Donovan was a passenger in a taxi that was stopped by police. Mr. Donovan made a motion to conceal an object, and the officer, fearing that it was a weapon, detained Mr. Donovan who then said, “it’s dope not a weapon.” This led to Mr. Donovan’s arrest. A search incident to arrest resulted in Mr. Donovan being found in possession of 29.7 grams of fentanyl in a headphone case, and just over $1000 in his coat pocket.
3The sentencing was adjourned for preparation of a Gladue report. Counsel advised that, as expected at a judicial pre-trial held before me, they would be presenting a joint submission on sentence. The application to withdraw the plea was originally brought in July on the date set for sentencing submissions, and further evidence and submissions were heard yesterday.
4The application to set aside the guilty plea is based on Mr. Donovan’s assertion that the drugs were not his, and that he took the headphone case from an acquaintance, Zach Pringle. The defence relied on Mr. Donovan’s sworn evidence, given before me on September 12, 2022, and an affidavit from another lawyer in defence counsel’s office, attesting to the content of an earlier telephone conversation with Mr. Pringle. Mr. Donovan testified that when he took the case, he “guessed” that it contained drugs, but that he didn’t ask because it happened so quickly. After being duly cautioned by defence counsel in the telephone conversation, Mr. Pringle told counsel that he passed the case to Mr. Donovan because he thought he was about to be picked up on warrant for breach of probation. Today the defence advised that Mr. Pringle had again contacted counsel’s office and reaffirmed this information, and stated that there had been a misunderstanding when he spoke to the police. In view of the fact that I had already reached a decision in favour of the defence on this application it was not necessary to consider allowing the defence to reopen the evidence on the application.
5The Crown relied only on a will say of an officer’s phone conversation with Mr. Pringle. In that conversation Mr. Pringle told the officer that he originally contacted Mr. Donovan’s lawyer of his own accord, that the drugs were not his, and that he was simply trying to help out a friend. Neither side subpoenaed Mr. Pringle.
6The Gladue report was also filed as an exhibit on the application. That report contains the following:
Tommy outlined the current offence as follows:
I was couch hopping, and I got pulled over in a cab. They tried to say, in the synopsis it says that I said, ‘it’s drugs not a weapon.’ I never said that, but I just went along with it. Whatever. But the constable that got me doesn’t like me or my family. He’s the one who got Timmy on those charges Timmy was just on, or he’s on right now. My cousin that is in right now, he has him on a charge. So, Attwood, Constable Attwood he just [inaudible] for us.
Tommy reflected on his role in what happened, “I shouldn't have been carrying it. I shouldn’t have even had it. That stuff I’ve never really been around a lot.” Tommy added, “It was just where I was and I just, I don’t know I picked it up, I guess, kind of thing.” When asked what he has thought and felt since the incident occurred, Tommy stated, “I am a fucking idiot.”
The Arguments on the Application
7The focus of the defence argument was that the plea was not factually accurate, in that Mr. Donovan admitted to facts that were not actually true.
8The defence acknowledged that the guilty plea was voluntary, informed and unequivocal. These are the components of a guilty plea that is valid in the sense that it is the product of a procedurally fair process. However, the defence argued that there were circumstances surrounding Mr. Donovan’s decision to plead guilty that should nevertheless inform my decision about whether it is in the interests of justice to set aside the plea.
9The Crown argued that Mr. Donovan’s guilty plea was clearly voluntary, informed and unequivocal. Furthermore, both counsel and I conducted comprehensive plea verification inquiries, in which Mr. Donovan acknowledged the facts. This included Mr. Donovan specifically acknowledging that he was knowingly in possession of fentanyl, and that he had it for the purpose of trafficking it to other people. The Crown says that Mr. Donovan’s new version of the facts is simply not credible, based either on Mr. Donovan’s or Mr. Pringle’s assertions.
Analysis
10In R. v. Adgey (1973), 13 C.C.C. (2d) 177 (S.C.C.), the Supreme Court held that a guilty plea will be set aside where there are “valid grounds”, but that it would be “unwise to attempt to define all that which might be embraced within the phrase ‘valid grounds’.” A trial judge has the discretion to permit an accused person to withdraw a guilty plea up until the time of sentencing: Adgey; R. v. Eizenga, 2011 ONCA 113 at para. 44.
11There is considerable merit to the Crown’s submissions, and had I not heard the viva voce testimony of Mr. Donovan I would have dismissed this application. The defence bears the burden on this application. In my view the defence has, if only just, established valid grounds here for me to grant the application. Based on the following combination of factors, I find that it is in the interests of justice to set aside Mr. Donovan’s guilty plea:
- Without making a finding that Mr. Donovan is credible, his evidence about the circumstances of his possession of the drugs is at least capable of belief. If Mr. Donovan’s account of his possession were to be accepted or raise a reasonable doubt, this would potentially result in quite a different picture of his level of culpability. Mr. Donovan’s account in his testimony before me is in fact consistent at least broadly with what he told the Gladue writer.
- There was no evidence elicited directly from Mr. Pringle. The defence relied on a hearsay affidavit of a telephone conversation with Mr. Pringle. The Crown relied on a will say from a police officer who also spoke with Mr. Pringle. I agree with the defence that the police will say removes any concern that defence counsel was actually speaking with Mr. Pringle. Prior to eliciting any information from Mr. Pringle, defence counsel cautioned him about counsel’s role and the fact that speaking to counsel could help Mr. Donovan but hurt Mr. Pringle. The content of Mr. Pringle’s utterances to defence counsel were against his interest.
- I accept Mr. Donovan’s evidence that until Mr. Pringle was willing to come forward, he did not want to point the finger at Mr. Pringle. He testified that he does not know who Mr. Pringle associates with and was concerned about the implications for himself. The family members who spoke to the Gladue writer described Mr. Donovan as having been involved in a criminal subculture for a long time. It does not surprise me that Mr. Donovan was originally not willing to defend the case by accusing another person, or that Mr. Donovan did not tell the police because he did not think the police would believe him.
- I accept Mr. Donovan’s evidence that, prior to Mr. Pringle contacting his lawyer, he did not see any realistic option besides pleading guilty, and that he wanted to get it over and done with and be transferred to a federal institution. He was detained at Central East Correctional Centre, which was substantially on lock down, there was no programming, and he could not have family visits. He expected much better conditions in federal custody, and he has previous experience with federal custody. Pursuant to R. v. K.(C.), 2021 ONCA 826, I have considered whether Mr. Donovan’s experiences and perspective that arise from his Indigenous background might have influenced his decision to enter a factually inaccurate guilty plea. Certainly, this is a relevant background factor given the many hallmarks of intergenerational trauma in Mr. Donovan’s life. No one would expect him to have tremendous faith in public institutions. That said, I do not see this as a determinative factor on the evidence before me. Rather, it is as I have said a relevant background factor that informs my decision that Mr. Donovan’s version of the facts is at least arguable. It also informs my decision that as a matter of fairness, Mr. Donovan ought to be given the opportunity to argue his version of the facts.
- Although I had a limited opportunity to observe Mr. Donovan during his short testimony, he does not strike me as a sophisticated person in that I had no impression that this application is Mr. Donovan in any way trying to “game” the system.
- By seeking to set aside the plea, Mr. Donovan is potentially exposing himself to a much more drawn out process, worse conditions of incarceration through a prolonged period in pretrial custody and even potentially a longer sentence. A trial date will have to be scheduled, and unless Mr. Donovan gets bail, he will remain in pre-trial custody. It seems unlikely that the Crown would agree to the same joint submission following a contested trial. Finally, Mr. Donovan would also expect to stand trial on the remaining counts in the information.
- Prosecution of this case as a contested trial will be extremely straightforward for the Crown in terms of the witnesses required, and will require very little court time.
- The charges do not involve a vulnerable victim.
12Taken in combination, these factors persuade me that it is in the interests of justice that Mr. Donovan should have the presumption of innocence restored such that he will have opportunity to be heard, and to make full answer and defence to the charges based on what he says actually occurred.
13I have considered whether there could be any appropriate remedy other than striking the plea in its entirety. Both Crown and defence submitted that, short of the Crown consenting to an amendment of the information, the plea must be struck. I agree with that. Mr. Donovan acknowledges that he was holding the headphones case when arrested, and that he “guessed” it contained drugs. This could provide a basis for a finding of willful blindness in relation to at least possession of an unspecified substance but depending on how quickly the events occurred this might not be a foregone conclusion and it would not by itself permit a finding that Mr. Donovan knew the case contained fentanyl, or that he necessarily had it for the purpose of trafficking.
Conclusion
14The application to set aside the guilty plea is granted.
Released: September 13, 2022 Signed: Justice A. Wheeler