WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
DATE: 20211119 DOCKET: C68900
Paciocco, Nordheimer, and Coroza JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
C. K. Appellant
Counsel: Michael Crystal, for the appellant Manasvin Goswami, for the respondent Jonathan Rudin and Sumrana Taher, for the intervener Aboriginal Legal Services
Heard: August 30, 2021, by video conference
On appeal from the convictions entered by Justice Peter J. Wright of the Ontario Court of Justice on February 1, 2018.
Paciocco J.A.:
OVERVIEW
[1] The Gladue principles place an affirmative obligation on a sentencing judge to consider the experiences of an Indigenous offender that are relevant in determining their level of blameworthiness. Judges are also obliged to consider the offender’s Indigenous background and needs in identifying alternative dispositions that may be more fitting, just, and effective for the offender and their community: R. v. Gladue, [1999] 1 S.C.R. 688.
[2] Mr. K seeks to adapt and extend the application of the Gladue principles to apply whenever an Indigenous person moves to withdraw a guilty plea they have entered. He submits that there is an affirmative obligation on trial judges who are aware that it is an Indigenous person who is moving to withdraw their plea to inquire whether the applicant’s Indigeneity may have contributed adversely to their decision to plead guilty. He argues that this affirmative obligation applies even if the Indigenous person does not suggest that their experiences as an Indigenous person compromised the voluntariness of their plea. Mr. K further contends that the trial judge erred in his case by denying his application to strike his guilty pleas without making such an inquiry.
[3] It is not uncommon for Indigenous persons to lack confidence in the criminal justice system, and that the associated despair that arises can result in resignation, which may materially affect a decision whether to plead guilty. There is also a strong basis for concluding that Indigenous persons, already vastly overrepresented in Canada’s penal institutions, are more likely to plead guilty than non-Indigenous offenders. However, for reasons that follow, I am not persuaded that there is an invariable obligation on trial judges to question whether an offender’s experience as an Indigenous person may have adversely affected their choice to plead guilty in any case where an Indigenous person moves to withdraw their guilty plea.
[4] To be clear, it follows from settled principles that where a trial judge has real reason to believe, at the time a plea is being entered, that the voluntariness of the decision to plead guilty may have been adversely affected by that person’s experiences as an Indigenous person, the trial judge must make the necessary inquiry to ensure that the plea is voluntary. I accept that this obligation continues and that it applies during subsequent applications to strike a guilty plea.
[5] However, in the specific circumstances of Mr. K’s case, no such obligation to inquire arose. Not only was there no evidentiary basis for believing that Mr. K’s decision to plead guilty was adversely affected by his experiences as an Indigenous man, the indication is to the contrary. I would grant leave to admit the Gladue report that has been tendered as fresh evidence, but I would dismiss Mr. K’s appeal.
MATERIAL FACTS
[6] Mr. K went to trial on charges arising from a violent assault that left the complainant, a visitor to Mr. K’s home, with serious injuries. He faced charges of sexual and aggravated assault, unlawful confinement, as well as drug and breach of probation charges.
[7] The trial began on July 10, 2017. A purported eyewitness to some of the events testified that day and said that Mr. K admitted to having had sexual intercourse with the complainant. The next day, July 11, 2017, Mr. K discharged his defence lawyer, leading to the trial being adjourned.
[8] The trial resumed many months later, on February 1, 2018, after Mr. K retained a new defence lawyer. On that day, the complainant testified, providing disturbing allegations of being abused by Mr. K over the course of four days. Her account was consistent with physical evidence, including not only her injuries but also a hair clip later found by police on the driveway where the complainant said she had been dragged by Mr. K after a failed attempt to escape.
[9] After the court recessed for lunch, the trial judge granted an extended break to the parties so that they could continue discussions about the “management of [the] case”. When court resumed, defence counsel indicated that Mr. K wanted to change his plea to guilty on several of the charges he faced, including a count of assault contrary to s. 266 of the Criminal Code, R.S.C., 1985, c. C-46; assault causing bodily harm contrary to s. 267 (b); sexual assault contrary to s. 271; and unlawful confinement contrary to s. 279(2). Defence counsel indicated that Mr. K would admit the facts the complainant had testified to as well as other evidence that had been heard. In exchange, the balance of the charges against him would be withdrawn.
[10] The trial judge conducted a plea comprehension inquiry before accepting Mr. K’s pleas of guilty. During that plea comprehension inquiry, Mr. K assured the trial judge that his decision was “voluntary”, of his “own free will, without pressure from anyone”. He expressed understanding that by pleading guilty he was giving up his right to “further trial” in relation to the charges. The trial judge explained to Mr. K that in deciding whether to accept the plea he would be relying on the evidence heard so far as well as any other facts that Mr. K might admit. Mr. K expressed his understanding. As well, Mr. K responded “yes” when asked if he understood that if he made those admissions, the trial judge would be in a position to find him guilty of those offences based on his guilty plea, and that he would be sentenced accordingly.
[11] The trial judge also explained to Mr. K that he would rely very strongly on counsel’s lengthy discussion about the appropriate sentence, but would not be bound by those discussions and would sentence Mr. K as he saw fit, regardless of the arrangement. Mr. K communicated that he had not previously appreciated this, but said, “I do now”.
[12] Mr. K was then rearraigned and pleaded guilty to each of the four charges I have itemized above. The Crown confirmed the evidence that it was relying on to support the pleas that Mr. K had entered. The trial judge asked defence counsel if Mr. K accepted those facts and he confirmed that Mr. K did. The trial judge then asked Mr. K, “do you agree with everything I just heard?”, and he said “yes”.
[13] The trial judge then found Mr. K guilty and put the matter over to the next afternoon for sentencing submissions.
[14] The next day, the sentencing did not proceed, as Mr. K made it known that he wanted to withdraw his guilty pleas. His counsel requested to be removed from the record. The matter was adjourned. After further administrative appearances, Mr. K’s counsel was removed from the record. A date convenient to Mr. K’s new counsel, April 26, 2018, was set to hear Mr. K’s application to strike his guilty pleas.
[15] At the outset of the hearing on April 26, 2018, defence counsel explained that Mr. K’s application to withdraw his pleas was based on his lack of mental capacity to enter a voluntary plea. He told the trial judge that “the basis on which he indicates his incapacity was insufficient was his prolonged period of time in segregation during his detention on the charges before [the] court”. Trial counsel placed no reliance on the impact Mr. K’s experiences as an Indigenous man may have had on his mental capacity. Indeed, there was no mention of his Indigeneity prior to the hearing or during the evidentiary phase of the hearing.
[16] The only evidence Mr. K led during the hearing was related to his segregation. He called a corrections officer who provided testimony, supported by documentation, confirming that Mr. K had been in custody at the Quinte Detention Centre from September 13, 2016, the day after his arrest, until his plea was entered on July 10, 2018, nearly 22 months later. Almost that entire time, including consistently from December 8, 2016, Mr. K was placed in protective custody, at his own request, as the result of injuries he sustained in a serious assault. While segregated, Mr. K was confined to his cell for approximately 23 hours a day with limited movement outside of his cell for yard time, showering, and visits. During his confinement, Mr. K had access to physical and mental health care, as well as telephone and mail privileges, and access to reading and writing materials.
[17] The corrections officer presented evidence that, for the first few months of his segregation, Mr. K was housed primarily in his own cell in administrative segregation in “super protective custody” in the maximum-security wing. After early January 2017, he was detained either in the institution’s segregation area, or in an overflow area for segregated individuals in the institution’s health care unit. At times he was housed alone, but while in the health care unit where he spent an appreciable portion of his time, Mr. K was sharing his cell with two other protective custody inmates.
[18] Given that Mr. K was in segregation, reviews of his prison placement were regularly held, and, consistent with protocol, his “thoughts and feelings about being in segregation” were sought every thirty days. Each written review that Mr. K provided affirmed that he felt safe only in segregation. On more than one occasion he expressed gratitude for his placement, saying “I feel safe in segregation”, and “thank you for keeping me safe”.
[19] The first and only mention of Mr. K’s Indigeneity was at the end of the hearing on April 26, 2018, when defence counsel advised the trial judge that if his application to strike his plea was unsuccessful, Mr. K would be asking for an adjournment “to allow for the completion of the Gladue report because he is – has status as a native Canadian.” No evidence was led during the application about Mr. K’s life experience or mental health.
[20] Defence submissions on the application to strike focused entirely on the legal test for striking a guilty plea and on the objective evidence Mr. K had led about the conditions in which he had served his pretrial custody. Trial counsel asked the trial judge to infer, without evidence from Mr. K about the effect that segregation had on him and without medical evidence, that the kind of segregation Mr. K was experiencing at the time the plea was entered would have deprived him of the limited cognitive capacity he needed to enter a voluntary plea of guilty.
[21] On May 3, 2018, the trial judge released his decision denying Mr. K’s application to strike his guilty pleas. The reasoning that led the trial judge to find that Mr. K had not established the involuntariness of his plea is captured in the penultimate paragraph of his reasons:
[T]he evidence that I received in the course of these proceedings, in my view, support and fortify a finding that the pleas of guilty were voluntary, that the defendant was exercising an operating mind that was in conformity with the voluntariness, and that he was in possession of significant cognitive capacity at the time he entered these pleas. I need only refer back again to the fact that the defendant constantly requested placement in segregation where he felt safe and comfortable. His own comments in writing delivered to the Quinte Detention Centre officials, on more than one occasion, confirmed that without a doubt. His presentation in court and his ability to respond to questions that were asked of him during the course of the plea comprehension inquiry confirmed that without a doubt.
[22] It was not until after Mr. K initiated and then abandoned a stay application based on trial delay, and had discharged the defence counsel who had argued the application to strike the guilty pleas, that the matter proceeded to sentencing with new defence counsel, Mr. K’s fourth defence lawyer. At that point, a Gladue report was ordered. The trial judge, who said he was particularly impressed with the “thorough, comprehensive, detailed, evidence-based” report, admirably summarized its material contents in his Reasons for Sentence:
The Gladue report, cast in the nature of [Mr. K’s] Sacred Story through ancestry with the Algonquin and Cherokee, is a terribly sad chronicle of childhood abuse. It is inconceivable in this country that children could be so badly abused right from the very beginning and continuously. His childhood abounded with abuse: physical, mental, sexual, fuelled with drugs and alcohol, poverty, housing insecurity. Not only was [Mr. K] abused, but he witnessed abuse and both mother and father abusing alcohol. He began at an early age to abuse alcohol, as well as drugs. It is not surprising that [Mr. K] suffers from the effects of intergenerational abuse, being the victim of sexual assault himself at his grandfather’s hands, and at the hands of his grandfather’s friends. His parents and grandparents were also victims of abuse. His maternal grandmother suffered abuse while in a religious school.
In this terrible environment, [Mr. K] at least was able to grasp some understanding from his maternal grandparents, some learning about his [I]ndigenous identity. He participated in the Shabot Obaadjiwan national gathering, the sweat lodge ceremonies, the sunrise and sunset ceremonies. He tried to connect with his heritage, while his life had been nothing but a turmoil of abuse, neglect, and criminal intervention on a constant basis.
[23] The Gladue report contained passages that would have been relevant had it been available and filed in support of his application to strike his guilty pleas. For instance, the Gladue report records comments attributed to Mr. K about the effects that segregation had on his decision-making capabilities:
Being in segregation this long, I have developed a disability in my decision-making capabilities. From having all my decisions made for me. My mind set isn’t the same as it was when I started. It has made me short-thinking and short-sighted. Not being able to see the long-term effects of my choices.
What I’ve noticed[d] is that I really can’t make a solid decision anymore. When I do, I’m so two-sided wanting to please everybody else that I will compromise myself and making [sic] involuntary decisions, not in my best interest. [Emphasis added.]
[24] The Gladue report also describes Mr. K’s problem-solving skills as a personal strength, using his own words:
When there’s a situation, where no one knows what to do, my family calls me. I’m the person that can handle myself, taking the most effective straight-forward approach available. I’m intelligent, well spoken, polite, but can also get down to business. [Emphasis added.]
[25] The Gladue report also contained two comments by Mr. K explaining why he pleaded guilty. In the first comment, he said he did so to protect his family. In the second comment, he said he pleaded guilty after being threatened by corrections officials, who had already set him up to be assaulted. Specifically, he claimed that on his way to court on the day he pleaded guilty, a transport officer said to him, “you had ample time and opportunity to end this but you didn’t, now we will”.
[26] During sentencing submissions, Mr. K’s defence counsel again raised the validity of the plea. He did not raise either of the new explanations disclosed in the Gladue report. Instead, he submitted that the pleas should have been struck because the complainant’s evidence left open possible defences. Once again, no suggestion was made that Mr. K’s experience as an Indigenous man bore on his decision to plead guilty. The trial judge rejected the suggestion that the evidence did not support the validity of the pleas.
[27] On November 2, 2018, the trial judge provided detailed Reasons for Sentence and imposed a global sentence on Mr. K, then 41 years of age, of six years’ imprisonment, minus credit for time served. The other charges against Mr. K were withdrawn.
ISSUES
[28] Mr. K argues that once the trial judge became aware that he was Indigenous, he had an obligation to seek out information relating to the impact that his experiences as an Indigenous person had on the voluntariness of his decision to plead guilty, even though Mr. K had not raised this issue in his application to strike his guilty plea. In a submission that would support Mr. K’s appeal, the intervener, the Aboriginal Legal Services (“ALS”), argued that, at the very least, a trial judge who learns that an Indigenous person is seeking to strike their plea has an obligation to raise the issue to ensure that the applicant can give due consideration to the impact their experiences may have had on their decision to plead guilty.
[29] Mr. K also argued that it was unreasonable for the trial judge to treat his request to be segregated and his preference for segregation as voluntary.
[30] The respondent Crown not only opposes Mr. K’s submissions on their merits, it argues that since Mr. K. did not raise his Indigeneity as an issue during his application to strike his guilty pleas, he should not be permitted to do so on appeal.
[31] There are therefore three issues that require consideration:
A. Is Mr. K barred from raising, for the first time on appeal, the failure of the trial judge to seek out information about his Indigeneity before denying his application to set aside his guilty plea?
B. If not, given that he was made aware that Mr. K was Indigenous, did the trial judge err by denying Mr. K’s application to strike his guilty pleas without ensuring that he had information about the impact Mr. K’s experiences as an Indigenous man may have had on the voluntariness of his guilty pleas?
C. Was it unreasonable for the trial judge to treat segregation as a voluntary choice made by Mr. K?
[32] Before I address those three issues, it is helpful to explain why other potential issues alluded to in the foregoing recitation of material facts have not been included in the list of issues that require consideration. Notably, Mr. K did not argue before us that his plea was rendered involuntary because of pressure to protect his family, or because he was under duress from corrections officers.
[33] In the interests of completeness, I will nonetheless explain in brief compass why, even if those issues had been argued, they would not have assisted Mr. K’s appeal.
[34] Quite simply, even if Mr. K chose to plead guilty because of pressure to protect his family, more evidence would have been needed to show that this pressure undermined the validity of his guilty pleas. As Doherty J.A. explained in R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at para. 18:
No doubt most accused faced with serious charges and the prospect of a substantial jail term [feel themselves under pressure when they entered their pleas]. Absent credible and competent testimony that those emotions reached a level where they impaired the appellant’s ability to make a conscious volitional choice, the mere presence of these emotions does not render the pleas involuntary.
[35] As for Mr. K’s claim in the Gladue report that he was under duress by corrections officers at the time he entered his guilty plea, this is an untested hearsay assertion. To be sure, in an appeal based on the “validity of the trial process”, including an appeal that a guilty plea was involuntary, a generous approach is taken that permits consideration of fresh evidence that may not satisfy the usual fresh evidence admissibility test set out in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, and in Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92: R. v. Rajaeefard (1996), 27 O.R. (3d) 323, at p. 228; R. v. T.(R.), at para. 12. But such evidence must be credible before it will be acted upon: R. v. Krzehlik, 2015 ONCA 168, 124 O.R. (3d) 561, at para. 5. Mr. K has not affirmed or sworn that his account is true, nor has he buttressed it with affidavit evidence: see R. v. Alec, 2016 BCCA 282, 337 C.C.C. (3d) 345, at para. 110. I see no other indicia of reliability or necessity that could provide a reasoned basis upon which the bald assertions made by Mr. K could be credited on appeal.
[36] I will therefore only focus on the three issues that were raised and argued.
ANALYSIS
A. Is Mr. K Barred from raising his indigeneity for the first time on appeal?
[37] I would permit Mr. K to raise his Indigeneity for the first time on appeal. Mr. K’s central argument is that the trial judge erred by not taking the initiative of raising Mr. K’s Indigeneity when Mr. K brought his application to strike his pleas. Clearly, if Mr. K had raised this issue at trial, there would have been no need for the trial judge to do so, and the issue under appeal could not possibly have arisen. Put simply, to apply the bar against raising an issue for the first time on appeal in such circumstances would create a catch-22 that would prevent anyone from ever grounding an appeal on the alleged failure of a trial judge to raise an issue that the judge is legally required to raise.
[38] For example, as I will explain below, a trial judge, aware that they are sentencing an Indigenous offender, is under an affirmative obligation to seek out pertinent and relevant Gladue information, even if the accused has not raised the issue. If an appeal of that error was to be prohibited unless the accused raised the issue at trial, that rule would become unenforceable.
[39] Although this observation is enough to justify proceeding with the appeal on its merits, the same outcome arises from a more formal consideration of the three factors identified in R. v. Reid, 2016 ONCA 156, 132 O.R. (3d) 26, at para. 43, for determining whether it is in the interests of justice to permit an issue to be raised for the first time on appeal.
[40] First, the evidentiary record is sufficient to permit this court to effectively and fairly determine the new issue raised on appeal. The only evidentiary record required to determine whether the trial judge erred by not raising Mr. K’s Indigeneity is evidence that the trial judge knew Mr. K to be Indigenous yet did not raise this during his application to strike the guilty plea. Neither point is in contest.
[41] Second, I can see no basis for believing Mr. K intentionally reserved this issue for appeal so that he could secure a tactical advantage. It is far more probable that the issue was simply overlooked.
[42] Finally, this is not a case where it can be predicted in advance of hearing the appeal that no miscarriage of justice could result if we refuse to consider the issue Mr. K is now raising. Whether a trial judge is obliged in an application to set aside a guilty plea to inquire into the impact the applicant’s experiences as an Indigenous person may have had on the voluntariness of the decision to plead guilty is a serious issue for consideration.
[43] I would therefore consider this new issue on appeal on its merits.
B. Did the trial judge err by not inquiring into the effect Mr. K’s experiences as an indigenous person had on the voluntariness of his plea?
[44] I would not find that the trial judge erred by failing to inquire into the effect that Mr. K’s experiences as an Indigenous person may have had on his decision to plead guilty. I am not persuaded that judges are under a general obligation during an application to set aside a guilty plea to raise the applicant’s Indigeneity where the applicant has not done so. Where, however, there are specific circumstances that raise the question of whether the applicant’s experiences as an Indigenous person may have adversely affected the voluntariness of their decision to plead guilty, a judge is required to inquire. In this case, there were no such circumstances and hence no duty to inquire was breached.
(1) The Gladue Principles
[45] The Gladue principles are not in controversy. These well-established principles are responsive to the overincarceration of Indigenous persons that has been caused by long-standing systemic and direct discrimination against Indigenous persons in this country. As described in Gladue, at para. 66, and reaffirmed in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59, those principles require a trial judge, in sentencing an Indigenous offender, to consider:
(a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [Indigenous] heritage or connection.
[46] The unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the courts are relevant to the offender’s level of moral blameworthiness as systemic and direct discrimination can destroy opportunities and limit options for positive development in ways that may diminish the offender’s personal culpability. The unique systemic or background factors of an Indigenous offender, in turn, may bear on the type of sentence that is culturally appropriate and therefore effective for that particular offender: Ipeelee, at paras. 72-73.
[47] Mr. K is not arguing that his moral blameworthiness is a central consideration during an application to strike a guilty plea, nor is he urging that the fitness of a sentence is a relevant consideration. When he speaks of the application of the Gladue principles during an application to strike a guilty plea, I understand him to be submitting that the systemic or background factors of an Indigenous offender may bear on the integrity of their decision to plead guilty, and that they must therefore be considered by the trial judge.
(2) The Obligation to Raise Indigeneity when Sentencing
[48] In Gladue, at para. 83, Cory J. and Iacobucci J. described, for the majority, the information that trial judges should consider when sentencing Indigenous offenders. They directed trial judges to take judicial notice of the relevant systemic and background factors that bear on both the degree of responsibility of the offender and the identification of a fit sentence. In making this direction, they remarked that, “for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence”.
[49] In R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 54, Iacobucci J. made clear for the court that when such particularized evidence is required, judges are under an affirmative obligation to inquire into the offender’s experiences as an Indigenous person. This court has fulfilled this obligation by seeking such information when required to sentence Indigenous offenders: R. v. Kakekagamick (2006), 211 C.C.C. (3d) 289 (Ont. C.A.); R. v. Macintyre-Syrette, 2018 ONCA 259.
[50] In R. v. Sim (2005), 201 C.C.C. (3d) 482 (Ont. C.A.), at para. 25, Sharpe J.A. explained the genesis of the affirmative obligation on sentencing judges to acquire necessary information about an Indigenous offender’s personal background. He noted that, although our criminal justice system operates on the adversarial principle that it is for the parties to secure and present the relevant evidence, “the special situation of [Indigenous] accused requires the criminal justice system to alter its procedure and adopt a more inquisitorial approach when sentencing an [Indigenous] offender”. He went on to hold that this obligation applies when the Ontario Review Board determines an appropriate disposition for mentally disordered Indigenous offenders at a disposition hearing, and he cautioned that the failure to seek and/or consider such information is a legal error: Sim, at para. 29.
(3) The Broader Application of Gladue Principles
[51] Mr. K and the ALS argue that the Sim decision illustrates a proposition central to their argument: namely, that the Gladue principles are not confined to sentencing proceedings but imbue the entire criminal justice system, including applications to set aside guilty pleas. They offered, in support of this proposition, cases of high authority that have recognized and addressed systemic and direct discrimination against Indigenous persons by modifying legal rules or practices. Examples include recognition of an absolute right for Indigenous offenders to race-based challenges for cause when selecting juries (R. v. Williams, [1998] 1 S.C.R. 1128); upholding the abolition of peremptory challenges to prevent their discriminatory use against Indigenous offenders and Indigenous jurors (R. v. Chouhan, 2021 SCC 26, at paras. 23, 116); taking steps to eradicate prejudicial myths and stereotypes about Indigenous people that can taint judicial reasoning (R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 201); and ensuring that conditional sentences are available to Indigenous offenders, where appropriate (R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311).
[52] They also offered illustrations of the extended application of the Gladue principles, including to bail release (R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309; R. v. Hope, 2016 ONCA 648, 133 O.R. (3d) 154); sanctions for civil contempt (Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, leave to appeal refused, [2008] S.C.C.A. No. 357); parole revocation hearings (Twins v. Canada (Attorney General), 2016 FC 537, [2017] 1 F.C.R. 79); and Law Society disciplinary proceedings (Law Society of Upper Canada v. Robinson, 2013 ONLSAP 18). They also point to United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, in which a judicial review of the decision of the Minister to extradite two accused Indigenous offenders succeeded because the Minister did not properly consider their Indigenous status and the Gladue principles in deciding whether their extradition would be contrary to the Charter.
[53] In addition, Mr. K and the ALS point out that the Supreme Court of Canada has recognized that “discrimination experienced by Indigenous persons, whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system”: Ewart v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57. They submit that the developments they have identified are examples of a more general obligation on courts that was articulated by Moldaver J. in Barton, at para. 200:
[O]ur criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons … head on.
(4) The Relevance of Overrepresentation
[54] Mr. K and the ALS do not rely solely on these analogous developments and the general obligation that they have identified. They point out that the Gladue principles developed in response to the overrepresentation of Indigenous persons in custodial settings, a problem that persists over two decades after that decision was released. They contend that Indigenous persons tend to plead guilty at a higher rate than non-Indigenous persons, thereby exacerbating the problem and giving urgency to the application of the Gladue principles where Indigenous persons apply to withdraw their guilty pleas.
[55] Even though Mr. K did not bring a fresh evidence application to establish that Indigenous persons plead guilty at a higher rate than non-Indigenous persons, I am prepared to take judicial notice of this phenomenon for the reasons that follow.
[56] Importantly, this is a social framework fact about the social context in which this litigation is occurring. In R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, Binnie J. affirmed that judicial notice should not be taken of any facts, including social framework facts, unless the test of “notoriety” and “indisputability” has been met. He recognized, however, that a more flexible approach applies when taking judicial notice of social framework facts, rather than adjudicative facts that relate directly to the incident or event being litigated. He explained, at para. 65, that when considering whether to take judicial notice of a social framework fact:
[A] court ought to ask itself whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition in controversy. [Emphasis in original.]
[57] The proposition that Indigenous accused persons plead guilty at higher rates than non-Indigenous accused persons is an important observation, since it adds credence to the suggestion that the experiences of Indigenous persons may influence the decision to plead guilty. Moreover, if a disproportionately high number of Indigenous accused persons plead guilty, this can only exacerbate the relative overincarceration of Indigenous persons in Canadian custodial settings.
[58] Given the central purpose for which judicial notice is to be used in this case, a high level of reliability or trustworthiness is needed before judicial notice can be taken. I would conclude that this high level is met for four reasons.
[59] First, the proposition advanced is consistent with the notorious and indisputable fact that Indigenous persons are overrepresented generally in the criminal justice system.
[60] Second, the Crown has not taken issue with the claim that Indigenous offenders tend to plead guilty at higher rates than non-Indigenous offenders.
[61] Third, the urgent need to redress the effects of discrimination in the criminal justice system has promoted a high tolerance for judicial notice relating to discrimination against Indigenous persons and its effects: Ipeelee, at para. 60.
[62] Fourth, and most importantly, Mr. K and the ALS have provided a rich body of credible information, much of it stemming from public institutions commissioned to inquire into anti-Indigenous discrimination in the criminal justice system, verifying this phenomenon: First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci (Toronto: Ontario Ministry of the Attorney General, 2013), at para. 215; Report of the Aboriginal Justice Inquiry of Manitoba by the Honorable Alvin Hamilton and the Honorable Murray Sinclair (Winnipeg: Aboriginal Justice Inquiry of Manitoba, 1991); Department of Justice, Guilty Pleas among Indigenous People in Canada (Ottawa: Department of Justice Canada, 2017), at pp. 9-13; Kent Roach, “You Say You Want a Revolution?: Understanding Guilty Plea Wrongful Convictions” (2021), online: SSRN https://ssrn.com/abstract=3869888; Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention by Abby Deshman and Nicole Myers (Canadian Civil Liberties Association and Education Trust, 2014), online: https://ccla.org/wp-content/uploads/2021/07/Set-up-to-fail-FINAL.pdf.
[63] In my view, reasonable people who have taken the trouble to inform themselves would accept that the proposition that Indigenous persons tend to plead guilty at materially higher rates than non-Indigenous persons is reliable and trustworthy enough to be judicially noted for the purpose of determining the proper application of Gladue principles when an Indigenous person applies to withdraw their guilty plea.
[64] Several of the reports I have identified offer explanations for this phenomenon. The most relevant explanation was offered by The Honorable Frank Iacobucci in, First Nations Representation on Ontario Juries, at para. 215372, who explained that many Indigenous people plead guilty because they “‘believe they will not receive a fair trial owing to racist attitudes prevalent in the justice system”. I would also accept this proposition, which is a logical outcome of the despair that Indigenous persons no doubt face when caught up in the criminal justice system.
[65] Finally, Mr. K relies upon the decision in R. v. Ceballo, 2019 ONCJ 612 as a persuasive precedent illustrating the operation of Gladue principles during an application to withdraw a guilty plea. In Ceballo, Rondinelli J. exercised discretion to permit an Indigenous woman to withdraw her guilty plea after rehearsing the broad application of Gladue principles, and after accepting, at para. 16, the conclusion of the Report of the Saskatchewan Indian Justice Review Committee (Saskatchewan: Saskatchewan Indian Justice Review Committee, 1992) that Indigenous women who are incarcerated “suffer tremendous displacement and emotional stress due to incarceration and separation from family”. This had relevance to Ms. Ceballo, who the judge found to have pleaded guilty in material part because of the inordinate pressure she was under to reunite with her daughter, who was subject at the time to child protection proceedings. He found that this pressure undermined the voluntariness of Ms. Ceballo’s guilty plea.
(5) The Legal Test for Withdrawing Mr. K’s Guilty Pleas
[66] There is no closed list of valid grounds for withdrawing a plea: R. v. T.(R.), at para. 10. Naturally, applications to withdraw guilty pleas will tend to allege that one or more of the prerequisites to a valid plea were unsatisfied at the time the plea was entered. There are three such prerequisites. To be valid, a guilty plea must be “voluntary”, “unequivocal”, and “informed”: R. v. T.(R.), at para. 14.
[67] Mr. K does not claim that his plea was equivocal or uninformed. Rather, it is his contention that it was not voluntary. “A voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: R. v. T.(R.), at para. 16.
[68] There are a range of ways that volition can be destroyed, including coercion, improper inducements or pressure imposed, [1] and incapacity. As I have explained, Mr. K has not sought to support his application to withdraw his guilty pleas on the basis that they were coerced. Nor does he suggest that his pleas were induced inappropriately. The claim he advances before us, like the claim he made before the trial judge, is that he lacked the subjective capacity to make a volitional choice to plead guilty.
[69] The capacity to make a volitional choice to plead guilty is not high. In R. v. M.A.W., 2008 ONCA 555, 237 C.C.C. (3d) 560, the Crown argued for a “limited cognitive capacity” test, the same standard used to determine an accused’s fitness to stand trial, or to resolve whether confessions are the voluntary product of an operating mind. The Crown submitted, based on that standard, that no more is required than an ability to understand the process, communicate with counsel, and make active or conscious choices. There is no requirement that those choices be wise or rational or in the accused’s best interest.
[70] The appellant in that case encouraged the Court to reject the limited cognitive capacity test and adopt a higher test on the basis that the limited cognitive capacity test would allow pleas to be made by those who, because of their mental state, feel there is no other option than to plead guilty because their thinking is “irrational, hopeless and helpless”. This court nonetheless adopted the Crown’s position, noting in the process that an applicant “cannot succeed if he can merely show that his decision to plead guilty was not rational or in his best interests, or even that he was incapable of making a decision that was rational or in his best interests”: at para. 36.
[71] Laskin J.A., for the court, gave two reasons for this outcome. First, he concluded that a uniform standard of mental capacity should apply across related issues, noting that “it would be incongruous to find an accused mentally competent to stand trial, yet unfit to enter a valid plea”: at para. 32.
[72] Second, Laskin J.A. concluded that the liberty interests of accused persons supported this standard. In an adversarial system, the autonomy and the choices of an accused person who is capable of conducting his or her own defence should be respected, otherwise the law would inappropriately “smack of paternalism”: at para. 35.
[73] There are two further points that deserve emphasis, given the nature of the issue before us. First, as Laskin J.A. emphasized in M.A.W., at para. 33, the inquiry into volition is entirely subjective, an outcome consistent with the general observations made by Moldaver J. in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, including at paras. 12 and 20.
[74] Second, it is important to bear in mind that a plea of guilty “entered in open court in the presence of counsel [is] presumed to be voluntary. The presumption is rebuttable” but the onus is on the party seeking to withdraw a guilty plea: R. v. Cherrington, 2018 ONCA 653, at para. 21. Given the issue he raised, then, the onus was on Mr. K to demonstrate, on a balance of probabilities, that he “lacked the capacity to make an active or conscious choice to plead guilty”: Cherrington, at para. 21.
(6) Gladue Principles and Applications to Withdraw Guilty Pleas
[75] I fully accept the general obligation of judges to take reasonable steps to address systemic bias, prejudice, and stereotypes against Indigenous persons. I am not persuaded, however, that this translates into a specific obligation to inquire in every case where a person known to the judge to be Indigenous seeks to withdraw a guilty plea. I will offer three reasons for my conclusion.
[76] First, Mr. K and the ALS are not simply asking us to apply the Gladue line of authority by recognizing the impact that systemic and direct discrimination play in the criminal justice system and to take measures to ensure that this crucial appreciation is applied during applications to withdraw guilty pleas. They are asking us to impose an affirmative duty on trial judges, faced with an application to withdraw a guilty plea, to raise the issue of whether the experiences of an Indigenous person have affected the volition of their decision to plead guilty, even when the Indigenous person or their counsel have not done so.
[77] As I have explained, Canadian courts have appropriately modified traditional adversarial principles and imposed such duties before but in every case, this has been where courts are imposing sanctions or dispositions on offenders. An application to withdraw a guilty plea does not involve the imposition of a sanction or disposition on offenders. Quite simply, acceding to the position that Mr. K and the ALS advance would not mark another application of existing Gladue principles. Instead, it would mark a material and problematic extension of the affirmative obligation that has been imposed pursuant to those principles. I will elaborate.
[78] Gladue itself is a sentencing case. During a sentencing hearing, the trial judge is charged with the responsibility of arriving at a fit sentence. In Gladue, the Supreme Court of Canada recognized that the systemic and direct discrimination against Indigenous persons is an omnipresent evil, and that the effect of discrimination on the offender is highly relevant information required to arrive at a fit sentence. In those circumstances, the case law evolved to make it crystal clear that Indigeneity is so important a consideration in arriving at a fit disposition that judges must be obliged to augment the adversarial system by ensuring that they have the information they need to discharge their existing responsibility to impose a just disposition.
[79] Parallel reasoning suggests that anytime courts are discharging their obligation to identify a fit disposition for Indigenous offenders, the same duty should apply. This line of reasoning explains the extension of the original Gladue principles to bail hearings, disposition hearings for mentally disordered offenders, hearings to sanction civil contempt, parole revocation hearings, and hearings to identify professional disciplinary sanctions. Even in Leonard, the Minister was required to consider the experiences of the Indigenous accused in order to gauge whether the Americans were apt to impose a disposition that was disproportionately harsh relative to the sentence a Canadian court would consider to be just, and therefore contrary to the Charter.
[80] In contrast, in an application hearing to determine whether a plea can be withdrawn, a trial judge is not being asked to impose a disposition or sanction on the applicant. Nor is the trial judge discharging a duty to identify a fit disposition or sanction at the behest of a prosecutor. Instead, they are responding to an application initiated by an applicant that is based on their subjective state of mind.
[81] Indeed, unlike a hearing where the judge has a duty to arrive at a fit sentence or sanction, in an application to withdraw a guilty plea, the applicant bears the onus of proof. This onus involves raising the material issues and presenting the required evidence.
[82] Simply put, I see a world of difference between requiring a judge to acquire information about the Indigenous experiences of an offender that is needed to discharge an existing judicial obligation to arrive at a fit disposition, and requiring a judge to open a new issue relating to the effect that the Indigeneity of an accused person may have had on their subjective state of mind, when the accused person, who bears the onus, has not themselves raised any suggestion that their experiences as an Indigenous person have had any relevant effect.
[83] Second, given the legal test that a judge must apply in determining whether an accused person has entered a voluntary plea, the experiences of the accused as an Indigenous person will not have the pervasive relevance that they tend to have when sanctions or dispositions are being imposed. Indeed, the hard truth is that Indigenous experiences are not commonly going to be relevant during an application to withdraw a guilty plea, given the state of the law. Even accepting the proposition that an Indigenous person’s experiences can engender feelings of hopelessness and resignation, such feelings are not apt to be material to such an application unless those feelings of hopelessness or resignation are of such intensity that they veritably preclude the ability of the individual to make active or conscious choices. It is not enough that the person has made the choice to give up and has decided to plead guilty. Save in those cases where the experiences of an Indigenous person have compromised their mental fitness, the proposed inquiry is not likely to lead to relevant information. Under the current state of the law there is therefore no need for the kind of routine inquiry that is being suggested.
[84] It is important to reaffirm in this regard that, unlike situations where the absence of volition is undercut by unseen coercion or unknown inducements or pressure exerted, I am speaking of the mental capacity of the individual seeking to withdraw the plea. If that individual is so broken by their experiences that they have lost the ability to make active or conscious choices and are unfit to stand trial, there will almost certainly be signs that something is amiss. As I will explain below, where there are signs that something is amiss relating to the capacity of the accused to enter a guilty plea, the trial judge has a duty to make the required inquiries.
[85] Third, the submission that is being advanced before us has unappealing practical implications. I am not referring to the risk, discussed during oral submissions, that the proposed inquiry would delay the application to withdraw. I am concerned that if the obligation being imposed exists when an Indigenous accused person applies to withdraw a guilty plea, that same obligation would have to apply at the time the guilty plea is entered. There is no principled basis for confining the obligation to the former situation and not the latter. Every time an Indigenous person offers a guilty plea, the presiding judge would therefore be required to raise that person’s Indigeneity to effectively determine if they are mentally competent to enter the plea. Although well-intentioned, it risks undermining the integrity and competence of Indigenous persons to presume that such inquiries are required. Opening the door, as Mr. K and the ALS ask us to, would risk promoting offensive stereotypes about the ability of Indigenous peoples to make important personal decisions free from paternalistic interference. Indeed, this is the very inquiry into the ability of an accused to make a voluntary guilty plea that Laskin J.A. cautioned would “smack of paternalism” in M.A.W. at para 35.
[86] Moreover, as Mr. K and the ALS have emphasized, Indigenous offenders remain tragically and significantly overrepresented in the criminal justice system. Those who have toiled in the courts are aware that few pleas occur on the set trial date. They instead tend to occur in busy plea courts where significant numbers of individuals, too many of them Indigenous, plead guilty, often for time served or short sentences of incarceration. The proposed obligation would not only add to court delay – a secondary concern – but it could result in delay in receiving the pleas of Indigenous offenders who for legitimate reasons simply want to resolve the matter expeditiously.
[87] Indeed, many Indigenous offenders plead guilty in dedicated Gladue courts. These courts typically carry heavy dockets, not only because of the overrepresentation of Indigenous offenders but also because of the focused attention that each offender is given in order to meet the demands of the Gladue principles. The proposed obligation could aggravate delay in Gladue courts, prolonging the exposure of Indigenous offenders to the stresses and restrictions of the criminal process.
[88] Simply put, although the proposal to impose an affirmative duty on trial judges to raise the issue of whether the experiences of an Indigenous person have affected the volition of their decision to plead guilty is offered as a way to improve the liberty of Indigenous offenders, it would in my view be more likely to have the opposite effect of delaying liberty.
[89] My rejection of the proposed affirmative obligation of inquiry that Mr. K and the ALS advocate should not be taken as a rejection of Gladue principles or of the obligation that judges have to address bias, systemic discrimination, and prejudicial stereotypes against Indigenous persons. Rather, to my mind, there is a better way of addressing the concern that Mr. K raises, which is already grounded in existing principles.
(7) The Duty to Inquire
[90] Section 606(1.1) of the Criminal Code permits a court to accept only voluntary guilty pleas. It provides:
606 (1.1) A court may accept a plea of guilty only if it is satisfied that (a) the accused is making the plea voluntarily; (b) the accused understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (c) the facts support the charge.
[91] Section 606(1.2) provides:
606 (1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
[92] In R. v. G.(D.M.), 2011 ONCA 343, 105 O.R. (3d) 481, at para. 42, Watt J.A. explained the effect of these provisions. He affirmed that “s. 606(1.1) imposes an obligation on the presiding judge to satisfy him or herself of the voluntary and informed nature of the plea”. He then said that even though the failure to make an inquiry does not affect the validity of the plea, “an inquiry is mandatory nonetheless”.
[93] This is not a toothless obligation. The fact that a failure by a judge to discharge that obligation is not per se a reversible error, reflects the fact that an appeal based on an improper guilty plea alleges a miscarriage of justice, and a miscarriage of justice does not occur unless the act, omission, or event complained of is prejudicial: Wong, at paras. 1, 5-6, 44, and 78. If the failure of a trial judge to conduct a plea inquiry had no prejudicial effect because the plea was informed, unequivocal, and voluntary, there is no sound basis to raise the judge’s failure to conduct a plea inquiry as a ground of appeal.
[94] This is sensible. The duty to inquire into the validity of a guilty plea is not meant to be a pro forma exercise that leads to an automatic reversal if not attended to. It is a purposeful obligation, and if the failure to discharge that obligation is of no consequence because the plea was nonetheless valid, no ground of appeal arises. This does not mean that the failure to inquire cannot affect the outcome of an appeal. As the decision in R. v. Beckford, 2019 ONCA 998 reflects, at para. 43, a judge’s failure to conduct a plea inquiry can leave the door more readily open to a finding that a plea was not valid.
[95] Quite clearly, to discharge the mandatory duty to inquire that arises from s. 606(1.1), a judge must inquire into apparent indications that there may be a problem with the validity of the guilty plea. Even in the era prior to the passage of s. 606(1.1) when there was no general mandatory judicial duty to inquire, it was expected that judges would exercise discretion to conduct inquiries if, in the circumstances, it was made to appear that a plea of guilty was improper: Brosseau v. The Queen, [1969] S.C.R. 181 at pp. 188-190; R. v. Adgey, [1975] 2 S.C.R. 426, at pp. 442-44.
[96] Based on this settled law, it follows that if there are indications at the time a plea is being entered that an Indigenous person’s experiences may be having an adverse effect on the integrity of the guilty plea that is being entered, the trial judge is obliged to inquire to see if this is so. In my view, that same obligation would hold true where an Indigenous person subsequently applies to withdraw their guilty plea. After all, the authority of a trial judge to allow the withdrawal of a plea is a continuation of the discretionary authority to accept a plea: R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 44. Moreover, the criteria for accepting a guilty plea – that it be informed, unequivocal, and voluntary – remain the same.
[97] It is not entirely clear from the decision in Ceballo who raised the issue of the impact of Ms. Ceballo’s Indigeneity on her decision to plead guilty. If it was Rondinelli J. who did so, Ceballo would provide commendable example of the discharge of this obligation. In that case, Rondinelli J. noted at para. 14:
In my view, there is pressure and then there is pressure. This was not a situation in which Ms. Ceballo felt the type of anxiety and pressure that accused persons typically feel when they decide to plead guilty to a criminal offence. Instead, this guilty plea came at a very trying time in Ms. Ceballo’s life. She was in custody at the time of the guilty plea; she was dealing with some other outstanding significant criminal matters; and she was dealing with court proceedings relating to the custody of her daughter. I had the opportunity to observe Ms. Ceballo’s demeanour on a number of court appearances. I noted a growing sense of frustration and despair with each passing court appearance. As Ms. Ceballo testified, “I haven’t been given a fair chance in life, period. Not just in the courts.” Ms. Ceballo had trouble retaining counsel … With each day in custody, Ms. Ceballo saw her chances of being reunited with her children slipping away. [Emphasis in original.]
[98] In these circumstances, there is a foundation for believing that Ms. Ceballo’s experiences and perspective as an Indigenous woman may well have influenced the pressure she was under, thereby compromising the voluntariness of her guilty plea. A trial judge encountering a similar situation would be right to initiate an inquiry.
[99] In this way, by considering the impact that the experiences and perspectives of an accused Indigenous person may have had on the integrity of their decision to plead guilty in any case where those experiences appear to be relevant, courts can discharge their obligation to address systemic discrimination.
(8) The Duty to Inquire was not Triggered
[100] In this case, nothing occurred to require the trial judge to inquire into Mr. K’s experiences as an Indigenous man during the application to withdraw his guilty pleas. Mr. K did not raise the issue, and there is nothing on the record before us that should have caused the trial judge to make such an inquiry. In fact, there were factors that strongly suggested that Mr. K’s decision to plead guilty was voluntary and competent such that no inquiry would be needed.
[101] First, a plea inquiry was conducted. Not only did Mr. K pledge the voluntariness of his plea during the plea inquiry, but as the trial judge observed, his responses in court revealed “significant cognitive capacity”.
[102] Second, when Mr. K brought his application to withdraw his guilty plea, he identified a particular event that allegedly altered his capacity, namely his time in segregation. Implicit in his dedicated claim that segregation deprived him of capacity is an acknowledgment by him that prior to segregation, despite any challenges he experienced as an Indigenous man, he had the capacity to make active or conscious choices.
[103] Indeed, the evidence in the Gladue report that was furnished to the trial judge prior to Mr. K’s sentencing affirmed that Mr. K’s volition was not compromised by his experiences as an Indigenous person. As the underlined passages from the Gladue report, reproduced above in paras. 23-24, show, Mr. K is quoted speaking of his strong problem-solving skills, and of how segregation caused him to “develop” a “disability in [his] decision-making capabilities” such that his “mind set isn’t the same as it was when [he] started”. He complained of not being able to make decisions “anymore”. Once again, this evidence can only be understood as an affirmation that Mr. K’s capacity to make decisions was unaffected by his experiences as an Indigenous person.
[104] In sum, Mr. K’s application before the trial judge turned on the impact that segregation had on his volition. The trial judge considered that claim and exercised his discretion to reject it. There was nothing requiring him to go further and initiate an inquiry into the impact that Mr. K’s experiences as an Indigenous person had on his volition. Even if the trial judge had been under a duty to make such an inquiry, this ground of appeal would fail. The admissions made by Mr. K in the Gladue report about his capacity despite his painful experiences as an Indigenous person show beyond all question that such failure to inquire would not have resulted in a miscarriage of justice.
[105] I would therefore dismiss this ground of appeal.
C. Was it unreasonable for the trial judge to treat segregation as a voluntary choice made by Mr. K?
[106] The trial judge’s consideration of Mr. K’s request to be placed in segregation was not unreasonable. The issue, as posed by Mr. K, does not fairly capture the trial judge’s reasoning. The trial judge did not deny Mr. K’s application because his decision to go into segregation was “voluntary”. To the trial judge, the relevance of Mr. K’s request for segregation, and his thankfulness for having been segregated, arose from the indisputable fact that segregation helped alleviate Mr. K’s concern about his safety, notwithstanding the horrendous conditions of being placed in segregation. Since Mr. K wanted segregation, even as a desperate measure for self-preservation, the stress of being in segregation was lessened by the relief that segregation offered him. I see no problem with this reasoning.
[107] I would therefore dismiss this ground of appeal.
CONCLUSION
[108] In my view, the trial judge gave a cogent, well-reasoned basis for rejecting Mr. K’s claim that the segregation deprived him of the capacity to make a voluntary decision to plead guilty. Moreover, the circumstances surrounding the plea at issue strongly suggest that Mr. K made the choice to plead guilty because of the imposing strength of the case against him, and to demonstrate that he accepted responsibility for his actions in the hope that by doing so he could temper the significant punishment he had coming for the brutal crimes he committed against the complainant. I can see no basis for setting aside Mr. K’s plea.
[109] For the reasons above, I would dismiss Mr. K’s appeal.
Released: November 19, 2021 “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “S. Coroza J.A.”
[1] See R. v. Lamoureux (1984), 13 C.C.C. (3d) 101 (Que. C.A.) and R. v. Rajaeefard (1996), 27 O.R. (3d) 323 (C.A.).
