DATE: 20000822 DOCKET: C32266

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– CHANA DJEKIC (Appellant)

BEFORE: FINLAYSON, GOUDGE AND FELDMAN JJ.A.

COUNSEL: Gregory Lafontaine, for the appellant

Ian Bulmer, for the respondent

HEARD: August 11, 2000

On appeal from the conviction by The Honourable Mr. Justice T.G. O’Hara at Newmarket, Ontario dated November 24, 1998 and sentence dated May 31, 1998.

E N D O R S E M E N T

[1] The appellant pleaded guilty on November 24, 1998 to one count of welfare fraud over $5,000.00. She wishes to withdraw that plea on the basis that it was not made voluntarily but was made under pressure and in circumstances which vitiated the voluntariness of the plea.

[2] On May 14, 1998 the case was set for a preliminary hearing on December 1, 1998. In October of that year, Officer Kerr obtained information that the appellant was tampering with the witness and intended to charge her with obstructing justice. Officer Kerr informed appellant’s counsel of this in November and as a result, counsel had the case brought forward for a judicial pre-trial on November 23. The appellant was not in court on that date and the pre-trial was put over to the next day. At that time defence counsel, Crown counsel, the officer and the judge held the judicial pre-trial. The Crown suggested a sentence of two years on a guilty plea while the pre-trial judge proposed that on a plea of guilty, a one-year sentence would be appropriate and that in those circumstances, no obstruct justice charge should be laid.

[3] After the pre-trial, the appellant, who had attended court with her infant, was told about the pre-trial discussion and the fact that the officer intended to arrest her that day, and charge her with obstruct justice and hold her in custody pending a show cause hearing. The officer called the Children’s Aid Society to look after the infant and the appellant called her mother for the same purpose.

[4] The appellant was upset and was under pressure to decide whether to plead guilty in accordance with the pre-trial discussion or to be arrested that day on the new charge. She had trouble deciding what to do but eventually agreed to plead guilty. However, while she was considering what to do, the case was called and the presiding judge said the following to the appellant in open court:

THE COURT: Yes.

MR. Grummett, you’re acting on this matter or not?

MR. GRUMMETT: Well, I haven’t been able to get any instructions, Your Honour.

THE COURT: Well, Miss. Djekic, I understand that this matter is up today, I understand you have a preliminary hearing coming in just a few days and once that starts and there's a – and I am also given to understand there’s another charge waiting for you, so what are you going to do with all this?

MISS DJEKIC: I don’t know, I’m just waiting for my mom to come.

THE COURT: All right. And do you think you’ll be in a better position to instruct counsel after you’ve talked to her and have someone to look after the child?

MISS DJEKIC: Yeah.

THE COURT: Do you want me to stand it down for a little while?

MISS DJEKIC: Please.

THE COURT: Will you wait Mr. Grummett?

MR. GRUMMETT: Yes, I will.

THE COURT: All right.

Try -- ma’am, I – I - I can see that you’re upset, but I also -- I - I have not only a responsibility to be fair to you and I’m going to try to do that as best I can, but I’ve also got a whole day of court time coming up and at the moment I don’t know how to say this politely, we had a pretrial, we discussed the issue with the Crown Attorney and your lawyer, who’s very experienced, and we persuaded -- your lawyer and the Crown lawyer with a little bit of help at the pretrial persuaded an officer not to arrest you just yet in the hope that we could work out something, but there’s a charge there that is going to have to be dealt with unless we can work it out, today. So, you have got to get yourself under control and give some hard thought….

MISS DJEKIC: Well, I didn’t know I was coming here today for this.

THE COURT: Well, you were lucky not to be coming in custody. So, I think you need to go and get under control and speak to your mother, get somebody to look after the child and give some really hard thought to this, today. All right? Thank you.

MR. GRUMMETT: Thank you, Your Honour.

[5] Following the plea the case was put over for sentencing to the end of January, but the appellant was not sentenced until May as the judge was ill. However, the appellant advised both the pre-sentence reporter and her new counsel that she wished to withdraw her plea and to plead not guilty. Unfortunately, her second counsel advised her to wait to raise the issue on appeal rather than before sentencing.

[6] This Court set out the law with respect to withdrawal of a guilty plea in the case of R. v. T. (R.) (1992), 1992 2834 (ON CA), 17 C.R. 247. To be valid, a guilty plea must be made voluntarily and unequivocally. On an appeal the appellant has the onus of showing that the plea was invalid. The plea will be presumed voluntary unless the contrary is shown. At p. 253 the Court set out some of the factors which may affect the voluntary nature of the plea:

Several factors may affect the voluntariness of a guilty plea. None are present in this case. The appellant was not pressured in any way to enter guilty pleas. Quite the contrary, he was urged by duty counsel not to plead but to accept an adjournment. No person in authority coerced or oppressed the appellant. He was not offered a “plea bargain” or any other inducement. He was not under the effect of any drug. There is no evidence of any mental disorder which could have impaired his decision-making processes. He is not a person of limited intelligence.

[7] The appellant had not given any instructions to her counsel to discuss a guilty plea on her outstanding charge and was confronted on her arrival on November 24 with a fait accompli arranged without any authorization by her and sanctioned by a judge. She now faced not only with the prospect of being arrested and held in custody on a new charge, but of having to make a decision about her pending charge, which she did not know was going to be dealt with at all on that day.

[8] Our concern is that in those circumstances the pre-hearing judge, clearly a person in authority, spoke to the appellant in a way which put significant pressure on her to make a decision about her case on that day when she had to consider the immediate needs of her child, all the circumstances of the new charge she would be facing, as well as the considerations relating to the existing charge. Although he no doubt had the best interest of the appellant in mind, it was unfortunate and inappropriate for the presiding judge to speak to the appellant about those issues in the circumstances. It was the role of her counsel to do that and to advise her with respect to her choices and the timing of those choices.

[9] Given the comments made by the presiding judge in this situation, we are satisfied the appellant’s guilty plea was not made voluntarily. She was emotionally distraught, as the judge observed , she had to deal with her child, the issue of a potential penitentiary sentence if she did not accept a plea, as well as the fact that she had not attended court on that date prepared to consider the full disposition of her charge. In those circumstances she was told by the trial judge that she was “lucky not to be coming into custody”. This would certainly put significant pressure on a person to follow the suggestion of the judge.

[10] In our view, the guilty plea and sentence must be set aside in this case and a trial ordered.

[11] The appeal is therefore allowed.

Signed: “G.D. Finlayson J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”