COURT OF APPEAL FOR ONTARIO

DATE: 20000511

DOCKET: C30124

FINLAYSON, WEILER and GOUDGE JJ.A.

B E T W E E N :
Christopher Watkins and
Robert Sutherland,
HER MAJESTY THE QUEEN
for the appellant

(Respondent)

–and–
M. David Lepofsky and
Anthony Loparco,
for the respondent

MICHAEL JOHN HECTOR

(Appellant)

Heard: April 20, 2000

On appeal from the convictions before Maloney J. on May 5, 1997
of three counts of first degree murder. These reasons follow the
dismissal of this appeal on April 20, 2000.

FINLAYSON J.A.:

[1] The appellant was convicted on May 5, 1997 after pleading
guilty to three charges of first degree murder in the Superior
Court of Justice at Thunder Bay before the Honourable Mr. Justice
Maloney. He was sentenced to life without the possibility of
parole for 25 years on each conviction, to be served
concurrently. He appeals and asks that he be permitted to
withdraw his pleas of guilty and enter pleas of not guilty in
their place.

[2] The appellant brings a fresh evidence application related to
the circumstances surrounding his decision to plead guilty
including the legal representation he received up to and during
the plea process. Additionally, he seeks to introduce as fresh
evidence the circumstances under which an accused in an unrelated
matter, who was represented by the same defence counsel, plead
guilty to certain offences.

[3] The fresh evidence relating to these three pleas of guilty
is extensive. While in overview the appellant takes the position
that his pleas were not voluntary and that he was deprived of the
effective assistance of counsel, there is no compelling evidence
in this record to support such a stance. Rather, it would appear
that the appellant has persuaded himself, well after the fact,
that the Crown would be unable to obtain convictions if put to
the proof of his guilt and that he made a mistake in pleading
guilty.

[4] In return for the guilty pleas, the Crown undertook to
consider the following:

1. The Crown would not pursue a dangerous offender application
   against the appellant pursuant to s. 753 of the Criminal Code.
2. The Crown would withdraw charges against his wife for
   obstruction of justice arising out of the police investigation
   into the appellant’s murders and she would immediately be
   released from jail.
3. Upon completion of his pleas and sentencing and the release
   of his wife, the Crown would allow the appellant to visit with
   his wife for one hour.

[5] After plea and sentence, the Crown complied with these
terms. Later, the appellant complained that, in spite of the
clear language of his written instructions to his counsel that he
was ineligible for parole for 25 years, he thought he could take
advantage of the “faint hope” clause in the Code that permits an
application for parole after 15 years. He was also told by some
jailhouse lawyer that he could not be declared a dangerous
offender based on convictions for first degree murder. However,
in the case of the appellant, the Crown was relying, among other
things, on his four separate convictions for robbery, three
conspiracies to commit robbery, one counseling to commit robbery,
one use of a firearm, one possession of a firearm, and one
possession of an unregistered prohibited weapon.

[6] During the course of the argument before this court, counsel
for the appellant effectively abandoned these complaints, along
with a third one that arose after the appellant discovered that
his wife had been unfaithful to him. In the final analysis,
counsel’s argument came down to the single point that the
appellant had never admitted to his trial counsel that he was
guilty and indeed had protested his innocence on numerous
occasions. In these circumstances, counsel submits, the
appellant’s counsel should have refused to permit him to plead
guilty or, at the very least, attempted to talk him out of it.

[7] This submission does not go to any of the issues that we are
concerned with as set out by Doherty J.A. in R. v. T.(R.) (1992),
1992 2834 (ON CA), 17 C.R. (4th) 247 (Ont. C.A.) at p. 252:

To constitute a valid guilty plea, the plea must be
voluntary and unequivocal. The plea must also be
informed, that is the accused must be aware of the
nature of the allegations made against him, the
effect of his plea, and the consequences of his
plea: [Authorities not reproduced].

[8] This is not to say that a defence counsel should not be
concerned if his or her client does not expressly admit guilt
before assisting in a plea arrangement. Here, an experienced
criminal, who had spent the better part of his 35 years in
prison, was well aware of what he was pleading guilty to and the
consequences of such a plea. His trial lawyer was experienced in
criminal matters and was certified as a specialist in Criminal
Law by the Law Society of Upper Canada. He had conducted over 30
jury trials, including more than 20 homicides. He had acted for
the appellant on a previous criminal case. The appellant was
satisfied with his services then and sought him out to represent
him on this occasion. There is no reason to be critical of the
quality of professional advice that he provided on this occasion.

[9] Trial counsel submitted a very thorough affidavit as part of
the fresh evidence adduced by the Crown and, except for a few
details, trial counsel’s narrative as to matters leading up to
the pleas of guilty differs only in emphasis from what emerges
from the appellant’s affidavit and cross-examination.

[10] What is apparent from both affidavits is that the appellant,
while professing his innocence at the outset, did not have any
defence on the merits. He seemed to think that it was up to his
lawyer to provide one. More important, when his counsel
presented him with disclosure material from the Crown, he was
unable to offer any explanation as to the most damaging evidence
that the Crown was prepared to lead. First and foremost, he
could give no explanation as to how the gun which forensic
testing unequivocally connected to all three murders was found in
a duffel bag in his truck, along with the shells of the bullets
that matched those which were found in the victims. Indeed,
while the appellant never admitted that he had the gun, he never
denied it either. Second, when asked to respond to the “will
say” statement of his brother that he would testify that the
appellant had described to him in detail the location of the
gunshots to one of the murder victims, the appellant said to his
lawyer: “You figure it out”. Third, he refused to authorize his
counsel to retain a private investigator, at the expense of Legal
Aid, to investigate possible defences. Fourth, the only alibi
that he offered was that of his wife and this alibi was the
subject of the obstruction of justice charge against her.

[11] Trial counsel’s own words on the appellant’s protestations
of innocence are useful.

22. It is not unusual in my experience for a seasoned
    criminal charged with a serious offence, to profess
    their [sic] innocence even when the evidence indicates
    otherwise and they enter pleas of guilty. In my
    experience this has happened in every murder case I
    have handled. It’s not uncommon for an accused to still
    profess their [sic]innocence even after they’ve had a
    trial by jury and been convicted.
23. What struck me as odd with the appellant was that
    he did not profess his innocence when initially charged
    with the murders. It wasn’t until after a number of
    meetings with him that he just casually threw out the
    statement that he was innocent to see how I would react
    to it. Once the appellant said he was innocent, my
    strategy was to explain why he was in possession of the
    gun that killed three people and to explain why he
    locked the bag containing the gun in the truck. He
    never explained that in any interview that I had with
    him.

[12] As to the issue of the pleas being voluntary, the affidavit
of trial counsel further states:

41. At no time did I feel that the appellant gave me
    instructions to plead guilty because he was being
    forced into it. Rather I believed that he was pleading
    guilty because the case against him was so strong that
    he had no alternative and he wanted any kind of
    concessions [sic] from the Crown that he could get. I
    also felt, until he filed his notice of appeal, that
    he was pleading guilty for the right reasons [sic] of
    saving the three families of the victims the anguish
    of having these matters litigated in court. In my
    assessment, he was very familiar with the working of
    the criminal justice system and the manner in which
    proceedings were conducted.

[13] On the issue of an informed plea, the appellant signed what
is described as an “Agreement” with his trial counsel in which he
acknowledged that his lawyer gave him the Crown’s disclosures to
review in his cell. The appellant acknowledged that he had
reviewed the disclosures. The Agreement then recites:

That I further understand that by entering a plea of
guilty to the three charges pursuant to Section 235(1)
of the Criminal Code of Canada, namely first degree
murder, that I will be receiving a total life sentence
of 25 years and that I do so freely and voluntarily
knowing that I am entitled to have my Trial and put
the Crown to its proof with respect to my charges.

[14] The appellant’s trial counsel deposes that:

78. Prior to the appellant entering his pleas of guilty
    I reviewed the statement of facts to be read in by the
    Crown with the appellant. He read it and I went over it
    with him to make sure he understood. During the review
    of the statement of facts the appellant made no comments
    such as he made after entering the pleas.

[15] Further to the issue of an informed plea, trial counsel
deposes to what took place prior to the plea. His affidavit
states:

72. On May 5, 1997, the day of the plea and sentencing,
    I told the appellant exactly what would happen in terms
    of the proceedings. I told him that as I advised him
    previously he was losing his right to a preliminary
    hearing. Once we got to the General Division court that
    afternoon, I discussed again the consequences of his
    plea. I told him that by entering a guilty plea, he was
    giving up his right to trial and that a plea of guilty
    was an admission of guilt that he had shot three persons.
    I explained that after he had entered his pleas that the
    court clerk would confirm his plea a second time and that
    he would have to acknowledge and confirm that plea. I
    advised him that the Crown would read in a statement of
    facts, which I had gone through and discussed with the
    appellant earlier. I advised him that we would not be
    disputing the facts as read in. The appellant was fully
    aware of and understood all of the procedure and
    consequences and suffered from no impairment whatsoever
    that would prevent him from understanding the procedures
    and consequences. The appellant did not ask me to change
    or add to the statement of facts, that the Crown had
    provided, during that interview. [Emphasis added.]

[16] I have emphasized the passage above because the only
controversy of substance arose either at the above meeting in the
jail cell, as sworn to by the appellant, or during the court
appearance, as described by trial counsel. On the hearing of the
appeal, counsel for the appellant stated that he was prepared to
proceed on the version given by the trial counsel, who stated:

77. After he indicated to me his intention to plead
    guilty, the appellant never sought to change his
    instructions to plead guilty prior to the guilty plea
    proceedings. The only time he equivocated during the
    plea proceedings at all was as follows: During the
    recitation of the facts in the proceedings before
    Justice Maloney on May 5th, the appellant told me after
    entering his plea that he wanted it said that he didn’t
    commit the crimes. What he wanted was to have pleaded
    guilty but have words to the effect that he didn’t kill
    them on the record. I made it very clear to him and
    told him straight out, “No, if you say you didn’t kill
    them then we stop the plea proceeding right now and we
    have a trial, otherwise a plea of guilty is an admission
    of guilt that you committed these crimes.” He agreed to
    that and told me to let the plea stand and the
    proceedings continue. That is why I agreed to let the
    sentencing proceedings continue.

[17] One comment is obvious. The timing of the “equivocation” as
deposed to by the trial counsel is more favourable to the appellant
than his own version. In fact, counsel on appeal made
much of the late-blooming equivocation and stated that trial
counsel was under an obligation to at least ask for a recess and
make sure his client knew what he was getting himself into. My
reaction is that the fact that trial counsel would choose to
contradict his client on this issue says much for his candor. I
prefer his version of all the events that took place and conclude
that the appellant in this instance was simply pushing his luck
at the very last minute. Even without the express instruction
from his counsel that, by his pleas of guilty, he was agreeing
that he shot and killed three persons, he could not possibly have
thought that the court would permit him to plead guilty to
murder and at the same time maintain that he did not commit the
crimes. In any event he was told in unequivocal terms that “if
you say you didn’t kill them then we stop the plea proceeding
right now and we have a trial”. There can be no suggestion, in
the context of the entire plea process, that this exchange
tainted the appellant’s plea. The application to admit the above
fresh evidence is denied.

[18] The balance of the fresh evidence submitted by the appellant
was in the form of two affidavits by a Mr. Deley and Ms. Tkachyk,
sworn December 10, 1999. Taken together, they state in substance
that the appellant’s defence counsel, acting for Mr. Deley on
certain charges unrelated to those in this appeal, pressured his
client into pleading guilty despite his adamant protestations of
innocence. As well, these affidavits suggest that defence
counsel did not properly act on exculpatory evidence that was
provided to him.

[19] We are asked to deal with the admissibility of these
affidavits on a limited basis because the Crown has not had an
opportunity to properly respond to them. Having this in mind,
Doherty J.A. issued a Direction in this case which states in
part:

In my view, however, it would be best to have the
admissibility of the evidence determined by the panel
which hears the rest of the appeal and considers the
entirety of the proposed fresh evidence.... I will
however, direct that if the court hearing the appeal
decides that the affidavits of Deley and Tkachyk may
be admissible and are potentially relevant to the
disposition of the appeal, the Crown shall be given a
reasonable opportunity to investigate the affidavits
and provide responding material before the ultimate
admissibility and probative value of the evidence is
assessed. Consequently, the Crown will not be obliged
to investigate and respond to these affidavits unless
and until the court decides they are admissible and
have some probative value…

[20] I have no hesitation in ruling that these two affidavits
have no probative value and should not be admitted on this
appeal. This is a crass attempt to introduce a collateral matter
that is not probative of whether the pleas in question were
voluntary, unequivocal and informed. The fact, even if proved,
that trial counsel fell below an acceptable standard of
professional competence in one case is not probative of whether
he fell below acceptable standards in this case. Effectively, it
puts the professional practice of the appellant’s lawyer on
trial.

[21] This quasi similar act evidence is representative of a
practice, all too prevalent in my opinion, of inviting the court
to venture into a parallel investigation of what, superficially,
appears to be a similar situation, only to find after an extended
hearing that it is every bit as contentious as the primary issue
in the case and most unlikely to be dispositive of it. The
appellant in this appeal had a number of reasons for wanting to
withdraw his plea apart from his dissatisfaction with his counsel
and I am sure that Mr. Deley will as well. In a civil case
involving an allegation of negligence by a client against a
professional person, the court will confine the plaintiff to his
or her case against the defendant and will not permit evidence of
another client’s complaint in a different case involving the same
professional. I do not see why the same rule should not apply
here on an application to withdraw a plea of guilty. The
complaints of another client in an unrelated case are of little
or no probative value and simply extend and confuse the
investigation into the main issue. I think what I said in R. v.
A.R.B. (1998), 1998 14603 (ON CA), 41 O.R. (3d) 361 at 366 (C.A.) bears repeating.

There is a rule of evidence in civil cases relating to
similar fact evidence that has considerable application
to what is proposed here. Where such evidence is
offered, the court has a discretion to reject it unless
if accepted it would not merely “afford a reasonable
presumption as to the matter in dispute but would be
reasonably conclusive, and would not raise a difficult
and doubtful controversy of precisely the same kind as
that which the jury have to determine”: per Lord Watson
in Metro District Asylum v. Hill (1882), 47 L.T. 29 at
p. 35. In Phipson on Evidence, 14th ed. (1990), at
para. 17-25, p. 374, the author states that: “On
principle the court should exercise the same discretion
in a criminal case, whether the evidence is tendered
by the Crown or a defendant”.

[22] It is not necessary that the Crown respond to the affidavits
of Deley and Tkachyk. There is no basis upon which they should
be admitted into evidence on this appeal

[23] Accordingly, for the reasons set out above, the fresh
evidence submitted by the appellant is rejected and his
application to withdraw his pleas of guilty is denied. The
appeal is dismissed.

Released: MAY 11 2000 Signed: “G.D. Finlayson J.A.”
“GDF” “I agree K.M. Weiler J.A.”
“I agree S.T. Goudge J.A.”