DATE: 20050420

DOCKET: C40369

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and CRAIG ROBERT EASTERBROOK (Appellant)

BEFORE:

WEILER, BORINS AND ARMSTRONG JJ.A.

COUNSEL:

Dragi Zekavica

for the appellant

Moiz Rahman and Sara Shaikh

for the respondent

HEARD:

March 31 and April 1, 2005

On appeal from the conviction entered on April 23, 2003 by Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting without a jury.

E N D O R S E M E N T

[1] The appellant seeks an order setting aside his conviction on the ground that his plea of guilty was involuntary, having been entered as a result of death threats made against him and his wife.

[2] On their arraignment, the appellant and two co‑accused pleaded not guilty to a number of charges. Subsequent to the arraignment, the appellant’s lawyer and the crown attorney commenced plea negotiations in which the appellant was a participant. It is the appellant’s position, as a result of the death threats, that he instructed his counsel of his intention to change his plea. The following day, the appellant withdrew his guilty plea and entered guilty pleas to three charges, which were accepted by the trial judge after taking care to obtain the appellant’s assurance that his guilty pleas were voluntary.

[3] In support of his appeal, the appellant filed his own affidavit and another, sworn by his wife, describing the threats that they had received. In response, the crown filed affidavits sworn by the appellant’s trial counsel and the police officer who investigated the alleged death threats. Each affiant was cross‑examined on his or her affidavit, resulting in a sizeable record before this court. In our view, the material submitted by both parties should be received and considered in assessing the validity of the guilty pleas.

[4] Not surprisingly, the evidence respecting the alleged death threats and their effect upon the appellant’s change of plea is contradictory. However, the evidence amounts to more than a mere assertion that the pleas were involuntary based on a subjective view of the facts. The appellant’s evidence includes a copy of an e‑mail containing a death threat that was sent to the appellant’s wife by the person alleged to be responsible for the threats. As we do not have the advantage enjoyed by a trial court, we are not in a position to resolve the conflicts in the evidence. For the same reason, we are unable to reject the appellant’s testimony concerning the alleged death threats.

[5] The record raises a serious issue about the voluntariness of the appellant’s pleas of guilty. We appreciate that the burden is on the appellant to satisfy this court on a balance of probabilities that his guilty pleas were involuntary. As the record contains objective evidence, if believed, that would justify striking out the appellant’s guilty pleas, we are content that the burden has been satisfied in the circumstances of this case. Accordingly, we would allow the appeal.

[6] The appellant has also raised a concern about the effectiveness of the assistance provided by his trial counsel. Given our conclusion on the voluntariness of the pleas, there is no need to consider that issue.

[7] In the result, we would allow the appeal, strike out the appellant’s pleas of guilty , quash his convictions and order that a new trial be held.

“K. M. Weiler J.A.”

“S. Borins J.A.”

“Robert P. Armstrong J.A.”