COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O.W., 2012 ONCA 372

DATE: 20120605

DOCKET: C54799

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

O.W.

Appellant

O.W., acting in person

Erin Dann, as duty counsel

Eliott Behar, for the respondent

Heard: May 14, 2012

On appeal from the conviction entered on June 29, 2009 and the sentence imposed on June 29, 2009 by Justice Todd Ducharme of the Superior Court of Justice, sitting without a jury.

By the Court:

[1] In June 2009, O.W. pleaded guilty to aggravated assault. He received a four-year sentence less 21 months credit for pre-sentence custody. He has now served the custodial portion of his sentence.

[2] O.W. appeals his conviction on the sole ground that his plea of guilty was involuntary. He asks this court to set aside his plea and order a new trial. In support of his appeal, he seeks leave to introduce fresh evidence.

The Offence and the Plea

[3] O.W. and his co-accused, Hutchinson, attacked the complainant over an unpaid drug debt. The prosecution alleged that O.W. stabbed the complainant in the back three times and that Hutchinson hit the complainant in his face and upper body.

[4] O.W. was represented by a lawyer during the plea proceedings. Before pleading guilty he confirmed to the court and to his lawyer that he understood that he was waiving his right to a trial and that his plea was of his own free will. After the plea, the Crown read into the record facts in support of the finding of guilt.

The Fresh Evidence

[5] O.W. seeks to introduce as fresh evidence his own affidavit, on which he was extensively cross-examined, and the affidavit of a legal assistant, which appends a medical report.

[6] In essence, O.W. claims that his plea was involuntary because Hutchinson allegedly threatened to kill him if he did not plead guilty. He explained this threat as follows.

[7] In mid-May 2009, about a month and a half before his guilty plea, O.W. was transferred from another institution to the Don Jail. At the time, Hutchinson was also incarcerated at the Don Jail. Both were on the same range, 3C South.

[8] O.W. claims that Hutchinson threatened to kill him unless he pleaded guilty for two reasons. First, Hutchinson wanted O.W. to take the blame for the assault on the complainant to cover up his own involvement. And second, Hutchinson knew O.W. was aware of his involvement in an unrelated murder and was concerned O.W. would speak to the police about it. Hutchinson wanted O.W. to plead guilty so he would be deported and thus, would not provide any information to the police.

[9] O.W. claims that while he was at the Don Jail, Hutchinson and several of his friends attacked him. He suffered a swollen eye, a bloody nose and a cut to his face. The medical report filed on his application confirms these injuries.

[10] O.W. also claims that he was forced by Hutchinson to write the letter of apology that he tendered to the court at his sentencing hearing. He maintains that another inmate gave him the letter and told him to copy it in his own handwriting. O.W. says that he suspects the letter came from Hutchinson.

[11] Finally O.W. acknowledges that he told the court he was pleading guilty of his own free will and that he signed written instructions to his lawyer to take a guilty plea. However, he contends that he did not tell his lawyer the truth and that he had no choice but to plead guilty. He says that he has no motive to falsify his evidence because he has served the custodial portion of his sentence, and is now simply on an immigration hold.

Discussion

[12] O.W. has the onus to show on a balance of probabilities that his plea was involuntary. We have considered his affidavit evidence and his cross-examination, and have concluded that his evidence is not sufficiently credible to satisfy his onus. In reaching this conclusion, we have taken account of the following considerations.

(a) The two reasons O.W. gave for why Hutchinson threatened to kill him if he did not plead guilty are not credible. O.W.’s claim that Hutchinson wanted him to plead guilty so he would take the blame for the assault is not credible because by the time O.W. pleaded guilty he knew that the charges against Hutchinson had been withdrawn.

O.W.’s claim that Hutchinson wanted him to plead guilty so that he would be deported (and therefore not speak to the police) is not credible because O.W. was already subject to deportation as a result of receiving a penitentiary sentence for a previous offence.

(b) The submission by O.W.’s lawyer at the guilty plea proceedings revealed the real reason for O.W.’s plea: “… about five or six weeks before the trial date there was new disclosure, it was very damaging to the defence case.”

(c) O.W.’s suggestion that his guilty plea was designed to cover-up Hutchinson’s involvement in the offence is also undermined by the facts accepted by O.W. in support of his guilty plea. These facts heavily implicated Hutchinson.

(d) His letter tendered at the sentencing hearing expresses, in words that are very personal and quite moving, O.W.’s remorse for the assault he inflicted on the complainant. We do not accept that this letter, full of personal details, could have been written by a fellow inmate, much less an inmate who wanted O.W. falsely to plead guilty.

(e) Although the medical report confirms O.W.’s evidence that he was injured while at the Don Jail, it does not corroborate that those injuries were causally connected to the alleged death threat.

Thus, this case differs from this court’s decision in R. v. Easterbrook (2005), 2005 CanLII 12676 (ON CA), 65 W.C.B. (2d) 2, on which O.W. relies. In Easterbrook, this court did set aside a guilty plea on the ground that it was induced by a death threat and, therefore, was involuntary. However, in that case, there was independent corroborating evidence of the death threat – an email to Mr. Easterbrook’s wife. Here, there is no corroborating evidence of the threat O.W. claims he received from Hutchinson.

Moreover, in his letter, O.W. explains why he was assaulted at the Don Jail: “… regularly I’m ganged and beaten for the assault that I committed on [the complainant]”. This explanation has nothing to do with any alleged death threat from Hutchinson.

(f) O.W.’s professed lack of motive now to falsify his evidence about the involuntariness of his plea is a neutral consideration. Although no motive is apparent, that does not mean one does not exist. The record is insufficient to permit us to assess the reliability of O.W.’s claim.

[13] For these reasons taken together, O.W. has not shown on the balance of probabilities that his guilty plea was involuntary. The application for leave to introduce fresh evidence and the appeal are dismissed.

Released: June 5, 2012

“JL” “John Laskin J.A.”

“E.A. Cronk J.A.”

“Sarah Pepall J.A.”