Her Majesty the Queen v. Krzehlik

[Indexed as: R. v. Krzehlik]

Ontario Reports

Court of Appeal for Ontario,

Weiler, Watt and Epstein JJ.A.

March 16, 2015

124 O.R. (3d) 561 | 2015 ONCA 168

Case Summary

Criminal law — Plea of guilty — Accused pleading guilty to assaulting his wife with weapon and assaulting his son — Trial judge conducting plea comprehension inquiry — Accused first denying that facts read in were correct but then agreeing with trial judge that he was admitting "basic gist" of offences — Accused expressing remorse during sentencing submissions — Accused arguing on appeal that he pleaded guilty because he was under great stress and believed that admission of guilt would effectively be withdrawn by appeal — Appeal dismissed — Plea being unequivocal, informed and voluntary.

The accused pleaded guilty to assaulting his wife with a weapon and assaulting his adult son. He was not represented by counsel when he entered the pleas. He had been arrested four days earlier and had been held in custody. The trial judge conducted the standard plea comprehension inquiry. When asked whether the facts read in were "substantially correct", the accused said first said no, but then agreed with the trial judge that he was admitting the "basic gist" of the offences. During sentencing submissions, the accused expressed remorse. The accused appealed his convictions, arguing that he was under great stress at the time of the pleas, that he believed, as the result of what other inmates had told him, that if he was denied bail he would have to wait at least 60 days before reapplying, and that duty counsel had informed him that commencing an appeal would automatically nullify the plea proceedings and admissions. He said that he believed that guilty pleas were routinely withdrawn on appeal, but he acknowledged that this belief was not based on anything that duty counsel said.

Held, the appeal should be dismissed.

The accused made unequivocal admissions to facts that supported the offences to which he pleaded guilty. His claim that duty counsel had advised him that the guilty pleas would effectively be withdrawn by an appeal was not credible. His expressions of remorse during the sentencing submissions supported the conclusion that the pleas were unequivocal. The stress which the accused was experiencing did not rise to a level that impaired his ability to make a conscious choice. His circumstances, which included being 65 years old, having a number of medical conditions, and having slept poorly in the detention facility, were not unusual and did not rise to the level which rendered his pleas uninformed and involuntary.

Cases referred to

R. v. Adgey, 1973 37 (SCC), [1975] 2 S.C.R. 426, [1973] S.C.J. No. 159, 39 D.L.R. (3d) 553, 13 C.C.C. (2d) 177, 23 C.R.N.S. 298; R. v. Carty, [2010] O.J. No. 1305, 2010 ONCA 237, 260 O.A.C. 187, 253 C.C.C. (3d) 469; R. v. Easterbrook, 2005 12676 (ON CA), [2005] O.J. No. 1486, 65 W.C.B. (2d) 2 (C.A.); R. v. Gurney, [2001] O.J. No. 2227 (C.A.); R. v. Kumar, [2011] O.J. No. 618, 2011 ONCA 120, 273 O.A.C. 130, 268 C.C.C. (3d) 369, 84 C.R. (6th) 128, 93 W.C.B. (2d) 679; R. v. Moser, [2002] O.J. No. 552, [2002] O.T.C. 119, 163 C.C.C. (3d) 286, 53 W.C.B. (2d) 90 (S.C.J.); R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; R. v. Rajaeefard (1996), 1996 404 (ON CA), 27 O.R. (3d) 323, [1996] O.J. No. 108, 87 O.A.C. 356, 104 C.C.C. (3d) 225, 46 C.R. (4th) 111, 29 W.C.B. (2d) 491 (C.A.); [page562] R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514, [1992] O.J. No. 1914, 58 O.A.C. 81, 17 C.R. (4th) 247, 17 W.C.B. (2d) 212 (C.A.)

APPEAL by the accused from the conviction entered on August 13, 2012 by Armstrong J. of the Ontario Court of Justice.

Joseph Di Luca, for appellant.

Michael Perlin, for respondent.

The judgment of the court was delivered by

EPSTEIN J.A.: —

Introduction

[1] The appellant pleaded guilty to assaulting his wife with a weapon and to assaulting his son. The appellant was alleged to have held a knife to his wife's throat and to have hit his adult son in the shoulder. The trial judge entered a conviction in relation to both offences and sentenced the appellant to 25 days in jail, in addition to five days of pre-sentence custody, to be served intermittently.

[2] The pleas were entered and the sentence imposed on the appellant's first appearance before a judge of the Ontario Court of Justice. He had been arrested four days earlier and held in custody. The appellant was not represented by counsel when he entered his pleas.

[3] The appellant seeks to have his guilty pleas set aside primarily on the basis that his admission of the underlying facts was equivocal.

[4] The appellant seeks to rely on additional evidence. The proposed evidence consists of an affidavit of the appellant, the transcript of his cross-examination on that affidavit and the affidavit of duty counsel who advised the appellant shortly before his guilty pleas. The evidence speaks to the circumstances following the appellant's arrest that led up to his guilty plea.

[5] The appellant bears the onus of showing that the plea was invalid. An appellate court is entitled to examine the trial record and any additional material, which, in the interests of justice, should be considered: see R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514, [1992] O.J. No. 1914 (C.A.). When an appellant seeks to argue that a guilty plea was involuntary, equivocal or not informed, the appellant need not satisfy the admissibility criteria set forth in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 50 C.C.C. (2d) 193: see R. v. Rajaeefard (1996), 1996 404 (ON CA), 27 O.R. (3d) 323, 104 C.C.C. (3d) 225 (C.A.), at p. 228 C.C.C. The additional evidence amplifies the trial record and assists the court in examining [page563] and resolving the appeal. While the appellant's additional evidence should be considered, as I will discuss, I would reject much of the appellant's evidence as it is simply not credible.

[6] At the conclusion of hearing this appeal, the panel indicated that the appeal was dismissed with reasons to follow. I would dismiss the appeal for the following reasons.

Underlying Facts of Arrest and Guilty Pleas

[7] The appellant was arrested on Thursday, August 9, 2012. He was charged with nine domestic violence offences that were alleged to have taken place between April 2011 and March 2012. At that time, the appellant was 65 years old with no criminal record. He had a number of medical issues. He was living with his wife of 24 years and their adult son.

[8] According to his affidavit, the appellant spent Thursday night in a cell on a cold bench with no blanket.

[9] The next morning, on Friday, August 10, 2012, the appellant was brought to the Newmarket courthouse for a bail hearing. He was placed in a holding cell. The appellant says that while in the holding cell, he was advised by another inmate that to get bail he needed either a surety to live with or a place in a bail program, which would require him to reside in a shelter.

[10] The matter was called for a bail hearing. The Crown indicated he was not able to consent to bail as the appellant did not have a release plan. Duty counsel advised the justice of the peace that the appellant had asked to be referred to the bail program and that it was duty counsel's intention to assist the appellant in a contested bail hearing later that day. The presiding justice of the peace indicated she would be looking for a surety rather than release to the bail program.

[11] The justice of the peace then said that the appellant's bail hearing would be adjourned until Monday. She added that if the appellant secured a surety or a place in the bail program, and if there were time, the bail hearing could occur that afternoon. The appellant says that he was accepted into the bail program shortly after 1:00 p.m., was told his bail hearing would be that afternoon, but that the hearing did not take place.

[12] The appellant was held over the weekend at a remand centre. In his affidavit, the appellant states that during this time he ate, drank and slept very little. He was strip searched upon entry. He experienced various difficulties with other inmates, some of whom told him that he may have to wait months for trial and that he could get more than one year in jail if found guilty of the charges he faced. [page564]

[13] In his affidavit, the appellant describes the early events of Monday, August 13, 2012 as follows. When he arrived at the courthouse for his bail hearing, he was disoriented, depressed and filled with anxiety: "I couldn't concentrate on anything except surviving the day." He spoke with duty counsel, a different counsel than the one who had assisted him the previous Friday. He told her he was innocent of all charges. Duty counsel, after speaking to the Crown, advised the appellant that bail would be opposed.

[14] The appellant came to believe that if he was denied bail, he would have to wait at least 60 days before reapplying. He also came to believe that he could plead guilty and hire a lawyer to appeal his case within 30 days. When cross-examined on this point, the appellant explained that he believed that, by appealing, any admissions of guilt he made in court would effectively be withdrawn. He thought this "was routinely done". The appellant does not allege that anything duty counsel said gave rise to this belief.

[15] It was against this background that the appellant told duty counsel he would plead guilty. Therefore, before the bail hearing could commence, duty counsel asked that the matter be traversed for a guilty plea. After being traversed, the appellant's case was held down to allow duty counsel to conduct a plea comprehension inquiry with the appellant.

[16] After discussing the matter with the appellant, duty counsel advised the trial judge that the appellant would be "continuing with this plea and sentencing on his own and duty counsel will not be assisting". According to duty counsel's affidavit, although she has no recollection of the conversation, her belief is that the most likely reason for her statement to the court was that the appellant was denying the facts asserted by the Crown but nonetheless planned to admit them.

Guilty Plea Proceedings

[17] The trial judge conducted a standard plea comprehension inquiry. The appellant confirmed that he wanted to plead guilty to two of the nine counts. The appellant also confirmed that he understood he would be giving up his right to a trial, that no one had put any pressure on him to plead guilty and that he understood that the trial judge would determine his sentence.

[18] Crown counsel read in the facts, including facts pertaining to charges the prosecution would not be proceeding with. The judge accepted the guilty pleas and convicted the appellant. The transcript of the exchange between the trial judge and the appellant leading up to his convictions reads as follows: [page565]

THE COURT: All right sir. Is what I've been told substantially correct? Is that basically correct sir?

MR. KRZEHILK: No Your Honour.

THE COURT: Well let's -- the incidents in question . . .

MR. KRZEHLIK: Can I ask . . .

THE COURT: Just hang on a second. Can I see the Information please? All right. The two counts that you pleaded guilty to refer to February of this year.

MR. KRZEHLIK: Yes sir.

THE COURT: And the allegation there was that you held a knife to [your wife's] throat and threatened to slit her throat. Is that correct sir?

MR. KRZEHLIK: Can I give you the . . .

THE COURT: No sir, I need to know an answer to that. That's the gist of what . . .

MR. KRZEHLIK: Yes sir.

THE COURT: Is that correct?

MR. KRZEHLIK: Yes sir.

THE COURT: All right and on count nine, what I've been told is that you hit [your son] when he was showering after you told him that he couldn't shower. Is that correct sir? Well did you hit him that day sir? Sometime in February 2012.

MR. KRZEHLIK: I would say yes Your Honour.

THE COURT: Well sir I don't . . .

MR. KRZEHLIK: No, no . . .

THE COURT: If you say yes, it's because you did it, not because you're just saying it.

MR. KRZEHLIK: No I understand that, okay.

THE COURT: Did you do that sir?

MR. KRZEHILK: Yes.

THE COURT: All right, then I'm going to find you guilty of both charges.

MR. KRZEHLIK: Your Honour?

THE COURT: Yes.

MR. KRZEHLIK: Can I not even mention anything about the situation?

THE COURT: Yes you can. I'll give you a turn in a minute.

MR. KRZEHLIK: Oh thank you.

THE COURT: But I need to know . . .

MR. KRZEHLIK: Thanks you.

THE COURT: . . . whether or not you're admitting the basic . . . [page566]

MR. KRZEHLIK: Yes Your Honour.

THE COURT: . . . gist of these offences. Otherwise there's no point in proceeding.

MR. KRZEHLIK: Yes Your Honour.

[19] Following this exchange, the trial judge proceeded to hear from the Crown and the appellant on sentencing. The appellant offered context for the alleged assaults against his wife and son. With respect to his son, the appellant said he was frustrated by his disobedience but that "I shouldn't have slapped him on the arm." With respect to his wife, the appellant said there was dialogue going "back and forth and things [were] being said from both sides" and "it just got out of hand". He then appeared to express remorse saying, "I've been sort of ashamed about it, okay, about the whole thing, about the whole incident". He later added, "I can assure you that I love my family very much and never would [let] any physical harm come to them. My job is to protect them, not to -- to harm them, okay. And I guess sometimes you just get frustrated, okay."

[20] After pronouncing sentence, the trial judge accepted the appellant's request that he be allowed to serve his sentence intermittently. The seven remaining charges were withdrawn.

Submissions of the Parties

[21] In his affidavit, the appellant states he misled the court during the plea comprehension inquiry. He says he never assaulted his wife with a knife and that the contact with his son was so minor that it does not amount to assault. He did not want to assert his innocence before the trial judge for fear that he would be sent back to jail. He attributes this decision to plead guilty to stress, fear, lack of food and sleep, and his failure to appreciate the options available to him and the extent of his legal predicament.

[22] The appellant submits that the trial judge should have conducted a more thorough plea comprehension inquiry. The withdrawal of duty counsel was a red flag. It should have been clear to the trial judge that the appellant was prevaricating. He wanted to add information and was equivocal about whether the Crown's facts were correct. The appellant contends that the trial judge approached the proceedings with the goal of taking the guilty pleas in mind rather than substantively assessing whether the pleas were truly unequivocal.

[23] The appellant further argues that he was deprived of conscious choice. His age, poor health, lack of food and sleep, stress and the trauma of a weekend in jail led him to conclude that [page567] he was trapped. He had no realistic alternative other than to plead guilty.

[24] Although the appellant asserts that no one pressured him to plead guilty, he also suggests that he was deprived of procedural fairness. He submits that the plea process is inherently stressful and that his own experience before the courts was no exception.

[25] Crown counsel submits that the guilty pleas were valid. They were accepted by the trial judge following a thorough plea comprehension inquiry during which the judge confirmed that the appellant intended to plead guilty, had not been pressured to do so and was aware of the implications of his pleas.

Analysis

[26] Notwithstanding his guilty pleas, the appellant is entitled to appeal his convictions. Where valid grounds exist for doing so, an appellate court will permit the withdrawal of the plea and quash the consequent conviction: see R. v. Adgey, 1973 37 (SCC), [1975] 2 S.C.R. 426, [1973] S.C.J. No. 159, at pp. 430-31 S.C.R. A guilty plea may be found invalid if it was not voluntary, unequivocal and informed, or if the circumstances that led to the guilty plea demonstrate that a miscarriage of justice occurred: see R. v. T. (R.), supra, at p. 519 O.R.; see, also, R. v. Kumar, [2011] O.J. No. 618, 2011 ONCA 120, 268 C.C.C. (3d) 369, at para. 34. The accused has the onus to show that the plea was invalid on a balance of probabilities: see R. v. Easterbrook, 2005 12676 (ON CA), [2005] O.J. No. 1486, 65 W.C.B. (2d) 2 (C.A.), at para. 5.

[27] In his written submissions, counsel for the appellant advanced three grounds in support of his argument that the appellant should be entitled to withdraw his guilty pleas -- the pleas were equivocal, were entered while the appellant was under stress and the appellant was not appropriately informed of the consequences of a guilty plea. In oral argument, counsel for the appellant pressed only one ground -- that the pleas were equivocal.

Were the pleas equivocal?

[28] The appellant argues that the record, as expanded by the additional evidence, indicates that the guilty pleas were equivocal. During the plea comprehension inquiry, the appellant first denied that the facts read in were "basically correct". Shortly thereafter, the appellant agreed that he was admitting the "basic gist" of the two offences.

[29] The appellant submits that in the light of this equivocation, particularly given the circumstances in which the pleas [page568] were taken -- he came right from bail court and duty counsel had withdrawn -- the trial judge should have conducted a more thorough plea comprehension inquiry. Securing the appellant's admission that the facts read in captured the "basic gist" of what happened was not good enough. The record should demonstrate that the appellant agreed that he took a knife and put it to his wife's throat and that he intentionally hit his son.

[30] While the appellant's exchange with the trial judge indicates some initial waffling, what is pivotal in my view is that, in the end, the appellant made unequivocal admissions to facts that supported the offences to which he pleaded guilty. Nothing in the record suggests that the guilty pleas were qualified, modified or uncertain.

[31] Moreover, the statements the appellant made to the trial judge during the sentencing submissions -- that he was ashamed of the incident with his wife, that he had to learn to control his temper, that he was willing to participate in a partner abuse program -- inform the conclusion that his pleas were unequivocal. While the appellant qualified his conduct in relation to assaulting his son by explaining that he was frustrated with his son's behaviour, and that the physical contact was not forceful, this qualification did not affect the unequivocal nature of the appellant's plea to having assaulted his son.

[32] Finally, the evidence contained in the appellant's affidavit attempting to explain why he pleaded guilty, notwithstanding his innocence, is not credible. In key areas, the appellant's evidence is contradicted by that of duty counsel who advised him as to his plea. For instance, duty counsel's affidavit states that she was certain that she would not have advised the appellant that the effect of commencing an appeal "would be to nullify the plea proceedings and admissions made in court, or to somehow place the appellant in the same legal position as he was before pleading guilty". Duty counsel's evidence is to be preferred for a number of reasons. She has no interest in the outcome of this appeal and, in fact, supported the appellant's position that in their conversation he denied the facts alleged against him. In addition, it is unlikely that duty counsel would give the appellant such profoundly incorrect legal advice. Furthermore, the appellant's additional evidence contains a number of internal inconsistencies. In his cross-examination, the appellant was evasive and argumentative. For instance, when it was pointed out that the appellant's recollection of what he said in court was not in the transcript, the appellant's response was that the court reporter must have missed it.

[33] In my view, there is nothing in the record of the proceedings before the provincial court judge, as augmented by the [page569] additional evidence placed before us, that detracts from the import of the appellant's unequivocal admissions of guilt.

Were the pleas voluntary?

[34] First, I note that the transcripts indicate that on both the Friday and the Monday court appearances the appellant was listening carefully, asking questions and understood what was taking place.

[35] In my view, the stress the appellant experienced did not rise to such a level that it impaired his ability to make a conscious choice. While unquestionably difficult, the circumstances in which the appellant found himself were not unique. Individuals must normally decide whether to plead guilty in difficult circumstances. They are under pressure. They are faced with options none of which are favourable. However, as this court has said, without more, circumstances such as these cannot invalidate a guilty plea, on appeal: see R. v. Carty, [2010] O.J. No. 1305, 2010 ONCA 237, 253 C.C.C. (3d) 469, at para. 37.

[36] Considering the evidence as a whole, the appellant's ability to make a conscious choice whether or not to plead guilty was not impaired and the pleas were voluntary.

Were the pleas informed?

[37] As previously noted, in his affidavit the appellant asserts that he understood that if he pleaded guilty, so long as he appealed within 30 days of the date of convictions, the pleas would be automatically overturned. Duty counsel denies that she would have said this to the appellant. There is no evidence to support a finding that the appellant's alleged misunderstanding was induced by duty counsel or by any action on the part of the state. During the plea comprehension inquiry by the trial judge, the appellant stated that he understood that he was surrendering his right to a trial and that he would be sentenced for a serious crime. And there can be no doubt that the appellant knew the charges he was pleading guilty to.

[38] In my view, the appellant has not met the onus of establishing that his pleas did not meet the legal threshold for being informed.

Additional issue -- Nature of the appellant's additional evidence

[39] Finally, in his additional evidence, the appellant admits that this request to withdraw his pleas is part of a scheme devised shortly after his arrest to deceive the court to enable [page570] him to get out of jail. In my view, the appellant should not be allowed to manipulate the system to serve his own immediate purposes and then come to this court for an order for a "do-over". As the court concluded in R. v. Moser, 2002 49649 (ON SC), [2002] O.J. No. 552, 163 C.C.C. (3d) 286 (S.C.J.), at para. 42, citing R. v. Gurney, [2001] O.J. No. 2227 (C.A.), at para. 1: ". . . a valid guilty plea must not be disturbed by a calculated scheme designed to manipulate the system".

Conclusion

[40] I am satisfied, on the basis of the amplified record, that the appellant's pleas were voluntary and unequivocal and that he understood their true effect. Allowing him to withdraw his pleas in these circumstances would undermine the overarching goals of certainty and finality that a guilty plea is intended to foster.

Disposition

[41] Accordingly, while I have considered the appellant's additional evidence, I would dismiss the appeal.

Appeal dismissed.

End of Document