Court of Appeal for Ontario

CITATION: R. v. Grewal, 2015 ONCA 482

DATE: 20150626

DOCKET: C58526

BEFORE: Strathy C.J.O., Cronk and Benotto JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Parminder Grewal Appellant

COUNSEL: Carolyne Kerr, for the appellant Mabel Lai, for the respondent

Heard and released orally: June 18, 2015

On appeal from the conviction entered on September 27, 2012 by Justice David P. Cole of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant seeks to overturn the trial judge’s refusal to set aside his plea of guilty to a charge of aggravated assault. The appellant submits that the plea was not unequivocal, his trial counsel was ineffective, and defences available to him were not advanced.

[2] We reject these submissions.

[3] Before the plea was entered, counsel for the appellant advised the court that he had undertaken a plea inquiry, and that the appellant wished to plead guilty. At the time of the plea, the Crown read a detailed recitation of the facts. At the conclusion, the appellant’s counsel stated that he had reviewed the facts with his client and that they were substantially correct. He raised four qualifications, none of which goes to the substance of the allegations. In light of the facts admitted, the qualifications do not reasonably give rise to a defence.

[4] The appellant personally pleaded guilty to the charge. He had pleaded guilty to other charges in the past. In this case, he was assisted by a Punjabi interpreter, represented by an experienced Punjabi counsel, and supported throughout by his family members. His instructions were clear. They were written, translated and signed by him. Several weeks later, the appellant sought to strike the plea.

[5] The trial judge made findings of credibility. He accepted the evidence of the appellant’s trial counsel regarding the entry of the plea. With respect to the appellant, the trial judge expressly disbelieved him, adding, “I didn’t believe a word of what he said.” In his reasons for sentence, the trial judge noted that the appellant was “someone whose criminal background and age clearly indicated that he was quite familiar with the workings of the criminal justice system”.

[6] The trial judge found that trial counsel had been effective and the plea was voluntary, informed and unequivocal. In his reasons for sentence, he reiterated that the appellant had “utterly failed” to demonstrate that his guilty plea should be struck. The evidence supported these findings.

[7] We appreciate that, before this court, the appellant renews his claim that his plea to aggravated assault was occasioned by the ineffective representation of his trial counsel. In particular, he submits that trial counsel’s representation fell below the applicable standard because he failed to review the elements of the offence of obstruct justice with the appellant, or to advise him of the potential defence of self-defence.

[8] Our previous comments regarding the nature of the plea, set out above, also apply to the trial judge’s ruling on the appellant’s ineffective assistance claim. We agree with that ruling. In our view, critically, the appellant has failed to demonstrate any prejudice amounting to a miscarriage of justice arising from the conduct of his trial counsel.

[9] We note that the appellant was liable to a significant jail sentence upon conviction of the multiple charges that he faced. The negotiated results achieved by his trial counsel eliminated that risk. At trial, the Crown submitted that the aggravated assault charge itself should attract a four year sentence as negotiated by counsel at trial. The trial judge could have accepted that submission, which reflected a sentence within the range supported by the case law. He did not do so. Instead, he imposed a sentence of 33 months in jail, after three months’ credit to acknowledge the appellant’s guilty plea.

[10] The prejudice requirement of an ineffective assistance claim not having been demonstrated, the appeal fails.

[11] For these reasons, the appeal is dismissed.

“G.R. Strathy C.J.O.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”