Court of Appeal for Ontario

Date: 2018-07-18

Docket: C54897

Judges: Watt, Pardu and Roberts JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

George Cherrington Appellant

Representation

Appellant: George Cherrington, acting in person

Respondent: Andrew Hotke

Amicus Curiae: Anthony Moustacalis

Heard: June 29, 2018

Jurisdiction

On appeal from the conviction entered on June 5, 2009 and the sentence imposed on October 9, 2009 by Justice Gregory Regis of the Ontario Court of Justice.

Decision

By the Court:

[1] Introduction

[1] The appellant pleaded guilty to a single count of fraud over $5,000 before a judge of the Ontario Court of Justice. About five months later, he was sentenced to a term of imprisonment of 12 months to be served in the community and made the subject of a free-standing restitution order for $52,027.36. He appeals his conviction on the ground that his plea of guilty was not voluntary or fully informed, in part because counsel who represented him on entry of the plea and during submissions as to sentence provided ineffective assistance.

[2] At the conclusion of submissions by amicus and the appellant, we dismissed the appeal. We promised to provide reasons for our decision. These are our reasons.

The Background Facts

[3] The fraud alleged and admitted by the appellant on his plea of guilty extended over a period of more than four and one-half years. It involved receipt of social services benefits to which the appellant was not entitled and included not only false claims, but also failures to report income as required.

[4] The appellant was charged in early February, 2007. A year later, he retained senior counsel in a local law firm. In the ensuing months, senior counsel appeared on the appellant's behalf on several court dates and on two pre-trials, one with the Crown and the other with the judge before whom the appellant would later plead guilty (the "presiding judge").

[5] Over the next year, an associate in the office of senior counsel ("trial counsel") attended with the appellant on many court appearances and on five further judicial pre-trials with the presiding judge.

The Plea of Guilty

[6] On June 5, 2009, after the final judicial pre-trial had been held, the appellant appeared before the presiding judge and entered a plea of guilty to the offence charged. He was represented by trial counsel.

[7] Prior to entry of the plea of guilty, the presiding judge asked whether trial counsel had done "the plea comprehension inquiry" with the appellant. Counsel acknowledged that he had done so and continued:

[TRIAL COUNSEL]: Yes, Your Honour. I can just indicate for the record I have fully reviewed the plea inquiry with Mr. Cherrington. He does understand that by entering a plea before Your Honour today he is waiving his right to a trial, does have the right to take the matter to trial and let the Crown prove their case beyond a reasonable doubt. He understands that by entering this plea he must be admitting the allegations that form the basis of the offence, and that he must be doing so freely and voluntarily, and I'm advised that is. Finally, Your Honour, he understands that despite what the Crown is asking for, or the defence is asking for by way of sentence, the final determination as the sentence is Your Honour's. Is that correct, sir?

GEORGE CHERRINGTON: Yes.

[8] Trial counsel did not obtain written instructions from the appellant confirming the above statement to the court.

[9] On arraignment, the appellant pleaded guilty. The trial Crown recited the circumstances of the offence. Trial counsel for the appellant confirmed the correctness of the Crown's recital and added:

He does admit the allegations … Is that correct, sir?

The appellant responded:

Yes. Yes, it is.

[10] In making preliminary submissions on sentence, trial counsel for the appellant reminded the presiding judge of their earlier discussions during the pre-trials about the appellant's involvement in a very serious motor vehicle accident which left him in constant pain and hampered his ability to retain information. Trial counsel filed a letter from the appellant's family physician confirming, among other things, the appellant's problems with memory, mood and speech.

[11] Over the next four months, trial counsel sought further information to put before the presiding judge in support of his submission in favour of a conditional sentence.

[12] Four months after entry of the plea of guilty, the appellant was sentenced to a term of imprisonment of 12 months to be served in the community. The presiding judge also imposed a restitution order for $52,027.36.

The Grounds of Appeal

[13] In this court, nine years after he pleaded guilty, the appellant, with the assistance of amicus, seeks to set aside his plea of guilty and conviction on the grounds that his plea was neither fully informed nor voluntary because:

i. his counsel failed to provide him effective legal assistance; and

ii. he failed to appreciate the effect and consequences of his plea due to his then medical condition.

The Claim of Ineffective Legal Assistance

[14] To begin, the allegation of ineffective assistance. The complaint appears first to have emerged when the appellant reported senior counsel to the Law Society of Upper Canada alleging that senior counsel:

i. overcharged him;

ii. took advantage of his cognitive difficulties;

iii. inappropriately transferred the file to junior counsel; and

iv. forced him to plead guilty under duress.

The regulatory body found insufficient evidence of professional misconduct to warrant any further proceedings. The appellant also applied to assess the fees charged by senior counsel but abandoned this claim partway through senior counsel's testimony, saying:

I was wrong to – to bring [senior counsel] or put him through this – threw all my anger towards him

[15] Before this court, the appellant alleges several deficiencies in trial counsel's performance in the process that culminated in a guilty plea. Failing to contact potential witnesses. Neglecting a full assessment of the appellant's cognitive difficulties. Leaving unexplored potential mens rea defences. Pressuring the appellant to plead guilty, without devising any semblance of a trial strategy.

[16] Trial counsel filed an affidavit for the proceedings before this court. He denies pressuring the appellant to plead guilty. When trial counsel began to appear on the appellant's behalf, the matter was on the resolution track – and for good reason, given the strength of the Crown's case. Trial counsel considered possible defences to the charges against the appellant, including the appellant's claim that his family was responsible for the fraudulent transactions. Counsel did not believe this defence was likely to succeed at trial – among other reasons, documents in the Crown's disclosure made it clear that the appellant was the ODSP's primary contact person. Counsel's goal was to achieve a sentencing disposition compatible with the appellant's wishes and instructions – no jail. That goal was achieved.

[17] Senior counsel also filed an affidavit for this appeal, corroborating much of the evidence provided by trial counsel. Of particular note, senior counsel confirms that the appellant's primary concern was avoiding a jail sentence, and states that he (senior counsel) remained involved with the file from start to finish, with routine updates from trial counsel throughout.

[18] The respondent opposes the claim of ineffective assistance. The respondent submits that the appellant's cognitive difficulties did not vitiate his ability to understand the case against him, communicate with counsel, or make active and conscious choices. Trial counsel, moreover, acted reasonably by pursuing a resolution of the case and avoiding trial, given the strength of the case against the appellant. Trial counsel's performance was neither deficient nor did it cause a miscarriage of justice.

The Validity of the Guilty Plea

[19] The second ground of appeal concerns the validity of the appellant's guilty plea, independent of any deficiencies in the performance of trial counsel. The appellant, supported by amicus, submits that he did not grasp the effect and consequences of his guilty plea. He relies on the following statement he made on the final day of sentencing submissions:

I—I'm really sorry for – what I've done. Um – I take full responsibility and because of this I've disgraced myself and my family. I-I-I'm from brain injuries, I-I-was – I guess I was really unsure of certain things, and – back then on – on my part.

This statement, according to the appellant and amicus, demonstrates that the appellant did not understand that he had a potential mens rea defence to the charges against him. The appellant also points to his medical difficulties to explain why he was unable to enter a voluntary and informed plea.

[20] The respondent insists that the appellant's guilty plea was voluntary and informed. In the respondent's view, the guilty plea was the culmination of a lengthy process aimed at securing a conditional sentence – a process in which the appellant was an active and informed participant. The respondent also observes that the appellant, during multiple court appearances, failed to say anything about being pressured to plead guilty by trial counsel.

The Governing Principles: Voluntary and Informed Pleas of Guilty

[21] A plea of guilty is voluntary if it represents the conscious volitional decision of an accused for reasons that the accused regards as appropriate. Pleas of guilty entered in open court in the presence of counsel are presumed to be voluntary. The presumption is rebuttable, as for example, by evidence of an accused's limited cognitive capacity, a mental disorder or condition, or cognitive or emotional issues such as anxiety, depression, chronic pain, anger management problems and difficulty in communication. However, an accused who claims involuntariness must demonstrate that he or she lacked the capacity to make an active or conscious choice whether to plead guilty: R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. M.A.W., 2008 ONCA 555, 237 C.C.C. (3d) 560, at paras. 23-37. To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice. Whether the choice to plead guilty is wise, rational or in the accused's best interest is not part of the inquiry: M.A.W., at para. 35; R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47.

[22] Where an accused on appeal challenges the validity of his guilty plea on the grounds of cognitive disability, there is unlikely to be any meaningful distinction between a finding that the accused had the requisite mental capacity to enter a valid plea and a finding that the accused exercised that capacity and entered a valid plea: Baylis, at paras. 49-50.

[23] A plea of guilty is informed when an accused is aware of:

i. the nature of the allegations;

ii. the effect of the plea; and

iii. the criminal and legally relevant collateral consequences of pleading guilty.

See, R. v. Wong, 2018 SCC 25, at paras. 3-4.

[24] An accused who seeks to withdraw a guilty plea on the basis that it was uninformed because he or she was unaware of legally relevant consequences when the plea was entered must demonstrate subjective prejudice. To do so, an accused must show by affidavit that he or she would have either:

i. proceeded to trial on the basis of a plea of not guilty; or

ii. pleaded guilty but with different considerations.

To determine the veracity of an accused's claim, a court can look to objective contemporaneous evidence: Wong, at para. 6.

[25] An accused may also seek to set aside a plea of guilty on the ground that counsel who represented him or her when the plea was entered provided ineffective legal assistance, thus rendering the plea involuntary or uninformed. To succeed in a claim of ineffective assistance of counsel, an appellant must establish:

i. the facts that underpin the claim;

ii. the incompetence of the representation provided by trial counsel (the performance component); and

iii. a miscarriage of justice as a result of the incompetent representation (the prejudice component).

This is a burden that is not easily discharged: R. v. G. (D.M.), 2011 ONCA 343, 105 O.R. (3d) 481, at paras. 100-101.

[26] The performance component has to do with incompetence on the part of trial counsel. This inquiry proceeds from a strong presumption of competence, is tested against a standard of reasonableness, and accords no place to hindsight: G. (D.M.), at para. 107.

[27] The prejudice component serves as the starting point of the ineffective assistance analysis once the facts that underpin the claim have been determined. The prejudice component engages a determination of whether a miscarriage of justice has occurred, either because of some procedural unfairness in the proceedings, compromise of the reliability of the result or both: R. v. B. (G.D.), 2000 SCC 2, [2000] 1 S.C.R. 520, at paras. 28, 34. Absent a finding of prejudice, consideration of the performance component is otiose: B. (G.D.), at paras. 29 and 34; R. v. Lavergne, 2017 ONCA 642, at para. 17.

[28] Challenges to the validity of pleas of guilty advanced for the first time on appeal require us to examine the trial record and any additional material tendered by the parties which, in the interests of justice, should be considered in assessing the validity of the plea: T. (R.), at p. 519; R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 16; R. v. Sangs, 2017 ONCA 683, at para. 7.

[29] In some cases, an appellant's plea of guilty will appear to meet all the traditional tests for a valid guilty plea – unequivocal, voluntary and informed – yet we retain a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances leading up to the plea that may demonstrate a miscarriage of justice has occurred. As a corollary of the authority to admit fresh evidence, we have the power to set aside the guilty plea in the interests of justice: Hanemaayer, at paras. 19-20.

Analysis

[30] To take first the submission that the plea of guilty should be set aside on the ground that it was involuntary, the product of improper pressure from trial counsel and the appellant's compromised mental state.

[31] As we will briefly explain, this ground of appeal fails.

[32] We begin, as the authorities teach, from the presumption that a plea of guilty entered in open court with the assistance of counsel is voluntary. The essence of the appellant's claim of involuntariness resides in the combined or cumulative effect of two factors:

i. pressure from trial counsel to plead guilty; and

ii. the compromised mental state of the appellant.

Neither singly nor together do these factors warrant setting aside the appellant's plea of guilty.

[33] We will first address the allegation of pressure from trial counsel to plead guilty. In our view, the appellant's complaint is neither borne out by the record compiled for this hearing nor capable of satisfying the standard to be met to succeed on this ground. We reach this conclusion for three reasons.

[34] First, a guilty plea was bruited with senior counsel and the case pursued a resolution track with the appellant's knowledge and consent before trial counsel became involved. The record makes clear that senior counsel never relinquished control of the appellant's file.

[35] Second, when the plea was entered, trial counsel explained to the presiding judge that he (trial counsel) had conducted a plea comprehension inquiry with the appellant. This included an understanding on the appellant's part that the plea was entered freely and voluntarily. The appellant confirmed with the presiding judge the correctness of trial counsel's statement.

[36] Finally, the appellant appeared in court on several occasions between entry of his plea of guilty and the imposition of sentence. At no time during those appearances did he say anything about being pressured by counsel to plead guilty, or suggest that he was not guilty of the offence for which he was convicted.

[37] Turning next to whether the appellant's plea of guilty can be set aside as involuntary on account of his mental state when he entered his plea.

[38] Recall that the limited cognitive capacity standard is controlling. It requires nothing more than that the appellant:

i. understood the process in which the plea was entered;

ii. could communicate with counsel; and

iii. could make an active or conscious choice.

[39] The record refutes any suggestion that the appellant did not understand the process in which he entered his plea of guilty, could not communicate with counsel or could not make an active or conscious choice.

[40] Counsel were aware of the appellant's physical and mental health issues. Their testimony discloses that the appellant had a significant grip on what the charges were all about, their factual basis and the evidence the Crown was alleging proved them. He was able to follow and participate meaningfully in discussions about disclosure and legal issues. The memos counsel wrote following communications with the appellant indicate that he was giving instructions and discussing various aspects of the case, among them, conditional sentences, Legal Aid and electronic monitoring.

[41] This evidence persuades us that the appellant's medical issues did not render his plea involuntary.

[42] We also reject the submission that the appellant's plea of guilty should be set aside as uninformed.

[43] The record demonstrates that the appellant and senior counsel discussed having a trial in December 2008 after trial dates had been set. However, in early January 2009, the appellant told trial counsel that he wanted to plead guilty and receive a conditional sentence. When the plea was entered, the appellant agreed that he understood he had the right to have a trial and that he was giving up this right by entering a plea of guilty. The record does not disclose any criminal or legally relevant collateral consequences of which the appellant was unaware when he pleaded guilty. Nor does it indicate that the appellant misunderstood the nature of the allegations against him.

[44] Finally, and for related reasons, we reject the claim of ineffective assistance of counsel. We do not consider this to be a case in which the reception of the fresh evidence demonstrates a miscarriage of justice.

[45] To begin, as explained above, the appellant has failed to establish many of the facts relied upon in support of his allegation of ineffective assistance – for example, the claim that trial counsel pressured him to plead guilty.

[46] Turning to the prejudice component of the ineffective assistance inquiry, we acknowledge that the appellant need not show a viable defence to the charges against him to have his plea set aside – "the prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial": R. v. Rulli, 2011 ONCA 18, at para. 2; R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334, at para. 38. However, when considering the performance component, we are unable to agree that trial counsel's conduct fell below a standard of reasonableness. The case against the appellant was largely documentary. It was also a formidable case to answer. The allegations were well documented, verified by a variety of witnesses and included a combination of the appellant's own statements and inaccurate earnings verification reports signed personally by the appellant. In these circumstances, trial counsel's chosen strategy – pursuing a resolution of the matter via plea negotiation, after considering possible defences and with the consent of the appellant and senior counsel – fell within "the vast expanse of reasonable professional assistance": G. (D.M.), at para. 107.

Conclusion

[47] For these reasons, we dismissed the appeal. We are indebted to amicus for his focused and able submissions in oral argument, and to both amicus and counsel for the respondent for their very helpful facta and the record they jointly prepared to deal with the ineffective assistance claim.

"David Watt J.A." "G. Pardu J.A." "L.B. Roberts J.A."