Her Majesty the Queen v. Beckford

[Indexed as: R. v. Beckford]

Ontario Reports

Court of Appeal for Ontario

Watt, Huscroft and Trotter JJ.A.

December 18, 2019

150 O.R. (3d) 677 | 2019 ONCA 998

Case Summary

Criminal law — Counsel — Ineffective assistance of counsel — Accused sentenced to mandatory minimum term of imprisonment after pleading guilty to five charges — Accused thinking that he was pleading to four charges and avoiding jail time based on defence counsel's advice — Defence counsel's view of accused's guilt prevented him from taking appropriate actions on the accused's behalf — Guilty pleas struck. [page678]

Criminal law — Plea of guilty — Withdrawal of guilty plea on appeal — Accused sentenced to mandatory minimum term of imprisonment after pleading guilty to five charges — Accused thinking that he was pleading to four charges and avoiding jail time based on defence counsel's advice — Defence counsel not advising accused of fifth charge and its mandatory minimum sentence — Plea on fifth charge not informed — Accused not receiving effective assistance from counsel on other four charges — Guilty pleas struck.

Criminal law — Sentencing — Mandatory minimum sentence — Accused sentenced to mandatory minimum term of imprisonment after pleading guilty to five charges — Accused thinking that he was pleading to four charges and avoiding jail time based on defence counsel's advice — Defence counsel not advising accused of fifth charge and its mandatory minimum sentence — Plea on fifth charge not informed — Accused not receiving effective assistance from counsel on other four charges — Guilty pleas struck.

The accused and seven others drove to the home of a drug dealer. The accused was armed with a baseball bat and the others brought their own weapons. The drug dealer was kicked, punched, struck with a baseball bat and a baton, and had an imitation firearm pointed in his face. The intruders stole several items and fled the scene in two cars. About 15 minutes after the incident, the police stopped one of the cars with the accused in the front passenger seat and found some of the stolen items. The accused retained his father's friend to defend him against the various charges he faced arising from the incident. The accused claimed that after a pre-trial his counsel told him that if he pleaded guilty to four counts, the remaining charges would be withdrawn and that the 16-month sentence sought by the Crown might be reduced to a lengthy period of probation or a period of house arrest if he had a good pre-sentence report. The trial judge did not conduct a plea inquiry before arraigning the accused on five charges: break and enter of a dwelling-house, use of an imitation firearm while committing an indictable offence, two counts of assault with a weapon, and possession of cannabis. The accused pleaded guilty after the reading of each charge. He was sentenced to 15 months' imprisonment, including a 12-month mandatory minimum for the charge of using an imitation firearm. He said that he never would have pleaded guilty if he had known that he was certain to be sentenced to a jail term. He said that he decided to plead guilty on the understanding that he might be able to avoid going to jail and that DNA and fingerprint evidence against him was conclusive of his guilt. The accused appealed to strike his guilty pleas because of the ineffective assistance of counsel.

Held, the appeal should be allowed and a new trial ordered.

The guilty plea to the imitation firearm count was set aside as it was not an informed plea. The accused's evidence on its own did not establish that his plea was uninformed. However, trial counsel's testimony and preparation notes reflected, at the very least, confusion about the counts that would be involved in the plea as there were several references to four counts, not five. The result was that counsel did not advise the accused concerning the imitation firearm charge and its consequences, specifically the mandatory term of imprisonment, so the plea to that charge was not made on an informed basis.

The remaining pleas were struck because the accused received ineffective assistance from counsel. Trial counsel formed the view that the case against his client was so strong, and the plea deal offered was so advantageous, that the accused should plead guilty. His view of the accused's guilt and disapproval of his actions led to his failure to take appropriate actions on the client's behalf. Trial counsel's [page679] evidence established that he never met with the accused at his office, did not obtain written instructions, did not review the DNA disclosure package, did not adequately assess the strength of the Crown's case, did not consider possible Charter infringements, and made no submissions as to the appropriate sentence. The shortcomings in the representation provided by trial counsel went to the heart of his responsibilities. The accused was prejudiced by giving up his right to trial based on his false belief that his counsel properly assessed the case against him.

R. v. Cherrington, [2018] O.J. No. 4012, 2018 ONCA 653 (C.A.), apld

Other cases referred to

R. v. G. (D.M.) (2011), 105 O.R. (3d) 481, [2011] O.J. No. 1966, 2011 ONCA 343, 281 O.A.C. 85, 84 C.R. (6th) 420, 275 C.C.C. (3d) 295, 97 W.C.B. (2d) 151 (C.A.); R. v. Girn (2019), 145 O.R. (3d) 420, [2019] O.J. No. 1264, 2019 ONCA 202, 373 C.C.C. (3d) 139 (C.A.); R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 44 D.L.R. (4th) 193, 80 N.R. 161, J.E. 87-1123, 82 N.S.R. (2d) 271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 3 W.C.B. (2d) 62, 1987 CCAN para. 10,025; R. v. P. (R.), [2013] O.J. No. 419, 2013 ONCA 53, 302 O.A.C. 78, 295 C.C.C. (3d) 28, 105 W.C.B. (2d) 507 (C.A.) [Leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 133]; R. v. Quick (2016), 129 O.R. (3d) 334, [2016] O.J. No. 582, 2016 ONCA 95, 94 M.V.R. (6th) 42, 128 W.C.B. (2d) 100, 345 O.A.C. 237, 26 C.R. (7th) 424 (C.A.); R. v. Rulli, [2011] O.J. No. 121, 2011 ONCA 18, 92 W.C.B. (2d) 104 (C.A.); R. v. T. (R.) (1992), 1992 CanLII 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.); R. v. Wong, [2018] 1 S.C.R. 696, [2018] S.C.J. No. 25, 2018 SCC 25, 424 D.L.R. (4th) 191, 364 C.C.C. (3d) 1, 47 C.R. (7th) 451, 56 Imm. L.R. (4th) 1, 146 W.C.B. (2d) 333, EYB 2018-294585, 2018 CCAN para. 10,003, 2018EXP-1454

Statutes referred to

Canadian Charter of Rights and Freedoms

Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4(1)

Criminal Code, R.S.C. 1985, c. C-46, ss. 85(2) (a), 267(a), 348(1)(b), 683(1)

APPEAL by the accused from the convictions entered on November 25, 2016 by J.E. Allen J. of the Ontario Court of Justice to strike guilty plea

Anthony Moustacalis and Christen Cole, for appellant.

Katie Doherty, for respondent.

The judgment of the court was delivered by

HUSCROFT J.A.: —

Overview

[1] The appellant pleaded guilty to five charges arising out of his participation in a violent home invasion. He was sentenced to a term of 15 months' imprisonment, which included a 12-month mandatory minimum penalty for one charge of use of an imitation firearm in the commission of an offence.

[2] The appellant seeks to have his guilty pleas struck because of the ineffective assistance of counsel. He says that trial counsel did [page680] not properly advise him as to the strength of the Crown's case and his potential defences, and that he did not understand he was pleading guilty to an imitation firearm charge and that it carried a mandatory minimum sentence. The appellant informed the court that he has abandoned his sentence appeal.

[3] I conclude that the appellant's plea to the imitation firearm charge must be struck on the basis that it was uninformed, and that he received ineffective assistance of counsel in respect of the four additional charges.

[4] I would allow the appeal for the reasons that follow.

Background

[5] Jeremy Draper was a drug dealer. On February 23, 2016, he was contacted by a man seeking to buy marijuana, and arrangements were made to complete the purchase at his home on February 26, 2016. The appellant and seven other men drove to Draper's home in two cars. The appellant was armed with a metal baseball bat and the other men brought their own weapons.

[6] At approximately 1:45 a.m., one of the appellant's co-accused was invited into Draper's home. Shortly afterwards, a group of six men rushed into the home and assaulted Draper. He was hit twice with a metal baseball bat and one of the intruders pointed an imitation firearm at his face. He fled into a bedroom and locked himself in with his girlfriend. Draper's roommate, Spencer Gorman, came out of his room and was beaten with the baseball bat and a baton, and was kicked and punched. He suffered several injuries before returning to his bedroom and barricading his door. The intruders stole numerous items including a laptop computer, a video game system and approximately 68 grams of marijuana.

[7] The appellant and four co-accused fled from the scene in a blue BMW. Three unidentified men fled in a white car. The white car was never found but the blue BMW was stopped by the police approximately 15 minutes after the incident. The appellant's brother was driving the BMW and the appellant was in the front seat.

[8] All of the occupants were arrested and the car was searched incident to the arrests. Among other things, the police found a jar containing approximately 68 grams of marijuana, three pieces of pre-cut duct tape, a grey and black balaclava, a grey neck warmer, the missing laptop computer, a baton handle (the bottom portion of which was found inside Draper's home), blue latex gloves and two black replica firearms.

The Fresh Evidence

[9] The trial record in this case is brief. It is supplemented by affidavits sworn by the appellant, his father, trial counsel and the [page681] appellant's parole officer, all of whom were cross-examined by Crown counsel in accordance with this court's protocol for claims of ineffective assistance of counsel.

[10] The Crown concedes that the fresh evidence should be admitted. This concession is appropriate. In my view, it is in the interests of justice to admit the evidence pursuant to s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46.

The appellant retains counsel and gets bail

[11] Mr. Howard Goldkind was retained by the appellant's father, Barrington Beckford, following the appellant's arrest. He knew Mr. Goldkind and considered him a friend. Mr. Goldkind also agreed to act for the appellant's brother.

[12] Mr. Goldkind secured the release of both the appellant and his brother following contested bail hearings. I will refer to Mr. Goldkind as trial counsel for the balance of these reasons.

The appellant's meetings with trial counsel

[13] The appellant says that he never met with trial counsel at his office. Their initial meeting was at a restaurant and subsequent meetings were held in waiting areas and anterooms at the Guelph courthouse, before and after court appearances. Trial counsel confirms that he never met with the appellant at his office but says that he spoke with the appellant many times by telephone and had a long meeting with him on November 24, 2016, just before the appellant pleaded guilty.

[14] The appellant says that he repeatedly told trial counsel that he was eager to move forward with his case, as he found the bail conditions stressful and was concerned that they might interfere with his plans to seek a patent for an algorithm he had developed. Trial counsel acknowledges that the appellant claimed he was working on a patent, but he described this as "pipe dreams" and "ludicrous" and said he "didn't give it a minute's credence". He "thought it was an absolute joke". However, he also acknowledges that the appellant was keen to get the matter dealt with and move on with his life.

The judicial pre-trial

[15] A pre-trial was held on September 9, 2017 in the Ontario Court of Justice before the trial judge. The appellant says that trial counsel informed him following the pre-trial that if he pleaded guilty to four counts (break and enter, two counts of assault with a weapon and possession of marijuana), the remaining charges would be withdrawn. He says that trial counsel told him that the Crown was seeking a 16-month sentence, which might be reduced [page682] to a lengthy period of probation or a period of house arrest if he had a good pre-sentence report.

[16] Trial counsel testified that, following the meeting, he informed the appellant that the Crown would be seeking a sentence of 12-18 months if the appellant pleaded guilty to four charges. He considered this a "very attractive" outcome.

[17] Trial counsel denies that he told the appellant he might be able to avoid jail. He did testify, however, that he "was confident that he had without question the one Judge in that jurisdiction who would not send him to the penitentiary; the one judge in that jurisdiction who would be impressed by the pleas and the PSR [pre-sentence report] and that he'd be foolish not to take advantage of that".

The decision to plead guilty

[18] The appellant says that he would not have pleaded guilty if he had known that he was certain to be sentenced to a jail term. He says that he decided to plead guilty on the understanding that he might be able to avoid going to jail and that the evidence against him was conclusive of his guilt, including DNA and fingerprint evidence that trial counsel told him was in the additional disclosure package he had received. The appellant maintains that he was not advised that he would be pleading to the imitation firearm charge, or that this charge included a 12-month mandatory minimum term of imprisonment.

[19] Trial counsel denies informing the appellant that there was DNA or fingerprint evidence that inculpated him. He testified that he did not read the DNA report and did not know whether there was fingerprint evidence. He says that he offered the disclosure to the appellant but the appellant declined to read it, saying that he wanted to plead guilty to the charges.

Entering the guilty pleas

[20] On November 24, 2016, counsel for the Crown advised the court that she was seeking guilty pleas to counts three, five, eight, 11 and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA") count for possession of marijuana charge -- a total of five of 12 counts in the two informations. Trial counsel stated, "I just have four counts that we were going to resolve."

[21] The court noted that the marijuana charge was on a separate information, and both Crown counsel and trial counsel indicated their agreement. Crown counsel reiterated that she was seeking guilty pleas to counts three, five, eight, 11 and the separate marijuana count.

[22] Trial counsel informed the court that he had conducted a plea inquiry with the appellant. The following exchange took place: [page683]

Mr. Goldkind: I can indicate to Your Honour, subject to your queries I've very carefully explained to my client the ramifications of the giving up of the right to a trial . . .

The Court: Right.

Mr. Goldkind: . . . etcetera, etcetera, but I, I did indicate to him that that's always subject to queries from Your Honour.

The Court: Okay, I don't need to -- with experienced counsel like you I certainly don't need to make an inquiry. I assume your client understands his options with respect to going...

Mr. Goldkind: Come forward, sir.

The Court: . . . going to trial and wants to be tried in this court today and waives the reading of the election?

Mr. Goldkind: His exact words, Your Honour, which I'll reiterate, are he wants to resolve this and move on with his life.

The Court: Okay, all right, in this court...

Mr. Goldkind: In this . . .

The Court: . . . today?

M. Goldkind: . . . court.

The Court: Thank you.

Mr. Goldkind: Right?

Immanuel Beckford: Yes.

The Court: arraign him, please.

[23] The trial judge did not conduct a plea inquiry.

[24] The appellant was then arraigned on five charges: break and enter of a dwelling-house (s. 348(1)(b)); use of an imitation firearm while committing an indictable offence (s. 85(2)(a)); assault with a weapon: baseball bat (s. 267(a)); assault with a weapon: metal baseball bat & baton (s. 267(a)); and possession of cannabis (s. 4(1) of the CDSA). He pleaded guilty following the reading of each charge.

[25] Trial counsel acknowledged the facts after they were read in. The trial judge then stated: "[The appellant is] a party to those offences." Trial counsel replied: "Absolutely." The court then entered findings of guilt on all counts.

[26] The appellant says that he attempted to get trial counsel's attention during his plea because he was confused. Trial counsel says that this is untrue and that the guilty pleas proceeded without incident.

Post-plea discussions

[27] The appellant says that he attempted to reach trial counsel between plea and sentencing, but his calls were not returned. The [page684] appellant's father reached trial counsel by phone and the appellant heard the call. He says that his father asked why the appellant had pleaded guilty to the imitation firearm charge, and trial counsel assured him that there was nothing to worry about because the judge would not take it into account at sentencing.

[28] Trial counsel's evidence is that he spoke with the appellant following his guilty pleas. The appellant expressed no concerns and did not speak about the imitation firearm. Trial counsel says that he remained in contact with the appellant and returned a number of phone calls from the appellant and his father. In particular, he says that he spoke with the appellant's father by telephone concerning a charge relating to a shotgun. He told him that the shotgun would not be taken into account at sentencing because the shotgun charge had been withdrawn. Trial counsel says that the imitation firearm was not mentioned, nor did they speak about an airsoft pistol.

Sentencing

[29] The appellant was sentenced on March 3, 2017. The appellant says that prior to the sentencing hearing he reiterated his confusion as to what he had pleaded guilty to, and that trial counsel did not inform him of the sentence he would be asking the judge to impose.

[30] Trial counsel called the appellant's father as a character witness and provided character reference letters to the court. He made the following submission, which did not include a specific recommendation as to the appropriate sentence:

Mr. Goldkind: . . . Your honour, I've spent hours with this young man. He realizes the gravity of what took place. He's ashamed of himself. He's ashamed of letting down his family and you can see the antecedents he comes from. He's ashamed of hurting his father terribly. My view, your honor, with respect is that he should receive the sentence that would not obviously ruin his prospects for rehabilitation. He's been on a tight leash for a year and more importantly, hasn't breached in any way, shape or form. So, your honor, we discussed at the JPT [judicial pre-trial] some time ago a period of incarceration. I would think this might call for a period. I leave it completely in your honors wisdom. The others, to my surprise, I think fair to say decided to roll the dice and they want to, they want to take their chances, and that's fine, but my client indicated, your honor, that he wanted to plead guilty, he has pleaded guilty. He's accepted responsibility. He's ashamed of himself. He's hurt the community. He's hurt the parties in question, but he is entered a plea very, very quickly. Thank you very much, your honour.

[31] Crown counsel sought a sentence in the "upper reformatory range", noting that s. 85(2)(a) carries a mandatory minimum sentence of one year, which he said, "has to ultimately inform this court and ultimately binds this court".

[32] The trial judge expressed strong disapproval of mandatory minimum sentences, stating that he regarded them "as an insult of [page685] the judiciary by the legislature". He acknowledged that he was required to impose the mandatory minimum in this case but added "I don't have to be informed by it". The trial judge acknowledged that there was a limit to how far he could go in being "creative with the other sentences to minimize the impact of [the mandatory minimum] on the accused". He stated that if he were concerned only about the welfare of the appellant, he would impose a conditional sentence, but he acknowledged that he did not have the power to do so.

[33] The trial judge found that the appellant had "every factor that could be present in mitigation of sentence" and expressed the concern that incarceration would have a corrupting effect. He sentenced the appellant (and his brother) as follows:

The best I can do for them in all the circumstances is an aggregate sentence of 15 months, and I do that taking into account that they've both been on house arrest for a year, that that is a very considerable penalty in itself. I take into account that they have complied scrupulously with the terms of their bail. I take into account their remorse and their plea, but this is one of the most serious crimes that can happen and the sentences being suggested right across the board, nobody's suggesting they shouldn't go to jail given the law the way it is now and so the sentence will be on all offenses, except the gun offense. There will be sentences of three months in custody concurrent to each other and there will be a year consecutive with respect to the 85(2). The aggregate sentence with respect to each is 15 months. I quite frankly don't see the need for probation in this case. They have extremely supportive families. They have been rehabilitated by their arrest and I don't think they're a danger to the public in the future, so I'm not putting them on probation. There will be DNA orders. There will be Section 109 orders for life for the possession of weapons.

[34] The appellant says that he learned of the mandatory minimum sentence for the imitation firearm offence only after he heard Crown counsel discuss it and the trial judge refer to it.

Post-sentencing discussions

[35] The appellant says he learned that he had been convicted of the imitation firearm charge when he reviewed paperwork provided to him after he had been incarcerated. The appellant's father says that trial counsel informed him that his notes did not reflect five convictions and that the mandatory minimum penalty was the result of two convictions for assault with a weapon.

[36] Trial counsel says that he spoke with the appellant's father several months following sentencing and asked how many charges the appellant had pleaded guilty to. Trial counsel told him that the appellant had pleaded guilty to four charges.

Discussion

[37] The appellant says that his guilty plea was not informed because of the ineffective assistance of counsel. He says, first, that he [page686] was not properly advised by his counsel as to the strength of the Crown's case and his potential defences. Second, he says that he was unaware that he was entering a plea to the imitation firearm offence.

[38] In my view, whether the appellant's imitation firearm plea was informed may be determined without regard to the ineffective assistance of counsel analysis. As the Supreme Court said in R. v. Wong, [2018] 1 S.C.R. 696, [2018] S.C.J. No. 25, 2018 SCC 25, at para. 24, the ineffective assistance of counsel claim adds an unnecessary layer to the analysis when dealing with the issue of whether a plea was informed; it is concerned with the source of the plea problem rather than the plea itself. I will address the imitation firearm plea first, then consider whether the appellant received ineffective assistance of counsel on the balance of the charges.

The imitation firearm plea

[39] A valid plea of guilty must be voluntary, unequivocal and informed: see Wong, at para. 3; and R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514, [1992] O.J. No. 1914 (C.A.), at p. 519 O.R. Whether the appellant's plea was voluntary and unequivocal is not at issue in this case. The question is whether his plea was informed.

[40] In order for a plea to be informed, it must be "entered by an accused who is aware of the nature of the allegations made against him or her, the effect of his or her plea, and the consequences of that plea". See R. v. P. (R.), [2013] O.J. No. 419, 2013 ONCA 53, 302 O.A.C. 78 (C.A.), at para. 40, leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 133, citing T. (R.), at p. 519 O.R.; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, at pp. 371-72 S.C.R.

[41] The validity of a plea of guilty is normally determined by a plea inquiry conducted by a trial judge. As Watt J.A. explained in R. v. G. (D.M.) (2011), 105 O.R. (3d) 481, [2011] O.J. No. 1966, 2011 ONCA 343 (C.A.), at para. 42:

For the plea to be informed, the accused must understand that the plea is an admission of the essential elements of the offence and that the presiding judge is not bound by any agreement made by the accused and the prosecutor. The accused must also understand the nature and consequences of a guilty plea. Under s. 606(1.2) the failure of the trial judge to fully inquire about the voluntary and informed nature of the accused's plea does not affect the validity of that plea. But an inquiry is mandatory nonetheless.

[Emphasis in original]

[42] As the above extract from the transcript demonstrates, the trial judge decided that it was not necessary to conduct a plea inquiry because he trusted that trial counsel had properly advised the appellant. [page687]

[43] This appeal might well have been avoided if the trial judge had conducted a plea inquiry rather than relying on counsel to have done so. In the absence of a plea inquiry, this court must determine the validity of the appellant's plea based on the record, including the fresh evidence.

[44] Although the appellant states categorically in his affidavit that he was not advised by trial counsel concerning the imitation firearm charge, or that it came with a mandatory minimum sentence, in cross-examination he acknowledged that he met with trial counsel prior to entering his plea and had "a very brief" plea inquiry. He knew that he was giving up his right to a trial but says that he was not informed of the imitation firearm charge.

[45] The appellant's evidence is, on its own, insufficient to establish that he was not informed as to the imitation firearm charge. However, based on trial counsel's evidence I am satisfied that the appellant's plea to the imitation firearm charge was not informed. Trial counsel did not advise the appellant that he would be pleading to the imitation firearm charge, and as a result the appellant was unaware of that charge and the mandatory minimum sentence it carried.

[46] Trial counsel's testimony and preparation notes reflect, at the very least, confusion about the counts that would be involved in the plea. Trial counsel testified at several points that the appellant was going to be pleading to four counts, not five: break and enter to commit the indictable offence of theft, assault with a metal bat, assault with a metal bat and baton and possession of marijuana. He also testified that, at the judicial pre-trial, he made a note indicating that the Crown would be asking for a sentence of 12-18 months. He then gave the following evidence:

Q: So that's the deal you think is very attractive?

A: Absolutely.

Q: Plead to those four counts and that potential range of sentence.

A: Yes. You have to understand, sir, this note is a summary, writing as fast as I can, of what took place.

Q: But what I just said is accurate; right?

A: It appears so except clearly -- where it says assault weapon twice, clearly one of those we believe to be imitation, but that wasn't written.

Q: I'm going to suggest to you that that's not clear at all, Mr. Goldkind.

A: Well, it's clear to me.

[47] Trial counsel acknowledges that his notes from the judicial pre-trial and from his meeting with the appellant on the day of the guilty plea do not refer to the imitation firearm charge. His note [page688] from the meeting with the appellant on the day of the guilty plea read: "Four charges here, not the gun charge."

[48] Trial counsel gave the following evidence about the notes he took on the day of the plea:

Q: And these are notes from that day, November 24. And again, these dockets reflect about four lines from the top of your note that there were guilty pleas to four charges, as discussed in the JPT; correct?

A: Yes.

Q: Not five; right?

A: Right.

Q: So I'm going to suggest to you even after the hearing, after you're back out at court, you're still confused about what has happened; you think it's four counts when it was five.

A: I wasn't confused sir. I thought it was four counts.

[49] Trial counsel acknowledges that he informed the appellant's father that the appellant had pleaded guilty to four charges. His testimony and notes surrounding the mandatory minimum likewise suggest that the imitation firearm issue was not discussed. Trial counsel also acknowledges that neither his note from the judicial pre-trial nor his note from the day of the plea refers to a mandatory minimum sentence, and that the mandatory minimum sentence was not discussed in court on the day of the plea. He testified as follows:

Q: Where in that transcript, Mr. Goldkind, is it made plain to Mr. Beckford that he's facing a mandatory minimum sentence?

A: I don't think those words are used.

Q: Exactly.

A: By no one.

Q: Including you; right?

A: Absolutely. You're right.

Q: In fact, following this day, November 24, 2016, you continued to believe that he had pleaded guilty to four counts; correct?

A: I did. I did.

[50] Despite this testimony, trial counsel continued to reject the suggestion that he was confused and insisted that he would have raised the matter with the court if he had been confused. He insists that he knew what the plea deal was and that it included a plea to the imitation firearm charge. Trial counsel denies that the appellant raised concerns about the imitation firearm charge following his pleas. He says that the appellant was concerned about the charges he faced involving the shotgun that was allegedly used in [page689] the home invasion, and that he informed the appellant that the trial judge "had disabused his mind of a shotgun".

[51] It may be that trial counsel conflated the shotgun charges -- which were withdrawn -- with the imitation firearm charge. But the reason for the apparent confusion is irrelevant. I am satisfied that trial counsel did not advise the appellant concerning the imitation firearm charge and its consequences -- in particular, the one-year mandatory term of imprisonment it included. I have no doubt that the appellant wanted to plead guilty and put the matter behind him, as trial counsel says, and that trial counsel determined that the total sentence the appellant would likely receive was advantageous. Nevertheless, the appellant's choice to plead guilty to the imitation firearm charge was not made on an informed basis.

[52] Counsel for the Crown submits that appellant's confusion regarding his plea to the imitation firearm charge is undercut by his silence during and following the plea proceedings. She states that the appellant is a university-educated person and it is not credible to accept that he fundamentally misunderstood the nature of the charge to which he pleaded guilty.

[53] This submission must be rejected. The appellant retained experienced counsel to protect his interests and was entitled to rely on counsel. He cannot be faulted for failing to act on his own behalf during or following the plea proceedings.

[54] I conclude that the appellant's plea to the imitation firearm count was not informed. It must be set aside.

The remaining charges

[55] It is not necessary to determine whether the appellant's imitation firearm plea taints his remaining pleas. As I will explain, those pleas must be struck because the appellant received ineffective assistance of counsel.

[56] The appellant says that trial counsel failed to properly advise him as to the strength of the Crown's case before he decided to plead to the remaining charges. In particular, he points to the following shortcomings in the assistance trial counsel provided:

-- he failed to consider the ability of the victims in the home to identify the appellant;

-- he failed to interview the appellant about the nature of his arrest or the circumstances of his statement to the police, including inculpatory statements made in the absence of consultation with counsel, and similarly, he failed to advise the appellant of any defences, including Canadian Charter of Rights and Freedoms applications concerning the inculpatory statements and the search of his cellphone, again without consultation with counsel; and [page690]

-- he told the appellant that DNA and fingerprint reports directly implicated him in the metal baseball bat assault, when in fact the DNA report did not implicate the defendant and there was no fingerprint report.

[57] In order to succeed on his claim of ineffective assistance of counsel in respect of his pleas, the appellant must establish, on a balance of probabilities:

(i) the facts on which the claim is grounded;

(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 by trial counsel (the prejudice component).

See R. v. Cherrington, [2018] O.J. No. 4012, 2018 ONCA 653 (C.A.), at para. 25.

[58] Watt J.A. summarized the court's approach in R. v. Girn (2019), 145 O.R. (3d) 420, [2019] O.J. No. 1264, 2019 ONCA 202, 373 C.C.C. (3d) 139 (C.A.), at para. 92:

Once the facts that underpin the claim have been established, the ineffective assistance analysis begins with the prejudice component. This component engages a determination of whether a miscarriage of justice has occurred. Either because of some procedural unfairness in the proceedings, a compromise of the reliability of the verdict or some combination of both consequences: R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 28, 34; Cherrington, at para. 27. Where the reviewing court does not make a finding of prejudice, it is undesirable for the court to conduct an inquiry into and render a conclusion upon the performance component: B. (G.D.), at para. 29; R. v. Lavergne, 2017 ONCA 642, at para. 17.

[59] With respect to the prejudice component, the appellant argues that he pleaded guilty in reliance on trial counsel's advice, believing that trial counsel had assessed the case against him when, in fact, he had failed to do so.

[60] I accept that, if this is the case, a finding of prejudice should follow. The appellant need not show that he had a viable defence to the charges against him in order to have his pleas set aside. As the Supreme Court has stated, prejudice results from pleading guilty and thereby giving up the right to trial: Wong, at para. 23, citing R. v. Rulli, [2011] O.J. No. 121, 2011 ONCA 18 (C.A.), at para. 2; see, also, R. v. Quick (2016), 129 O.R. (3d) 334, [2016] O.J. No. 582, 2016 ONCA 95 (C.A.), at para. 38.

[61] The performance component relates to trial counsel's alleged incompetence. The assessment "proceeds from a strong presumption of competence, is tested against a standard of reasonableness, and accords no place to hindsight": Cherrington, at para. 26. The main issues are whether the appellant has established the facts necessary to [page691] ground his claim and whether those facts reflect the incompetence of trial counsel.

[62] Counsel for the Crown submits that the appellant has failed to meet his burden to establish the facts on which his claim for ineffective assistance of counsel is grounded. She says that the appellant's version of events is not reasonably capable of belief: his account is inconsistent and evasive, and he has a strong motivation to fabricate his claims. According to Crown counsel, the evidence of trial counsel should be preferred. She emphasizes the presumption in favour of competence and highlights trial counsel's lengthy career at the criminal bar. The case against the appellant was strong and it was reasonable to think that the appellant was at risk of receiving a lengthy penitentiary term if convicted. Trial counsel, she submits, exercised reasonable judgment in the circumstances.

[63] I am not persuaded by the appellant's evidence at various points. It is, as the Crown suggests, self-serving to say the least. If there were no additional evidence, the claim of ineffective assistance of counsel would fail.

[64] But trial counsel's evidence establishes the facts necessary to support the appellant's claim. Indeed, it is clear from a reading of trial counsel's evidence that his performance did not fall within the range of reasonable professional assistance.

[65] Plainly, trial counsel formed the view that the case against the appellant was so strong -- and the deal offered was so advantageous -- that the appellant should plead guilty. Nevertheless, it was trial counsel's duty to assess the strength of the evidence against the appellant before advising him, and his own evidence establishes that he did not adequately do so. That evidence suggests that trial counsel's knowledge of the appellant's guilt -- and disapproval of the appellant's actions -- led to his failure to take appropriate actions on the appellant's behalf.

Identification evidence

[66] Trial counsel was examined at length concerning the ability of the occupants of the house that was invaded to identify the appellant. He testified that the appellant admitted to him that he went into the house, "swinging the bats". The following exchange took place:

Q: That's not the question, Mr. Goldkind. I'm sorry to interrupt you. The question is not whether [the appellant] said he was in the house. The question is what discussions did you have with him about the ability of the Crown's witnesses to identify him?

A: I think all I can say is that when a client admits quite openly that he went in the house; was wielding the bat like a bludgeon and enjoyed every minute of it, that tells me that there is no need to examine him further about the identification. [page692]

Q: Because you say [the appellant] admitted the offense to you, you thought you had no obligation to test the strength of the Crown's case.

A: No, I won't go that far, but it's very significant to me when a client admits openly and with pleasure his role in the matter. That's a very telling factor.

Q: So I just want to understand exactly what you're saying.

A: Sure.

Q: Is it your position that because [the appellant] admitted to you his presence in the house, that your obligation to test the Crown's case and to consider whether they could actually prove it if it went to trial was no longer your obligation?

A: I'll answer it this way. When Michael Beckford [the appellant's brother] admitted to me that he drove the car and waited outside purposely and when [the appellant] admitted to me his role in the matter and what he took with him in the house, that stops me from cross-examining my client about the strength of the Crown's witnesses.

The appellant's Charter rights

[67] Trial counsel acknowledged that he does not know whether the appellant called counsel while he was in custody after arrest and did not discuss the matter with him because he did not think it was relevant. Nor did he query the circumstances of the appellant's strip-search, the fact that he was held for approximately ten hours without being brought before a justice before he gave his statement, or the propriety of the police request for the appellant to provide his cell phone password.

[68] In summary, trial counsel did not consider possible Charter claims the appellant might have made. His evidence was that "the police had treated [the appellant] extremely fairly in all circumstances"; that the police hadn't roughed him up or intimidated him but had "treated him like a gentleman"; and that he "hadn't been mistreated in any way, shape or form".

The appellant's police statement

[69] Trial counsel was asked a series of questions concerning the appellant's police statement. He rejected the suggestion that the appellant's statement to the police that he was "outside the house" is at least partially exculpatory of the appellant, describing the suggestion as "ludicrous" and "quibbling with the semantics". The statement was not totally truthful, in his view. He testified:

Q: So from your point of view you're satisfied that he went into the house, therefore what his statement says is irrelevant to your assessment of the strength of the Crown's case?

A: Absolutely correct. [page693]

[70] It was put to trial counsel that the appellant's statement was ambiguous and potentially exculpatory concerning his knowledge of imitation firearms. For example, the appellant stated that his brother has a replica BB gun, "but I know he didn't have it on him"; that "it's possible" one of the other guys brought it; that "I don't know exactly" what weapons the men in the white car brought; and that "I didn't see" a sawed-off shotgun, but someone else mentioned it. Trial counsel gave the following evidence:

Q: I'm going to suggest to you, again, that the statement makes it plain that he's -- whether or not it's true, whether or not it's true, that he's making assumptions about whether or not there's a gun, a replica shotgun; correct?

A: Sir, I've been dealing with criminals for 50 years. This is a perfect illustration of a young man who was wanting to tell the truth, but not wanting to rat out other people. He's deflecting; he's minimizing his role. He knew darn well there was a shotgun; he knew there was an imitation gun.

Q: But that's not apparent on the face of his statement; is it?

A: It's apparent to me.

Q: That's not what he's --

A: It's apparent to anybody with any knowledge of the criminal system and criminal conduct. Read it carefully. It's as clear as day.

Q: So you don't think that that portion of the statement is exculpatory --

A: Not at all.

The DNA and fingerprint evidence

[71] Trial counsel denies that he told the appellant there was DNA evidence inculpating him, but his evidence raises a different problem: he admits that he did not even read the DNA report. He denies telling the appellant that fingerprint evidence inculpated him and says that he offered the fingerprint evidence to the appellant at the courthouse. However, when it was suggested to him that there was no fingerprint evidence, he acknowledged that he does not know whether or not this was because he did not read the disclosure package provided on the day of the judicial pre-trial:

Q: If there's no [fingerprint] evidence you couldn't have offered it to him, could you?

A: No, I offered him the package that the police gave me at the courthouse.

Q: But you didn't consider that package at all because you didn't think it important?

A: Why would I consider it, sir, when the client told me that he's guilty and he wants to plead guilty?

Q: Well, because you might want to consider whether it's in your client's interest to plead guilty based on an assessment of the Crown's case. [page694]

A: Well, with all due respect, you're being a Monday morning quarterback, which is foolish. A client tells you he did it; the client wants to get on with it; the client wants to do his time; he wants to avoid the penitentiary; end of story.

It's not my obligation to cross-examine a client to rip apart his possible defences. You've got my position.

The reasonableness of counsel's performance

[72] In summary, trial counsel's evidence establishes that he never met with the appellant at his office; did not obtain written instructions; did not review the DNA disclosure package; did not adequately assess the strength of the Crown's case; did not consider possible Charter infringements; and made no submissions as to the appropriate sentence.

[73] The recurring theme in trial counsel's evidence is an insistence that his knowledge of the appellant's guilt obviated the need for him to take the sorts of steps that would normally be taken before advising an accused person regarding a guilty plea. Moreover, trial counsel's evidence is replete with inappropriate criticism of his client and disapproval of his conduct and character. For example, he testified that the appellant treated the matter as "a caper" and a "big joke". Trial counsel said that the appellant enjoyed hitting people with the bat and "seemed to revel in what he had done".

[74] Whatever trial counsel may have thought of his client, it was his duty to represent him to the best of his abilities. He was required to evaluate the strength of the evidence against the appellant before advising him to enter a guilty plea, no matter how advantageous he thought that plea would be.

[75] The shortcomings in the representation provided by trial counsel go to the heart of his responsibilities as counsel. They compel the conclusion that the appellant did not receive the effective assistance of counsel. The appellant's guilty pleas to the remaining charges must also be struck.

Conclusion

[76] In the interests of justice, all of the pleas must be set aside.

[77] I would allow the appeal and order a new trial.

Appeal allowed.

End of Document