Court Information and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221018 DOCKET: C69688

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

His Majesty the King Respondent

and

Gurkirat Rai Appellant

Counsel: Jeff Marshman and Ingrid Grant, for the appellant Andrew Hotke, for the respondent

Heard: April 26, 2022

On appeal from the conviction entered on June 18, 2018 by Justice Katherine L. McLeod of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1] The appellant, Gurkirat Rai, pled guilty and was convicted of three counts of dangerous operation of a motor vehicle, five counts of driving while disqualified, one count of flight from police, nine counts of failure to comply with a recognizance, one count of possession of heroin, [1] and one count of possession of a stolen motor vehicle. Following the guilty pleas, the Crown withdrew an additional 14 counts consisting of six counts of breach of probation, six counts of failure to comply with a recognizance, one count of dangerous driving, and one count of possession of property obtained by crime. The convictions resulted in the permanent suspension of the appellant’s driving licence.

[2] The only issue on this appeal is whether the appellant’s guilty pleas were uninformed insofar as they related to the possible reinstatement of his driving licence.

Background Facts

[3] The appellant seeks leave to admit fresh evidence in support of his appeal. In his fresh evidence, the appellant and his trial counsel describe what happened prior to and at the time of his guilty pleas. The Crown does not dispute that the court is entitled to consider the fresh evidence. We agree and leave is granted to admit the fresh evidence.

[4] By way of background, the appellant was charged with the offences that are the subject matter of this appeal on various occasions in 2016 and 2017. He was arrested on July 11, 2016, and released on bail on August 10, 2016. On August 13, 2016, he was arrested again but released. He was then re-arrested on January 10, 2017, and released on April 20, 2017. He was arrested again on December 10, 2017, and held in pre-trial custody until the trial date of June 18, 2018. His prior convictions and bail conditions included a term that he was not to operate a motor vehicle. On each occasion, the police arrested the appellant after observing him operating a motor vehicle.

(i) Court Proceedings

[5] As set out in the fresh evidence affidavit of the appellant’s trial counsel, the appellant expressed an interest in resolving the charges against him rather than proceeding to trial. In his fresh evidence affidavit, the appellant stated: “[I]n June of 2018, I told my lawyer I did not want to go to trial, and I wanted to resolve all of the charges I was facing. I did not want to go through as many as five separate trials, and I didn’t want to keep traveling from jail to the Brampton courthouse. I wanted to resolve everything, serve whatever was left on my sentence, and get out of jail as quickly as I could.” He also stated in his affidavit that he was concerned about being prohibited from driving ever again.

[6] In pre-trial discussions before the trial judge, the Crown indicated that it would be seeking a lifetime driving prohibition under the Criminal Code, R.S.C. 1985, c. C-46. The appellant’s counsel raised his client’s concerns about a lifetime driving prohibition. The trial judge advised that she was not inclined to impose a lifetime driving prohibition, particularly given the appellant’s young age. He was 22 years old at the time and struggling with a heroin addiction. [2]

[7] The appellant’s counsel advised the appellant of the substance of these discussions. Counsel told him that although he would likely not get a lifetime driving prohibition, his licence would be suspended indefinitely under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) if he pleaded guilty. However, he told the appellant that he would be entitled to apply to have his licence reinstated after 10 years if he avoided getting into trouble.

[8] His counsel now admits, and the Crown does not dispute, that this last piece of advice on re-instatement was in error.

[9] When speaking to the guilty pleas, the appellant’s counsel advised the court that he and the Crown were going to be taking different positions on sentencing and that the appellant understood that, at the end of the day, the final decision lay in the hands of the trial judge. The appellant subsequently pleaded guilty to the charges. In his cross-examination for the purposes of the fresh evidence application, the appellant acknowledged that he knew before he entered his guilty pleas that the Crown was going to ask for a lifetime prohibition.

[10] The appellant’s counsel sought a sentence of 16 to 18 months’ custody, less time spent in pre-trial custody, and a 10-year driving prohibition. His counsel stated to the trial judge that: “I’ve advised him of what I will be asking for, in terms of a driving prohibition, but I’ve also apprised him of the fact that the Ministry may take their own views, in terms of what they implement.” The trial judge inquired as to the maximum length of driving prohibition that could be imposed and counsel responded that it was lifetime.

[11] The Crown sought 26 months’ custody less credit for time spent in pre-trial custody, and a lifetime driving prohibition.

[12] The appellant’s criminal record, which was admitted into evidence, was lengthy and included three prior driving offence convictions from April, 2015, March, 2016, and February, 2018.

[13] The trial judge indicated that the appellant was motivated to get out of custody as quickly as possible and was not interested in rehabilitation. She went on to observe that in her 20 years as a judge and in her time as defence counsel before that, this was the worst driving record she had seen. Nonetheless, citing his age and the possibility that he could turn his life around, she imposed a sentence of one year in custody (which after credit for pre-trial custody, amounted to nine months) followed by 12 months’ probation, as well as a ten-year driving prohibition.

(ii) Impact of Sentence

[14] As a result of the nature and number of driving offences, the Ministry of Transportation suspended the appellant’s driver’s licence for life with no possibility of reinstatement pursuant to s. 41(1)(h) of the HTA. That provision provides for automatic, indefinite licence suspension for individuals convicted of certain driving-related offences three or more times.

[15] The appellant’s counsel had informed him that he would be able to apply for re-instatement after 10 years. Although s. 19(2) of the relevant regulation under the HTA permitted the Registrar to lift an indefinite suspension imposed after a “second subsequent conviction”, there was no such provision for three or more subsequent convictions. Given the number of the appellant’s convictions, he was unable to avail himself of the reinstatement procedure. In the result, by operation of the HTA, the appellant received an automatic lifetime suspension.

[16] In addition, the appellant did not appreciate that each of the five driving while disqualified convictions would carry consecutive mandatory two-year licence suspensions consecutive to any other period of suspension, and that as such, his licence would be suspended for an additional 10 years beyond the 10-year prohibition imposed by the trial judge. In the result, the appellant’s licence could not be reinstated under the HTA and, in any event, his licence was suspended for at least 20 years.

Applicable Principles

[17] The finality of a guilty plea requires that it be voluntary, unequivocal, and informed. To make an informed plea, an accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea. The consequences the accused must understand include any “legally relevant collateral consequence … which bears on sufficiently serious legal interests of the accused”: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 at para. 4.

[18] The appellant bears the onus of establishing on a balance of probabilities that: (i) his guilty pleas were not sufficiently informed; and (ii) he was subjectively prejudiced: Wong, at paras. 3-6. The appellant may prove subjective prejudice by showing a reasonable possibility that, but for the error, he would have opted for a trial and not pleaded guilty or would have pleaded guilty but with different conditions.

[19] To assess the veracity of the appellant’s claim that his plea was uninformed, the court may look at objective, contemporaneous evidence: Wong, at para. 6.

Positions of Parties

(i) Position of the Appellant

[20] Dealing firstly with whether the pleas were not sufficiently informed, the appellant states that he was unaware that the application of the HTA provisions would result in an automatic and permanent licence suspension. He states that he was also unaware that each of the five driving while disqualified convictions carried consecutive mandatory two-year licence suspensions consecutive to the 10-year Criminal Code suspension imposed by the trial judge. He argues that both the permanent HTA suspension of his driver’s licence and the additional 10-year suspension are legally relevant collateral consequences.

[21] As for the issue of subjective prejudice, the appellant states that had he known there was a reasonable possibility of a permanent suspension, he would have either opted for a trial or pleaded guilty but with different conditions. In addition, he observes that, unlike the HTA provisions, the Criminal Code prohibitions are never permanent as they may be lifted under s. 109 of the Corrections and Conditional Release Act, S.C. 1992, c. 20.

(ii) Position of the Crown

[22] The Crown does not dispute that a driving suspension may constitute a legally relevant collateral consequence but submits that the appellant has not met his onus of showing his guilty pleas were uninformed. The Crown argues that an informed plea does not require that an accused have precise knowledge of the collateral consequences that may result from an ensuing conviction, nor does it require certainty about what collateral consequences will in fact result. Rather, a guilty plea is informed if the accused is sufficiently aware of the potential legally relevant collateral consequences. Here, the appellant was aware he was going to lose his ability to legally drive in Ontario for a long time and potentially permanently. He was prepared to plead guilty knowing there was a possibility that his application to the Ministry of Transportation would fail and, additionally, that the trial judge could impose a Criminal Code driving prohibition for life.

[23] The Crown also submits that the appellant was not subjectively prejudiced and his assertions to the contrary are not credible.

Discussion

[24] There is no need to address the issue of whether the appellant has established that the pleas were uninformed as the appellant’s case flounders on the issue of subjective prejudice. [3] We are not persuaded that there was a reasonable possibility that the appellant would have acted differently had he been informed of the deficiencies in the information provided to him.

[25] In assessing subjective prejudice, a reviewing court must not ask what a reasonable person or any other person in the appellant’s circumstances may have done: Wong, at para. 12. Instead, the court must determine whether this particular appellant would have preferred to go to trial or seek a different plea deal had he been adequately informed: Wong, at para. 14.

[26] Although an accused retains the right to proceed to trial even where there is only a remote chance of success, here it is not credible that the appellant would have conducted himself differently if he knew what he knows now about the implications of his plea.

[27] First, the appellant was in pre-trial custody and the potential burden of going to trial included a good likelihood of increased time in pre-trial custody. The trial judge made an express finding that the appellant was motivated to get out of custody as quickly as possible and was not interested in rehabilitation. This is supported by the appellant’s fresh evidence, which indicates that the appellant’s main concern when pleading guilty was the length of his detention. The appellant stated in his affidavit that he was prepared to go to trial but decided that he did not want to go through the ordeal of up to five separate trials. As the appellant put it: “I wanted to resolve everything, serve whatever was left on my sentence, and get out of jail as quickly as I could.”

[28] Second, there is no evidence of any inquiries on reinstatement having been made by the appellant of any of his counsel, inquiries one would expect had the issue of reinstatement borne the significance the appellant now asserts.

[29] Third, the appellant was prepared to plead guilty knowing that a lifetime Criminal Code driving prohibition was a potential result. The appellant stated that his counsel told him that the trial judge had indicated that she would not impose a lifetime prohibition. However, this evidence was contradicted by his counsel who testified that he told the appellant that, although the trial judge was reluctant to impose a lifetime prohibition, it remained a possibility. The transcript of the guilty plea lends support to counsel’s evidence. There, counsel advised the court that the appellant understood that at the end of the day, the final decision lay in the hands of the trial judge. He also reminded the trial judge that she had “expressed some reluctance to impose a life-time driving prohibition”. Furthermore, even though a lifetime Criminal Code driving prohibition may be varied under s. 109 of the Corrections and Conditional Release Act, there is no suggestion in the evidence that the appellant had any awareness of this possibility prior to pleading guilty. Fundamentally, the appellant was willing to plead guilty knowing that he could be prohibited from driving for life.

[30] Fourth, the objective circumstances undermine the appellant’s subjective claim that he would have acted differently had he received accurate advice. It is the case that, as illustrated in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 67, sometimes a remote chance of avoiding a particular collateral consequence may be worth the risk of a trial. However, the veracity of an appellant’s assertion that he or she would have risked a trial must be considered in the light of objective circumstances including risks known to the appellant: Wong, at paras. 26-28; Girn, at para. 70. In addition to more time spent in pre-trial custody, these would include the risk of a lengthier custodial sentence. Based on the facts read in at the guilty plea proceedings, the Crown appeared to have a strong case against the appellant. There were police witnesses to each offence and the manner of driving described readily qualified as dangerous driving. In this regard, see R. v. Romano, 2017 ONCA 837.

[31] The appellant’s counsel acknowledged in his cross-examination that the Crown was seeking “considerable pen time” after trials of the charges against the appellant. There was a reasonable possibility that the appellant would expose himself to a lengthier custodial sentence should he have proceeded to trial. In addition, the appellant stood to be convicted of the other counts that were withdrawn at the time of the guilty plea.

[32] Lastly, the appellant’s conduct since his guilty pleas is inconsistent with the notion that his driver’s license was of crucial importance to him. The appellant’s counsel expressly advised the appellant to “stay out of trouble” so as to keep open the possibility of reinstatement. However, within a year of his guilty pleas, the appellant was charged and subsequently convicted of nine counts of driving while disqualified and possession of stolen property. This is not the conduct of someone who claims that the possibility of driving again was of crucial importance. This is not “staying out of trouble”.

[33] All of these facts serve to undermine the appellant’s assertion that he would have acted differently had he known that his license would be permanently suspended. There is no suggestion that the Crown, in the face of such a deplorable driving record, would have entertained, much less agreed to, a sentence that included any possibility of reinstatement of the appellant’s driving privileges nor that any trial would conclude with a different result.

[34] There was no reasonable possibility that, but for the error relating to the licence reinstatement, the appellant would have adopted a different course of action. As such, the appellant has failed to establish subjective prejudice.

Disposition

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

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”

“David M. Paciocco J.A.”

[1] The appellant does not appeal his conviction for possession of heroin.

[2] His counsel advises that he has now overcome this addiction.

[3] A similar approach was taken in R. v. Hodgson, 2019 SKCA 79, at para. 43.