Court of Appeal for Ontario

Date: 20221125 Docket: C67697

Before: van Rensburg, Roberts and Sossin JJ.A.

Between: His Majesty the King Respondent

And: Sean Gibbs Appellant

Counsel: Karen McArthur, for the appellant Sunil Mathai, for the respondent

Heard: November 8, 2022

On appeal from the conviction entered by Justice Peter Tetley of the Ontario Court of Justice, on October 21, 2019.

Reasons for Decision

[1] On August 4, 2019, the appellant got into an argument with his father. He suddenly began punching his father and pushed his mother to the floor when she tried to call the police, causing a bruised arm. He then bit off part of his father’s ear. He was arrested and spent most of his 78 days of pre-trial custody in administrative and medical segregation. On October 21, 2019, with the assistance of trial counsel (not counsel on appeal), the appellant pleaded guilty to aggravated assault of his father. The trial judge accepted the appellant’s guilty plea and imposed a suspended sentence and three years of probation that was the product of a joint submission by the appellant’s trial counsel and the Crown.

[2] On appeal, the appellant submits that his plea was involuntary and uninformed. He argues that he lacked capacity to plead guilty because of his mental illness, which was exacerbated by the time he spent in segregation. He also contends he was prejudiced by ineffective representation by his trial counsel. The appellant has submitted fresh evidence in support of his submissions, which we admit on consent. He asks that the plea be set aside and that a new trial be ordered before a judge and jury of the Superior Court.

[3] We are not persuaded by these submissions and dismiss the appeal.

(1) The appellant’s guilty plea was voluntary and informed

[4] It is well established that a guilty plea must be “voluntary, unequivocal and informed”: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 43. There is no closed list of valid grounds for withdrawing a plea: R. v. C.K., 2021 ONCA 826, 159 O.R. (3d) 81, at para. 66; R. v. T.(R.) (1992), 10 O.R. (3d) 514, at p. 519. While the appellant deposed in his affidavit that his plea was not unequivocal, he does not contest that his plea was unequivocal in the sense that he did not clearly plead guilty in open court. The main thrust of the appellant’s submissions is that his plea was not voluntary and informed. For the reasons that follow, we conclude that there is no basis to set aside the appellant’s guilty plea.

(a) The appellant’s guilty plea was voluntary

[5] A voluntary plea represents “the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: C.K., at para. 67; T.(R.), at p. 520. The capacity to make a volitional decision to plead guilty is not high: C.K., at para. 69. A guilty plea made in open court will be presumed to be voluntary unless the contrary is shown: C.K., at para. 74; T.(R.), at p. 520. As this court observed in C.K., at para. 68, “[t]here are a range of ways that volition can be destroyed, including coercion, improper inducements or pressure imposed, and incapacity” (footnote omitted). In this case, the appellant alleges incapacity to plead guilty because of his mental illness. As a result, the onus is on the appellant to demonstrate on a balance of probabilities that he “lacked the capacity to make an active or conscious choice to plead guilty. 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”: R. v. Cherrington, 2018 ONCA 653, at para. 21 (citations omitted).

[6] The appellant has not met his onus to demonstrate that his plea was not voluntary. Absent evidence to the contrary, which is not present here, the appellant is presumed to be capable. There is no question that the appellant has suffered from mental health issues for many years. It has been held that prolonged administrative segregation causes a minimum level of harm to inmates with serious mental illness, and that prolonged administrative segregation exposes inmates to a risk of serious psychological harm: Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, at paras. 15-16, 45; Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, 144 O.R. (3d) 641, at para. 99, leave to appeal granted but appeal discontinued, [2019] S.C.C.A. No. 96. However, the fact that the appellant has mental health issues does not automatically render him incapable. Without evidence of the specific effects administrative segregation had on the appellant, it is not possible to infer that his time in administrative segregation deprived him of the limited capacity required to plead guilty. See: C.K, at para. 106; R. v. Yukich, 2017 BCCA 77, at paras. 32-35.

[7] The appellant has filed no fresh medical or other evidence to show that he lacked the mental capacity to plead guilty and there is nothing in the record, including the letter of opinion from his treating psychiatrist up to 2018, that indicates that the appellant lacked the requisite capacity. While, in the course of some of his various court attendances prior to his guilty plea, he may have shown some confused and even delusional behaviour, the transcripts demonstrate that he nevertheless understood the nature of the attendances and why he was there. At no point was he found to be unfit to stand trial. To the contrary, at the September 23, 2019 remand attendance when Crown counsel raised the issue of the appellant’s mental health, the presiding justice of the peace, after making inquiries of the appellant, was satisfied that he was fit.

[8] Importantly, the transcript from the appellant’s guilty plea attendance on October 21, 2019 shows that he understood that he was voluntarily pleading guilty to the offence of aggravated assault, foregoing a trial, and accepting the facts as read into the record, as well as the sentence that could be imposed by the trial judge notwithstanding any joint position on sentence. In particular, when asked by the trial judge, the appellant indicated that he had no questions or concerns about trial counsel’s confirmation on the record that his plea was voluntary and informed. At no point in the transcript did the appellant indicate any confusion about what was going on. Moreover, the appellant confirmed during his cross-examination on his fresh evidence affidavit on appeal that he understood what was happening. The appellant’s guilty plea was not made on the spur of the moment. Rather, after consultation with his trial counsel, he had agreed on October 3, 2019 to plead guilty and then pleaded guilty in open court on October 21, 2019.

(b) The appellant’s guilty plea was informed

[9] An informed plea means that an accused “must understand the nature of the allegations, the effect of the plea and the consequences of the plea”: Wong, at para. 43. Moldaver J. for the majority explained in Wong that an uninformed guilty plea may be withdrawn “if the accused shows (1) that he or she was not aware of a legally relevant collateral consequence and (2) that there is a reasonable possibility he or she would have proceeded differently if properly informed of that consequence”: at para. 44. However, he cautioned that “not every guilty plea entered in such circumstances will result in prejudice that is serious enough to constitute a miscarriage of justice” and that the court must be satisfied “of a reasonable possibility that the accused would have proceeded differently had he or she been aware of the legally relevant consequence in issue, either by declining to admit guilt and entering a plea of not guilty, or by pleading guilty but with different conditions”: at para. 44.

[10] The appellant deposes in his affidavit that his trial counsel did tell him that he would have a criminal record as a result of the guilty plea, however, he maintains that she did not discuss with him, and he was unaware of the effect that a criminal conviction for aggravated assault would have on his ability to resume his career as a paralegal. He did not depose in his affidavit what he would have done differently. In submissions, he argued that, had he known about the effect of a criminal record on his career, there is a reasonable possibility that he would have pleaded guilty for a chance at negotiating a conditional discharge rather than a joint submission for a conviction.

[11] The appellant has not established the necessary factual foundation to support his submissions. Most importantly, the appellant did not provide any evidence that he would have acted any differently had he known that a criminal record could prejudice his return to a paralegal career. We are not persuaded that there is evidence in the record that supports the suggestion in argument that the appellant’s mental health problems might have prevented him from stating what he would have done differently at the time of his guilty plea, or any other reason that might excuse or explain this absence of evidence.

[12] Further, the evidence does not persuade us that a criminal record in these circumstances would have automatically precluded the appellant from returning to his profession. The fresh evidence established that a Law Society inquiry would occur by virtue of any charge for an indictable offence. Whether a paralegal’s licence will be revoked or suspended where a paralegal is or has been the subject of criminal proceedings is assessed on a case-by-case basis and is not dictated by the disposition of the charge. While the evidence indicates that the Law Society of Ontario would have made an inquiry into his fitness to continue practising as a paralegal, it is by no means certain that the appellant’s licence would have been revoked, given the mitigating circumstances of his mental health issues. In any event, it is highly unlikely that returning to practice would have been a material consideration for the appellant given that he has not practised as a paralegal since 2013 and there was no evidence that he ever tried or was intending to return to practice. The appellant’s licence had been administratively suspended for not paying his fees. Indeed, the appellant stated on his cross-examination that he had not tried to return to practice.

[13] The fresh evidence establishes that the appellant was motivated to plead guilty and avoid further custody. A conditional discharge was not available for the charge of aggravated assault. Nor was it remotely likely that the Crown would have agreed to a plea to assault simpliciter, given the very serious nature of the offence and the Crown’s repeated insistence on a custodial sentence. It is unlikely that proceeding to trial would have resulted in a more lenient sentence than a suspended sentence as the trial judge imposed. There was no miscarriage of justice in this case.

(2) The appellant did not receive ineffective assistance of counsel

[14] The appellant submits that his trial counsel provided ineffective assistance. He focused on the following: 1) she did not advise the appellant that he had a right to a jury trial and a preliminary inquiry which he waived by his guilty plea; 2) she did not advise him of the October 15, 2019 letter from his parents’ lawyer that expressed their desire that the proceedings be discontinued; and 3) she did not consider the potential defence of self-induced intoxication leading to non-mental disorder automatism which could have been used to negotiate a plea to the lesser offence of assault simpliciter, punishable by summary conviction, and thus obtained a conditional discharge at sentencing.

[15] To succeed on the ground of ineffective assistance of counsel, the appellant must show that “counsel’s assistance was so ineffective that the appellant’s conviction is the product of a miscarriage of justice” by proving the following three elements:

1. The facts underpinning the allegation;
2. Trial counsel’s acts or omissions amounted to incompetence;
3. Trial counsel’s ineffective performance led to a prejudice in the form of a miscarriage of justice.

See: R. v. Sararas, 2022 ONCA 58, at paras. 41-42.

[16] The appellant has failed to meet his onus on this ground. We are not persuaded that trial counsel’s assistance was incompetent or ineffective or that the appellant was in any way prejudiced by her representation of him. In our view, the appellant’s suggestions of the different outcome that could have been negotiated on his behalf are speculative.

[17] As the appellant conceded on his cross-examination, at the time of the plea, he was aware that he had the right to a trial and that he was waiving it by entering a guilty plea. In any event, as the Supreme Court clarified in R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419, at paras. 5-8, the failure of counsel to advise an accused of modes of trial does not by itself amount to ineffective assistance of counsel or a miscarriage of justice; the appellant must demonstrate more than the loss of an informed choice and show that he would have chosen differently had counsel informed him of his right to elect his mode of trial. The appellant here has failed to do so.

[18] The October 15, 2019 letter from counsel for the appellant’s parents made no difference to the outcome. The appellant has not provided any evidence that it would have changed his instructions to counsel to plead guilty in order to avoid further custody. Moreover, it was sent to Crown counsel, as well as to the appellant’s trial counsel. The position of the appellant’s parents that the criminal proceedings cease or that the appellant avoid a custodial sentence was communicated to the trial judge in the course of the sentencing hearing. The parents could not stop the prosecution by their request. However, the trial judge took the parents’ position into account as a mitigating factor in accepting the joint submission on sentence which the trial judge stated was the most lenient sentence that could be imposed in the circumstances.

[19] Finally, there was no air of reality to the defence of self-induced intoxication on the record before the trial judge nor has the appellant provided any fresh evidence in support of such a defence. As a result, the appellant’s argument that such a defence could have been used to negotiate a plea to a lesser offence and a conditional discharge is speculative in the circumstances of this case.

[20] In our view, the appellant achieved the best, most realistic outcome possible in the circumstances of this case that aligned with his paramount consideration of avoiding further time in custody. This is a very sad case. For many years, the appellant has suffered from serious mental health issues, including substance abuse. However, the appellant is a very intelligent individual who has accomplished much, notwithstanding his many struggles. He is also very fortunate to have the unconditional love and support of his parents whose only wish is to see him receive treatment and become well. The various conditions of his probation were designed to achieve that purpose. As the trial judge observed, the appellant has much rehabilitation potential, which bodes well for his future.

[21] For these reasons, we dismiss the appeal.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“Sossin J.A.”