COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Palmer, 2024 ONCA 703

DATE: 2024-09-20

DOCKET: C70232

Fairburn A.C.J.O., Gillese and Dawe JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Adam Palmer

Appellant

Mindy Caterina, for the appellant

Dena Bonnet, for the respondent

Heard: September 13, 2024

On appeal from the conviction entered by Justice Robert Gattrell of the Ontario Court of Justice on July 21, 2016.

REASONS FOR DECISION

[1] This is an appeal from a decision refusing to strike guilty pleas. The appellant pleaded guilty to serious offences, including two counts of aggravated assault, in 2016. He was later found to be a dangerous offender and received an indeterminate sentence. At the hearing of the appeal, the court found it unnecessary to call on the respondent Crown and advised that the appeal was dismissed with reasons to follow. These are the promised reasons.

Background

[2] When Adam Palmer, the appellant, was 18 years old, he stabbed and killed his friend. He was suffering from delusions at the time. The appellant was found not criminally responsible on account of mental disorder (“NCR-MD”) in 2005, when he was twenty-one years old. From that time until April 2016, the appellant was under the jurisdiction of the Ontario Review Board save for two periods in jail, one in May 2015 and the other in April 2016.

[3] In May 2015, while residing in Providence Care in Kingston, Ontario, the appellant waited until he believed a co-patient was asleep and then entered his room, yelling and punching him. He left the room and went into the hallway. A security guard noted that the appellant did not appear aggressive. Next, the appellant went into the treatment room where the co-patient was receiving medical attention. He lunged at the co-patient and punched him in the head. He then attacked the nurse who had been attending to the first victim. She cried out that she was pregnant, but he still struck her in the face. When a security guard intervened, the appellant punched the guard repeatedly in the face and head. He also punched the security supervisor who attended. When the appellant was subdued, a homemade stabling weapon was removed from his hand.

[4] In September 2015, the appellant was sentenced to time served plus 45 days for the foregoing offences, after which he returned to the maximum-security health facility.

[5] On April 5, 2016, the appellant attacked a female nurse at the facility with a screwdriver. He stabbed her repeatedly about the face and head, seriously injuring her. The assault was completely unforeseen and without warning. He then attacked two other staff members when they intervened, stabbing one in the face and breaking his nose (the “Index Offences”). The unprovoked attacks were caught on video.

[6] Following the Index Offences, the appellant was transferred to a provincial prison and placed in segregation, where he remained unmedicated. In the three months that followed, the appellant sought to plead guilty to the Index Offences on several different occasions because he wanted to be sentenced and transferred out of segregation. On each occasion and for differing reasons, the Crown was not amenable to proceeding. During this time the appellant retained counsel, but then discharged his lawyer and attempted to plead guilty while unrepresented.

[7] On July 11, 2016, the appellant appeared in court. He was now self-represented. He reiterated his request to plead guilty to the Index Offences, saying he thought the Crown would seek a sentence of two and a half to three years. The Crown said it did not know how many years it would seek and advised that it might seek a dangerous offender (“DO”) designation. The court then arranged to have the appellant speak with a duty counsel lawyer who was in the courthouse. Before that happened, the Crown met with the duty counsel to provide him with information on the matter.

[8] Duty counsel gave testimony on the motion to strike. He said that he had explained to the appellant that a DO designation could result in an “indeterminate” or “indefinite” sentence. While duty counsel could not recall whether he used the word “indeterminate” or “indefinite” in his meeting with the appellant, he clearly recalled informing the appellant that he “could go to jail for a long, long time”. Duty counsel also recommended to the appellant that he get a lawyer who could more fully explain the DO process. Duty counsel’s evidence was confirmed by the note he wrote on the duty counsel electronic note system, that same day, about his meeting with the appellant. Once written, such notes cannot be changed.

[9] On July 21, 2016, after a full plea inquiry, the appellant pleaded guilty to the Index Offences, which consisted of two counts of aggravated assault and one count of assault. Before accepting the pleas, the court told the appellant multiple times that the Crown might bring an NCR and/or a DO application following the entry of the guilty pleas. The appellant entered guilty pleas and the Crown advised it would seek an NCR assessment. That assessment showed the appellant was not NCR at the time of the Index Offences.

[10] In February 2017, the Crown confirmed it was seeking a DO assessment.

[11] In October 2018, the appellant, now represented by counsel, brought a motion to strike his guilty pleas on the basis that when he entered the pleas, he did not understand the effect and potential consequences of a DO application. He claimed he would not have pleaded guilty if he had known he might never be released from jail. He further claimed that he would have retained counsel to try to have the Crown abandon pursuit of a DO application and, if that failed, he would have gone to trial.

[12] The appellant’s motion was heard by the judge before whom the appellant had twice appeared when seeking to plead guilty to the offences (the “sentencing judge”). The sentencing judge dismissed the motion to strike, with reasons to follow. The sentencing judge then heard the protracted DO application which took place during the COVID pandemic.

[13] On July 26, 2021, the sentencing judge found the appellant was a dangerous offender. He released his reasons for dismissing the motion to strike the guilty pleas in tandem with the release of his reasons on the DO application.

Analysis

[14] On appeal, the appellant submits the sentencing judge erred in refusing to strike the guilty pleas for being uninformed and by materially misapprehending the evidence on the motion. We reject these submissions.

[15] There is no question that the sentencing judge correctly stated the legal principles that apply on a motion to strike a guilty plea. He noted that: the onus is on the applicant to show, on a balance of probabilities, that the plea should be struck; the pre-conditions for a valid plea are that the plea is voluntary, unequivocal, and informed; and, the applicant must satisfy the court that a pre‑condition of pleading guilty was not met and preserving the plea would result in a miscarriage of justice.

[16] On a consideration of the record and in light of the appellant’s position on the motion, the sentencing judge found there was no issue that the appellant’s pleas were voluntary and unequivocal.

[17] On the question of whether the appellant’s pleas were informed, the appellant contended they were not because he did not understand: (i) the consequences of a DO declaration; (ii) the meaning of an “indefinite sentence”; and, (iii) that the Crown could pursue a DO application even though the appellant did not have two prior penitentiary sentences.

[18] The sentencing judge rejected the appellant’s contention that he did not understand that the Crown could pursue a DO designation because he did not have two prior penitentiary sentences. He noted that at the appellant’s court appearance on July 11, 2016, the Crown alerted the appellant and the court that it was considering pursuing a DO application, at which point the matter was stood down so that the appellant could speak to duty counsel. The Crown in court that day assisted by briefing the duty counsel before he spoke with the appellant. After speaking with the appellant, duty counsel attended in court and confirmed that he had spoken with the appellant. The sentencing judge also noted that on July 21, 2016, before the appellant was arraigned and pleaded guilty, “the better part of the day” was spent in discussions of this matter that involved the appellant, the assigned Crown, and the court.

[19] On the issue of whether the appellant understood the consequences of his guilty pleas and the meaning of “indefinite”, the sentencing judge found that the appellant had not been hesitant to raise questions in court in the days leading to the pleas and that he would have asked duty counsel or the court for clarification if he were confused. Moreover, even if the appellant did not understand the meaning of an “indefinite” sentence, he understood that it meant “[a] long, long period of time in jail.”

[20] The sentencing judge also considered whether preserving the plea would result in a miscarriage of justice. He noted that to prove a miscarriage of justice, the applicant must demonstrate prejudice by filing an affidavit establishing a reasonable possibility that he would either (1) have pleaded differently or (2) have pleaded guilty but with different conditions: R. v. Wong, 2018 SCC 25, [2018] S.C.R. 696. The appellant claimed that, if properly informed, he would have pleaded guilty on the condition that the Crown not pursue a DO application.

[21] The sentencing judge found the Crown would not have abandoned the option of pursuing a DO application. Given that finding, the sentencing judge concluded that the appellant would not have gone to trial absent such a deal, both because the appellant was insistent on pleading guilty and had tried to do so several times, and because his assaults had been captured on video and his guilty pleas were “an exercise in bowing to the inevitable”.

[22] We are not persuaded that the sentencing judge’s reasons reveal any material misapprehensions of the evidence. In particular, we do not agree that the sentencing judge misunderstood the appellant’s evidence about his understanding of the word “indefinite”. The sentencing judge stated: “[e]ven though [the appellant] said he was not sure what ‘indefinite” meant, he testified that he thought it meant, ‘A long, long period of time in jail’”. In our view, this accurately summarizes the appellant’s transcribed testimony. We do not agree that the sentencing judge confused the appellant’s evidence about what he knew in 2016 with his evidence about what he now knows, nor do we agree that he incorrectly understood the appellant as having changed his evidence on this point.

[23] Finally, relying on R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, the appellant asked this court to disregard the sentencing judge’s reasons for dismissing the motion and to assess the validity of the guilty pleas based on the record alone. He argued that the unexplained delay in the release of those reasons would “cause a reasonable person to consider the reasons to be an after-the-fact justification”.

[24] We reject this submission. We see nothing untoward in the sentencing judge releasing his reasons for dismissing the motion to strike in tandem with his dangerous offender verdict. Both sets of reasons were released at the same time, one month after the lengthy and protracted DO hearing, which had been impacted by the COVID-19 pandemic and province-wide closure of courts. Further, there was no prejudice to the appellant occasioned by the timing of the delivery of the motion reasons. Considered in context, the timing of the delivery of the motion reasons was a reasonable process for the sentencing judge to have followed in this case.

Disposition

[25] Accordingly, the appeal is dismissed.

“Fairburn A.C.J.O.”

“E.E. Gillese J.A.”

“J. Dawe J.A.”