COURT FILE No.: Scarborough 319158

DATE: 2012·01·24

Citation: R. v. Downes, 2012 ONCJ 45

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

COLIN DOWNES

Before Justice S.E. Marin

Heard on April 9, 2010, June 1, 2010, November 28, 2011 and December 20, 2011.

Reasons for Judgment released on January 24, 2012

D. Emami ……………………………………………………………………………………for the Crown

H. Pringle …………………………………………………………………..for the accused Colin Downes

MARIN J.:

[1] This is an application to strike a guilty plea.

[2] Colin Downes pleaded guilty to a domestic charge of threatening death on April 9, 2010. His case had been judicially pre-tried before a colleague of mine on an earlier date. At that time, the Crown made a resolution offer. The evidence is that my colleague listened carefully to the resolution discussions but was silent with respect to the issue of sentence. Mr. Downes decided to plead guilty in advance of his scheduled trial date. His case was moved from my colleague’s court to my court for the purposes of the plea.

[3] Mr. Downes was assisted by experienced counsel and the elements of a comprehensive plea inquiry were reviewed on the record with him prior to his plea. He personally entered his plea and acknowledged the truth of the facts, subject to one correction. It was not a joint submission. The Crown (not Mr. Emami) was seeking an intermittent jail sentence and the defence was seeking a suspended or conditional sentence. I indicated that I had concerns that the sentences recommended by each counsel were excessively lenient and I adjourned the matter to June 1, 2010 to obtain more information about Mr. Downes through a pre-sentence report. In that report, Mr. Downes stated that he was innocent of the charge and had only pleaded guilty so he could return to work and support his daughter.[^1] I invited submissions respecting the validity of the plea from the Crown and defence counsel’s agent when the matter returned for sentencing. A further adjournment was required for Mr. Downes to consult with his lawyer about his options. Thereafter, this matter developed a life of its own.

[4] Further adjournments were required to obtain a transcript and for Mr. Downes to retain new counsel and prepare materials in support of the application. When the application was scheduled to proceed on the first hearing date, an adjournment was necessary to address a potential conflict of interest since Mr. Downes’ new lawyer was the spouse of his former counsel, who would be testifying on the application. Thereafter, the matter was adjourned on numerous occasions, always at the request of Mr. Downes, as he attempted to obtain new counsel through Legal Aid. Once Ms. Pringle was finally retained, some time was required to prepare a new application record, including a supplementary affidavit from Mr. Downes. On November 28, 2011, over eighteen months after the plea was entered, the application was finally heard.

[5] Mr. Downes’ position is that his guilty plea should be struck because there is “real doubt as to its validity” when all of the circumstances surrounding the plea are considered holistically. These factors include the inducement of the plea bargaining process; his worsening psychiatric condition in the months prior to the plea, as aggravated by his restrictive bail; and his belief that he had no other real alternative given his escalating anxiety and depression and the perceived recommendations of his lawyer and probation officer.[^2] Mr. Downes maintains that he is innocent of the charge and only pleaded guilty because his diminished mental state made him vulnerable to pressure from those he trusted and because he believed, based on his lawyer’s account of the judicial pre-trial, that the most severe sentence he would receive was an intermittent sentence that would permit him to return to work to support his child.

[6] The Crown submits that there is ample evidence to support a finding that this was an informed, voluntary and unequivocal guilty plea made by Mr. Downes for tactical reasons that were valid to him at the time. Individually and collectively, none of the factors raised by Mr. Downes should raise a “real doubt” about the validity of his plea. The Crown submits that Mr. Downes did not have an honest belief that his sentence was guaranteed to be no more than that recommended by the Crown and that he knew that it was open to the sentencing judge to impose a sentence different to that proposed by the lawyers. He knew that this was not a joint submission by counsel. Mr. Downes has past experience with guilty pleas and with his chosen counsel and that informed his understanding of what was happening in this case. Mr. Emami contends that the reason Mr. Downes is looking to strike his plea is because he fears that he will receive a higher sentence than the lenient offer recommended by the Crown.

The Law

[7] A plea of guilty is a formal admission that the accused has committed the offence charged and a consent to a conviction without any trial. It is a waiver of both the accused’s right to have the Crown prove the charge beyond a reasonable doubt and the procedural safeguards associated with the trial process.[^3] In order for a plea to be valid, it is essential that it be unequivocal, voluntary and informed.

[8] These principles are embodied in the pre-plea inquiry mandated by section 606(1.1) of the Criminal Code.

[9] Justice Hill in R. v. Moser[^4] defined the elements of a guilty plea at paragraphs 32 to 34 of his decision. I endorse his observations and repeat them, with some modification, here.

[10] A plea of guilty must be unequivocal and entered in circumstances where it was not unintended or confusing, qualified or modified or uncertain in terms of the accused’s admission of the essential legal elements of the offence. The accused’s personal entry of the plea is a factor tending to demonstrate the unequivocal character of the plea.

[11] A plea of guilty must be voluntary in the sense that the plea is a conscious volitional decision to plead guilty for those reasons that an accused person regards as appropriate. Ordinarily a plea of guilty involves certain inherent and external pressures. Often those pressures arise in the context of plea negotiations. A plea offer by the prosecution will not render a subsequent plea involuntary unless it is accompanied by coercive or oppressive conduct by others or takes place in circumstances personal to the individual which unfairly deprive him of free choice in the decision not to go to trial. There is no exhaustive list of such circumstances but they may include pressure from the court, pressure from defence counsel, the incompetence of defence counsel, cognitive impairment or emotional disintegration of the accused or the effect of illicit drugs or prescribed medications.

[12] Finally, an informed plea means that the accused is aware of the allegations made against him, as well as the legal effect and consequences of the plea of guilty. Where an accused understands the factual basis for the allegations, counsel is able to give advice and receive instructions about the existence of the essential elements of the offence. The legal effect of a guilty plea is to surrender the presumption of innocence and relieve the prosecution of the burden of proving guilt beyond a reasonable doubt. The accused must generally know the jeopardy faced by way of possible punishment. Often the seriousness of the offence is self-evident and so too is the risk of a custodial sentence. However, incorrect legal advice as to sentencing options may call into question whether the plea was truly informed. Where for example, the accused did not want a criminal record and counsel sought a conditional discharge where one was not legally available, the guilty plea was struck.[^5]

[13] Where a guilty plea is entered in open court by an accused who is represented by counsel there is a presumption that the guilty plea is valid. In the absence of any circumstances in the record, or a challenge to the competence and professionalism of trial counsel, a trial judge is justified in drawing the inference that counsel took the necessary steps to ensure that the accused understood the nature and consequences of a guilty plea.

[14] While there is some conflict in the jurisprudence, I am of the view that the presumption of validity can be displaced where the accused persuades the court on a balance of probabilities that there is a “real doubt” that the plea is voluntary, equivocal or informed.[^6] I agree that the burden of proof cannot be set so high as to compromise adjudicative fairness. Finally, I recognize that a court retains the discretion to set aside a plea that is otherwise unequivocal, voluntary and informed where it is necessary to do so to avoid a miscarriage of justice. Such cases should be rare and compelling, as in R. v. Hannemaayer[^7], where the accused agreed to a plea deal to avoid a lengthy penitentiary sentence in a notorious case involving identity and was later exonerated by fresh evidence that proved he was not the person responsible for the offence.

[15] A guilty plea should not be withdrawn where an accused has made a reasoned and informed tactical decision, yet decides at some later point to revisit that decision.[^8]

[16] Mr. Downes does not allege any incompetence, conflict or coercion on the part of his lawyer and he waived his solicitor-client privilege enabling his lawyer to testify at the hearing to strike the plea.[^9]

Was Mr. Downes’ Plea Informed?

[17] Whether or not Mr. Downes’ guilty plea was informed turns on a finding of fact. If I am satisfied on a balance of probabilities that Mr. Downes believed that he had been promised a certain sentence as his maximum jeopardy, then I must strike his guilty plea. If I accept Mr. Genua’s evidence that he never made such a promise or guarantee and find that Mr. Downes was not misled with respect to the legal consequences of his plea, then the plea may be valid if it was otherwise voluntary and unequivocal.

[18] It is necessary to review the evidence in greater detail.

[19] Mr. Downes was charged on September 14, 2009, with the offence of threatening to cause death to his partner, Amanda Beavis. Mr. Downes and Ms. Beavis had been involved in an on-and-off relationship for some fifteen years. At the time of the offence, they were living together with their seventeen months old daughter and Ms. Beavis’ two daughters, aged ten years and five years. At 1:45 in the morning, police were called to the home by a neighbour who could hear screaming and objects being smashed in the apartment. In the hallway outside the apartment, police heard Mr. Downes say: “You’re dead, you fucking bitch. I’m going to kill you.” Ms. Beavis answered the door holding her infant in her arms. The two other children were awake and crying. The apartment was in disarray. Ms. Beavis did not provide a formal statement to police.

[20] Mr. Downes was arrested on charges of threatening death, mischief to property and breach of probation. He has a serious criminal record, including three prior convictions for domestic violence involving other partners. He was on probation for the last of those convictions at the time of these offences. He spent twenty-one days in custody before being released on a very restrictive bail with a house arrest condition that permitted him to be out of his home in the company of his surety for the purpose of counselling. He lost a job he had held for four months when he was arrested. He did not seek to vary his bail to permit him to seek or maintain other employment.

[21] Prior to his bail hearing, Mr. Downes retained Mr. Paul Genua, a criminal lawyer with some five years experience. Mr. Genua had acted for Mr. Downes once before, when he pleaded guilty to domestic violence charges in Newmarket. Mr. Genua received some disclosure and reviewed it with Mr. Downes. Mr. Downes denied threatening Ms. Beavis. At the Crown pre-trial, the Crown’s position on resolution was time in jail. Mr. Genua could not remember how much time. He testified that he “would have” taken the Crown position to Mr. Downes but he did not pursue resolution any further because Mr. Downes maintained his innocence.

[22] On March 9, 2010, Mr. Genua scheduled a judicial pre-trial before Justice Nakasuru to discuss out-standing disclosure and trial issues. Mr. Genua did not have instructions from Mr. Downes to discuss resolution because Mr. Downes said he was not guilty. Mr. Genua believed that Justice Nakatsuru raised the possibility of resolution at the judicial pre-trial. The Crown at the pre-trial indicated that if Mr. Downes would plead guilty to one count of threatening death, he would seek thirty days jail to be served intermittently, in addition to pre-trial custody equivalent to forty-two days on a 2:1 basis. The Crown would also ask for a one year period of probation. The Crown was content if defence counsel asked for a different and lesser sentence. Mr. Genua recalled that Justice Nakatsuru listened but said little. He took no position respecting the plea offer made by the Crown. Mr. Genua testified that he construed Justice Nakatsuru’s silence as an endorsement of the Crown’s position rather than an endorsement of the defence position or merely no endorsement at all.

[23] Mr. Genua indicated he would take the offer to his client but he also insisted that the matter be set down for trial that day. The Crown advised that the resolution offer would expire in thirty days.

[24] A trial date on November 11, 2010 was set on the same day as the judicial pre-trial. An interim date for a hearing of a section 11(b) Charter application was also scheduled for August 24, 2010.

[25] On the same day as the judicial pre-trial or within a week of it, Mr. Genua and Mr. Downes discussed the plea offer in detail. Mr. Downes says that this discussion took place outside the courtroom in the hallway of the courthouse when his father was present. Mr. Downes Sr. did not testify at this hearing. Mr. Genua testified that he spoke to Mr. Downes in private on the telephone. Both agree that there was a conversation and that neither of them made notes of what was said. Mr. Downes wanted time to consider his options and discuss his situation with family members. Both agree that Mr. Downes called Mr. Genua within the month to say that he wanted to plead guilty.

[26] Mr. Downes agreed that Mr. Genua told him that if he wanted to plead guilty, he would have to admit that he spoke the words attributed to him by the police and with the intent to threaten Ms. Beavis. He clearly understood that a guilty plea could only be accepted if he admitted the facts alleged against him. Mr. Downes testified that Mr. Genua gave him mixed messages about the legal consequences of a guilty plea, telling him that a thirty day intermittent sentence with time off for good behaviour was a “sure thing” while also telling him that the judge could impose any sentence he or she believed was fit. Mr. Downes testified that based on what he was told by Mr. Genua, he believed that the pre-trial judge and the Crown had already agreed on a thirty day intermittent sentence at the pre-trial. Mr. Downes also believed that I would be bound by the position taken by my colleague at the pre-trial.

[27] Armed with the promise of a sentence that would enable him to work and get on with his life, Mr. Downes told Mr. Genua that he would go into court and tell the judge he did what the police said he did.[^10] Mr. Downes insisted that he was innocent but that he succumbed to unique personal pressures when he made his decision to plead guilty. He says that he never told anyone he was guilty apart from admitting facts in court.

[28] With respect to Mr. Downes’ understanding of the plea, Mr. Genua testified as follows:

… if he had told me that ‘I’m just going to say I did it but I didn’t really do it’, I would not have gone through with the plea on his behalf. I would have asked him if he’s doing it, you know, if he’s under – if it’s voluntary, he’s got to acknowledge the facts. I would have told him, listen, you’re giving up your right to a trial, and I also would have said that, you know, the judge can sentence you to whatever the judge wants, but, you know, I’m confident that, - you know, I conveyed to him that we were in front of a judge, we talked about this deal in front of Justice Nakatsuru and that, you know, that carries a lot of weight. So even though I would have conveyed that I certainly would have told him that, you know, the judge can sentence you to whatever the judge likes. So to answer your question did he specifically say to me that he did do it, in that context in a way I understood it that way, yeah, that he’s going to acknowledge these facts, yeah.[^11]

[29] Mr. Genua inferred that his willingness to plead guilty was tantamount to Mr. Downes admitting his guilt. In my opinion, that inference was a reasonable one in all the circumstances.

[30] Mr. Genua testified that he “would have” told Mr. Downes about the offer and he “would have” told him that since the judge raised the possibility of resolution, a plea would be given weight and consideration. He conveyed his assessment of the pre-trial to Mr. Downes, which was that that his sentence would be somewhere between time served and thirty days. He specifically recalled telling Mr. Downes that he was confident that he would “probably get thirty days”[^12] because of his record but he also told him that the judge “can sentence you to whatever the judge wants”[^13]. He gave his professional opinion that the offer was a good one and that Mr. Downes would likely get more jail if convicted after a trial. Mr. Genua indicated a willingness to take the matter to trial and he offered an opinion that Mr. Downes could “beat” the charges at a trial. In cross-examination, Mr. Genua agreed that he did not give Mr. Downes a guarantee that he would not get more that thirty days.

[31] When Mr. Downes indicated that he wanted to plead guilty, Mr. Genua contacted the Crown to have the matter brought forward. The case was scheduled to be before Justice Nakatsuru but it was traversed to my court. Mr. Genua testified that he did not say anything to Mr. Downes about the change in judges because he honestly believed that if the matter had been judicially pre-tried it carried more weight and it was sufficient to alert the new judge to the fact of the earlier judicial pre-trial.

[32] In the circumstances of this case, that position is difficult to understand. Had it been a joint submission, the fact of a judicial pre-trial could be important because it might convey a judicial acceptance of the proposed sentence, absent unforeseen developments. In those circumstances, I would have stopped the proceedings and asked to meet with counsel in chambers to confirm the earlier pre-trial discussions and the potential desirability of having the plea proceed before the original pre-trial judge. However, where counsel have divergent views about sentence and nothing is said about the nature of the pre-trial discussions or the view, if any, of the pre-trial judge about the sentences being proposed, the mere fact of a pre-trial does not engage any special consideration.

[33] In any event, Mr. Genua knew as a matter of law that sentencing was the prerogative of the justice hearing the guilty plea and on his account, he had advised Mr. Downes of that fact.

[34] I have carefully considered all of the evidence and I am satisfied that Mr. Downes knew that he could not enter a plea of guilty unless he admitted that he threatened Ms. Beavis. I am also satisfied on a balance of probabilities that Mr. Downes understood that counsel were not in agreement about his proposed sentence and that it was open to the judge taking his plea to impose whatever sentence that judge deemed fit. I do not accept Mr. Downes’ evidence that he believed he had been promised a specific sentence as a “sure thing”.

[35] Mr. Downes’ prior involvement with both guilty pleas and Mr. Genua informs my conclusions. In cross-examination, Mr. Downes testified that he “vaguely remembered” his criminal record. He believed that he had pleaded guilty on four occasions and gone to trial once. On at least one occasion, his first conviction, he had pleaded guilty for reasons of expediency, to get on with his life rather than waiting a lengthy time for a trial. He knew that when there was a guilty plea he had to acknowledge all of the facts and that the sentence always stays with the judge. He agreed with a suggestion in cross-examination that he knew that a judge never guaranteed what sentence would be imposed. Armed with this knowledge, it is improbable that he would believe that he had been guaranteed a thirty day intermittent sentence if he was to enter a guilty plea. If it was a “sure thing”, he would not need to be told about the weight that attaches to a judicially pre-tried plea and there would be little advantage in his lawyer asking for a lesser sentence.

[36] For the most part, I did not find Mr. Downes to be a credible or reliable witness. He gave inconsistent evidence about the impact of his discussions with his probation officer and his mental state on his decision to plead guilty. His reasons for pleading guilty were fluid and evolved from expedience to the undue influence of others he trusted. He says that his lawyer promised him a certain sentence and yet he maintains that his decision to try retract his plea has nothing to do with the possibility of not receiving that sentence and everything to do with his assertion of innocence. I find this implausible. His testimony about whether he would have brought this application if he had received the sentence he expected was inconsistent as was his evidence about why he was seeking to strike his plea. I do not accept his evidence that he honestly believed that he had been guaranteed a specific sentence by the pre-trial judge and pre-trial Crown.

[37] Mr. Downes has a high-school education. He speaks English and he has no apparent difficulties communicating in that language. He is not a novice in the criminal justice system and he has prior experience on four other occasions with guilty pleas. On one of those occasions, he agreed that he pleaded guilty for reasons of expedience, because he did not want to wait for his trial. The evidence is that he was involved in the review of his disclosure and the development of a defence to be presented at trial. Mr. Downes was not a passive client who declined to play an active role in his defence.

[38] His decision to plead guilty must also be considered in the context of the facts underlying the charge. This was a strong case for the Crown, in my estimation. Ms. Beavis’ co-operation is not essential to the proof of the charge against Mr. Downes, unlike many cases of domestic violence. In the absence of Ms. Beavis’ cooperation, the case for the prosecution depends on the testimony of the police and the neighbour as to what was said and the impact of those words on Ms. Beavis, which can be inferred from all the circumstances, including demeanour evidence provided by the police and the neighbour. Mr. Downes’ defence, as disclosed in the pre-sentence report, appears to be that the police fabricated their account and the neighbour had a motive to falsely implicate him. Credibility will be an essential aspect of the case. Mr. Downes agreed that if the court accepts the evidence of the prosecution that he may well be found guilty. In short, this is not a case where a guilty plea is improvident on its face.

[39] At times Mr. Genua’s recollection of his interaction with Mr. Downes was far from specific or detailed. His testimony was replete with phrases such as “I would have”, “I don’t remember” and “I can’t recall”. It is unfortunate that written instructions respecting the guilty plea were not obtained from Mr. Downes by Mr. Genua. It is also unfortunate that Mr. Genua attended the hearing without his client file or any notes to refresh his memory of what would otherwise be relatively routine events in a defence counsel’s practice. There were occasions where he testified that he had a specific memory of events, such as explaining the need to admit the essential facts to sustain a valid guilty plea and telling Mr. Downes that he would probably get thirty days intermittent. I accept his testimony on such matters because it is logical that he would both say and remember such things in the context of this case. I have concerns about the reliability of his testimony in areas where he indicated that he had little recollection. In particular, I do not accept his after-the-fact musings about what his client may have believed about the certainty of his sentence. I am confident that if Mr. Genua thought that Mr. Downes believed his sentence was a “sure thing”, he would have corrected this mis-apprehension.

[40] In summary, while I am satisfied that Mr. Genua provided his professional opinion to Mr. Downes, I am equally satisfied that he made it clear that he could not guarantee him a particular sentence. I do not accept that a lawyer of Mr. Genua’s experience would mislead his client in such a fundamental way as to promise Mr. Downes that a certain sentence was a “sure thing”, particularly in circumstances where he knew his own assessment of any probable sentence was based on assumptions. I am satisfied that Mr. Genua explained the nature and consequences of a guilty plea to Mr. Downes on an earlier occasion and again on this occasion and that Mr. Downes fully understood the nature and legal consequences of his plea at the time it was made.

[41] Mr. Downes has failed to establish that his plea was uninformed.

Was Mr. Downes’ Plea Voluntary?

[42] Mr. Downes testified that at the time of his plea, he was not tired, intoxicated or suffering from mental delusions. In his affidavits, letters filed at the hearing and his testimony, he provided details about how his anxiety and depression were escalating while he was on bail and how he sought treatment from his family doctor, his psychiatrist and the hospital. He described the negative effects of his medication, including that it made his thinking “foggy”[^14]. He testified that his guilty plea was motivated by “my mental state of mind” not the proposed sentence in the plea offer. He described his state of mind as “off the wall” at the time of his plea.

[43] With respect to the voluntariness of the plea, I am not persuaded that Mr. Downes’ mental distress played any significant role in his decision to plead guilty. As indicated above, a voluntary plea refers to the conscious volitional decision of an accused to plead guilty for reasons which he regards as appropriate.[^15] The limited cognitive capacity standard is compatible with voluntariness; all that is required is evidence that an accused understands the process, can communicate with counsel and can make an active or conscious choice. It is not necessary that an accused be capable of making wise or even rational decisions that are in his best interests.[^16]

[44] I accept that like many accused persons, Mr. Downes felt anxious and depressed at his predicament and that he felt pressured to make a decision whether or not to plead guilty. His emotional distress was compounded by his grief at the loss of a friend and his separation from his partner and their child. His sense of futility was no doubt increased by his inability to work and make productive use of his time. However, as was stated in R. v. T. (R.) at para. 18, “[a]bsent credible and competent testimony that those emotions reached a level where they impaired the appellant’s ability to make a conscious volitional choice, the mere presence of these emotions does not render the plea involuntary.” In my view, evidence of that nature is absent in this case. In fact, Mr. Downes acknowledged in cross-examination that his mental state and the effects of his medication were not so debilitating as to render him incapable of exercising volitional choice.

[45] Mr. Genua was aware of Mr. Downes’ history of mental illness and his difficulties with his restrictive bail. He had no concerns about Mr. Downes’ capacity to enter a voluntary plea and he did not believe that Mr. Downes was at the point of desperation where he was unable to make an informed or voluntary decision about how to proceed with his charges. He would not have assisted him with a plea of guilty had he thought otherwise.

[46] Mr. Downes testified that his distraught emotional state made him more susceptible to the influences of others he trusted and therefore detracted from the voluntariness of his plea. He was clear that these trusted persons did not include Mr. Genua or his parents, because they did not urge him to plead guilty. However, he complained about the influence of his probation officer, Ms. Fernie, among others.

[47] Ms. Fernie testified that she was supervising Mr. Downes when he incurred these charges. She met with him several times prior to his plea. She testified that it is not part of her practice to give probationers advice about guilty pleas. She did not tell Mr. Downes that for some people, it’s better to plead guilty and move on with their lives. I accept her evidence that she never spoke those words to Mr. Downes and she did not encourage him to plead guilty. I found her to be a credible and reliable witness who was not shaken on this point in her testimony. I note that Mr. Downes’ position evolved in his affidavits and at the hearing from a position of asserting improper pressure by Ms. Fernie to a denial of any improper pressure by her. In cross-examination, Mr. Downes conceded that Ms. Fernie did not tell him to plead guilty. He said: “I wouldn’t say she forced me to plead guilty.”

[48] I am satisfied that Mr. Downes was not coerced or oppressively pressured in any way by any person to plead guilty. Indeed, his position at the hearing was that “nobody pressured him but there was a lot of pressure because this was a very stressful situation to be in”. He said that this time was different from other times because he had a wife and daughter to support. When reminded that he had been in a similar situation in 2001, facing criminal charges while having a partner and a child, Mr. Downes insisted it was different because those charges weren’t domestic in nature.

[49] To the extent that he has testified that he was not responsible for his own choice to plead guilty and instead was a vulnerable and ill person manipulated by those he trusted, I reject his evidence completely. In my opinion, his testimony about being pressured is nothing more than a transparent effort to shift the responsibility for his volitional choice to others. Finally, I note that when he was specifically asked by me at the time of his plea if he was pleading guilty because he had been threatened or induced or pressured to do so by anyone, his response was an immediate and clear, “No, Your Honour”.

[50] Unlike many accused persons who have to decide whether to plead guilty or go to trial, Mr. Downes was not dealing with the stress and anxiety of making this decision while in custody or while under restrictive time constraints. He was not dealing with an unknown duty counsel but rather with a counsel whose services he had used in the past and in whom he clearly had confidence. He had access to family and friends and he chose to discuss his options with several of them. He had access to medical supports as he needed them and there is evidence that he exercised this access. He had pleaded guilty in the past, including to domestic offences. The strain of his situation was not a novelty for him.

[51] Finally, I am not persuaded in all the circumstances of this case that the plea offer deprived Mr. Downes of volitional choice. While I accept that a plea offer may be a potential inducement, the jurisprudence[^17] recognizes that the mere fact of a plea bargain does not render a guilty plea invalid. Mr. Downes testified that his need to put an end to his restrictive bail conditions so that he could get a job and support his family was such a powerful inducement that in his depleted mental state, he was prepared to plead guilty to the charge even though he knew he was innocent. He argues that his personal circumstances were such that he was psychologically compelled to accept the inducement of a plea with an intermittent sentence as a route back to sanity, in a manner akin to a drug addict prepared to plead in return for a release from custody as a route to medication.[^18]

[52] In my view, the two cases are clearly distinguishable. I do not have expert evidence of the quality present in the Tunney case, directly linking Mr. Downes’ professed desperation to his decision to plead guilty. In addition, Mr. Downes had other avenues to address his inability to work apart from a plea, such as exploring a consent bail variation with the Crown or bringing a bail review. The evidence is that he chose to not pursue these options because his lawyer was not confident they would be successful given how strongly the Crown contested his bail in the first place. Most importantly, Mr. Downes conceded in cross-examination that his mental state did not deprive him of the ability to make volitional choices.

[53] Mr. Downes has failed to establish that his plea was involuntary.

Was Mr. Downes’ Plea Unequivocal?

[54] Mr. Downes agreed that his plea was unequivocal because he knew that he had to admit the threat if he wanted to get back to supporting his wife and daughter and end his restrictive bail. However, Mr. Downes maintains that he is innocent and that his statement to that effect in the pre-sentence report modifies his admissions in open court and undermines any confidence that his plea was in fact unequivocal.

[55] Mr. Genua testified that he had a specific memory of discussing parts of the pre-plea inquiry. He told Mr. Downes that if he was going to plead guilty he had to admit that he threatened Ms. Beavis. If Mr. Downes didn’t threaten her then he was told he could not plead guilty. At this time, “there really was no answer as to whether he did or did not threaten her but that he would think about the offer.”[^19] Mr. Genua did not recall telling Mr. Downes that he would have to admit the truth of the allegations to him. When he was asked whether, “at any point during the lifetime of your representation of him…did he ever say he uttered a threat to Amanda?”, Mr. Genua answered, “I don’t recall.”[^20] When Mr. Downes phoned later to say he would take the deal, Mr. Genua confirmed that Mr. Downes would be admitting the facts alleged against him and he inferred that his client was acknowledging the truth of those allegations.[^21]

[56] Mr. Downes knew he could dispute different parts of the Crown synopsis. Mr. Downes took exception to the allegation that he was smashing things in the apartment. He was only prepared to admit that the apartment was in disarray and Mr. Genua alerted the court to this distinction at the time the plea was entered. Mr. Genua testified that Mr. Downes was absolutely silent about the threat when that was reviewed with him before the plea.

[57] Mr. Genua testified that he did not have any notation in his file that Mr. Downes admitted threatening Ms. Beavis. However, Mr. Genua did not bring his file to the hearing and he testified that he had no notes of his conversations with Mr. Downes. Given that, it’s unlikely he would have any note in his file. His best recollection was that he inferred Mr. Downes’ guilt based on Mr. Downes’ understanding and willingness to acknowledge the truth of the allegations against him. In my view, this was a reasonable inference based on his present and past relationship with Mr. Downes.

[58] After the guilty plea, Mr. Genua had no further contact with Mr. Downes that he could recall with specificity. Mr. Genua sent an agent on the sentencing date and after she informed him about the contents of the pre-sentence report and what she believed the Crown’s position to be, she continued to appear on Mr. Downes’ behalf until the issue of conflict emerged.

[59] Mr. Downes’ did not immediately try to repudiate his plea once I indicated an unwillingness to impose the sentence recommended by the Crown. It was not until he expressed his innocence to the author of the pre-sentence report that an issue arose about the validity of his plea. Ms. Pringle submits that this is clear evidence that he is not trying to manipulate the system. I disagree. In my view, it supports the Crown’s contention that Mr. Downes knew that he had entered his guilty plea with a full understanding of its legal effect and consequences and he was actively trying to minimize his involvement and possibly mitigate his situation.

[60] I am satisfied that the real reason Mr. Downes wants to strike his plea is because he may not receive the sentence he anticipated as probable. At one point in cross-examination, he did agree with the suggestion that this application would not be before the court if he had received a sentence of thirty days on weekends, or less, on April 9, 2010. At other points in cross-examination, he adamantly denied this to be the case and talked about his innocence and the significance for his future of an unfounded entry on his criminal record.

[61] I am satisfied that the record discloses no reason to question the validity of the plea at the time it was entered before me. Mr. Downes personally acknowledged that he knew he would be admitting the accuracy of the facts read into the record, that he was giving up his right to a trial, that his plea was voluntary and that the court was not bound by any submissions made by counsel. He personally acknowledged that his plea was not the product of threats, inducements or improper pressure and that he was pleading guilty of his own free will.[^22] He specifically admitted that he threatened Ms. Beavis in the course of an altercation with her.[^23]

[62] He indicated his grasp of the options available to him in the context of admitting the facts essential to the proof of different offences. Through counsel, he did not admit to damaging any of the contents of the apartment, facts necessary to make out the offence of mischief. This would indicate that the synopsis was carefully reviewed with him in advance of the plea to determine what he was prepared to admit and what he was not prepared to admit. Mr. Genua initially could not recall whether Mr. Downes ever told him he was guilty and later testified that Mr. Downes never explicitly admitted his guilt. Mr. Genua testified that he had an “impression” that Mr. Downes’ plea was an implicit admission that he had threatened Ms. Beavis and that had he not been satisfied of that, he would not have assisted Mr. Downes with his plea. I am satisfied that Mr. Downes appreciated that a valid plea entailed an unequivocal admission of the threat and that he voluntarily made a tactical decision to make that admission for reasons he believed to be valid at the time.

[63] I do not accept that his later expression of innocence undermines the otherwise unequivocal character of his plea because he made that statement after he was aware that might not receive the short intermittent sentence recommended by the Crown.

[64] Mr. Downes has failed to establish that his plea was unequivocal.

The Residual Discretion to Strike a Guilty Plea

[65] While I have determined that Mr. Downes’ plea was informed, voluntary and unequivocal, are the circumstances of this case, considered cumulatively, such that I should exercise my residual discretion and strike Mr. Downes’ plea to prevent a miscarriage of justice?

[66] Mr. Downes contends that his case is similar to that of the accused in R. v. Al-Diasty[^24]. In that case, the Court of Appeal quashed a guilty plea because defence counsel had advised his client after conducting a judicial pre-trial that a non-custodial sentence on a plea of guilty would be a “sure thing”. The appellant entered a guilty plea and instead received a custodial sentence. The appellant maintained his innocence and claimed that his personal circumstances made it so important that he avoid incarceration that he pleaded guilty on the assurance of avoiding jail. There was little dispute in the evidence as to what was said to the appellant and his motivation for pleading guilty. The Court held that the appellant was misled by the clear promise from his lawyer of a non-custodial sentence and that it would be a miscarriage of justice to deny the appellant a trial on the merits. The Court noted that “[h]is guilty plea was entered with an honest belief that the consequences were settled. Words to the contrary in court can be discounted as being, from the appellant’s point of view, part of the ritual.”

[67] Unlike the case in Al-Diasty, there is a conflict in the evidence about what was said to Mr. Downes after the judicial pre-trial. Mr. Genua did not agree with Mr. Downes that he was promised a certain sentence as a “sure thing”. I am satisfied that Mr. Genua did not tell Mr. Downes that a thirty day intermittent sentence was a guarantee. I am also satisfied that Mr. Downes did not enter his guilty plea with an honest belief that he would receive a sentence no greater than thirty days intermittent.

[68] I am satisfied that there were mis-steps by defence counsel in the conduct of the plea. Mr. Genua made an unfounded assumption about what the judicial pre-trial judge considered a fit disposition and conveyed that assumption to his client as a “probability” when he presented the plea offer to him. I do not accept that Mr. Downes honestly believed that a probable sentence was a “sure thing” given his experience and understanding that a judge never guaranteed what sentence would be imposed. In the cases of R. v. Rajaeefard[^25] and R. v. Al-Diasty[^26], the judge communicated a position on a plea to counsel. In this case, there is no evidence that Justice Nakatsuru took any position regarding the different sentences discussed by counsel or that he indicated that he considered the Crown position to be a proper maximum sentence in the event of a plea. Mr. Genua made a further assumption that the mere fact that the case had been judicially pre-tried before a judge would attract greater weight in assessing a fit disposition in circumstances where there was no joint submission by counsel. This assumption seems ill-founded given that Mr. Genua clearly understood that judicial pre-trials could be conducted for a variety of reasons other than resolution and he had taken no steps to ensure that the plea judge was aware of the nature of the discussions held with the pre-trial judge.

[69] Despite these mis-steps, however, I am satisfied on a balance of probabilities that Mr. Downes knew that there was no promise that he would receive a particular sentence and that he was not misled about the legal consequences of his plea. For the reasons I have expressed above, I am satisfied that this is not one of those cases where a potential miscarriage of justice warrants the plea being struck. I am satisfied on all the evidence that Mr. Downes’ primary motivation for this application lies in his fear that he might be sentenced to something closer to the maximum period in jail than the short intermittent sentence recommended by the Crown or the more lenient disposition recommended by his lawyer. This is a case where he made a reasoned and informed tactical decision at the time that he now wishes to revisit. That is not a proper basis to strike a plea.

[70] The application to strike the plea is dismissed.

January 24, 2012.

Signed: “Justice S.E. Marin”

[^1]: See Pre-Sentence Report dated May 31, 2010, page 7.

[^2]: See Application Record, Tab 2, “Notice of Application to Set Aside Plea of Guilt”, para. 19.

[^3]: Adgey v. the Queen (1973), 1973 CanLII 37 (SCC), 13 C.C.C. (2d) 177 at 183 (S.C.C.)

[^4]: R. v. Moser, 2002 CanLII 49649 (ON SC), [2002] O.J. No. 552 (Sup. Ct.) at paras. 32-34 and cases cited therein.

[^5]: R. v. Armstrong, [1997] O.J. No. 45, 1997 CarswellOnt 46, 33 W.C.B. (2d) 254 (C.A.)

[^6]: R. v. Moser, supra; R. v. Nhi, [2009] O.J. No. 5611 (Sup. Ct.)

[^7]: R. v. Hannemaayer, 2008 ONCA 580 (C.A.)

[^8]: R. v. Vrban, [2003] O.J. No. 4402 (Sup. Ct.) at para. 58; R. v. Nhi, [2009] O.J. No. 5611 (Sup. Ct.) at para. 10.

[^9]: See Exhibit 4.

[^10]: Exhibit 2, para. 9.

[^11]: Ibid, p. 15, l. 9-26.

[^12]: See Transcript of the Examination in Chief of Paul Genua, November 28, 2011, p. 12-13.

[^13]: Transcript of the Examination-in-Chief of Paul Genua, November 28, 2011, p. 15, l. 17-23.

[^14]: Exhibit 3, para. 10.

[^15]: R. v. T. (R.), supra, at para, 16.

[^16]: R. v. W. (M.A.), 2008 CarswellOnt 4060, 2008 ONCA 555, 237 C.C.C. (3d) 560 (C.A.) at paras. 24-27.

[^17]: R. v. T. (R.), supra, at para. 17; R. v. Hanemaayer, 2008 CarswellOnt 4698, 2008 ONCA 580, 234 C.C.C. (3d) 3, 239 O.A.C. 241, 78 W.C.B. (2d) 399 (C.A.); R. v. K. (S.) (1995), 1995 CanLII 8926 (ON CA), 99 C.C.C. (3d) 376 (Ont. C.A.); R. v. Al-Diasty, 2003 CanLII 41570 (ON CA), 2003 Carswell 1500, 171 O.A.C. 86, 174 C.C.C. (3d) 574, 64 O.R. (3d) 618 (C.A.).

[^18]: R. v. Tunney, 2008 CarswellOnt 5434 (Sup. Ct.)

[^19]: Ibid, p. 13, l. 24 – p. 14, l. 6.

[^20]: Ibid, p. 14, l. 11-19.

[^21]: Ibid, p. 14, l. 24-26.

[^22]: Transcript of Guilty Plea Proceedings, April 9, 2010, p. 1, l. 13 – p. 2, l. 12.

[^23]: Ibid, p. 5, l. 7 – 12.

[^24]: R. v. Al-Diasty, supra.

[^25]: R. v. Rajafaeefard (1996), 1996 CanLII 404 (ON CA), 104 C.C.C. (3d) 225, 46 C.R. (4th) 111, 87 O.A.C. 356, 27 O.R. (3d) 323, 1996 CarswellOnt 73 (Ont. C.A.)

[^26]: R. v. Al-Diasty, supra.