Court File and Parties

Court File No.: Kitchener 4460 999 13 17885 Date: 2014-07-10 Ontario Court of Justice

Between: R. — and — Rojad Ali-Tawfiq

Decision on Motion To Strike a Guilty Plea

Before: Justice of the Peace M A Cuthbertson

Heard on: 22 October 2013, 17 January 2014 and 25 April 2014

Reasons for Judgment released: 10 July 2014

Charge: Careless Driving, s. 130 Highway Traffic Act

Counsel

22 October 2013:

• R Cotter, for the prosecution
• The defendant Rojad Ali-Tawfiq, on his own behalf

17 January 2014:

• W Wilson, for the prosecution
• Campos Reales, for the defendant

25 April 2014:

• W Wilson, for the prosecution
• F Joseph, for the defendant

JUSTICE OF THE PEACE CUTHBERTSON:

1: THE BACKGROUND

[1] Mr Ali-Tawfiq had several appearances in the regular POA assignment courts prior to his appearance before this Court for a judicial pre-trial on 22 October 2013. On that date, he appeared without a legal representative to assist him. As well, he advised that he had been unable to obtain any advice on the matter from a legal representative. During that appearance the defendant pled guilty. This Court accepted his plea, found the defendant guilty and put the matter over for sentencing on 17 January 2014. The entire proceedings were recorded, at the direction of the Court.

[2] Prior to 17 January 2014 appearance, Mr Campos Reales having by then been retained by Mr Ali-Tawfiq filed a Motion to have the guilty plea struck. Mr Wilson opposed the Motion. Both Mr Campos Reales and Mr Wilson sought transcripts of the 22 October 2013 proceedings to assist them in advancing their positions on the Motion. The Court granted permission for transcripts of the judicial pre-trial proceedings to be prepared and the matter was adjourned until 25 April 2014.

[3] On 25 April 2014, Mr Wilson and Mr Joseph argued the Motion. The Court reserved its decision and invited any further submissions to be provided in writing by the end of May 2014. Mr Campos Reales filed supplementary submissions on 30 May 2014.

2: POSITIONS OF THE PARTIES

DEFENCE

[4] Mr Joseph, in his submissions on the judicial pre-trial proceedings, found no fault by the prosecution or the Court in their interactions with the defendant.

[5] However, Mr Joseph submitted that it was Mr Ali-Tawfiq's confusion, state of mind, language capabilities, lack of understanding of the 87 pages of disclosure and his lack of legal advice which created circumstances leading to the plea not being voluntary, informed or unequivocal.

[6] Mr Campos Reales in his supplementary submissions set out the following grounds as justifications for the striking of the guilty plea:

a) The defendant received no legal assistance at all prior to his guilty plea.

b) Mr Ali-Tawfiq "was subjected to pressures that interfered with the exercise of appropriate judgement by him, including his very limited financial means, his inability to afford legal representation, and his resulting feeling of hopelessness".

c) The defendant was confused at the time of his plea, as he understood that "nothing in my matter had been finalized, including my guilt." Rather he believed that he could change his mind up and until 17 January 2014 and that only on that date he would be found either guilty or not guilty.

d) The defendant continued to receive disclosure after his plea in October 2013 including video evidence of the police reconstruction analyst on 3 April 2014. Further disclosure of photographs taken by the police of accident scene was provided on 9 April 2014.

PROSECUTION

[7] Mr Wilson relied on the transcript of 22 October 2013. He submitted that the transcript showed that the plea was voluntary, fully informed and unequivocal. He relied on Mr Cotter's explanations of the allegations, discussions of possible sentencing outcomes including consideration of the defendant's work related driving needs and his prior suggestion that Mr Ali-Tawfiq attend at Legal Aid to seek legal assistance.

[8] Mr Wilson further submitted that the Court's plea inquiry was extensive and should have left no doubt in the mind of the defendant that he was giving up his right to a trial by pleading guilty.

3: THE LAW

[9] The Provincial Offences Act provides a statutory framework for the conditions which must be met for a plea of guilty to be accepted by a court. It states:

Taking of plea

45. (1) After being informed of the substance of the information or certificate, the defendant shall be asked whether the defendant pleads guilty or not guilty of the offence charged in it. 2009, c. 33, Sched. 4, s. 1 (37).

Conviction on plea of guilty

(2) Where the defendant pleads guilty, the court may accept the plea and convict the defendant. 2009, c. 33, Sched. 4, s. 1 (37).

Conditions of accepting plea

(3) A court may accept a plea of guilty only if it is satisfied that the defendant,

(a) is making the plea voluntarily;

(b) understands that the plea is an admission of the essential elements of the offence;

(c) understands the nature and consequences of the plea; and

(d) understands that the court is not bound by any agreement made between the defendant and the prosecutor. 2009, c. 33, Sched. 4, s. 1 (37).

Validity of plea not affected

(4) The failure of a court to fully inquire into whether the conditions set out in subsection (3) are met does not affect the validity of the plea. 2009, c. 33, Sched. 4, s. 1 (37).

[10] Authority to strike a guilty plea has been provided by the Supreme Court of Canada in its decision in R. v. Thibodeau, [1955] S.C.R. 646. The Court held:

…it is clear that at any time before sentence the Court has power to permit a plea of guilty to be withdrawn. As to this it is sufficient to refer to the following cases; R. v. Plummer [[1902] 2 K.B. 339], The King v. Lamothe [, 15 C.C.C. 61], R. v. Guay [, 23 C.C.C. 243 at 245-246], and R. v. Nelson [, 32 C.C.C. 75]. These cases make it equally clear that the decision whether or not permission to withdraw a plea of guilty should be given rests in the discretion of the Judge to whom the application for such permission is made and that this discretion, if exercised judicially, will not be lightly interfered with.

[11] In R v Moser, [2002] O.J. No. 552 (Ontario Superior Court of Justice), Hill J, established the onus to strike a plea, in para 40. The Court stated:

The onus, in the sense of the burden of persuasion, is upon the accused: Regina v. Eastmond, supra at para. 6, 7; Regina v. Djekic, supra at 575; Regina v. C.(N.), supra at para. 6, 9.

[12] Justice Hill further considered in para 43 the standard of persuasion. After considering several cases which failed to definitively resolve the standard, he concluded:

Whatever the standard for appellate intervention, I am content that where a trial judge has a real doubt as to the plea's validity, the court should strike the plea and send the case to trial.

[13] This Court adopts Justice Hill's position on the onus and standard of persuasion.

4: ANALYSIS

[14] Counsel for both sides helpfully provided several cases to assist this Court in its analysis of the issues. As a result, I have reviewed the following – R. v. Jerome, 2008 CarswellOnt 528 (Trafford J. – SCJ); R. v. Adgey, [1975] 2 S.C.R. 426 (Supreme Court of Canada); R. v. Ceballo, [1997] O.J. No. 5035 (Fairgrieve J. - OCJ); R. v. C.S., [2010] O.J. No 4616 (Borenstein J. – OCJ); R. v. Giczewski, [2005] O.J. No. 5661 (Clark, J – OCJ); R. v. Thibodeau, [1955] S.C.R 646 (Supreme Court of Canada) and R. v. Whiteside, 2004 ONCJ 204, [2004] O.J. No. 3972 (Reinhardt J. – OCJ).

[15] Of these cases only one dealt with a Provincial Offences Act (POA) matter (Whiteside) where the defendant received no legal advice prior to making a guilty plea. This case is distinguishable from the case at bar, as Justice Reinhardt overturned the lower court's decision based on errors by the trial justice. The issue in that case was not the striking of a guilty plea prior to sentencing.

[16] In Jerome, a plea to a Careless Driving charge was taken by Trotter J. of the Ontario Court of Justice (as he then was). While providing some guidance, this case is not directly 'on-point' with the case at bar as the defendant originally faced a criminal code charge but pled guilty to Careless Driving to resolve her legal issues. She did have legal counsel and received advice on the criminal code charge but not specifically on the Highway Traffic Act matter, even though she was provided an opportunity to speak to her lawyer before pleading guilty by the presiding Justice. She declined to do so.

[17] All of the other cases were criminal matters where each of the defendants received at least some legal advice, be it from their own counsel or duty counsel, prior to entering a guilty plea.

4.1 Was the Plea Voluntary and Unequivocal?

[18] A plain reading of the transcript of 22 October 2013 clearly shows that Mr Ali-Tawfiq knew that he was pleading guilty to the charge. He was advised of his rights. There were no issues of concern either expressed by him or detected by the Court as to his ability to understand the English language. There were extensive discussions on sentencing issues including specific concerns he had over his ability to drive to maintain his employment.

[19] The defendant claims that a sense of hopelessness caused him to plead guilty as he had exhausted every opportunity of which he was then aware, to obtain legal advice. He felt he was alone and could face serious consequences by not pleading guilty. In Jerome, Justice Trafford considered the effect of anxiety on a plea of guilty. At para 22 and 23, he held:

22 For a plea to be voluntary, it must be a conscious choice by the defendant to plead guilty for reasons acceptable to him/her. Feelings of anxiety do not vitiate the plea absent evidence they were so significant as to impair the ability to choose. As Doherty J.A. said in R. v. T. (R.), supra, at paras. 16-18:

In his affidavit the appellant asserts that he was anxious and felt himself under pressure when he entered his pleas. No doubt most accused faced with serious charges and the prospect of a substantial jail term have those same feelings. Absent 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 pleas involuntary.

23 The requirement of unequivocality is met where the circumstances do not indicate an unintended or confusing, qualified, modified or uncertain acknowledgement of the essential elements of the offence.

[20] Mr Ali-Tawfiq was decisive and unequivocal in his desire to plead guilty to the charge. The defendant was offered an opportunity to come back another day so he could think things over before entering his plea but he chose to proceed on that date.

[21] When his guilty plea was entered, the Court conducted a full plea enquiry to ensure he understood he was giving up his right to trial, the plea was voluntary and the essential elements of the offence asserted by the prosecutor were correct. He acknowledged his understanding and agreement on these issues. He did not qualify his plea. He showed no confusion.

[22] It was only after 22 October 2013 having then discovered the ability to retain legal counsel through his auto insurance policy that he expressed feelings of confusion and hopelessness, at the time of the plea. These assertions are convenient but lack in credibility, as he provided no basis that these 'emotions reached a level where they impaired the appellant's ability to make a conscious volitional choice'. It is disingenuous for him to now claim that his plea was involuntary and equivocal.

[23] There is no doubt in this Court's mind that his guilty plea was voluntary and unequivocal.

4.2 Was the Plea Informed?

[24] The charge which Mr Ali-Tawfiq faces is one of the most serious under the Highway Traffic Act. On 13 May 2013, eighty seven pages of disclosure were provided to the defendant. As noted above, disclosure continued to be provided until 9 April 2014. The volume of the disclosure lends credence to the complexity of the matter.

[25] Mr Campos Reales submitted that as disclosure was provided after 22 October 2013 a basis for striking the plea exists as the defendant was not fully informed. In para 27 of R. v. Henry, 2011 ONCA 289, [2011] O.J. No. 1697, the Ontario Court of Appeal considered the issue of non-disclosure on a plea of guilty. The Court stated:

Where non-disclosure is advanced as a basis for a claim that a plea of guilty was uninformed, an accused must demonstrate a reasonable possibility that the undisclosed material would have influenced his or her decision to plead guilty, if it had been provided prior to entry of the plea.

Mr Ali-Tawfiq provided no information as to how the disclosure provided after his plea would have influenced his decision to plead guilty. Therefore, this issue provides no basis for striking the guilty plea.

[26] Worth noting however is Mr Ali-Tawfiq has only a grade 10 education. While he appeared to this Court to be sincere, it cannot be said that he appeared to be capable of comprehending the complexity of the issues surrounding the charge or the disclosure provided. In my view, he was clearly 'out of his depth' when trying to comprehend such matters. Without a doubt, the defendant would have benefited from having legal advice before entering his plea.

[27] Justice Hill's comment in Moser (supra) at para 37 provides guidance on the value of legal advice. He stated:

The presence of legal representation stands as a significant quality control mechanism to ensure a guilty plea is valid.

[28] It is the lack of legal representation on a serious charge with complex issues and extensive disclosure for a defendant with limited education and a seemingly limited ability to comprehend the issues, which causes this Court real doubt as to the validity of the plea.

[29] Therefore, I conclude that in the narrow circumstances of this complex matter, without having had the benefit of legal advice, Mr Ali-Tawfiq's plea of guilty was not fully informed.

5: DECISION

[30] Mr Ali-Tawfiq has met his burden of persuasion. His plea of guilty of 22 October 2013 is struck.

Released: July 10, 2014

Signed: "Justice of the Peace M.A. Cuthbertson"