Ontario Court of Justice

Date: January 13, 2016 Location: Toronto

Court Information

Between: Her Majesty the Queen

— And —

Kholid Muhammad-Rahim

Before: Justice Bhabha

Heard on: December 7, 2015

Ruling on Application to Withdraw Guilty Plea released on: January 13, 2016

Counsel:

• Y. Laine, for the Crown
• D. Goodman, for the defendant Muhammad-Rahim

Bhabha, J.:

Introduction

[1] On December 7, 2015, after hearing submissions, I dismissed this application with reasons to follow to be provided on the same date as when the sentencing will be completed. The date that was convenient to counsel is today's date. These are my reasons for denying the defendant's application to withdraw his guilty plea.

Background

[2] On August 14, 2015 the defendant was scheduled to have his trial on two counts of assault and one count of threatening arising from an incident that occurred on June 15, 2014. The trial was set for one full day. The incident underlying the charges arose in a domestic context and involves the defendant's ex-girlfriend, the complainant, Nazrana Azimi and her brother, Sammi Azimi.

[3] Very late in the morning on the scheduled trial date the defendant made a decision to plead guilty to all three counts. He did so after consulting with his counsel, Mr. Simrod, his employer, and members of his family, including his father. Mr. Simrod, it should be noted, is a very experienced and senior defence counsel.

[4] The court was informed that the matter would not be proceeding by way of a joint submission, but that the Crown had provided a range of sentence to counsel for the defence with the understanding that any further information provided by the defence may persuade the Crown to seek a disposition at the lower end of that range. Without specifying any further, crown counsel indicated that the Crown position would be for a custodial disposition.

[5] At Mr. Simrod's request, the matter was put over for several weeks in order for counsel to provide the court with materials relevant to sentencing. Crown counsel also needed to obtain victim impact statements.

[6] As a result of an incident that occurred after the guilty plea proceedings, counsel for the defence brought the matter forward prior to the scheduled return date in order to file application materials seeking to have guilty plea withdrawn.

The Basis for the Application

[7] The basis for seeking an order striking the plea are that:

a) the applicant "never intended to plead guilty and was threatened in the court house halls";

b) the applicant has a valid defence to the charge; and

c) the applicant, after leaving the courthouse on the day he entered his plea was assaulted by one of the complainants and his brothers.

[8] Although Mr. Simrod prepared the application materials he ultimately did not argue the application in the event that he may become a witness on the application.

[9] The application was heard on December 7, 2015. Mr. Goodman represented the defendant on the application.

[10] The materials relied on by the applicant were the transcript of the guilty plea proceedings and the affidavit of the defendant. The crown chose not to cross-examine the defendant on his affidavit. Although the application made reference to a second affidavit, that of the defendant's employer, the second affidavit was never sworn and therefore the defence did not ultimately rely on any other evidence.

The Guilty Plea

[11] On the morning of the trial – August 14, 2015 - the parties requested the opportunity to explore resolution. They were granted that opportunity. At close to 11:30 A.M. the court invited the parties back into court to inquire about any progress they were making as the trial was set for a full day and noon was fast approaching. Any further delay in commencing the trial would result in a continuation if the estimate was even remotely accurate.

See: Transcript of Guilty Plea proceedings, p.3, l. 28 to p. 4. l. 1

[12] Counsel for the defendant indicated that: "I have been using the time to have some discussions with my client. I am just waiting for him to make a final decision. He is just talking to some family members".

See: Transcript of Guilty Plea proceedings at p. 3, ll. 25-27

[13] The court was further advised that "if you just give me a few more moments, that's all I need, he'll either give me the directions to resolve it or we'll start the trial". The court obliged with another recess, albeit a shorter one.

[14] Upon resuming at approximately 11:40 AM, Mr. Simrod indicated that the indulgence "has been fruitful" and that the matter would now be resolving by way of a guilty plea to three counts.

The Plea Inquiry

[15] The court inquired if counsel had conducted a plea inquiry with his client and was advised:

Yes, your honour, I have conducted a plea inquiry. My client's plea is voluntary. He understands that he's giving up his right to a trial and making the prosecutor prove the case beyond a reasonable doubt. He's also had the facts read that my - - or he has a copy of reviewing the fact (sic) that the prosecutor is going to read into the court and has agreed with some slight variations that - - that it's accurate. They'll be substantially correct. (Emphasis added)

See: Transcript of Guilty Plea Proceedings, p. 7. ll.15-28

[16] Counsel then asked the defendant "is that all correct there, Mr. Rahim?" to which the defendant himself responded: "Yes". The defendant had the benefit of a Dari interpreter present but chose to answer in English. His counsel indicated that all of their communications were in English, but if the matter had proceeded to trial the defendant wanted an interpreter on standby.

See: Transcript of Guilty Plea Proceedings, p. 5, l28 to p. l. 8

The Plea

[17] Following his arraignment the defendant entered his "guilty" plea himself in English.

[18] The facts were then read in detailing how and when the relationship between the defendant and the complainant, Nazrana Azimi, began and why she ended it in 2013. The court was informed that both the defendant and the complainant are from Afghanistan and share the same cultural and religious background.

[19] In a nutshell, on the facts read in the defendant had a difficult time accepting that the complainant wanted to end their relationship and that she wanted to see someone else. He attended at her workplace uninvited and was verbally abusive. This behaviour made the complainant uncomfortable. The defendant threatened to tell her family that they were sexually intimate which the complainant denied was the case.

[20] In June of 2014, the defendant once again re-attended at the complainant's workplace – a Shopper's Drug Mart store - and began to shout and scream at her in the store telling her that he was going to tell her family that they were intimate. The discussion continued outside the store where the defendant threatened to rape the complainant and to "fuck her up".

[21] The complainant's brother arrived in the meantime to pick her up and the defendant assaulted the brother by punching him in the face and the head. When the complainant tried to pull him off her brother he pushed her which gave rise to the assault charge against her. A cousin of the Azimis arrived and the defendant fled the scene. He was arrested later that day.

[22] When the court inquired if the facts were correct counsel for the defendant replied:

I understand they're substantially correct – he nods his head – with the exception that he does say that he was intimate with her, I don't see how that goes to the gravamen of the offense that is – it goes to the history of their relationship, but as to the offense, he -- he admits they're substantially correct. Correct, sir?

[23] Once again, the defendant responded in English "yes" and counsel Mr. Simrod confirmed for the record that his client indicated "yes".

The Evidence of the Alleged Threat before the Plea

[24] In his affidavit the defendant states that he is twenty six (26) years old and that "on the day of my trial in the courthouse halls I was "stared down" by the complainant's brother. I had no doubt that his actions had an evil intent."

[25] The defendant further explains in his affidavit that although he was fearful, he "felt the police were against" him and he was afraid to tell them what was going on. Nor did he tell his lawyer. He does not offer any explanation as to why he could not confide in his lawyer. He simply states that the "actions of the complainants unsettled me and when my lawyer and I discussed resolution by way of a guilty plea I just wanted to get away from these persons as soon as possible.

The Evidence of the Incident after the Guilty Plea

[26] The defendant states at paragraph 12 of his affidavit that after court was adjourned one of the complainant's brothers verbally threatened to shoot him. He does not say if it was Sammi or another brother. He describes how the complainant's father came over to his father to apologize, but it is not clear what the apology was for, whether it was for all of the circumstances in general or the alleged threat. Nor does the defendant say whether his father or his employer also heard the alleged threat.

[27] The defendant also describes a situation where he alleges that the complainant's brother Sammi and his two brothers (and/or friends) rear ended the vehicle he was driving. He was with his father and employer at the time. He alleges that he was assaulted as he sat in his car and "was unable to defend [himself]".

[28] He concludes that " upon reflection I appreciate that my plea should have been not guilty to the charge". (Emphasis added)

The Law

[29] It is trite law that a valid guilty plea must be:

a) voluntary;

b) unequivocal; and

c) informed.

See: R. v. Adgey, [1975] 2 S.C.R.;

R. v. T. (R.), [1992] No. 1914 (C.A.);

R. v. Moser, [2002] O.J. No. 552 (S.C.J.)

[30] A guilty plea entered in open court with the assistance of counsel is presumed to be a valid plea, unless proven otherwise.

[31] The onus is on the applicant to satisfy the court on a balance of probabilities that the plea was not voluntary. It has been characterized by appellate courts as "a heavy onus".

[32] The defendant's state of mind at the time the plea was entered is the relevant timeframe for the court to consider when assessing if the plea was in fact voluntary.

[33] In R. v. Easterbrook the Court of Appeal for Ontario set aside a guilty plea on the basis that the plea was not voluntary. The court found that while the evidence about the alleged death threats and the effect upon the appellant's change of plea was contradictory, the evidence amounted to more than a mere assertion that the pleas were involuntary based on a subjective view of the facts. The court found that the record raised a serious issue about the voluntariness of the appellant's pleas.

Submissions and Application to the Facts

[34] In the case at bar the defendant's main and only complaint about the plea process was that his plea was involuntary. He does not suggest that the other two prongs of the test for a valid plea are in issue.

[35] Firstly, the defendant submits that his plea was not voluntary in that it was motivated by stares he received from the complainant's brother (it is not clear if this was Sammi or another brother).

[36] The defendant therefore does not allege that he pleaded guilty as a result of an actual threat, but rather a subjectively perceived threat. His evidence is that he had no doubt that the stares reflected "an evil intent". He states at paragraph 11 of his affidavit that he "did not do the things [he] agreed to in court but only said so as [he] was afraid and wanted to get away from these persons as soon as possible."

[37] Secondly, the defendant relies on events that allegedly took place subsequent to the plea to ground or confirm his fear and uneasiness at the time of the plea. In effect, he seeks to bolster an earlier sense of foreboding by relying on an incident after the plea was entered. Stripped down to its essentials, his evidence is this: "I knew before I entered my plea that something bad was going to happen and it did". In essence the defence submission is what he subjectively perceived now has an objective basis given the events that allegedly occurred later in the day outside of court.

[38] In particular, counsel for the defendant submitted that the alleged actions post plea cement his subjective fear at the time of the plea and as such there is more than mere assertion of involuntariness based on a subjective view of the facts. On that basis the defendant has met that test on balance of probabilities.

[39] It is very difficult to accept the defendant's assertions in his affidavit that it was never his intention to plead guilty and that he did so because of the threatening stares he says he received from the complainants' family. This was a trial date and the record confirms that he knew full well that he had two options. He could have either have had his trial for which he had waited over a year, or he could plead guilty.

[40] He and his counsel spent a good part of the morning deciding how the matter would proceed. This was not a decision taken lightly or in a rush. If he felt threatened outside the courtroom, surely he would have been safer inside the courtroom having his trial and where he would be protected against the evil intents he perceived outside the courtroom.

[41] I also take into account that Mr. Muhammad-Rahim was represented by very senior counsel who, based on what was indicated on the record, reviewed the options available to his client and who also reviewed carefully reviewed the synopsis for a guilty plea.

[42] As well, the record reflects that the twenty six year old defendant did not come to court by himself. He was accompanied then (as he has been since in these proceedings) by his father, his employer and it appears other members of his family.

[43] I therefore reject his evidence that he felt threatened by the stares of the complainant's family, but said nothing to anyone at all, not even his family members or his lawyer, and that the perceived threat was the sole reason why he entered his guilty pleas.

[44] I also take into account that although the defendant was with his counsel or his family, it appears from the evidence that only he saw the stares with the evil intent. This is not a case where there is confirmatory evidence of the perceived threats. I find that the evidence amounts to no more than a mere assertion that the plea was involuntary based on a subjective view of the facts at the time the plea was entered.

See R. v. Easterbrook, [2005] O.J. No. 1486 (C.A.)

[45] Unlike the decision in Easterbrook, supra, here there is no confirmatory evidence of any threat or perceived threat. There is only the alleged after the fact conduct that this court is advised the police continue to investigate.

[46] I also find it significant and noteworthy that the defendant did not simply agree to the facts as they were read in to get everything over with as soon as possible. Instead, he took the time to qualify the facts and to inform his counsel of the slight variations to the facts alleged by the complainant, Nazrana Azimi.

[47] The variation or qualification he specifically wanted the court and everyone present to be aware of was that he and the complainant had in fact been sexually intimate.

[48] I find that the defendant's insistence on "correcting" this entirely peripheral matter is particularly telling about his state of mind. If he were truly afraid of the complainant's family, and I find that he was not, he would not be highlighting in open court such a potential "flashpoint" given the cultural and religious sensitivities concerning this issue.

[49] I find that this underscores that the defendant chose to plead guilty, and that he was determined to do so on his own terms, and for his own reasons. It was as if in highlighting this "correction" or variation of the facts he very much wanted the complainant's family' members to be aware that by his account he had been sexually intimate with their daughter or sister. This is not the behaviour of a fearful person.

[50] I find therefore that the court can give little credence to what the defendant asserts transpired in the courthouse and what impact it had on his decision to enter his guilty plea. If the alleged assault occurred as he says it did, I find that it is more likely that he is now angry about that event and because of it wishes to undo what he decided to do earlier in the day: plead guilty.

[51] Even if his explanation that he did not tell the police of the perceived threat in the courthouse because he felt they were against him could reasonably be true, I find it difficult to understand why he would not confide in his lawyer and that he would state in open court that he was pleading voluntarily. No reason has been proffered about what it was with his relationship with his counsel that he could not and choose not to confide in him that he perceived a threat to him and that was the reason for pleading guilty.

[52] But even if that were the case, I find it even more difficult to accept that he remained silent and did not discuss his fears with any of the members of his family present. His affidavit is notably silent on this point. His father, employer and other family members were in court, presumably to support him. The record reflects that he was discussing the plea with them immediately before he entered his plea. I do not accept that he simply kept his misgivings to himself and chose not to share them with anyone. It makes no sense. This, combined with him choosing to potentially "inflame" the proceedings by insisting on clarifying a peripheral detail about sexual intimacy leads me to conclude that he entered his plea voluntarily, free from any undue pressure or threats.

[53] With respect to the events subsequent to the plea, I make no finding as to what actually happened, what motivated it, who was involved in the alleged assault and who was injured, or how severely. These are allegations that I understand are being investigated. I accept that there continues to be animus between the complainants' family and the defendant, but that fact alone does not undermine the voluntariness of the plea entered earlier in the day. Parties often leave courtrooms unhappy with or sometimes angry about the result, but such emotions and any alleged threatening or assaultive behaviour that unfortunately can happen after court proceedings have concluded cannot after the fact undermine a plea that was entered voluntarily.

[54] On the totality of the evidence heard on this application, I find that this is a case of someone who now regrets his decision to plead guilty rather than someone who when he entered his plea did so involuntarily. The record does not in my view raise a serious issue about the voluntariness of the defendant's plea.

[55] As the defendant has not satisfied me on balance of probabilities that his plea was involuntary, the application is dismissed.

Released: January 13, 2016

Signed: "Justice Bhabha"