Court File and Parties

Ontario Court of Justice

Date: 2016-06-24

Court File No.: Brampton 7668-15

Between:

Her Majesty the Queen

— and —

Dulce Maria Gonsalves

Before: Justice J.W. Bovard

Heard on: October 28, December 22, 2015; January 29, March 4, April 8, 27, May 13, June 23, 2016

Reasons for ruling released on: June 24, 2016

Counsel:

• Ms. S. Thompson — counsel for the Crown
• Mr. A. Goldkind — counsel for the defendant Dulce Maria Gonsalves

Endorsement

Introduction

[1] This is a ruling on the defence's application to strike Ms. Gonsalves' plea of guilty to importing heroin.

[2] Ms. Gonsalves is 22 years old. On October 28, 2015, she appeared before the court on a charge of importing heroin. Mr. Goldkind, defence counsel, told the court that:

"The idea is that she enter a plea and then go over to a date that is good for all of us…The intention is to get a substantive pre-sentence report for her given the allegations…I'm also continuing to make efforts to have her see a doctor given some capacity issues in terms of that. Not fitness, not NCR, just things that have come to me as I speak to her. So I thought if I can get Legal Aid to have a doctor have a chat with her. So that's in the works. The Crown knows about this, and hence the date that we've checked in late December for ultimate sentence."

[3] Mr. Goldkind told the court that he had conducted the plea inquiry with Ms. Gonsalves. The clerk of the court arraigned her and she pleaded guilty to importation of heroin by bringing it into Canada in her body at Toronto Pearson International Airport on June 27, 2015.

[4] The Crown read in the facts. Mr. Goldkind said that they were "substantially correct." The court made a finding of guilty, registered a conviction and ordered a pre-sentence report (PSR).

[5] When the matter returned for sentence it was apparent that Ms. Gonsalves said certain things in the PSR that might provide a defence to the charge and perhaps lead to the exclusion of an incriminatory statement that she made to the police.

[6] In addition, Mr. Goldkind was still grappling with the issue regarding her mental "capacity" as he put it. Consequently, the court adjourned the case numerous times to allow Mr. Goldkind to deal with these issues and try to obtain more instructions from Ms. Gonsalves.

[7] As time passed it became more and more difficult to know what to do because there were Ms. Gonsalves' statements in the PSR, the issue with regard to her mental "capacity", her insistence on being sentenced because she wanted to go back home to Aruba, and the Crown's steadfast position that the court should not strike the plea.

[8] After the court adjourned the case many times to allow Mr. Goldkind the opportunity to deal with these issues and after much effort on his part he decided that it would be best to ask the court to strike the plea. Therefore, he brought an application to request this relief. The Crown opposes the application.

Facts of the Case

[9] On October 28, 2015, Ms. Gonsalves pleaded guilty based on the following facts. On June 27, 2015, Ms. Gonsalves arrived at Toronto Pearson International Airport from Aruba on an Air Canada flight. A Border Security Officer flagged her for a secondary examination which meant that her luggage would be searched. As an Officer was searching her luggage she made a spontaneous admission that she had ingested drugs. She was arrested.

[10] While she was in the custody of the Border Security Services she excreted 23 pellets of heroin. Afterwards, she complained of pain so an ambulance came and took her to the hospital. After the hospital released her she returned to the airport where the Border Security Officers turned her over to the RCMP who arrested her "again this time for the importation of heroin."

[11] After speaking to duty counsel, Ms. Gonsalves gave a statement to the RCMP in which she admitted to having ingested the heroin. The weight of the drug is 844 grams. The estimated street value is $295,470 if sold at the gram level.

[12] The Crown asked the court to impose a sentence of 7 ½ years, which includes her pre-trial custody.

[13] Mr. Goldkind did not state his position on sentence on the day of the plea, nor has he been able since then to come to a position as to length of sentence. I imagine that this is because of the difficulty that he has had in obtaining instructions from Ms. Gonsalves. However, in her note to the court reproduced below in paragraph 32, Ms. Gonsalves asks for a sentence of 4 or 5 years.

[14] Mr. Goldkind and Ms. Gonsalves have advised the court several times that she wants to get this matter completed as soon as possible.

[15] During the discussion in court regarding ordering the PSR and selecting a return date, Mr. Goldkind told the court that Ms. Gonsalves wanted him to point out that she thought that she was importing cocaine, not heroin. Ms. Gonsalves added "And I admit that. I admitted to them that I had it. They didn't know on me. I admitted to them."

[16] The court adjourned the case for sentencing to December 22, 2015 to await the PSR. On that day Mr. Goldkind advised the court that:

So on the last date when we met, you'll recall I raised a couple of things with you, and if you don't recall if I may say them very briefly. I had told Your Honour that this matter had been JPTd at least once in a very lengthy way, very lengthy way, because I had some concerns from the time that I met Ms. Gonsalves…that I've always had a lot of difficulty understanding her position, getting to the nub of it….it was very difficult for me, even in a layperson's way, to sort of get the lay of the land. So I thought that perhaps I should—and I raise this—I might have raised this with Your Honour, but definitely the JPT, get her analyzed by somebody who has a different degree than I do…that's why you'll recall on the last day, I didn't want a stand down PSR. I wanted something more fulsome…

[17] I would like to insert just a minor correction. I reviewed the transcript of October 28, 2015. Mr. Goldkind did not tell me of the JPT on that day. He told me for the first time on December 22, 2015.

Ms. Gonsalves' Statements in the PSR

[18] Also on December 22, 2015, Mr. Goldkind pointed out that Ms. Gonsalves said something in the PSR that was a concern. On page 4, third paragraph, Ms. Martins, the PSR writer stated:

With respect to the current charge, the subject stated that she was forced to travel to Canada and she was afraid of the people who were involved. The subject stated that she was sexually assaulted by the person who was forcing her to import the drugs to Canada. She further advised that she was using drugs at the time.

[19] Ms. Gonsalves also told Ms. Martins that she had experienced mental health issues in Aruba. She was held in the hospital after she was found "walking down the street naked." However, Ms. Martins could not confirm that she had ever been given a "mental health diagnosis."

[20] Ms. Laloo, a social worker at the Vanier Centre for Women, spoke to Ms. Gonsalves for the purpose of the PSR. Ms. Laloo described Ms. Gonsalves as contradictory at times. But she said that this may be from "confusion and without intent to mislead others." She said that Ms. Gonsalves is "simple in her mental processes."

[21] Ms. Martins said that none of the information that Ms. Gonsalves imparted could be confirmed because she did not provide the names of anyone that could be contacted to verify what she said.

[22] Mr. Goldkind told the court that what Ms. Gonsalves said about being forced to import the heroin came as a surprise to him. There is no reason to doubt him. Mr. Goldkind said that Ms. Gonsalves told him that "They told me they're sending me back and I'm not a criminal."

[23] At this point the court voiced the concern that maybe the plea should be struck. The Crown, Ms. Thompson, pointed out that the duress issue was "not evidence in the case" and that it could take two paths. One, it might be a defence to the charge, or two, it may just go to sentence as a mitigating factor.

[24] Ms. Thompson said that if it were to be a sentencing issue evidence would have to be called. She agreed that if Mr. Goldkind wanted to explore the issue of whether the plea should be struck it was reasonable to adjourn the case to allow him an opportunity to do so.

[25] Mr. Goldkind did not state this explicitly, but from his comments on pages 16-18 of the transcript, I infer that he was alluding to an order under the Mental Health Act for an examination of Ms. Gonsalves for the purpose of sentencing. However, he stopped short of asking the court to make the order.

[26] The court adjourned the case to January 29, 2016 just to be spoken to so that Mr. Goldkind could try to get further instructions, have a chance to consider his position, and then advise the court with regard to how he wanted to proceed. At the same time, the court set March 4, 2016 for either a hearing on whether the plea should be struck or for sentencing depending on what Mr. Goldkind decided.

[27] On January 29, 2016, Mr. Goldkind advised the court that Ms. Gonsalves told him that she wanted the court to pass sentence on her "right now." He told the court that Ms. Gonsalves thought that if she were to be sentenced "right now" the authorities would send her home. He stated in court "that's not quite fully how it works."

[28] Rather than ask the court to strike the plea, Mr. Goldkind requested time to "find out…some of the bona fides of these things." I took this to mean that he wanted to try to confirm Ms. Gonsalves' statements about her life in Aruba. He said, "I don't know that I can do full justice to her without at least doing some more work."

[29] Mr. Goldkind invited Ms. Gonsalves to speak to the court. She said that "Yeah, I feel like I been forced and I wanna get sentenced. I wanna be sentenced and I wanna go home."

[30] She said that she thought the drug was cocaine and that she would not have imported it had she known that it was heroin. Then she said "…and I didn't wanna even do it."

[31] On the next court day, March 4, 2016, Mr. Goldkind told the court that he discussed with Ms. Gonsalves verifying her statements about what happened to her in Aruba, but he could not get clear instructions from her. "They [the instructions] change depending on the phone call, the meeting, the mood. They are absolutely inconsistent on every level." He added that after speaking with Ms. Gonsalves in the morning he found that her instructions to him changed "radically" from their call the night before.

[32] Ms. Gonsalves gave the court a note that says:

Dear Honour

im not sure iF my lawyer

understands what I want and this is important because

it affects my Life

everything I say were all truth

but I want to admit the Crime

and take my Responsibility

for my actions for what i did

Please Accept my Plea

i dont want to be or feel forse

to go trial Dear Honour

im guilty Please Accept

my Plea and give me a

sentencing, date For this

Plea to go on, its my first

crime. Get me 4 or 5 year

[33] Mr. Goldkind told the court that he did not know what to do. He almost felt "like I'm now more of a friend to the court and just trying to not leave her on her own in the lurch than able to tell you as counsel I have instructions to do this, I have instructions to do that…"

[34] He told the court again that Ms. Gonsalves wanted the court to sentence her so that she can return to Aruba.

[35] The court asked Ms. Gonsalves if she wanted to say anything. She said that, "Yeah, that I, I feel like I've been entrapped, it's like entrapment because they told me to say…yes and admit and then they will send me back to Aruba if I admit." She said that the "police at the airport" told her this. She added that "And I say yes and then they, they arrest me and I'm still here."

[36] She said that she wanted to serve her sentence in Aruba. The court asked her about what she said in the PSR about being forced to commit the offence. She said "Yeah, it's true."

[37] Ms. Thompson was concerned about how the case was proceeding and stated that if the defence wanted the court to strike the plea Mr. Goldkind should bring an application for that relief and the Crown would respond.

[38] At this point, because of Ms. Gonsalves' statements in the PSR I felt that there was a concrete issue with regard to whether the plea should stand. Therefore, I directed Mr. Goldkind to bring the application so that the matter could be argued fully on that basis.

[39] Mr. Goldkind brought the application. The trial coordinators scheduled it for argument on April 27, 2016. However, for a reason that I cannot recall it was only spoken to on that date and adjourned to May 13, 2016 for argument. The court reserved its ruling to June 23, 2016.

[40] On June 23, 2016, before rendering my ruling I required further clarification from Ms. Gonsalves regarding the issues of her understanding that she might have a defence of duress and of the possibility that her incriminating statement could be excluded due to it having been induced by the promise to send her back to Aruba if she confessed to committing the offence. She said that she understood these things.

[41] The court also confirmed with her that there is no guarantee that she will be sent to Aruba to serve her sentence. I told her that it is highly likely that she will serve all of her time in Canada. She said that she understood that.

[42] Ms. Gonsalves told the court that in spite of the possible defence, the possibility that her confession might be excluded, and the high likelihood that she will serve her jail sentence in Canada, she still wishes to maintain her plea of guilty and be sentenced as soon as possible.

[43] With regard to the "capacity" issue to which Mr. Goldkind referred, I find that there is no evidence before the court that would support the position that Ms. Gonsalves is in any way legally incapacitated with respect to pleading guilty to this offence or with respect to understanding the proceedings or the consequences of her plea of guilty.

[44] Therefore, I find that Ms. Gonsalves fully admits to having committed all of the ingredients of the offence. In addition, she understands that she has a possible defence of duress and that it is possible that her incriminating statement could be excluded, and that she will likely serve all of her time in Canada.

Position of the Parties

[45] The defence argues that given Ms. Gonsalves' statements about being forced to commit the crime and about being induced by the police to make incriminatory admissions the plea should be struck.

[46] The Crown argues that there is no evidentiary foundation to justify striking the plea. Mr. Goldkind conducted the plea inquiry with Ms. Gonsalves and it was a properly informed plea.

The Law

Withdrawal of a Plea

[47] There is no right to withdraw a plea. When the court considers such a request "[t]he essential question to be determined in each case is whether it is justified in the interests of justice."

[48] In R. v. Eastmond, the Ontario Court of Appeal stated that:

A guilty plea entered in open court, particularly by an accused represented by counsel, is presumed to be a valid plea. An accused seeking to set aside that plea bears the onus of demonstrating that the plea is not valid.

[49] For a plea of guilty to be valid it must be voluntary and unequivocal. It must be informed, that is, the accused "must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea: R v. Rock Theriault."

[50] In Theriault, the court stated that "A voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate: R. v. Rosen, [1980] 1 S.C.R. 961 at 974."

Analysis

[51] Theriault states that an informed plea is one in which the accused is "aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea:"

[52] After having considered all of the circumstances, the law, and the submissions of counsel, I find that Mr. Goldkind did not discharge the onus of satisfying the court that Ms. Gonsalves' plea should be struck.

[53] I find that her plea is voluntary, unequivocal and fully informed. Therefore, it is not "justified in the interests of justice" to strike her plea. The plea will stand.

[54] Mr. Goldkind has been very diligent in carrying out his responsibilities to Ms. Gonsalves and to the court as an officer of the court. He has been frank and open during the case. I commend him for that.

[55] The case will proceed to the sentencing phase.

Released: June 24, 2016

Justice J.W. Bovard