Court Information

Ontario Court of Justice

Between: Her Majesty the Queen A. Elbaz for the Crown

— And —

Michael Pham D. Sarikaya for the defendant

Before: Justice Timothy R. Lipson

Ruling on Application by Mr. Pham to Withdraw His Guilty Plea

[1] On May 9, 2017 Mr. Pham entered a guilty plea to a charge of possession of cocaine for the purpose of trafficking. He now seeks to withdraw his plea.

[2] Mr. Pham's guilty plea on May 9, 2017 followed numerous court appearances and judicial pretrials. He was represented throughout by experienced counsel. There is no dispute that Mr. Pham's plea was voluntary. Mr. Pham also told the court that he understood that by pleading guilty, he was waiving his right to plead not guilty and have a preliminary inquiry and trial. At the time of his plea, Mr. Pham admitted the facts giving rise to the offence. There was to be a joint submission for three years as well as some ancillary orders. The date for sentence to be imposed was adjourned to June 29, 2017 in order to permit the accused to "put his affairs in order" before going into custody. On June 29, the case was adjourned to July 21, 2017 at the request of the defence. On July 21, 2017 Mr. Pham appeared in court and indicated through counsel that he wished to withdraw his guilty plea.

[3] Mr. Pham submits that his guilty plea was not an informed one.

Legal Framework for Valid Guilty Pleas

[4] In R. v. T. (R.), [1992] O.J. No. 172 (C.A.) at paras. 10, 13-16, the Court of Appeal described a guilty plea as follows:

[5] A guilty plea is a formal admission of guilt. It also constitutes a waiver of both the accused's right to require the Crown to prove its case beyond a reasonable doubt and the related procedural safeguards, some of which are constitutionally protected.

[6] The Court went on to define what constitutes a valid guilty plea:

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also 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 consequences of his plea. 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 p. 974, 51 C.C.C. (2d) 65 at p. 75. A guilty plea entered in open court will be presumed to be voluntary unless the contrary is shown.

[7] The Court reviewed the circumstances under which a guilty plea can be struck on appeal:

An appellate court will permit the withdrawal of a guilty plea and quash the consequent conviction where there are "valid grounds" for doing so: Adgey v. R., [1975] 2 S.C.R. 426 at p. 431, 13 C.C.C. (2d) 177 at pp. 189-90. No finite list of all "valid grounds" can be provided.

[8] Up until the time of sentencing, a trial judge has both the discretion and jurisdiction to permit an accused to withdraw a guilty plea. In R. v. Jawbone, [1998] M.J. No. 235 (C.A.), Scott J.A. stated at para. 6:

The circumstances justifying the exercise of such a discretion are not confined to circumstances where there is a suggestion of impropriety or error in the formal plea itself, rather "valid grounds"... for the accused being permitted to withdraw his plea should not be too narrowly defined or rigidly applied. The essential question to be determined in each case is whether it is justified in the interests of justice. The essential question on a motion to withdraw a guilty plea is whether the withdrawal of the guilty plea is justified in the interests of justice. In making such a motion an accused does not have to prove on a balance of probabilities that the new evidence provides a defence that will succeed, only that the evidence might provide him with a defence: see R. v. Brown, 2006 PESCAD 17, [2006] P.E.I.J. No. 44 (C.A.) at para. 49.

Application to the Facts

[9] On May 9, 2017 the last judicial pre-trial in this matter took place. Later that morning Mr. Pham appeared in court to plead guilty. The court conducted a plea comprehension inquiry. I am satisfied that Mr. Pham's guilty plea was voluntary and unequivocal. He admitted the facts alleged by the Crown. At the time of his plea he was fully aware that his sentence would be a three year penitentiary term. He was represented at the plea and throughout numerous judicial pre-trials by experienced defence counsel.

[10] Mr. Pham's submission is that his plea was not informed. He argues that had he known at the time of his plea that the Crown was going to stay the charges against the two co-accused Smithers and Morin, he would not have pleaded guilty.

[11] The Crown says its decision to stay the charges against Mr. Pham's co-accused resulted from its assessment of the evidence as well as a consideration of each accused's particular circumstances. Pham, Smithers and Morin were three of a group of thirteen individuals arrested by the Toronto Police Services. The Crown advised the court that ten of the thirteen co-accused resolved their matters prior to the date of Mr. Pham's guilty plea. I was advised that the Crown stayed some of the charges against some of the accused for various reasons which do not apply to Mr. Pham's case. The Crown took pleas from several co-accused and withdrew charges against other co-accused.

[12] Mr. Pham does not allege any inappropriate conduct or oblique motive on the part of the prosecution nor does he argue that the Crown committed an abuse of process in exercising its discretion in staying the charges against Smithers and Morin. I am not aware of any legal requirement that the Crown is obliged to disclose its case strategy to one accused regarding its plan on how or even whether to prosecute co-accused individuals. I would point out that there is no evidence whether it was before or after Mr. Pham pleaded guilty that the Crown decided to stay the charges against the co-accused. In any event, Mr. Pham had full disclosure of the case against him as well as the advice of counsel to guide him in his decision about whether to plead guilty.

Prosecutorial Discretion

[13] Whether or not to proceed against an accused involves a core prosecutorial decision-making function. In the Supreme Court of Canada decision R. v. Power, 89 C.C.C. (3d) 1 at p. 13, L'Heureux-Dube J., on behalf of the Court, observed that:

That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case-law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review.

[14] I see no basis on the evidence to engage in a review of or interfere with the Crown's exercise of its discretion to stay the charges against Mr. Pham's co-accused Smithers and Morin. No impropriety in the exercise of Crown discretion is alleged by the applicant. Mr. Pham had full disclosure of the case against him. The Crown was not obliged to disclose to Mr. Pham its case strategy regarding the co-accused.

Decision

[15] The application by Mr. Pham to withdraw his guilty plea is dismissed.

October 6, 2017 Justice Timothy R. Lipson