Court File and Parties

Ontario Court of Justice

Date: 2017-11-29

Court File No.: Toronto

Between:

Her Majesty the Queen

— and —

William Richmond

Before: Justice K. Caldwell

Reasons for Judgment released on: November 29, 2017

Counsel

Ms. Anna Martin ............... counsel for the Crown, Public Prosecution Service of Canada

Ms. Tania Monteiro ............... counsel for the Crown, Province of Ontario

Ms. Leora Shemesh ............... counsel for the accused Mr. William Richmond

Judgment

K. Caldwell J.:

[1] Mr. Richmond entered a guilty plea before me in November, 2015 to two serious charges: possession of a loaded prohibited firearm, and possession of methylenedioxyethylvalerone, colloquially known as "bath salts", for the purpose of trafficking.

[2] Current Crown and defence counsel were not counsel on the plea. Mr. Richmond discharged Mr. Michael Caroline many months after the plea was entered, ultimately retaining Ms. Leora Shemesh, his current counsel.

[3] The thrust of Mr. Richmond's submission is that the plea should be struck given ineffective assistance of counsel at the time of the plea.

[4] I am striking the plea, but not on that basis.

[5] First I will outline the relevant events that took place before this application was brought. Next, I will review briefly the law regarding striking guilty pleas. Finally, I will explain my findings.

Events Prior to This Application

[6] A two-week trial was set to begin on April 13, 2015 and a Charter application had been filed. The Supreme Court of Canada ("SCC") was releasing its decision in R. v. Nur the following day. Mr. Caroline asked that we adjourn the case one day in order to find out the result in Nur as that might impact the route Mr. Richmond wished to take.

[7] The SCC struck down the three-year mandatory sentence that Mr. Richmond would face if convicted. On April 14th, Mr. Richmond entered a guilty plea to two of his charges and Mr. Caroline asked that the matter go over in order to prepare for evidence he wished to call on the sentencing hearing. He said that the evidence related to the impact on Mr. Richmond of his bail terms and the circumstances that led to the gun possession.

[8] Mr. Caroline told me that he had reviewed the plea comprehension requirements with Mr. Richmond. He did not obtain written instructions. I did not know about the lack of such instructions at the time of the plea but I would have proceeded in any event.

[9] I did have qualms about accepting the plea and those are reflected in the transcript. I reviewed the elements outlined in section 606(1.1) of the Criminal Code but the following exchange unfolded after asking if he understood he was giving up his right to a trial:

The Court: Are you sure, you're looking a little uncertain? I just want to make sure.

Mr. Richmond: Yes. Yes, Your Honour.

The Court: Okay. All right. Well, you've about the, what, I'm sure you're aware of what the Crown is seeking in sentence and you know what Mr. Caroline's obviously going to ask for on behalf (sic). They're apparently not in agreement. Do you understand that, in any event, at the end of the day, it's my decision?

Mr. Richmond: Yes, Your Honour.

The Court: Okay. And do you have any issue with respect to entering your plea to these charges, any problems with enter (sic) your plea of guilt to these charges that I should know about?

Mr. Richmond: No, Your Honour.

[10] At that point, I concluded that I was satisfied with the voluntariness of the plea and directed the clerk to arraign Mr. Richmond. On further reflection, however, I sought further clarification from him after he indicated he was guilty but before I heard the facts:

The Court: And I guess what I, I just want to clarify, when I said are you having any problems entering your plea, I realize that's a rather broad question. Obviously I'm sure you would prefer not to be dealing with the charges at all, but really, what I'm getting at when I ask that is making sure that you understand fully what you're doing and the rights you're giving up, and that no one's forcing you in any way, and I gather, you're doing this out of your own free will, is that fair?

Mr. Richmond: Yes.

[11] Mr. Richmond personally acknowledged acceptance of the facts and then the following comments were made:

The Court: And is Mr. Richmond admitting that he was the one that was in, I mean, I've heard about the search of the residence but just to be clear, he's admitting that he was the person who possessed the firearm and all of the drugs, is that fair?

Mr. Caroline: He is.

The Court: Is that correct, Mr. Richmond?

Mr. Richmond: Yes, Your Honour.

[12] The case was adjourned to May 12, 2015 to allow Mr. Caroline to call evidence. On that date, Mr. Caroline surprised both the Crown and me by stating that he wished to establish the Charter violations in order to argue for a reduced sentence. The Crown clearly didn't know that Mr. Caroline planned to take that direction and had not arranged for any officers to attend court. Mr. Caroline had intended to proceed simply by filing the officers' notes as he maintained that they established the violations. The Crown objected to that process and I agreed with the Crown. We managed to utilize the day by calling other witnesses who spoke of the impact of the bail conditions but needed to adjourn in order to hear from the various officers on the alleged Charter violations.

[13] Ultimately several officers were called and arguments were heard regarding both the alleged violations and on sentence.

[14] By November, 2015 it became clear that Mr. Richmond had discharged Mr. Caroline. Many months then passed given the time it takes to retain new counsel, receive all of the transcripts from the prior proceedings and allow new counsel time to become familiar with the case.

Striking a Guilty Plea – The Law

[15] First and foremost, the bases for striking a plea are numerous and a closed set of categories doesn't exist. "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."

[16] I infer from the case law that the test is subjective. The focus is upon adjudicative fairness, the specific accused's understanding of the plea ramifications, and the voluntariness of the plea. The question is not whether a reasonable person should have understood the plea consequences but whether this specific individual understood them.

[17] Justice Durno in R. v. Petrenko noted that a guilty plea is presumed to be valid and that the onus is upon the applicant to demonstrate on the balance of probabilities that it is not. The most common bases are that the plea was involuntary, uninformed or equivocal.

Application of the Law to this Case

[18] The focus of this application was upon the effectiveness of Mr. Richmond's prior counsel. Mr. Caroline testified over a two-day period and was rigorously cross-examined.

[19] Ms. Shemesh maintained that Mr. Caroline should have been more detailed and careful in his discussions with Mr. Richmond, should have received written instructions, and should have obtained certain materials in advance of the trial date such as the initial ITO for the first denied search warrant. Further, she argued that he missed the significance of Mr. Richmond's alarm company records outlining the timing of police entry into his home. Finally, she argued that Mr. Caroline was under the impression that he couldn't call Mr. Richmond to testify on the Charter applications if he thought that Mr. Richmond might lie about his connection to the gun found in his home and that this impression was erroneous in law.

[20] Mr. Caroline's dealings didn't hit the standard of perfection. For example, clearly it would have been prudent to obtain written instructions and I am sure that Mr. Caroline now regrets his failure to obtain those. Further, it would make sense to obtain the original ITO from the Crown as one never knows what issues it might reveal though in this instance I'm not sure that it would have assisted the defence.

[21] It also would have been prudent to make detailed notes about the number of times he met with Mr. Richmond and the nature of those discussions. Mr. Caroline's testimony showed that he has forgotten a great deal about those dealings and that makes sense in the circumstances as the discussions now date back a few years. At one point in his testimony I asked that he be excused as I was concerned about the lack of memory and, in fairness to Mr. Caroline, I thought he should be offered an opportunity to obtain and review his file. All counsel agreed with me and that opportunity was offered to him when he returned to the stand but he declined, stating that he didn't feel that it would be of any assistance to him. I infer that this is because there are very few notes in his file and obviously that is concerning.

[22] On the other hand, perfection is not the standard and it is a significant leap to jump from noting issues with counsel's dealings to finding that it amounted to ineffective assistance of counsel. It is very easy to "armchair quarterback" the way in which a lawyer handled a case as events were unfolding, particularly when there is the luxury after the fact to minutely examine each action in light of knowledge that comes to light subsequently. I'm also aware that each lawyer has his or her own style and no two lawyers will handle a case in exactly the same fashion.

[23] I also have some sympathy for Mr. Caroline. I have seen Mr. Richmond over a two-year period. I have both listened to and watched his responses to questions and issues. Mr. Richmond hears what he wants to hear. It is clear that his comprehension of what is said and done in court is filtered through that lens. Everyone is inclined to do that to some degree but this tendency seems much more accentuated in Mr. Richmond's case. It is also clear that once an idea is fixed in his mind it is extremely difficult to change his viewpoint regardless of the lack of logic. In summary, I'm sure he was and continues to be a very challenging client.

[24] I am not going to assess the strength of Mr. Richmond's Charter applications, the significance of the alarm company records/ITO for the denied warrant, nor the validity of Mr. Caroline's concerns about Mr. Richmond testifying despite the significant time and effort all counsel have put into that aspect of the application. I don't find I need to make those assessments in order to decide this application and I find that such assessments, particularly regarding the merit of the Charter applications, is best left to a different judge at the end of a future trial.

[25] The reason I am granting Mr. Richmond's application circles back to the initial inquiries I made in court when I first accepted his plea. None of the current counsel was present. It is extremely difficult to understand the full context of an earlier proceeding, even with the aid of transcripts, if you were not present. All of the current lawyers have done an admirable job of coming up to speed and it is clear that they have reviewed the voluminous number of transcripts. Transcripts cannot capture, however, all of the non-verbal communication that takes place.

[26] I vividly remember the uncertainty on Mr. Richmond's face during my plea comprehension questions, particularly after I asked him if he understood that he was giving up the right to a trial. That provoked me to ask the questions I've outlined above. In the end, I was satisfied that the plea was voluntary and Mr. Richmond would not succeed if the test was objective given his answers to me back on the day the plea was entered. The test is subjective, however, and it doesn't matter that Mr. Richmond should have understood all of the ramifications. My earlier uncertainties have resurfaced and I have concluded on the balance of probabilities that Mr. Richmond didn't fully understand the import of what he was doing even if he should have understood that.

[27] I now turn to his answers in re-examination on this application. He said that he thought that at the end of the day I still could toss out the evidence if his Charter breaches were established and that he could walk out of court a free man. Once the plea was entered, this option was no longer in play but I accept that Mr. Richmond didn't fully understand that.

[28] This lack of understanding also makes sense in light of the confusion I also experienced during this proceeding. I, too, didn't understand fully where Mr. Caroline was headed in the sentencing proceeding given that he had stated originally that he was calling evidence simply on the impact of bail conditions and circumstances surrounding the gun possession. It often took a number of back and forth questions and answers between us for me to understand where he was headed on various issues. I am not fully certain why this unfolded – perhaps it was just a lack of directness in speech. But the bottom line remains that if I was confused, it would not be surprising if Mr. Richmond, with his lack of legal experience, was also confused.

Conclusion

[29] I find that Mr. Richmond didn't fully understand the ramifications of entering his plea. I find that as a result his plea was also equivocal. I accept that Mr. Richmond has always wanted this case to be tried on its merits, including the alleged Charter violations.

[30] To reiterate, I do not want Mr. Richmond to interpret this ruling as an endorsement of the strength of his Charter arguments. I have not and will not comment on whether I think he is likely to succeed. At the end of the day, however, it is important that he have his day in court and the chance to make his arguments.

Released: November 29, 2017

Signed: "Justice K. Caldwell"