Court Information

Ontario Court of Justice Date: August 12, 2019 Location: Old City Hall

Between: Her Majesty the Queen (Respondent) — and — Latoya Ceballo (Applicant)

Application to Withdraw Guilty Plea

Before: Justice Rondinelli

Reasons Released: August 12, 2019

Counsel

A. Martin — counsel for the Respondent

L. Ceballo — on her own behalf

Decision

Rondinelli J.:

Background

[1] On April 26, 2019, Ms. Ceballo appeared before me and pleaded guilty to one count of possession of cocaine for the purpose of trafficking. On that date, Ms. Ceballo was assisted by her counsel, Andrew Vaughan. Sentencing was put over to allow time for a Gladue report to be prepared. At the sentencing hearing on June 28, 2019, Ms. Ceballo provided the court with a letter she had written. The letter indicated that she wished to withdraw her guilty plea. Mr. Vaughan immediately sought, and was permitted, to remove himself as counsel of record. I then ordered that the matter return on July 23rd, 2019 to hear Ms. Ceballo's application to withdraw her guilty plea. On that date, Ms. Ceballo relied on her letter as the basis for her application to withdraw her guilty plea (Exhibit A), and was cross-examined by the Crown on areas pertaining to the validity of her plea. No further evidence was called.

Legal Framework for Valid Guilty Pleas

[2] A valid guilty plea is informed, voluntary, and unequivocal: R. v. T.(R.), [1992] O.J. No. 1914 (Ont. C.A.) at para. 14. At the time of her guilty plea, Ms. Ceballo was represented by counsel and I conducted my own plea inquiry prior to her entering her guilty plea in open court. In these circumstances, Ms. Ceballo's plea could be presumed to be a valid plea: See R. v. Eizenga, 2011 ONCA 113 at paras. 4 and 51; T.(R.) at paras. 10-16.

[3] I remain cognizant of the fact however, that seemingly valid guilty pleas have amounted to miscarriages of justice in Ontario cases such as R. v. Hanemaayer, 2008 ONCA 580, R. v. Kumar, 2011 ONCA 120, and R. v. Shepherd, 2016 ONCA 188. In each of these cases, the appellants had falsely pleaded guilty due to powerful inducements of reduced charges and significantly reduced sentences.

Discretion to Permit Withdrawal Before Sentencing

[4] Since Ms. Ceballo seeks to withdraw her guilty plea prior to sentence being imposed, I have the discretion to permit her to do so. As Justice Dickson (as he then was) made clear in Adgey v. The Queen, [1975] 2 S.C.R. 426 at p. 430, events after the entry of a guilty plea but before sentence is imposed, "may indicate the accused never intended to admit to a fact which is an essential ingredient of the offence… or he may have misapprehended the effect of the guilty plea or never intended to plead guilty at all, in any of which events the judge may, in his discretion, direct that a plea of not guilty be entered or permit the accused to withdraw his original plea and enter a new one."

Subjective Nature of the Inquiry

[5] Judicial scrutiny of a guilty plea must be directed to how the accused, and no one else, would have proceeded. As Justice Moldaver observed in R. v. Wong, 2018 SCC 25, at para. 29:

Throughout the process of testing the accused's claim, however, the focus must remain upon what this accused — and only this accused — would have done. The basis for that subjective inquiry is found in the subjective nature of the initial decision to plea. Because the original guilty plea is an exercise of the accused's own subjective judgment, it logically follows that the test for withdrawing that plea should also be directed to the accused's subjective judgment. This approach properly balances society's interest in the finality of guilty pleas and fairness to the accused by striking the accused's plea only where he or she would have proceeded differently.

Exercise of Discretion

[6] Having considered the circumstances of this case, I have concluded that I should exercise my residual discretion and permit Ms. Ceballo to withdraw her plea in order to prevent a miscarriage of justice. The following factors informed my decision.

Factor One: Withdrawal Before Sentencing

[7] Firstly, Ms. Ceballo seeks to strike the plea before a sentence has been imposed. As such, this cannot be viewed as a case where Ms. Ceballo is seeking to withdraw her plea due to her displeasure with a sentence she received. Nor does she ask to be acquitted. She simply asks that she be given back the right to a trial. A trial in which she will be tried on all the original counts she faced, rather than just the one count to which she had pleaded guilty.

Factor Two: Belief in Innocence

[8] Secondly, Ms. Ceballo need not demonstrate innocence as a pre-condition for striking a plea. As Justice Pomerance recently framed the question in R. v. McIlvride-Lister, 2019 ONSC 1869 at para. 71, "Therefore, the question is not whether the person who offered the plea is actually innocent, or can prove innocence. The question is whether the person who offered the plea believed that she was innocent and pleaded guilty despite that belief." In her testimony, Ms. Ceballo stated that she was innocent of this charge and had "proof", but stated it was difficult to prepare her defence while being in custody.

Factor Three: Religious Faith

[9] Thirdly, although Ms. Ceballo's letter can be difficult to follow at times, a prominent theme that emerges from it is Ms. Ceballo's strong religious beliefs. She shared similar sentiments in her oral submissions at the hearing of this application. A criminal proceeding is an onerous ordeal. Some accused persons may find strength and support in their family, friends or counsel in dealing with a criminal matter. Ms. Ceballo has indicated that her strength to seek to withdraw her guilty plea and proceed to trial comes from her religious faith. Through a subjective analysis, Ms. Ceballo's faith-based reason to withdraw her plea cannot be discounted.

Factor Four: Gladue Principles and Indigenous Status

[10] Fourthly, Ms. Ceballo has self-identified as Indigenous. In Ontario, Gladue principles have been applied beyond sentencing considerations. For example, the Court of Appeal has held that Gladue principles apply to the question of bail (R. v. Robinson, 2009 ONCA 205); that they apply in the context of extradition proceedings (United States v. Leonard, 2012 ONCA 622); and that they apply to the discretion for which a Corbett application provides (R. v. M.C., 2019 ONCA 502). I see no reason to foreclose extension of Gladue principles to a consideration of the validity of a plea, especially when Canada continues to struggle with the issue of overrepresentation of Indigenous people in prison. One factor that may be contributing to this overrepresentation is a higher rate of guilty pleas among Indigenous people: See Angela Bressan & Kyle Coady, "Guilty pleas among Indigenous people in Canada" (Department of Justice, 2017).

[11] Although a Gladue report had been ordered in preparation for Ms. Ceballo's sentencing, Aboriginal Legal Services ("ALS") were unable to prepare one because they could not confirm the specific nature of Ms. Ceballo's Aboriginal ancestry. However, as the letter ALS provided to the court concludes, "This letter should not be read in any way as stating that Ms. Ceballo is not an Aboriginal person – we are not in a position to draw such a conclusion." I pause here to note that Ms. Ceballo has self-identified as an Indigenous person. Inviting this court to determine if Ms. Ceballo is indeed an Indigenous person is fraught with concern. Jonathan Rudin paints the dilemma in stark terms in Indigenous People and the Criminal Justice System: A Practitioner's Handbook (Toronto: Emond, 2019) at p. 208:

For the most part we allow people to self-identify. For example, if someone identifies as Irish Canadian they rarely face a barrage of questions such as "How Irish are you?"; "Only your grandfather was from Ireland – I guess you're only 1/8 Irish then?"; "Have you ever been to Ireland?"; "When were you last in a St. Patrick's Day parade?" We don't ask Irish Canadians to provide proof of their Irish heritage and we generally don't pepper them will skill-testing questions about the history of Ireland. We don't hold it against them if they embrace that part of their heritage later in life or if they have only recently discovered their link to a country across the ocean.

For Indigenous Canadians, however, the situation is different…it is not unusual for non-Indigenous people to determine for themselves whether someone who asserts Indigenous identity really qualifies as being Indigenous. Non-Indigenous Canadians rarely see anything wrong with requiring Indigenous people to "prove" their Indigenous identity.

[12] Unlike a sentencing hearing where more information would be required with respect to how being an Indigenous person has affected Ms. Ceballo's life circumstances, this remains an application to withdraw a guilty plea in which the focus is on preventing a miscarriage of justice. In the face of Ms. Ceballo's self-identification, I am prepared to accept that Gladue principles should be given some consideration at this stage in the proceedings, recognizing that a loss of identity is a direct impact of colonialism and displacement.

Factor Five: Pressure and Extraordinary Circumstances

[13] Lastly, Ms. Ceballo states that she felt pressured to plead guilty. As she concludes in her letter, "I want to recant my plea. I was under a lot of pressure and had anxiety and panic attacks. I would have said anything to be set free." Courts have long recognized that pressure alone will not negate the voluntariness of a plea. As Justice Doherty observed in T.(R.) at para. 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.

[14] In my view, there is pressure and then there is pressure. This was not a situation in which Ms. Ceballo felt the type of anxiety and pressure that accused persons typically feel when they decide to plead guilty to a criminal offence. Instead, this guilty plea came at a very trying time in Ms. Ceballo's life. She was in custody at the time of the guilty plea; she was dealing with some other outstanding significant criminal matters; and she was dealing with court proceedings relating to the custody of her daughter. I had the opportunity to observe Ms. Ceballo's demeanour on a number of court appearances. I noted a growing sense of frustration and despair with each passing court appearance. As Ms. Ceballo testified, "I haven't been given a fair chance in life, period. Not just in the courts." Ms. Ceballo had trouble retaining counsel, whether it was through Legal Aid Ontario, by way of a Rowbotham application, or through private means. With each day in custody, Ms. Ceballo saw her chances of being reunited with her children slipping away.

[15] Now, I recognize that Ms. Ceballo stated that one of the reasons she plead guilty back on April 26, 2019 was to be able to be released and be present at a family court proceeding and try to regain custody of her daughter. The problem with that assertion is that the family court proceedings she referred to had already occurred in March, 2019. When this contradiction was pointed out to Ms. Ceballo, she stated that there were a number of court proceedings dealing with her daughter and she simply became fixated on the March date due to the trauma associated with being re-arrested on March 3rd and knowing that she would not be able to adequately fight for custody of her daughter.

[16] I am prepared to accept this explanation to the extent that her re-arrest and detention in early March caused significant confusion on her part in the face of numerous ongoing criminal and family court proceedings. Ms. Ceballo's concern about reuniting with her daughter in particular seems to have significantly impacted her ability to make conscious volitional choices. Ms. Ceballo stated that being away from her children is "destroying" her. Getting back to Ms. Ceballo's self-identification of being Indigenous, it should be noted that Aboriginal women suffer tremendous displacement and emotional stress due to incarceration and separation from family: Report of the Saskatchewan Indian Justice Review Committee (Saskatchewan: Saskatchewan Indian Justice Review Committee, 1992) at p. 42.

Conclusion

[17] In all of these circumstances, the plea cannot stand. Ms. Ceballo's application to withdraw her guilty plea is granted.

Released: August 12, 2019

Signed: Justice Rondinelli