Court Information

Ontario Court of Justice

Date: 2020-04-27

Court File No.: Lindsay 18-011581, 18-011414, 18-011490, 18-000114, 18-011499

Parties

In the Matter of an Appeal under Section 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— And —

Jenny Woodcock Appellant

Judicial Information

Before: Justice David S. Rose

Heard on: March 11, 2020

Reasons for Judgment released on: April 27, 2020

Counsel:

• William Barnes, counsel for the Prosecution/Respondent
• The Appellant Jenny Woodcock represented herself

On appeal from: Findings of guilt by Justice of the Peace L. Leblanc on March 19, 2019 and from the sentence imposed on March 28, 2019.

Judgment

Rose J.:

Overview

[1] Ms. Woodcock pleaded guilty on March 19, 2019 to various Provincial Offences Act (POA) charges:

i – Operating a Motor Vehicle without Insurance per Compulsory Automobile Insurance Act (CAIA) s. 2(1)(a) (x2); Fail to Comply with POA Probation on 5, 7 September 2018;

ii – Fail to surrender Insurance card per CAIA s. 3(1) on 3 July 2018;

iii – Make False Statement contrary to s. 9(1) of Highway Traffic Act (HTA) 28 April 2018;

iv – Operate Motor Vehicle without Insurance per CAIA s. 2(1)(a) 5 September 2018;

v – Operate Motor Vehicle without Insurance per CAIA s. 2(1)(a); Fail to Comply with POA Probation 21 September 2018

[2] Ms. Woodcock initiated this appeal only on i) above, but Mr. Barnes did not object to her including ii) – v) in the appeal when it was heard. The appeal record is clear that each guilty plea was made at the same appearance on March 19, 2019 before His Worship Leblanc. His Worship sentenced her to a total sentence of 7 days in jail and a $5000 fine. Ms. Woodcock alleges in this appeal that her guilty plea was not informed, she acted under duress, and asks that the entire proceeding be quashed and sent back for trial. Although she initially said that she filed an appeal against sentence as well as conviction, in court she abandoned her appeal against sentence. Mr. Barnes responds that if the appeal is allowed, the 6 charges which were withdrawn on March 19, 2019 across the above Informations be re-instated at the new trial.

The Guilty Plea

[3] Ms. Woodcock was represented on March 19, 2019 by counsel Lorne Greenspoon. The transcript from that appearance shows that when Court called the matter it was marked for trial on the September 7, 2018 offence, namely Drive without Insurance and violating POA Probation. On the transcript Mr. Greenspoon told the Court that the trial would involve a blended Charter argument and that the whole trial would last about an hour. When the case was called again, Ms. Woodcock was late and Mr. Greenspoon indicated that, "I have revisited a global resolution. There are six matters before the Court counting today with this accused, counting today with this accused and we had some discussions on global resolution and with the some of the events that have happened to my client over the past week, I'm hopeful that those, that that could be fruitful." By that point Ms. Woodcock had still not arrived at Court. The trial Justice said that, "..without an actual confirmation from her today that she's going to resolve and without a resolution today I would begin her trial here without her".

[4] At that point there was a discussion before the Justice about gathering other Informations from the Court office which would be needed to complete the global resolution.

[5] When Ms. Woodcock appeared, she identified herself to the Court. Mr. Greenspoon said that she would be entering guilty pleas to several different charges: two fail to provide insurance charges; two breach of probation charges; and one count of making a false statement. The exchange is notable:

Mr. Greenspoon: …And I've explained to Miss Woodcock, Your Worship, that by pleading guilty to these offences she is giving up her right to a trial and, is that correct Miss Woodcock?

Ms. Woodcock: yes

Mr. Greenspoon: And that nobody is forcing her to do that, she's doing it voluntarily. Is that correct, Miss Woodcock"

Ms. Woodcock: Yes

Mr. Greenspoon: And although, I've explained to Miss Woodcock that you will listen to my submissions and you will listen to the Crown's submissions, but in the end your decision is the final decision. Do you understand that, Miss Woodcock?

Ms. Woodcock: Yes.

[6] Ms. Woodcock was then arraigned on several charges and pleaded guilty. Mr. Greenspoon told the Court that no facts need be read in, and that he was satisfied that there were sufficient facts to permit the Court to make a finding of guilt. Several other charges were withdrawn, including some dating back to August of 2013. When it came time to speak to sentence Mr. Greenspoon asked for a Pre-Sentence Report (PSR). He added that Ms. Woodcock had been working with mental health services workers, and that the PSR would confirm that. He said that he was seeking a suspended sentence with 2 years of probation which would have a psychiatric counselling component. The presiding Justice raised the issue of minimum mandatory penalties and the possibility of relief from minimum fines. He added, "But there still has to be a financial penalty if I'm considering this rather than jail." It was clear that the prosecutor was seeking a custodial sentence, and that the Court was questioning whether jailing an offender with mental health issues was in society's interest. The prosecution was seeking a total fine of $12,000 for the global resolution. What is clear from the record is that the prosecution was taking the position that Ms. Woodcock was a repeat offender with prior convictions for breaching probation and drive suspended and because of that a short jail sentence was required for specific deterrence. The proceedings were adjourned to March 28, 2019 for sentencing. His Worship encouraged both parties to work on a joint submission "…for a short sharp, send the message that if you come back it goes up".

[7] At the conclusion of the March 19 proceedings it was apparent that a PSR would not be ready by March 28.

[8] The Appeal documents filed confirm that between March 19 and March 21 of 2019 Ms. Woodcock resiled from her position on the guilty plea. In text messages to Mr. Greenspoon she said that she did not plead guilty voluntarily. Mr. Greenspoon said that he would have to get off the record, to which Ms. Woodcock said "Lloyd that's fine but I am stating attorney misconduct then. I am going to tell the judge I want to proceed I want this matter dealt and I have a right". Mr. Greenspoon sent Ms. Woodcock an email on March 26 which enclosed an Application to withdraw and details confirming his understanding of the proceedings of March 19.

[9] When the case came back on March 28, 2019 Mr. Greenspoon advised the Court that he had to withdraw because his solicitor client relationship with Ms. Woodcock had fallen apart. Ms. Woodcock then advised the Court that she "would like to proceed this afternoon with the sentencing". She didn't disagree with Mr. Greenspoon's assertion that their solicitor client relationship had broken down. She didn't want him to remain as her lawyer, and said that she had been forced to plead guilty. His Worship reserved a finding on the Application to withdraw. Once Mr. Greenspoon said that his relationship with Ms. Woodcock had broken down and Ms. Woodcock agreed that she no longer wanted him to be her lawyer it is unclear why the Application wasn't granted at that moment. At one point in the proceedings Ms. Woodcock appeared to withdraw her position that she wanted to fire Mr. Greenspoon, and His Worship then invited her to apologize to him, and ask him if he would continue to represent her. The Court took a recess and when they returned Mr. Greenspoon advised the Court that Ms. Woodcock had asked him to continue with the case.

[10] At that point His Worship formally rejected Ms. Woodcock's application to strike her plea. After more argument, His Worship found that Ms. Woodcock's situation entitled her to relief from the minimum mandatory fines which would total $15,000 and instead imposed one $5000 fine, 7 days in jail, and suspended the sentence on all other counts.

Fresh Evidence

[11] Ms. Woodcock waived her solicitor and client privilege before me when the appeal was heard, and Mr. Greenspoon testified about the events which lead up to Ms. Woodcock's guilty plea on March 19. He said that he never told her that she did not have to appear in Court that day but rather that she was merely late for the trial. When she did arrive, he spoke with her about a resolution for the charges, which were up for trial that day and also for the many trials she had coming up later.

[12] When he met Ms. Woodcock initially about the being retained he received a number of videos, which she thought were important to the case. He said that he reviewed them and gave the videos back to her. The videos were said by Ms. Woodcock to contain evidence of police misconduct against her. He said that he told her that he would not turn the case into a police misconduct case except to the extent that it might support an application which would yield a Charter based remedy. He testified that he had tried to get Ms. Woodcock into a mental health diversion program but that Highway Traffic Act charges were not eligible for that stream.

[13] Mr. Greenspoon testified that he told Ms. Woodcock before the plea that the prosecution was going to ask for a short jail sentence and that her best chance at avoiding that was to plead guilty. He described it as a lengthy discussion. Mr. Greenspoon testified that Ms. Woodcock was always mentally exhausted when he met her, not just on the day of the guilty plea. He was confident that he did explain the voluntariness, and informational components of the guilty plea during that meeting.

[14] Ms. Woodcock testified at the appeal. She said she had been pressured into pleading guilty, and that she was adamant that she wanted to go to trial on the charges. She said that Mr. Greenspoon advised her that she would receive a sentence of a fine but jail wasn't mentioned. Having been pressured by him for 10 minutes she gave up and pleaded guilty. She admitted that she had no difficulties with Mr. Greenspoon before March 19, and that if he didn't review the material she gave him to prepare for the trial, he did review it with her in conversation. She confirmed that he was going to bring a Charter application at trial and that he advised her that he didn't believe it had a great chance of succeeding.

[15] Ms Woodcock said that she had been told by Mr. Greenspoon that she didn't have to be in Court on March 19, but that she still expected him to have a contested trial, which would include her Charter application alleging police misconduct. She just didn't have to be at her trial. Her evidence was not consistent on the point.

Q. But if you weren't going to be at your trial, do you understand that you would not be able to present that information.

A. Who said that I wasn't going to be at the trial?

Q. I suggest that you did when I asked you if you were going to be at the trial, and you said "No".

A. Well, I'm sorry. I misunderstood that. I would be at the trial. It was me that was at all of my court proceedings.

Q. You.....

A. I'm - I was confused. I'm sorry. I'm - This is a lot for me to intake right now. I would have been at my own trial.

Q. Ms. Woodcock, you told us that you called - on March 18th you called Mr. Greenspoon, told him that you didn't want to be at the trial,…

A. That's right.

Q. …did you have to attend, and he said you didn't have to attend, and you expected him to run the trial without you.

A. That's right. He would have had all of the evidence. He had all the exhibit binders with him for that trial date.

Q. But you're telling us, Ms. Woodcock, both that you didn't want to be there at the trial, that you arranged for Mr. Greenspoon to attend without you, but also that you planned to be at your trial at all times.

A. Mr. Greenspoon was going to represent me on March 19th. There was no point in me being at that trial if he was there. I hired Mr. Greenspoon to represent me. That is why I - That is what lawyers are for.

[16] She agreed that once she got to Court she met Mr. Greenspoon and discussed a global resolution of her charges with him outside of Court. According to her Mr. Greenspoon said that she would receive a penalty of fines and was "adamant" no jail time. With that said he didn't tell her that the Crown would be asking for a jail sentence. She admitted that she had received Crown screening forms for each set of charges which indicated that the Crown would be seeking a jail term. She didn't know that the Crown was asking for jail until she appeared in Court on March 19. As she put it,

Q. And Justice of the Peace Le Blanc, he indicated towards the closing of the proceedings on March 19th that you were likely facing some jail and should make preparations for your children for the next date.

A. Yes, he did.

Q. And it was at that point that you realized you were getting jail.

A. Yes.

Q. And was it at that point that you decided you no longer want - wanted to go through with the plea?

A. Yes.

Q. So up until that point, had you received fines and no jail, you would have been satisfied.

A. I would have, yes.

[17] Ms. Woodcock testified that the penalty she would receive came up during her pre-plea conversation with Mr. Greenspoon in another way. Her evidence was:

Q. So you're saying that prior to entering the pleas you told Mr. Greenspoon you intended to appeal the justice of the peace's decision.

A. Yes. And this was after he had pressured me about pleading guilty because he knew I was adamant that I wanted this to go to trial. I want - I wanted a chance to stand before the courts. This has gone on for too long. This is going on for the last ten years.

Q. You told us before that you would have been fine with the result and at the time you were fine with the result knowing it was going to be fines and no jail. Now you're telling us that you intended to appeal the fines from the beginning.

A. Yes.

[18] The reason why Ms. Woodcock pursued that strategy was because she had just been successful in having some $28,000 in fines reduced in another separate appeal from Highway Traffic Act related convictions. I was not given that decision, but it came up in the guilty plea proceedings when Mr. Greenspoon addressed the issue of outstanding fines. He told the Court that, "She has her licence back. She appealed all of her convictions and some of the fines were reduced to zero…". Ms. Woodcock was asked about the pre-plea inquiry on the record before His Worship and she testified that she answered yes during the pre-plea inquiry because she was mentally exhausted.

Analysis and Decision

[19] The sole issue on this appeal is whether His Worship erred in refusing to strike Ms. Woodcock's guilty plea on March 28.

[20] Ms. Woodcock bears the onus of demonstrating that the guilty pleas were not voluntary, informed and unequivocal. The Provincial Offences Act outlines five conditions for a valid guilty plea:

45 (3) Conditions of accepting plea

A court may accept a plea of guilty only if it is satisfied that the defendant,

(a) is making the plea voluntarily;

(b) understands that the plea is an admission of the essential elements of the offence;

(c) understands the nature and consequences of the plea; and

(d) understands that the court is not bound by any agreement made between the defendant and the prosecutor.

[21] These requirements are identical to the essential elements of a valid guilty plea in criminal cases. As the Court of Appeal put it in R. v. Krzehlik, 2015 ONCA 168, where the validity of a guilty plea is raised on appeal:

The appellant bears the onus of showing that the plea was invalid. An appellate court is entitled to examine the trial record and any additional material, which, in the interests of justice, should be considered: see R. v. T. (R.) (1992), 10 O.R. (3d) 514 (Ont. C.A.). When an appellant seeks to argue that a guilty plea was involuntary, equivocal or not informed, the appellant need not satisfy the admissibility criteria set forth in R. v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.): see R. v. Rajaeefard (1996), 104 C.C.C. (3d) 225 (Ont. C.A.), at p. 228.

See also R. v. O'Brien, 2017 ONCA 929. In reviewing the record, the appeal court is entitled to consider trial counsel's prior experience in the criminal justice system, see R. v. Moser, [2002] O.J. No. 552 at par. 35 (Hill J.). A trial court hearing an application to strike a guilty plea is entitled to hold an inquiry into the validity of the plea. The extent of the inquiry is determined by the facts of the case, see Moser supra at par. 30.

[22] Applying the law to the entire record before me I have no difficulty in finding that Ms. Woodcock has not met her onus. I make that finding for a number of reasons.

[23] The first is that the trial record shows a clear pre-plea inquiry in court before His Worship before the guilty pleas were entered. There is no evidence which I accept which displaces the pre-plea inquiry conducted in Court. To be fair, the pre-plea inquiry does not refer to the requirement under s. 45(3) b that the accused accept the essential elements of the offence, but it is clear from the entire record that Mr. Greenspoon reviewed the case with her on more than one occasion. Furthermore, there is no suggestion that Ms. Woodcock is factually not guilty of the charges. Her position both at trial and before me was that she had Charter defences based on police misconduct. At no point did she ever take the position that she was either not driving when the Crown said she was, or that she had the proper documentation such as valid insurance or a drivers licence, when it was alleged she didn't.

[24] The second reason is the evidence of Ms. Woodcock herself. In her testimony she confirmed understanding what was involved with the plea before it was entered. Her evidence was internally inconsistent on the topic of knowing that the prosecution would ask for a jail sentence. Her evidence was that she both knew and didn't know about her exposure to a jail term. Furthermore she testified that she believed that she would plead guilty, get a fine and then appeal the fine to have it reduced. It is clear that her choice to go ahead with the plea on March 19, 2019 was part of a strategy to plead guilty, accept her fines and then go on and appeal those fines just as she had – with considerable success – in another case. This required an understanding how the case would play out and the guilty plea would be used later at the appeal stage. Her evidence that she had a strategy to have the fines ultimately reduced, and her evidence that she would have been satisfied with only receiving fines, is at odds with her other evidence that she was forced to plead guilty and was not mentally capable of making the decision to plead guilty.

[25] The third reason is that I accept Mr. Greenspoon's evidence that he reviewed the guilty plea with Ms. Woodcock outside of Court. His evidence was that when Ms. Woodcock arrived at Court he met with her and reviewed the guilty plea. The record confirms that the matter was marked for trial that day, and the resolution was arrived at once she arrived at Court. I find that Ms. Woodcock's own evidence confirms Mr. Greenspoon's, namely that she had a detailed litigation strategy for her various charges, of which the guilty plea was but one step. This confirms Mr. Greenspoon's evidence that she understood the consequences of the guilty plea.

[26] Lastly, Mr. Greenspoon is a lawyer of considerable experience in criminal courts. His evidence that he knew enough of the trial Justice to believe that he could convince the court not to impose a jail sentence is entirely believable. Moreover, it fits with the entire picture of the global resolution and the prosecution's position on the plea.

[27] For these reasons I reject Ms. Woodcock's argument that the guilty pleas were involuntary. Her appeal is dismissed. I would not leave this case without commenting that aside from the many withdrawn charges, Ms. Woodcock received suspended sentences for offences which would normally attract minimum monetary fines amounting to several thousand dollars. While the matter was not argued before me, having reviewed both the Highway Traffic Act and Provincial Offences Act, it is far from clear that a suspended sentence was an available penalty for the convictions where a minimum mandatory fine is stipulated. Her decision not appeal her sentences was entirely well placed.

Released: April 27, 2020

Signed: Justice David S. Rose