Court File and Parties

Ontario Court of Justice

Date: 2021 02 19 Court File No.: 17-11369

Between:

Her Majesty the Queen

— And —

Jamie Gibson

Before: Justice G. L. Orsini

Heard on: February 11, 2021

Ruling on Application to Strike Guilty Plea

Counsel: Mr. J. Carnegie, counsel for the Crown Mr. J. Brown, counsel for the accused Jamie Gibson

Orsini J.:

Introduction

[1] Mr. Gibson initially plead not guilty before me on January 23, 2019 to two counts of possessing child pornography. It was alleged that he used his cell phone to take pictures of the daughter of a man he shared a home with and that the pictures came to light when he gave the phone to the girl’s father.

[2] At the outset of trial, the Court embarked on a Charter voir dire regarding the admissibility of a video recorded confession Mr. Gibson gave to the police. Although the voluntariness of the statement was conceded, it was alleged that the statement was taken in contravention of the Mr. Gibson’s right to counsel under 10(b) of the Charter.

[3] On March 11, 2019, following my ruling to admit Mr. Gibson’s confession, the Court permitted Mr. Gibson to strike his not guilty plea and enter a plea of guilty to one count of possessing child pornography. The matter was adjourned for the preparation of a Pre-Sentence Report.

[4] With the assistance of new counsel, Mr. Gibson now brings an application to strike his guilty plea. He argues that it was neither informed nor voluntary, that he made it on the spur of the moment without fully appreciating what he was doing and under the pressure that was placed upon him by his former counsel.

[5] For the reasons that follow, the application is dismissed.

Law

[6] A guilty plea, in order to be valid, must be voluntary, unequivocal and informed: R v. Eizenga, 2011 ONCA 113 at paras. 4 and 51; R v. T. (R.), [1992] O.J. No. 1914 at para. 12.

[7] The accused bears the burden of proving on a balance of probabilities that his guilty plea was not valid and should be struck. This flows from the presumption that a guilty plea made in open court is presumed to be valid: R v. Easterbrook, [2005] O.J. No. 1486 at para. 5; R. v. Cherrington, 2018 ONCA 653, [2018] O.J. No. 4012, at para. 21; T. (R.) supra at para. 16.

[8] A voluntary plea is one which flows from a “conscious volitional decision of an accused…for reasons which he or she regards as appropriate”: R. v. T.(R.), supra at para. 14.

[9] The Court in Cherrington, defined it as follows:

To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice. Whether the choice to plead guilty is wise, rational or in the accused's best interest is not part of the inquiry: M.A.W., at para. 35; R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47.

[10] Coercive or oppressive conduct by others which unfairly deprives an accused of the free choice not to go to trial will invalidate a guilty plea: R v. Moser, [2002] O.J. No. 552 at para. 33; R. v. Easterbrook, [2005] O.J. No. 1486 (C.A.).

[11] However, a guilty plea made under pressure is not necessarily involuntary: R v Ostashkov, 2019 ONCA 609.

[12] In this regard, the decision of our Court of Appeal in R v. Carty, 2010 ONCA 237, is instructive. At paragraphs 36 and 37, Justice Doherty states the following:

36 The appellant claims in his affidavit and cross-examination that he was coerced into pleading guilty by the circumstances and, to some extent, by the attitude of his trial lawyer. I have no difficulty accepting that the appellant was under pressure at the time. He was 21 years old, and in custody for the first time with no real prospect of release. He was facing a series of criminal charges, one of which was a serious allegation. His lawyer had informed him that he had no defence on that serious charge. These factors no doubt weighed heavily on the appellant's mind when he was trying to decide what to do.

37 However, the circumstances in which the appellant found himself were hardly unique and are shared by many who must decide whether to plead guilty to criminal charges. That decision by its very nature must be made when individuals are under considerable pressure. That pressure is often the product of the grim realization that there is no viable alternative to a guilty plea, and that the consequences of a guilty plea will be immediate, serious and far-reaching. The pressures inherent in the nature and timing of the decision to plead guilty cannot in and of themselves invalidate a guilty plea on appeal. People are capable of deciding what is in their best interests even when they are under considerable pressure and none of the available options are attractive.

[13] An unequivocal guilty plea is one which is certain in the sense that the accused admits to the allegations that make out the offence without ambiguity or qualification. In this regard, where an accused’s initial answers appear to indicate that he is waffling about admitting the underlying facts, a plea of guilty will nevertheless be found valid if the accused ultimately makes an unequivocal admission of those facts: R v. Krzehilik, 2015 ONCA 168, at para. 30. Likewise, an initial protestation of innocence made to counsel does not invalidate an accused’s subsequent unequivocal guilty plea: R v. Hector, at paras. 6-8 and 17.

[14] Finally, an informed guilty plea is one in which the accused understands the nature of the charges, the legal effect of a guilty plea and its consequences. This includes an understanding that the accused is giving up their right to a trial and admitting to the facts which make out the offence without the necessity of requiring the Crown to prove those facts beyond a reasonable doubt: R v. T.(R.) supra at para. 37.

[15] As a practical matter, these principles have now been codified in section 606(1.1) of the Criminal Code which provides:

606 (1.1) A court may accept a plea of guilty only if it is satisfied that the accused

(a) is making the plea voluntarily; and

(b) understands

(i) that the plea is an admission of the essential elements of the offence,

(ii) the nature and consequences of the plea, and

(iii) that the court is not bound by any agreement made between the accused and the prosecutor;

Evidence

[16] In addition to the affidavits filed by Mr. Gibson and his previous counsel, Ms Bracken, and the viva-voce evidence of both, the Court received the transcript of Mr. Gibson’s guilty plea before me on March 11, 2019.

[17] Mr. Gibson gave evidence and was cross examined on the affidavit he filed in support of his application. I find that his evidence was inconsistent with other evidence which I do accept. It does not leave me with any reasonable doubt as to the validity of his plea.

[18] In his affidavit, Mr. Gibson states the following:

(i) that he is not guilty of the charge; (ii) that he told his lawyer, Ms Bracken, he was “set up” for a crime he did not commit; (iii) that he told Ms Bracken he did not put child pornography on his phone and did not know it was there before he sold it to the girl’s father in exchange for a “zippo” lighter, $20.00 cash and an “eighth” of methamphetamine; (iv) that Ms Bracken did not advance his defence at trial; and (v) that Ms Bracken advised him to accept a plea bargain and that after speaking to her, he felt he had no choice but to plead guilty.

[19] Mr. Gibson’s claim that Ms Bracken did not advance his defence at trial is moot. His defence was not advanced because he ultimately decided to plead guilty. The real issue is whether his plea was otherwise involuntary in the sense that he felt he had no choice.

[20] In order to determine if Mr. Gibson’s plea was involuntary, one must turn to his viva-voce evidence. I say “must” because the affidavit itself contains no evidence to support this claim.

[21] In support of his position, Mr. Gibson testified that it was always his intention to plead not guilty and have a trial. I find that Mr. Gibson was being untruthful in this regard for the following reasons:

(i) The Information shows that the matter was previous put into a plea court on July 4, 2018; (ii) This corroborates the evidence of Ms Bracken, which I do accept. Ms Bracken, who I find testified in a straightforward and honest manner, told the court that she had set the matter for a guilty plea in 2018 on the instructions of Mr. Gibson. She indicated that the plea did not proceed as scheduled on that date because Mr. Gibson equivocated during the pre-plea enquiry – that this was the reason the matter was then set for trial.

[22] For his part, Mr. Gibson claimed to have no memory of this.

[23] Mr. Gibson further testified that he ultimately plead guilty because Ms Bracken told him that if he did not, he would be looking at 3-5 years in jail. He now says that this caused him to experience an incredible amount of pressure – that he made the decision to plead guilty out of fear and “in the spur of the moment” and that this should render his plea involuntary. He indicated that he was afforded very little time – between 20-25 minutes from the time I completed my ruling on his Charter Application and his return to court – to make up his mind.

[24] I find that Mr. Gibson’s evidence that he plead guilty “on the spur of the moment” to be untruthful for the following reasons:

(i) The transcript reflects that following my ruling on the Charter Application, Ms Bracken requested a 20-minute recess to consult with Mr. Gibson; (ii) Ms Bracken testified that the matter was recalled approximately an hour later, after she had reviewed Mr. Gibson’s option with him and obtained his instructions to plead guilty; (iii) the record confirms that the matter was in fact recalled just over an hour after it had been stood down at Ms Bracken’s request.

[25] In short, Mr. Gibson’s suggestion, that he made the decision to plead guilty without sufficient time to adequately consider his options, is contradicted by the evidence of Ms. Bracken, the transcript and the recording of the proceedings. This further undermines the credibility and reliability of Mr. Gibson’s evidence and adds credence to the evidence given by Ms Bracken.

[26] I also reject Mr. Gibson’s claim that he was otherwise pressured to plead guilty. I accept the evidence of Ms Bracken on this point which is again corroborated by the transcript of the guilty plea itself.

[27] In this regard, Ms Bracken testified that she and Mr. Gibson spoke extensively about his options before they returned to the courtroom approximately an hour later. She indicated that she told Mr. Gibson that his chances of successfully defending the charges at trial had been diminished by my ruling regarding his confession. She denied ever telling Mr. Gibson that he could receive a sentence of 3-5 years in jail if convicted after trial. As a practical matter, a sentence in this range was unavailable as the Crown had proceeded summarily.

[28] Ms Bracken further testified that Mr. Gibson instructed her he wished to change his plea – that she had conducted the pre-plea enquiry and was satisfied that his decision to plead guilty met those requirements. She indicated that she was particularly cautious in this regard because she was a relatively new lawyer and Mr. Gibson had frequently changed his instructions in the past. As a result, she said she took the further step of asking the court to conduct the pre-plea enquiry on the record.

[29] The transcript confirms that Ms Bracken did indeed ask the Court to conduct the pre-plea enquiry, even though she had done so with Mr. Gibson outside the courtroom.

[30] Although the transcript reflects some confusion on the issue of voluntariness and Mr. Gibson’s understanding of what a trial was, the court went to considerable length in explaining these and other matters to him and ensuring the subsequent plea met the requirements of section 606(1.1). Mr. Gibson confirmed that he wanted to plead guilty and that he was doing so voluntarily and with the knowledge that he was giving up his right to a trial. He unequivocally admitted the facts that were read in by the Crown, which included the fact of his video-recorded confession. He was informed of, and understood, the consequences of pleading guilty.

[31] I do not doubt for a moment that Mr. Gibson was under some pressure at the time. Earlier that morning, he received my ruling to admit his confession. This was followed by Ms Bracken’s opinion regarding his chances of being acquitted at trial. As evidenced in the transcript of his guilty plea, he was aware that he would be receiving a period of custody.

[32] I am not satisfied that these circumstances operated to deprive Mr. Gibson of a free choice in the matter. They are the type of circumstances faced by accused every day in this courthouse and there is nothing in the accused makeup from which to conclude that he made anything other than a free and conscious choice to plead guilty.

[33] I am not left in any doubt about this by Mr. Gibson’s evidence. Having reviewed the transcript of his plea and the evidence of Ms Bracken, which I accept, I find the plea was valid. Although Mr. Gibson may now regret having made that decision, regret is not a basis upon which to strike a guilty plea.

Conclusion

[34] For all of the above reasons, I find that Mr. Gibson has failed to establish on a balance of probabilities that his guilty plea should not stand.

Released: February 19, 2021 Signed: Justice G. L. Orsini