ONTARIO COURT OF JUSTICE

DATE: 2023 05 19 COURT FILE No.: Cornwall 3911-998-22-39100935-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

DONALD WALDORF

RULING RE APPLICATION TO STRIKE THE PLEA

Before: Justice J.R. Richardson

Heard on: April 3, 14, 2023

Reasons for Judgment released on: May 19, 2023

Counsel: Jason Pilon.......................................................................................... counsel for the Crown Ryan Langevin................................................................................. counsel for the accused

RICHARDSON J.:

Introduction

[1] The issue in this case is whether an Accused person must know that the Crown might seek a Dangerous Offender or Long Term Offender designation (hereinafter “DO/LTO”) before he enters a guilty plea to an index offence.

The October 27, 2022 Appearance and Guilty Plea

[2] I don’t normally preside in Cornwall.

[3] On October 27, 2022, the accused entered a plea to one count of Assaulting Beverly McPhee, one count of unlawfully confining Beverly McPhee, one count of Assaulting Beverly McPhee with a Weapon, to wit, a lighter, one count of Uttering a threat to cause death to Beverly McPhee and one count of Breach of Probation, contrary respectively to sections 266, 279, 267, 264.1 and 733.1 of the Criminal Code.

[4] The Crown, that day represented by Mr. Goldstein, proceeded by indictment.

[5] Prior to the plea, pursuant to section 606 of the Criminal Code, I conducted a plea inquiry of the accused. I was satisfied after conducting the plea inquiry that the plea was voluntary. I will have more to say about the plea inquiry momentarily.

[6] The Crown read in the facts.

[7] Counsel for Mr. Waldorf, who was then Mr. Leroux, essentially admitted to the facts on Mr. Waldorf’s behalf.

[8] I ordered a Pre-Sentence Report.

[9] Mr. Waldorf’s Criminal Record was entered into as an Exhibit.

[10] I adjourned the matter to January 3, 2023.

Discussions Prior to Arraignment

[11] Prior to Mr. Waldorf being brought into the Courtroom, counsel confirmed that the intention was to order a PSR and adjourn sentencing. Mr. Leroux indicated that the time frame for return of in-custody PSRs in Cornwall was between six and eight weeks. Given that this would span the Christmas period, he suggested that the matter return to Court in early January.

[12] Mr. Goldstein then stated:

Of course, Your Honour needs to turn your mind to whether or not the Court wishes to remain seized of this matter. If the Court is so inclined, and I’m saying this without any official notice or anything like that, I took a look at the criminal record, the Court may find itself in a much longer hearing than simply a sentence hearing, should that be the will of the people above me, in the chain of command.

[13] To this I replied: “Oh, I understand. Okay. Hmm.”

[14] I note here that it was immediately clear to me that this was an oblique reference to the possibility that the Crown would seek authorization to commence the process to make an Application for a DO/LTO designation for Mr. Waldorf.

[15] As I will explain, although this was clear to me, it was not at all clear to Mr. Leroux, and Mr. Leroux did not discuss this with Mr. Waldorf prior to Mr. Waldorf proceeding with his plea. I also assumed, given the nature of the conversation in Court, that Mr. Leroux understood what Mr. Goldstein was saying and they had, in fact, discussed this prior to coming in to my Court for the plea.

[16] I was wrong. I should not have so assumed.

[17] Mr. Waldorf was then escorted into the Courtroom and Mr. Leroux introduced him to me. I indicated: “Thank you, Mr. Leroux. I’m just considering what Mr. Goldstein just said. This is a first appearance, right?” Mr. Leroux indicated that it was.

[18] I stated, “How do you feel about an adjournment ‘til tomorrow and I can figure out whether they want me to hear the plea or whether they want a local judge to hear the plea?”

[19] At this point the following exchange took place:

Mr. Goldstein: If Your Honour wishes to bypass that, and the Court simply wishes to comment on the record that….

The Court: Take the plea and order the PSR without hearing the facts.

Mr. Goldstein: Or agree to have the plea struck and re-entered, or whatever else is appropriate, yes.

The Court: Sure. That’s fine.

Mr. Leroux: That can be done as well.

The Court: As long as everyone understands that’s what could happen.

Mr. Leroux: I’ve advised my client as well.

The Court : All right.

Mr. Leroux: Out of town judge and he would have…

The Court: Yep.

Mr. Leroux: …have to re-plea.

[20] I note here that Mr. Leroux’s further indication that he had explained the anticipated process to his client gave me further comfort that we were all on the same page. As I would later learn, we were not. We continued:

The Court: Okay.

Mr. Goldstein: I just don’t want Mr. Waldorf to come back and forth two days. He’s on the bus [referring to the prisoner van.]

The Court: It may be given this, the local judges would be happy to have an out-of-town judge here.

Mr. Leroux: He’s well known in the community, and I don’t think it would be that long, honestly.

[21] At that point, I proceeded with the plea inquiry.

[22] Mr. Waldorf stated that he understood that by entering a plea he was giving up his right to a trial. The following exchange then took place:

The Court: You’re aware of the facts the Crown will read in in support of the plea and you agree with those facts?

Mr. Leroux: There’s a sophistication deficiency, here.

The Court: All right.

[23] Mr. Leroux then spoke to his client away from the microphone. What he said to his client was not transcribed. We continued:

Mr. Waldorf: Okay. Yes.

The Court: All right. Sir, has anyone put any pressure on you to enter your plea today?

Mr. Waldorf: No.

The Court: Has anyone promised you anything in exchange for entering your plea today?

Mr. Waldorf: No. Nothing, Your Honour.

[24] At the point, I instructed the clerk to arraign Mr. Waldorf. Mr. Waldorf pleaded guilty to each of the arraigned counts.

[25] Mr. Goldstein then read in the facts. At the conclusion of the facts, the following exchange took place:

The Court: Mr. Leroux, are those facts correct?

Mr. Leroux: They are, Your Honour, and for the record, my client has some cognitive and sophistication deficiencies which necessitated me reading to him the facts. Not all the details pronounced by my friend, but just the facts in issue.

The Court: Okay.

Mr. Leroux: He advises that he was highly intoxicated that night. He’s aware of Section 33 and we’ve been through this before, so yes, the facts are admitted as read.

[26] At that point, I made a finding of guilt, proceeded to order the PSR, and set January 3 of the return date. At the Crown’s request I also granted a 516(2) order to prevent Mr. Waldorf from communicating with the independent witness and the complainant. He understood both the order and my warning that if he did not heed the order he could be charged with an offence and upon conviction, likely face more time in custody. The Criminal Record was filed and the matter was adjourned to January 3.

[27] Between October 27, 2022 and January 3, 2023, Mr. Waldorf instructed Mr. Leroux and Mr. Langevin to bring an application to strike the plea.

Evidence of Mr. Waldorf

[28] At the outset, I note that Mr. Waldorf has waived any privilege with respect to his discussions with Mr. Leroux prior to and after entering his guilty plea.

[29] Mr. Leroux was also excluded from the courtroom while I was hearing Mr. Waldorf’s evidence.

[30] Mr. Waldorf testified before me on April 3, 2023. He told me that he will be turning 61 years of age in May of this year. He is from Cornwall. In terms of his education, he has completed Grade 8 or Grade 9. He told me that school was a struggle for him.

[31] He has known Mr. Leroux for over ten years. He has represented him on previous occasions.

[32] He recalled that he was arrested at about 9:00 am on October 27, 2022, the same day that he entered his pleas. He said that the police found him at his friend’s residence. They took him to the police station.

[33] When he was given rights to counsel, he asked to speak to Mr. Leroux. The police told him that Mr. Leroux was at the courthouse. Mr. Leroux came over to see him at about 10:30 or 11:00 in the morning.

[34] He stated that he was not brought to bail court, nor did he have a bail hearing. He said that Mr. Leroux saw him at the courthouse in the lawyer consultation room in the cells. He stated that he was not aware of his charges and he asked Mr. Leroux to look into it and see what he could do for him.

[35] He does not, contrary to Mr. Leroux’s indication to the contrary on the record when the plea was entered, remember whether Mr. Leroux read the facts or the substance of the allegations to him.

[36] When asked what he recalled, Mr. Waldorf stated, “Not much that he said to me. It was up in the air to me. It was so quick. I wasn't really -- I can't put it into words -- I was having a hard time coping with what kind of charges I was facing at the time. I wasn't aware of how serious they were.”

[37] He further elaborated that his father had passed away about a month before. Mr. Waldorf said that he and his brother found his father at his home. He said that he took it pretty hard.

[38] When asked whether he and Mr. Leroux had a conversation about the potential outcome or sentence, Mr. Waldorf stated “He told me it was less than two years. I told him that if I could get a deal like that I might consider pleading. I did not know what they were asking for. I never would have pleaded.”

[39] Mr. Waldorf stated that he does not read or write. He stated that he did not review witness statements. He did not sign anything.

[40] Mr. Langevin asked, “Did you tell Mr. Leroux that you just wanted to wrap it up?” Mr. Waldorf stated, “I was asking if he could get me a good enough deal I would get it over with today. I didn't realise how serious it was going to be. I never would have pleaded that day at all. I would have waited until I saw all the facts.”

[41] Mr. Langevin then asked, “Did Mr. Leroux give you a range of sentence?” Mr. Waldorf stated, “I recall the two years. I can't recall a range. I remember him saying "under two years". He said something about a dangerous offender application after I pleaded guilty.”

[42] He stated that he recalled that the Court ordered a Pre-Sentence Report. He did not follow up with the Pre-Sentence Report because by then he learned that the Crown would be taking steps to commence an DO/LTO application and he did not want to proceed with it.

[43] He stated that he did not recall Mr. Leroux discussing intoxication with him.

[44] Even with making allowances for his lack of sophistication, in cross-examination, Mr. Waldorf was stubborn. He was adamant that his position was that he did not know that the Crown might seek a DO/LTO and if he did, he would not have pleaded. He stated this numerous times, even where the question did not invite such an answer.

[45] He stated that he did not remember entering pleas to the four counts.

[46] He stated that now that he understood that the Crown might seek a DO/LTO, he wished that things had gone slower. He said, “I didn’t know how serious things had become. I told Mr. Leroux that I would plead if he could get it dealt with.”

[47] Mr. Pilon pressed further, asking, “You were part of this moving fast because you wanted to get this over and done with as soon as possible?” Mr. Waldorf stated, “I had a lot going on. I was told otherwise and that's why I am sitting here today and trying to get my plea reversed and not guilty. No no no. Not like that. I ain’t guilty of all this. I really ain’t.”

[48] Mr. Pilon asked, “The only reason that you want out of this is because you realise how much trouble you are in?” Mr. Waldorf answered, “No, because I was looking at how much time I am looking at.”

[49] He stated that he did not remember asking Mr. Leroux to slow things down. He trusted Mr. Leroux and what Mr. Leroux was telling him. He had confidence in Mr. Leroux.

[50] Mr. Pilon asked, “You never told the judge that you wanted to slow down?” Mr. Waldorf stated, “I don't think so. Why would I say that to the judge?”

[51] Mr. Waldorf agreed that he had a seven-page criminal record with convictions spanning the period between 1980 and 2022.

[52] He stated that, “A lot of the time that I pleaded not guilty I would be sitting in jail waiting for a trial. I had no other choice. I would be longer in jail waiting for a trial date.”

[53] He agreed that he understood that when he pleads guilty it means that he would not have a trial and he would be sentenced.

[54] He did not agree that as the record gets longer, sentences increase. He stated that the most time he had ever served was twelve months. He stated that no one ever told him that if he did not change his ways, the sentences would increase. He acknowledged, however, that this proposition was a reasonable concept.

[55] He agreed that when he spoke to Mr. Leroux before the plea he was sober and somewhat clear headed.

[56] He remembered that Mr. Leroux “might have” said something about there being an independent witness. He agreed that he told Mr. Leroux that he was drunk and he did not remember what happened. He then added that he does not remember whether he told Mr. Leroux this. “I have a hard time remembering things”, he said.

[57] Mr. Pilon asked, “You knew that there was no deal?” Mr. Waldorf stated, “I thought that it was less than two years.”

[58] Mr. Waldorf agreed that if he knew that the Crown was seeking a DO/LTO, he would not have pleaded and that’s why he wanted to change his plea. Mr. Pilon stated, “You knew that it would be up to the judge to sentence you?” Mr. Waldorf stated, “I am not sure on that question.”

Evidence of Mr. Leroux

[59] Throughout his evidence, Mr. Leroux often referred to a three-page document he called his docket. He stated that the docket was prepared by him and it is a cumulation of his notes and emails. The docket was prepared just before he billed the file out in early January.

[60] Mr. Leroux has practised law since 2004. He restricts his practice to criminal law and proceedings under the Mental Health Act, the Police Services Act and the Royal Canadian Mounted Police Act.

[61] Prior to becoming a lawyer, he was employed by the Cornwall Police for almost twenty years. He held the rank of Detective Sergeant when he retired.

[62] He agreed that he is fairly well versed in criminal law. He was familiar with the onus of proof and available defences. He stated that he has conducted trials, guilty pleas, preliminary inquiries and NCR hearings.

[63] He is a sole practitioner.

[64] He tries to be selective with respect to his clients. He stated that he does not defend persons charged with sexual offences. He agreed that many of his clients are repeat, loyal clients.

[65] He agreed that Mr. Waldorf had been such a client. He stated that he had represented Mr. Waldorf for between twelve and thirteen years. He agreed that but for one occasion where Mr. Waldorf was assisted by duty counsel, he has been Mr. Waldorf’s “go-to lawyer.”

[66] He has a good rapport with Mr. Waldorf.

[67] He stated that Mr. Waldorf followed his advice “for the most part.” There were times that they had some disagreements. He stated that there have been times where Mr. Waldorf has contested matters. In particular, he stated that the last time Mr. Waldorf was before the Court, he went to trial. During the trial, the case resolved by way of guilty plea. The matter was a “domestic matter” and the complainant was the same complainant as in the case before me.

[68] With respect to the case at bar, Mr. Leroux testified that on the afternoon of October 27, 2022, he was advised by duty counsel that Mr. Waldorf was in custody and wanted to speak to him.

[69] Prior to speaking with Mr. Waldorf, he received a bail brief from the Crown. The case also involved Ms McPhee. The bail brief usually consists of a General Occurrence Report and a Synopsis. He recalled reviewing it. Mr. Waldorf’s Criminal Record was attached. He reviewed that as well. He agreed that the Crown Brief lists the charges on the face page. He stated that he was not certain if a copy of the Information was attached.

[70] He reviewed the alleged facts prior to speaking with Mr. Waldorf. He characterized the facts as “aggravating.” He stated that he noted that there was an independent witness to the offences.

[71] After reviewing the facts he went to see Mr. Goldstein in the courtroom where Mr. Goldstein was working. He stated that it was his intention to traverse the matter into a guilty plea court from the bail court if it was ultimately Mr. Waldorf’s intention to resolve it.

[72] He asked Mr. Goldstein for a “quick opinion” on the screen. He stated that Mr. Goldstein told him that he would be the assigned Crown. He stated that Mr. Goldstein told him that the Crown’s position was “pen time”. He understood this to mean at least “two years plus one day.”

[73] Armed with this information he went to see Mr. Waldorf in cells where they communicated in private. Mr. Waldorf appeared sober and clear-headed. He stated that he had dealt with Mr. Waldorf on other occasions where he was not so. He stated that he would “probably not” have continued his discussions with Mr. Waldorf if he was not sober.

[74] He stated that he read Mr. Waldorf the Synopsis. He told Mr. Waldorf that there was an independent witness involved and the facts were aggravating. He stated that in his view, the presence of an independent witness was significant because Mr. Waldorf and Ms McPhee frequently complained to police about each other. Rarely was an independent witness involved. He stated that he told Mr. Waldorf that “he had a shot” at trial but there was an independent witness.

[75] He recalled Mr. Waldorf told him that he did not remember anything. Mr. Waldorf told him that he “blacked out” or words to that effect. He recalled that Mr. Waldorf told him that his father had just passed away. In cross-examination he recalled that Mr. Waldorf was “getting weepy that Arland had died.” Mr. Leroux explained that “Arland” was Mr. Waldorf’s father. None of this concerned him about Mr. Waldorf’s state of mind.

[76] He stated that at no point did Mr. Waldorf tell him that the incident did not happen or that Ms McPhee made it up.

[77] He told Mr. Waldorf that under section 33 of the Criminal Code, his drunkenness was not a defence. He added, “I always tell him that because it typically arises that one or the other or both [of Mr. Waldorf and Ms McPhee] are intoxicated. He stated that Mr. Waldorf told him to “put it through.” He wanted to get it over with. Mr. Waldorf said “Just wrap it up” or words to that effect. He stated that Mr. Waldorf wanted to “plead out” and “shop the best deal possible.”

[78] He recalled that there was no doubt in his mind that he told Mr. Waldorf that the Crown position was “pen time.” There was also no doubt in his mind that Mr. Waldorf heard him. He recalled that Mr. Waldorf was “jolted by” the “pen time” revelation. He stated that generally the Crown’s position involves incarceration for a period that is counted in months. He stated that the worst that Mr. Waldorf had faced was twelve months. He stated that he thought he knew that Mr. Waldorf understood what the expression “pen time” meant, but added, “He didn’t say anything and I didn’t qualify it.”

[79] Mr. Leroux agreed that there was no doubt that the Crown’s position involved substantially more custody than Mr. Waldorf usually got.

[80] Despite this, “my marching orders were to wrap it up.”, Mr. Leroux stated.

[81] He stated that he did not pressure Mr. Waldorf into wrapping it up, nor was he aware of any other pressure placed on him to wrap it up. He stated that Mr. Waldorf knew that he could go to trial, but “the outlier” was that there was the independent witness. When asked, Mr. Waldorf knew that he had the choice of a trial or not. Mr. Leroux stated, “He always knows.”

[82] He recalled discussing the request of a PSR with Mr. Waldorf and how such a document might assist him in sentencing. He stated that Mr. Waldorf wanted him to try to negotiate or advocate a custodial period of one year in duration. This is what he “always wants”, Mr. Leroux stated. He recalled that Mr. Waldorf asked him if there was any chance he would be sentenced to two years less one day. Mr. Leroux recalled that Mr. Waldorf told him that he did not want to go to the Pen. “He knew that the Crown was seeking the Pen and he didn’t want to go. I told him with a good PSR, who knows?”

[83] He recalled giving Mr. Waldorf some advice about the PSR. “I told him about the three Rs. Responsibility, remorse and the desire to rehabilitate himself.”, he said. He stated that Mr. Waldorf seemed preoccupied. He was waiving his hand about getting it over with. Mr. Leroux did not think that Mr. Waldorf had a PSR prepared in the past.

[84] With respect to the advice he rendered, Mr. Leroux stated, “I know what I said. I know what I transmitted. I can't tell you what he received.”

[85] He agreed that there was no rush for Mr. Waldorf to enter his plea. “He was in. He had no surety and no plan. Time is our friend. He’s always been good with accruing pre-sentence custody.” He was not under any illusion that he was going to be released pending sentence. He agreed that Mr. Waldorf was there to build up “dead time”. This was not “a foreign concept.”

[86] He stated that although Mr. Waldorf has “cognitive issues”, there was no doubt in his mind that Mr. Waldorf knew what he was giving up or what he was admitting to. There was no doubt in Mr. Leroux’s mind that Mr. Waldorf knew this case did not involve a joint submission. Mr. Waldorf knew that it was up to the Court to impose the ultimate disposition.

[87] With respect to the plea inquiry process, it was Mr. Leroux’s evidence that Mr. Waldorf understood the questions asked by the Court. “He knew exactly because that’s what I told him he was getting into. It is what I tell him each and every time.”

[88] Mr. Leroux was emphatic that up to this point, in his discussions with the Crown, there had been no mention of a possible DO/LTO application. He stated that he did not raise this with Mr. Waldorf and added, “If I had been aware, things would not have proceeded the way they did that day.”

[89] He recalled that after the plea was entered, he met with Mr. Goldstein for a counsel pretrial. He stated that he wanted to try to advocate for Mr. Waldorf a bit more. “Mr. Goldstein is not from Cornwall and I wanted to make sure that he knew the legacy behind the Bev [McPhee] and Donnie [Waldorf] happy hour syndrome.” At the CPT, he learned that the Crown was seeking between three and five years and wanted to DO Mr. Waldorf.

[90] When he heard this news, he “was aghast and took a deep breath.” He added “I tried to explain to him [Mr. Goldstein] what we were dealing with here and he would not have any part of it. I was astounded.”

[91] In cross-examination, Mr. Leroux elaborated further about this conversation. “I remember uttering “are you kidding me?””, he said. He recalled that he asked Mr. Goldstein why the Crown was taking that position. He recalled that Mr. Goldstein told him that it was because of “the legacy of the two parties” (Ms McPhee and Mr. Waldorf). Mr. Leroux stated that he tried to encourage Mr. Goldstein to contact the Cornwall Police Service to obtain prior occurrence reports and review the history. “He [Mr. Goldstein] wasn’t having any of it. He said, “We have to make a stand. He was worried that something serious was going to happen and he mentioned death”, Mr. Leroux told me.

[92] After the plea, he also got the balance of the disclosure, which he reviewed. He stated that it was apparent that Ms McPhee did not want to give a statement to the Police. This, he said was typical. “She usually confronts me in the courtroom or calls me up or wants to know why I am not getting Donald out of jail. Things of that nature.” In the past, she has told Mr. Leroux that she exaggerated what she told the police and she wanted to recant. Her conversations with him have, over the years, taken place both orally and in writing. Typically it is orally.

[93] He stated, “The conversation is always to the effect that Mr. Waldorf likes to drink and she likes to drink. When the police are called, she exaggerates with respect to what happened. To Ms McPhee, everyone over-reacts. I am at fault. The Court is at fault”, he stated. Alcohol always plays a role. She always wants Mr. Waldorf to be released and come home. She typically wants the charges to be dropped.

[94] Mr. Leroux advised that the Probation Officer told him on the 18th of November that they would not be completing the Pre-Sentence report from Mr. Waldorf. He knows that it happened that day because he wrote it on his file. Although he was appearing by zoom, Mr. Leroux showed me where he wrote it down.

[95] A letter from the Probation Officer was entered into evidence as Exhibit 2.

[96] After receiving this and reviewing disclosure, Mr. Leroux scheduled a call with Mr. Waldorf, who was in custody at the Ottawa Carleton Detention Centre, for November 25, 2022.

[97] During that conversation, Mr. Leroux reported what had transpired to Mr. Waldorf. At that point, there was a breakdown in the relationship between them. Mr. Leroux facilitated Mr. Waldorf’s retainer of Mr. Langevin.

[98] Mr. Leroux referred to an email that he composed on January 21, 2023 concerning this case. He stated that “his take” was that Mr. Waldorf’s offence “was worth” between twelve and fifteen months in custody but he wasn’t certain. He stated that he thought the Crown was going to seek between fifteen months and two years. When he met with the Crown, the Crown raised the notion of “pen time.” He stated that he made Mr. Waldorf aware of this but he did not anticipate a jump from nine months to between three and five years.

[99] He agreed that he did not have written instructions from Mr. Waldorf. He stated that this is contrary to his typical practice. He stated, “I always get my clients to sign a plea inquiry form”. He recalled that on the day of the plea, he went to the Law Library and the printer was not working. He then went to the cells and spoke to Mr. Waldorf.

[100] In re-examination, Mr. Leroux stated that with respect to Mr. Waldorf’s ability to read and write, “He has challenges”. He recalled that he read Mr. Waldorf the alleged facts in the lock up. He added that he also went over to make sure that Mr. Waldorf was picking up and processing what he said. He recalled Mr. Waldorf was waiving him off when he was going over the facts and the possible defences as if to say, “Yeah, yeah, whatever”. Mr. Leroux said that when this happened, he stopped and told Mr. Waldorf “Don look at me, this is important.”

[101] After re-examination, I asked Mr. Leroux if he had ever been involved in a Dangerous Offender Application. He stated he had not. After he learned that this was what the Crown was potentially seeking, he went to the Legal Aid website and downloaded the package of information about it to familiarize himself with what a DO situation was. Other than that, he encountered a Dangerous Offender Proceeding once before when he was a Detective with the Cornwall Police.

Additional Factual Matters

[102] A letter from Ms McPhee, in which she essentially resiles from what she told the police happened, was filed as Exhibit 1.

[103] Neither party called Mr. Goldstein to testify.

Analysis

Findings of Fact

[104] During the plea inquiry, it was evident that Mr. Waldorf was aware of the facts and he agreed with the facts. He also understood that by entering a plea he was giving up his right to a trial. His later pronouncement that he “ain’t guilty” is not backed up by reference to any defence that he now alleges is available to him that was not available to him when he entered his plea. The only thing that has changed, frankly, is Ms McPhee’s recantation letter. It is hard to say that is much of a change from what Mr. Waldorf usually faces because on the evidence of Mr. Leroux, this is something that one can always expect from Ms McPhee.

[105] The only thing that can even remotely be said to amount to “pressure” was the fact that there would be a delay in sentencing because of the preparation of the PSR. I have no doubt that in Mr. Waldorf’s mind, the sooner the plea was entered, the sooner the sentencing would be completed.

[106] I also find that Mr. Waldorf has some intellectual or cognitive deficits. He does not read and write. Mr. Leroux was in the habit of reading the allegations to him and making sure that he comprehends them. I find that he did so on this occasion.

[107] Mr. Waldorf is also stubborn, impatient and he has a one-track mind. His focus is solely on getting out of custody as quickly as he can. This, when coupled with his intellectual or cognitive deficits, makes him a difficult client to deal with. This is apparent from how he waived Mr. Leroux off when Mr. Leroux was trying to discuss possible defences with him. It is also evident from the fact that Mr. Leroux had to get his attention by instructing Mr. Waldorf to “Look at me” and telling him “Don, this is important.”

[108] It was also apparent from how he conducted himself when he was giving evidence in Court.

[109] Mr. Waldorf was somewhat preoccupied by his father’s death. The loss of one’s father is difficult and I am sure that it was a stressful and grief-laden period for Mr. Waldorf, particularly because it appears that it came to him as a surprise. His brother and he found his father dead at home. But there is no evidence, apart from the fact that it was something that was on his mind and bothering him (how could it not be?) that it interfered with his decision making.

[110] Although his intoxication prevented Mr. Waldorf from remembering anything about his actions on the night in question, there is no evidence that it was still interfering with Mr. Waldorf’s state of mind when he was speaking with and instructing Mr. Leroux the next day. I accept Mr. Leroux’s evidence that Mr. Waldorf appeared sober and clear-headed. I also accept Mr. Leroux’s evidence that Mr. Waldorf appeared to him as anything otherwise, he would not have permitted Mr. Waldorf to enter his plea.

[111] Apart from his right to attack the Crown’s case [1], which I will discuss in greater detail below, this is not a case where Mr. Waldorf specifically gave up defences that might have been available to him just to plead guilty and get out of jail sooner.

[112] Getting out of jail as soon as possible was his singular mission.

[113] It still is his singular mission.

[114] Only now that he is faced with the prospect that the Crown may seek an order that interferes with his singular mission in the penultimate way, does he seek to strike his plea.

[115] At the end of the day, I am left with a case where Mr. Waldorf’s single-mindedness, not Mr. Leroux’s failure to explain what was happening to him, made him reckless with respect to proceeding to enter his plea.

[116] It was not that Mr. Leroux did not try to explain to him what was happening. The evidence is clear that he did.

[117] Mr. Waldorf simply wanted to get it over with as quickly as possible so that he could get out of jail as quickly as possible. The details with respect to how that might happen were not important to him. Although his cognitive and intellectual deficits made it more difficult for him to understand what was happening – he was not particularly interested in putting the work and time into making sure that he understood. He cannot now blame Mr. Leroux for his recklessness.

[118] Mr. Leroux made some errors in judgment. He relied on the fact that Mr. Waldorf was a longstanding, loyal client. He knew Mr. Waldorf well. He knew Mr. Waldorf’s circumstances. He presumed that this was just another “Bev and Donny Happy Hour” case. He gave in to Mr. Waldorf’s instructions to get it over with. He did not get written instructions. Although Mr. Waldorf cannot read and write, signed written instructions (that Mr. Leroux would read to Mr. Waldorf before he signed or made his mark) would have served the useful purpose of memorializing what Mr. Leroux told Mr. Waldorf about the case, and what Mr. Waldorf instructed Mr. Leroux to do. He proceeded with assisting Mr. Waldorf with his plea even though he did not have the complete disclosure package.

The Nature of the DO/LTO Regime and Its Effect on Mr. Waldorf’s Plea

[119] This case is further complicated by the unique nature of the DO/LTO regime.

[120] As I will relate below, the real problem here is Mr. Leroux’s uncontradicted evidence that he was not aware that the Crown might seek a DO/LTO.

[121] The evidence is also clear that Mr. Leroux did not twig to the cues and oblique references that Mr. Goldstein gave in open court with respect to the possibility that the Crown would seek a DO/LTO. Although he is an experienced criminal lawyer with almost twenty years of practice behind him, Mr. Leroux’s testified that he has never acted for an accused in a DO/LTO proceeding. At best, his familiarity with the area stems from his prior work as a police officer over twenty years ago. Only after the Counsel Pre-trial, which took place after I heard the guilty plea and made the finding, did Mr. Leroux come to a full appreciation of what a DO/LTO proceeding might mean for his client.

[122] His evidence was that he was shocked, astounded and aghast. He told me he had to take a deep breath. I do not doubt any of that.

[123] Therefore, if he himself did not have a full appreciation of the nature and consequences of a DO/LTO proceeding, how could he have possibly obtained Mr. Waldorf’s instructions to proceed in the face of it? [2]

The DO/LTO Regime – Statutory Pre-requisites

[124] This brings me to what I see as another problem in this case: DO/LTO provisions of the Criminal Code.

[125] Section 752 of the Criminal Code sets out the offences (often referred to as the predicate or index offences) which, upon conviction, may give rise to an application to declare an offender a Dangerous Offender or Long Term Offender. These offences, defined in section 752 of the Criminal Code as a “serious personal injury offence”, are indictable offences, punishable by a sentence of ten years or more, where there is the “use or attempted use of violence against another person”, or “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person.”

[126] In this case, Assault with a Weapon, and Forcible Confinement meet the definition because, where the Crown proceeds by indictment, they are offences for which the maximum sentence is ten years.

[127] The Crown is required to disclose to the Court its intention to seek assessment under section 752.1 of the Criminal Code “as soon as feasible after a finding of guilt and in any event before sentence is imposed”. In other words, statutorily, the Crown is not obliged to give any notice before the accused enters his plea.

[128] Once the Crown has made the determination, it proceeds with an Application under section 752.1 of the Criminal Code for an assessment by an expert for use in evidence by the Court. Here the Crown need only establish that there are reasonable grounds to believe that an offender might be found to be a dangerous offender or long term offender. If the Court is so satisfied, the section dictates that it shall remand the offender for the purpose of the preparation of the assessment.

[129] Section 754 of the Criminal Code makes it clear that the only aspect of this procedure that the prosecutor can undertake without the consent of the Attorney General is the Application for the Assessment. The prosecutor cannot bring the application unless the Attorney General consents. Even then, the Criminal Code only requires that “at least seven days notice” be given to the offender “following the making of the application outlining the basis on which it is intended to found the application.”

[130] The Code requires a mere seven days notice.

[131] A mere seven days notice is all that is required. Not “before plea”, but “after conviction”.

[132] Other than the notice that naturally arises out of the Crown’s application for an assessment, this is the only notice requirement placed on the Crown to enable an Application that may result in indeterminate confinement in a penitentiary.

[133] In addition to these statutory requirements, a prosecutor in Mr. Goldstein’s shoes must also follow Crown Policy.

[134] As I have noted, Mr. Goldstein did not testify. His oblique reference in Court to the fact that “the Court may find itself in a much longer hearing than simply a sentence hearing, should that be the will of the people above me, in the chain of command.” makes it clear to me that he was familiar with the provisions of Crown Policy which significantly fetter his discretion in cases of this nature. [3]

[135] Perhaps then, it is not surprising that Mr. Goldstein’s reference to this in Court was, as I have characterized, “oblique”. If Mr. Goldstein did discuss this with Mr. Leroux, there is every reason to believe that he might have been just as oblique as he was in Court. Mr. Leroux testified that it was not discussed, and at least with respect to his state of mind, I believe that is probably the case. However, I am mindful that Mr. Leroux had virtually no experience with DO/LTO applications. If Mr. Goldstein made an oblique reference in their out-of-court discussions, it is equally probable that Mr. Leroux did not catch its significance.

[136] I am by no means faulting Mr. Leroux here. Even though he is seasoned counsel with almost twenty years’ experience, he was navigating in waters that he did not have experience in navigating.

[137] Nor am I faulting Mr. Goldstein. He is a capable and experienced Crown. He is also known to this Court to have been, prior to employment with the Crown, a capable and experienced defence counsel.

[138] My characterization of his reference as “oblique” is not intended to be a criticism on him.

[139] Sometimes there is tension, if not incongruence, between the prosecutor’s duty to be a “local Minister of Justice” and the obligation to follow legislation and policy.

[140] Statutorily Mr. Goldstein was not required to give notice until after conviction. He cannot bind the Attorney General. The most he can do, without Attorney General consent, is seek an Assessment. Even to do that, policy requires him to consult with the Regional High Risk Offender Crown and he must have the approval of his Crown Attorney.

[141] Seeking an Assessment does not necessarily mean that he is going to make the Application. Once the Assessment comes back, policy requires him to consult with the Regional High Risk Crown, and have the approval of his Crown Attorney and the Assistant Deputy Attorney General before seeking Ministerial consent.

[142] Here, the oblique reference was more than Mr. Goldstein was statutorily required to give. In fairness to Mr. Waldorf and to the Court, he gave it anyway. He cannot be faulted for doing that.

[143] All of this, by its very nature, runs contrary to Mr. Waldorf’s singular mission to get out of jail as soon as possible.

[144] As I will explain below, it also runs contrary to the requirement that his plea was informed. If Mr. Waldorf did not understand these potential consequences, how could his plea be informed?

[145] This is why the Criminal Code provisions with respect to notice of a potential DO/LTO proceedings are, on the facts of this case, wholly deficient.

[146] Mr. Goldstein did more than he was required to do.

[147] In my view, that is not enough.

[148] It is patently wrong and unfair to an accused person that he enter his plea without clear, unequivocal advance knowledge that the Crown may commence proceedings that could lead to his indeterminate detention.

[149] A vague reference to “pen time” is not sufficient.

[150] This is why the Defence Application must succeed and the Crown’s opposition must fail.

The Test for Striking a Plea

[151] Pleas made by accused persons who are represented by experienced counsel are presumed voluntary unless the accused convinces the court that the plea is invalid and should be set aside: R. v. Eizenga, 2011 ONCA 113.

Common Law and Statutory Requirements that the Plea be Voluntary, Unequivocal and Informed

[152] In order to be valid, a plea must be voluntary, unequivocal and informed. These are common law requirements that are now enshrined in section 606(1.1) of the Criminal Code.

[153] Section 606(1.1) of the Criminal Code states:

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

(a) the accused is making the plea voluntarily

(b) the accused 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; and

(c) the facts support the charge.

[154] Section 606(1.1) of the Criminal Code was introduced in 2002. It arose out of the recommendations of the “Martin Report” where the Committee stated that:

It is, in the Committee’s view, central to the integrity of the resolution of a Criminal prosecution agreed upon by the Crown and the defence that it be fully understood and agreed to by the accused person. No one is more directly affected by the outcome of the prosecution than the accused, and, therefore, no one has a more compelling interest in understanding and agreeing to that outcome where it is reached through discussions rather than the conduct of a trial. For this reason, the Committee has recommended that the trial judge conduct an inquiry in open court and on the record as to the accused’s comprehension of the proposed plea of guilty. [4]

[155] Later the Committee further stated:

The inquiry into the voluntariness and comprehension of a plea of guilty such as the Committee has recommended will provide informed satisfaction of the state of affairs represented by the Plea. As such it protects both Crown counsel and defence counsel from the unfounded subsequent allegation by the accused that either counsel used undue pressure to bring about a resolution agreement. The plea comprehension inquiry conducted by the sentencing judge also furnishes important evidence on the record in the event that the offender seeks to withdraw his or her plea of guilty on appeal. This can greatly facilitate the process of appellate review and may well reduce the number of appeals launched on this basis. Finally, in so far as the inquiry assists the accused in understanding the implications of the plea of guilty, it may cause more accused to be satisfied with the outcome because they understand it, which may in turn reduce the number of appeals against sentence. [5]

[156] In R. v. T.R., a case decided prior to the enactment of section 606(1.1), Justice Doherty of the Ontario Court of Appeal defined voluntariness and set out factors which may affect voluntariness this way:

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: Fitzgerald, The Guilty Plea and Summary Justice, supra, at p. 71.

Several factors may affect the voluntariness of a guilty plea. None are present in this case. The appellant was not pressured in any way to enter guilty pleas. Quite the contrary, he was urged by duty counsel not to plead but to accept an adjournment. No person in authority coerced or oppressed the appellant. He was not offered a "plea bargain" or any other inducement. He was not under the effect of any drug. There is no evidence of any mental disorder which could have impaired his decision-making processes. He is not a person of limited intelligence.

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.

The pleas entered by the appellant were voluntary.

[157] In this case, for reasons I set out herein, I find that the pleas entered by Mr. Waldorf were voluntary.

[158] However, that is only one third of the equation. The second element of a legally valid plea is that it must be unequivocal.

[159] In this case, I find that the plea was unequivocal. As I set out, before Mr. Waldorf was arraigned, I asked him if he was aware of the facts that were going to be read in by the Crown and if he agreed with those facts. Mr. Leroux intervened due to Mr. Waldorf’s “lack of sophistication” and explained to Mr. Waldorf what that meant. Although that conversation was not transcribed, that is clearly what was happening here. After that explanation, Mr. Waldorf, said, “Okay yes.” After the facts were read in, I asked Mr. Leroux on Mr. Waldorf’s behalf if those facts were admitted. Mr. Leroux stated that they were. Neither Mr. Leroux nor Mr. Waldorf offered any equivocation. There were no conditions to the plea.

[160] In R. v. G.(D.M.) 2011 ONCA 343 at paragraph 41, Justice Watt explained what a guilty plea means:

….a plea of guilty is a formal, in- court admission by an accused that she or he committed the offence to which the plea has been entered. An accused who pleads guilty consents to entry of a finding of guilt, or conviction without a trial and relieves the prosecutor of the burden of proving guilt, by relevant, material and admissible evidence, beyond a reasonable doubt. An accused who pleads guilty abandons his or her non-compellability as a witness, as well the right to remain silent, and surrenders his or her right to offer full answer and defence to the charge: R. v. Adgey, [1975] 2 S.C.R. 426, [1973] S.C.J. No. 159, at p. 440 S.C.R., per Laskin J., in dissent on other grounds.

[161] No equivocation was offered in the evidence before me. If anything, the evidence makes it very clear that Mr. Waldorf intended to enter a plea and agree to the facts. The object of the exercise was, from his perspective, to argue about the appropriate fixed sentence.

[162] The complainant’s post-plea decision to recant, does not equivocation make.

[163] Nor does a disagreement about the sentence. If that were the case, every plea where the parties intend to argue sentence would be an invalid one.

[164] Finally I come to the issue of whether a plea is informed. As I have already pointed out, this is the issue on which this case turns.

[165] I start by sounding some caution. In my view, trial judges must be sensitive to and mindful of the possibility of wrongful conviction in every guilty plea. In 2018, the Federal/Provincial/Territorial Heads of Prosecution Subcommittee on the Prevention of Wrongful Convictions, reported that:

As counterintuitive as it may appear, innocent persons sometimes plead guilty to crimes they did not commit, and for a variety of reasons. Chief among these reasons, experts suggest, is that an early guilty plea allows an accused to avoid the uncertainty of a trial outcome, and receive the more lenient sentence that generally accompanies an early guilty plea, whether factually guilty or not. (An early guilty plea has long been recognized in the common law as a mitigating factor at sentencing).

However, factually innocent persons may plead guilty to crimes they did not commit for other reasons as well, both rational and irrational, including the following factors or combination of factors:

• their youth;
• mental illness;
• intellectual deficits;
• the belief that an admission of guilt will allow them to go home;
• the need to relieve psychological stress;
• the desire to get out of custody sometimes because being granted bail is perceived to be unlikely, often due to the accused’s criminal record;
• because they are charged with a minor offence and believe that the penalty flowing from an early guilty plea will be less than the sanction that would result from a conviction following trial;
• wanting or needing to avoid the emotional, financial and other costs of fighting a criminal case and proceeding to trial;
• the belief that admitting to the crime or to at least some role in it may result in less severe punishment;
• perceiving the situation as hopeless since the police and other state actors appear to be convinced of their guilt, and/or conviction appears likely because the Crown case appears strong despite their factual innocence;
• protecting the real perpetrator;
• lack of an alibi;
• desire to resolve the matter quickly;
• perceived pressure from defence counsel or Crown;
• offender is facing multiple offences and is guilty of some of them thus does not care about being convicted of all of them if it does not affect the overall sentence;
• to receive a more lenient sentence and thus avoid the negative collateral consequences that could result from a longer sentence imposed following trial, such as being deported; and
• in some cases, because the accused, during the interrogation process, comes to believe he or she committed the crime.

These factors, which can overlap in some cases, are all deserving of greater examination regarding their relationship to false guilty pleas.

The research is increasingly clear that accused persons who have been denied bail feel greater pressure (versus non-detained accused) to plead guilty to simply get out of custody. In a July 2014 report on bail, the Canadian Civil Liberties Association (CCLA) observed that accused are being pressured to plead guilty to escape overcrowded dead time. What is less clear in the Canadian research is the extent to which factually innocent persons are pleading guilty because they have been denied bail and simply want to get released. Canadian academics contend that it is happening but, again, similar to wrongful convictions generally, the scope of the phenomenon is unclear. Some academics argue that it is reasonable to assume that many factually innocent persons plead guilty to avoid the risk of prison (including a potentially longer period) or to avoid conditions in some pre-trial detention centres, and that the increase of accused in detention centres in Canada can only be expected to increase the number of innocent accused who plead guilty to get released, especially if the sentence for the crime is likely to attract a very short jail sentence, if one at all. (The CCLA reported in its report that the remand rate in Canada has tripled over the last 30 years).

Some Canadian academics argue that it is “commonly accepted” that innocent persons who are denied bail sometimes plead guilty rather than await trial, to get out of custody sooner. The fact is, as experts point out, an accused can sometimes get released earlier from custody by pleading guilty than by going to trial. In a 1971 Life Magazine article about a New York City lawyer, the defendant was quoted as saying: “You mean if I’m guilty I get out today…But if I’m innocent, I got to stay inɁ” As one American academic put it: “A guilty plea thus means immediate freedom, whereas fighting to vindicate one’s innocence necessarily means a longer wait for a trial and potential freedom. Even an innocent defendant may find such a deal, and the prospect of immediate release, irresistible.”

In fact, some Canadian experts point out that the incentive for a factually innocent person to enter an early guilty plea may be stronger in minor matters where an accused with a lengthy record believes there is zero chance of getting bail and recognizes that the delay before trial will exceed the sentence that would be imposed for an early plea. [6]

[166] I pause here to observe that many of these factors are present in Mr. Waldorf’s case. The evidence is clear that he instructed Mr. Leroux to get the “best deal” for him so that he could so that he could “get it over with” and get out of jail sooner.

[167] The evidence is also clear that Mr. Leroux advised him, and Mr. Waldorf knew, that:

a) the likelihood of bail was extremely low;

b) The Crown’s case was stronger than usual because there was an independent witness to at least some of the allegations;

c) The defence of intoxication was not available to him;

d) He was not under any pressure to proceed with a plea that day.

e) This was not a case where there was, at least at this stage, a joint submission.

f) The Crown’s position was “pen time” – whatever that meant. He wanted about a year.

g) Because this was a contested sentencing, a Pre-sentence report was going to be ordered in order to present factors to the court which may mitigate his sentence.

[168] Mr. Waldorf has been in and out of custody for over forty years. He knows about the sometimes deplorable conditions in the holding centres where he is likely to spend his time awaiting his sentencing, including the Ottawa-Carleton Detention Centre. As the FPT Heads Report pointed out, this can work to impose some pressure on accused persons to “get it over with” to escape these conditions.

[169] As I have stated, Mr. Waldorf’s singular mission was to get out of jail as soon as he could. He knew that there was not going to be a joint submission. He agreed with the prospect of ordering a Pre-sentence Report in the hope that it would assist his cause.

[170] He did not know that the Crown might seek a DO/LTO designation. As I have said, how could he? Mr. Leroux did not know or did not understand either. If Mr. Waldorf’s counsel did not understand the nature and consequences of his plea, how could Mr. Waldorf?

[171] In R. v. Wong, 2018 SCC 25, [2018] 1 SCR 696, at paragraph 6, (and later repeated at paragraph 19) Justices Moldaver, Gascon and Brown found that in order to withdraw his plea, the onus is on the accused to establish “subjective prejudice”. There must be evidence that the accused:

….would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.

[172] The accused must first show that he was unaware of the consequence at the time he entered his plea: Wong, supra, at paragraph 9.

[173] Justices Moldaver, Gascon and Brown elaborated further at paragraphs 20 to 23:

With respect to the first form of prejudice — where the accused would have opted for a trial and pleaded not guilty — there will of course be instances in which the accused may have little to no chance of success at trial, and the choice to proceed to trial may simply be throwing a “Hail Mary”. But a remote chance of success at trial does not necessarily mean that the accused is not sincere in his or her claim that the plea would have been different. For certain accused, such as the accused in Lee, the certain but previously unknown consequences of a conviction made even a remote chance of success at trial a chance worth taking. In such circumstances, and where the court accepts the veracity of his or her statement, the accused has demonstrated prejudice and should be entitled to withdraw his or her plea.

There remains the second form of prejudice — where an accused would have pleaded guilty, but only on different conditions. A guilty plea on different conditions will suffice to establish prejudice where a court finds that the accused would have insisted on those conditions to enter a guilty plea and where those conditions would have alleviated, in whole or in part, the adverse effects of the legally relevant consequence. We do not presume here to list every condition which, if raised by the accused, could give rise to prejudice. At minimum, however, these additional conditions may include accepting a reduced charge to a lesser included offence, a withdrawal of other charges, a promise from the Crown not to proceed on other charges, or a joint submission on sentencing.

The mere possibility of different conditions on its own is not, we stress, automatically sufficient. A plea may be withdrawn only where an accused credibly asserts that he or she would have, during the plea negotiation phase, insisted on additional conditions, but for which he or she would not have pleaded guilty. In short, the accused must articulate a meaningfully different course of action to justify vacating a plea, and satisfy a court that there is a reasonable possibility he or she would have taken that course.

Parenthetically, we observe that the accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds. “[T]he prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial” (R. v. Rulli, 2011 ONCA 18, at para. 2). Requiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty. An accused is perfectly entitled to remain silent, advance no defence, and put the Crown to its burden to prove guilt beyond a reasonable doubt. It does not make sense to let an accused proceed to trial at first instance without any defence whatsoever, but to insist on such a defence to proceed to trial when withdrawing an uninformed plea. Though the decision to go to trial may be unwise or even reckless, we are not seeking to protect an accused from himself or herself. Rather, we seek to protect an accused’s right to make an informed plea.

[174] In this case, on the facts I have found, I find that this test is met. Given the presence of the independent witness, Mr. Waldorf’s trial may ultimately be a “Hail Mary”. It may ultimately be that Mr. Waldorf does not offer a defence other than requiring the Crown to prove its case. So be it. It “makes no nevermind” [7] to the question of striking an uniformed plea.

[175] I am mindful of Justice Moldaver’s admonishment that “…the analysis focusses on the accused’s subjective choice does not mean that a court can automatically accept an accused’s claim” and that I “…should therefore carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility”: Wong, supra, at paragraph 26. That said, I cannot lose sight of the fact that:

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: Wong, supra, at paragraph 29.

[176] In this case, the analysis is simple: the fact that the Crown may pursue a DO/LTO Application put Mr. Waldorf on a collision course with his singular mission of getting out of custody as soon as possible. If he had known about it, he would not have entered his guilty plea. He would have taken the risk and gone to trial.

[177] This is not a case, like R. v. Girn 2019 ONCA 202. There the Court of Appeal did not permit the accused to strike the plea. It found that he had sufficient knowledge of what was happening to him and he was wilfully blind with to proceeding in the face of that knowledge.

[178] Finally, the Crown asserts that in R. v. Lyons, the Supreme Court found that the lack of more timely notice with respect to the Crown’s intention to proceed with a DO/LTO application did not vitiate the accused’s guilty plea.

[179] Respectfully, that is not what the Supreme Court said. It must be remembered that Lyons was a case where the accused was challenging the Dangerous Offender Regime on the basis that it violated sections, 7, 9, 11 and 12 of the Charter and could not be justified under section 1.

[180] With respect to issue of whether the accused should have had notice of the Crown’s intention to seek a Dangerous Offender, this issue was framed on the basis that the statutory notice period of seven days and the Crown’s failure to give notice to the accused before his election and plea violated section 7.

[181] For the majority, Justice Laforest, stated at paragraphs 105 to 107:

Furthermore, in Vandale, the British Columbia Court of Appeal rejected the argument that notice of the type here sought was mandated by s. 7 of the Charter. Macdonald J.A., for the Court, stated at p. 4:

It is implicit in a plea of guilty that the accused has knowledge of the law with respect to the sentence to which his plea exposes him, and in the case of a person faced with an application under the dangerous offender section the person would know his record, would know the sort of information the authorities have about him, and that would be part of his knowledge as to the potential of sentence involved in a plea of guilty.

However, he observed that circumstances could be envisaged where a plea of guilty could be set aside, namely, where the court was satisfied that the accused did not fully understand the nature of the charge and the potential consequences of a guilty plea. However, there was nothing in the facts of the case to suggest that this knowledge was lacking. I observe that had such facts existed a remedy would have been available to the accused quite apart from s. 24 of the Charter.

It seems to me to be difficult to articulate precisely in what sense the liberty interests of the appellant were infringed by the absence of notice earlier than is statutorily provided for. It is nowhere alleged, here or in the courts below (where this issue was not even addressed), that the appellant did not appreciate the potential consequences of his plea; indeed, Part XXI itself can be seen to provide notification that the dangerous offender provisions are invocable if "serious personal injury offences" are committed by an accused. Nor is it alleged, for example, that the accused was unfairly taken by surprise by the application, that he was not represented by competent counsel, or that counsel pressured him to plead guilty against his will, etc. (see, e.g., Lamoureux v. R. (1984), 40 C.R. (3d) 369 (Que. C.A.)) Rather, the complaint appears simply to be that the appellant did not know that the Crown was actually contemplating making a Part XXI application.

Subsequent dissatisfaction with the "way things turned out" or with the sentence received is not, in my view, a sufficient reason to move this Court to inquire into the reasons behind the election or plea of an offender, particularly where there is nothing to suggest that these were anything other than informed and voluntary acts; see, e.g., Antoine v. R. (1984), 40 C.R. (3d) 375 (Que. C.A.) [Emphasis mine]

[182] In dissent, Justice Lamer (as he then was) would have found a violation of section 11 and quashed the notice section. He largely agreed however with Justice Laforest’s analysis, noting at paragraph 117 that the proper way to challenge the lack of knowledge was to argue that the plea should be struck:

It might well be that lack of notice violates an accused's rights under the Charter in regard of his trial for the serious personal injury offence. However, if the appellant is alleging that he was prejudiced in making his election and plea, then his remedy under s. 24(1) would be to challenge the proceedings leading to that conviction and to have it struck so that he could elect and plead accordingly. He has not, however, made any such allegation, challenged that conviction or sought any such remedy, so it is unnecessary to consider whether we would have granted any remedy.

[183] In a separate dissent, Justice Wilson would have allowed the accused to attack the lack of notice before plea in both ways: through a Charter application and through an argument that his plea was not voluntary. At paragraph 127, she found that the lack of notice in advance of plea violated section 7:

It is, in my view, a principle of fundamental justice under s.7 of the Charter that an accused know the full extent of his jeopardy before he pleads guilty to a criminal offence for which a term of imprisonment may be imposed. Common sense impels me to the conclusion that the thought uppermost in an accused's mind in deciding whether to plead guilty or stand upon his right to be presumed innocent until proved otherwise beyond a reasonable doubt by the Crown is: what is the worst that can happen to me if I am convicted of this offence? I think we have to ask ourselves the following question: had this accused known at the time he pleaded guilty that the Crown would be seeking an order of preventive detention against him for an indeterminate period, would he have pleaded guilty? If the answer to that question is probably not, then I think the accused is entitled to the protection of s. 7 unless knowledge of his exposure to such an order under Part XXI of the Code can properly be attributed to him simply by virtue of its presence in the Code. [Emphasis mine]

[184] I make the following observations. First, Justice Laforest for the majority did not say that the statutory notice was sufficient and the Crown’s failure to provide notice before the plea, could never be raised as a basis to strike the plea. Quite the contrary. He simply pointed out that there was no evidence that the accused wished to strike his plea on that basis in this particular case.

[185] Secondly, although unlike the majority, he would have granted section 11 Charter relief with respect to the statutory notice section, Justice Lamer also found that it would be open to the accused to claim that he has been prejudiced in his plea. Because he did not, the Court could not rule on it.

[186] Thirdly, given the passage of 35 years since Lyons was decided and the development of section 7 jurisprudence, it is hard to quarrel with Justice Wilson’s common sense proposition.

[187] Fourthly, I also observe that the way that Justice Wilson framed the inquiry, which she would have allowed to take place under section 7 of the Charter, is surprisingly similar to the way Justices Moldaver, Gascon and Brown described subjective test in Wong.

[188] I therefore find that Mr. Waldorf’s plea was not informed and the Application to strike the plea is granted.

Released: May 19, 2023 Signed: Justice J.R. Richardson

[1] Here I am referring to the third branch of R. v. W.(D.), [1991] 1 S.C.R. 742

[2] Just because a DO Application may lead to the penultimate sentence (indeterminate detention), does not mean that an accused person cannot agree to it by way of joint submission, or enter a guilty plea in the face of the possibility that the Crown will proceed in this fashion. For example, In R. v. Boose, (2023), unreported, Justice Berg dealt with a case where the accused consented to being designated a Dangerous Offender and consented to indeterminate detention.

[3] For the details of the Crown Prosecution Manual, see Ministry of the Attorney General, Crown Prosecution Manual, Section D-8, “Dangerous/Long Term Offenders” Prosecution Directive. www.ontario.ca/document/crown-prosecution-manual, effective November 14, 2017.

[4] Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Queen’s Printer for Ontario, 1993, page 318. Hereinafter “Martin Committee Report”

[5] Martin Committee Report, supra, page 321-322

[6] Federal/Provincial/Territorial Heads of Prosecution, Innocence at Stake: The Need for Vigilance to Prevent Wrongful Convictions in Canada, 2018 www.ppsc-sppc.gc.ca. Click “Publications”. Then click “Other Publications” and select the document. See generally Chapter 8, “False Guilty Pleas”, pages 175-180.

[7] An expression I first heard when practicing law in Hastings County in Eastern Ontario. According to www.urbandictionary.com the idiom, which simply means that “it does not matter”, originated in South Carolina.