ONTARIO COURT OF JUSTICE
DATE: 2023 01 25 COURT FILE No.: Brampton 3111 998 22-3110031501
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEREMIAH CAMPBELL
Before: Justice G.P. Renwick
Heard on: 23 January 2023 Reasons for Judgment released on: 25 January 2023
Counsel: S. Weinstock............................ counsel for the Public Prosecution Service of Canada A. Abbey................................................... counsel for the Defendant Jeremiah Campbell
RULING ON APPLICATION TO STRIKE THE GUILTY PLEA
RENWICK J.:
INTRODUCTION
[1] The Defendant has applied prior to sentencing to withdraw his guilty plea entered on 20 May 2022 to a single count of possession of fentanyl for the purpose of trafficking. The prosecution is opposed to having the guilty plea struck.
[2] The parties agree on the applicable law. They disagree whether the test to strike the guilty plea is met.
[3] This is a close case. It is not obvious whether the court should strike this presumptively valid plea entered in open court while the Defendant was represented by senior, able counsel. In fact, the guilty plea process and the care with which the Defendant was prepared and instructed counsel mitigate against re-opening the issue of guilt.
[4] For the reasons below, I find that a miscarriage of justice would result if the guilty plea were maintained.
GOVERNING LEGAL PRINCIPLES
[5] For a guilty plea to be valid, there are three prerequisites. A plea must be voluntary, unequivocal, and informed. [1]
[6] In the circumstances of this Application, there is no real issue that the Defendant’s guilty plea was unequivocal and informed. [2] For this reason, it will be helpful to concentrate on the requirement that a guilty plea is voluntary.
[7] The voluntariness prerequisite protects against wrongful convictions resulting from guilty pleas that are the product of coercion or inappropriate pressure. It is recognized that some defendants face a “terrible dilemma,” where the likely sentence for pleading guilty incentivizes dishonesty because the alternative (a much higher sentence if convicted following a trial) and the attendant consequences (for instance, remaining in pre-trial detention) pose a far-greater risk. [3]
[8] Not all pressures or inducements rise to the point of undermining free-will. As Doherty J.A. held in R. v. T.R.:
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. [4]
[9] In order to be truly voluntary, a guilty plea must be the product of a conscious volitional decision made for reasons accepted as appropriate by the defendant. [5] However, the analysis must go further where a defendant has pled guilty falsely. Justice Pomerance recognized the problem of “false guilty pleas” in R. v. McIlvride-Lister. [6] Deep discount sentences offered at the pre-trial stage, for instance, may not rise to the level of ‘impairment’ mentioned in R.T., but still occasion harm to the justice system. As Justice Pomerance puts it, “A guilty plea offered by an innocent person is a wrongful conviction.” [7] In this context, voluntariness requires the defendant’s recognition and acknowledgement of guilt. If a defendant adheres to the notion of factual innocence, regardless of motive or rationale, she cannot plead guilty.
[10] Thus, the analysis to strike an apparently valid guilty plea must be qualitative: was the guilty plea informed, unequivocal, and truly voluntary in the sense of an acknowledgement of culpability. Even in the face of a validly entered guilty plea, the court must be goal oriented to avoid becoming an accomplice to a miscarriage of justice. [8]
THE EVIDENCE AND FINDINGS
[11] The Defendant testified on this Application. The Defendant’s “Directions to Counsel,” a video recording of former counsel and the Defendant going through the “Directions,” a transcript of his guilty plea, and the Defendant’s affidavit (filed with the Application) were admitted on consent as exhibits. The Defendant’s former counsel, Mr. Richard Mwangi, also testified. Given the short turnaround for this judgment, I do not propose to re-iterate all of the evidence taken and considered. I will attempt to refer to specific portions of the evidence to illuminate my thought process.
[12] The Defendant was not a convincing witness. Throughout his testimony, it was difficult to hear him speak. The testimony was somewhat repetitive and lacking in detail. The Defendant’s evidence was contradicted in parts by the testimony of his former counsel and his own affidavit. Some examples will support these observations.
[13] During the examination in chief, at 10:40 a.m., [9] the Defendant was asked by his current counsel if he had ever told Mr. Mwangi about the pressure from his brother to plead guilty. He quietly answered, “No.” This squarely contradicted his sworn testimony at paragraph 27 of his affidavit:
I had a meeting with Mr. Mwangi and I informed Mr. Mwangi that I was being pressured by my older brother and anonymous messages where [sic] being sent to me to plead guilty.
[14] In cross-examination, the Defendant was asked if there was any reason he did not tell Mr. Mwangi about the pressure he felt from his brother to plead guilty. This would have been an opportunity to correct the record in accordance with the affidavit evidence. The Defendant affirmed his earlier testimony by telling the court that there was no reason not to tell Mr. Mwangi that he had been pressured into pleading guilty.
[15] Later, when confronted with this inconsistency in cross-examination, the Defendant claimed, “I may have mixed up my words.” When asked what he had told Mr. Mwangi about the anonymous messages referred to in his affidavit he said, “I don’t remember exactly.” When asked what Mr. Mwangi made of the claim that undue pressure had been put on the Defendant he also replied, “I don’t remember exactly.”
[16] Toward the end of the Defendant’s evidence in chief, at 10:46 a.m., the following exchange took place with counsel:
Q: Okay. Did you maintain…I understand, when you were arrested, did you give any statement to the police about ownership of the drugs? A: Ya, I told them that the drugs did not belong to me. Q: How’d that come about. That you told the police that? A: I told them that immediately. Soon as they asked me what it was, I told them I didn’t know anything about them [emphasis added].
[17] In the synopsis read and accepted by the Defendant during the guilty plea, the Defendant had apparently only told police that the drugs did not belong to him. That stands to reason. If this additional information had been revealed during the guilty plea, the court would have been required to strike the proceedings. Strangely, this new information (the claim that the Defendant was unaware of the existence of the drugs prior to their recovery by police) was not contained in the Defendant’s affidavit or pleadings on the Application.
[18] This claim (a lack of knowledge of the pre-existence of the drugs recovered from the car he drove) bolsters the Defendant’s desire to strike his guilty plea. It helps to establish that the Defendant has a viable defence. [10] Inexplicably, this testimony is incongruent with the failure to include this important fact in the Defendant’s Application.
[19] In cross-examination, the Defendant denied that Mr. Mwangi had explained to him what “possession for the purpose of trafficking” was and he claimed that at that time he did not know what that meant. He also testified that former counsel did not explain what a trial was, “not fully, no” and that he did not know what a trial would entail. This evidence was and remains completely unbelievable. It defies credulity that an adult in this society would be unaware of the nature and purpose of a criminal trial.
[20] Interestingly, when asked in cross-examination whether the Defendant had ever told his former lawyer that he was “innocent,” the Defendant testified, “I believe I did.” When asked when that was he replied, “I’m not exactly sure when.” [11]
[21] Mr. Mwangi testified during this application as the prosecution’s witness. He was not cross-examined. Counsel for the Defendant took no issue with Mr. Mwangi’s evidence or his conduct as the Defendant’s prior counsel.
[22] Mr. Mwangi testified that he has practiced law, mainly criminal law, since 2010. He has represented over 200 clients and he is a member in good standing with the body that regulates lawyers, the Law Society of Ontario.
[23] Mr. Mwangi told the court that his relationship with the Defendant began on 08 February 2022, which was just three days after the Defendant’s arrest. Initially, the Defendant had retained the lawyer for the review of disclosure, initial appearances, the filing of a designation, all crown and judicial pre-trial discussions, until a date was set for a guilty plea or a trial.
[24] The former lawyer met with the Defendant (remotely) on 09 February 2022 to discuss the retainer agreement. Both witnesses seem to agree that the Defendant’s brother had brought the money for the initial retainer to Mr. Mwangi who provided a receipt and the retainer agreement with the instructions that these were confidential documents to be given to the Defendant.
[25] Former counsel testified about specific dates when he spoke with the Defendant (08, 09, 14 February, 07, 14, 20, 22-25, and 26 April 2022) and the content of their discussions. Counsel seemed to have a good memory of his dealings with the Defendant and detailed notes in the Defendant’s file.
[26] During one of the early discussions before the bulk of the prosecution’s disclosure was received, Mr. Mwangi asked the Defendant if he had prior knowledge of the fentanyl discovered by the police. According to counsel, he was told by the Defendant that he “might” have known about the drugs. Mr. Mwangi held off discussing the matter further until disclosure had been received and reviewed.
[27] Mr. Mwangi also testified in chief that once disclosure had been received, in mid-April he explained the “steps involved” in a trial and “basically the whole process.” [12] He appeared to have a good memory of these discussions and the fact that the Defendant had many questions. Given former counsel’s recollection, his note-keeping, and the plausibility of his testimony, I accept this version of events where it conflicts with the Defendant’s evidence that the trial process had not been explained to him by Mr. Mwangi.
[28] Mr. Mwangi testified that the Defendant asked him several times what would happen to two co-defendants if one of the three arrestees took ownership of the fentanyl. By early May, the discussions with the Defendant seemed to concentrate on a resolution where the Defendant would plead guilty and the other two co-defendants would have their charges withdrawn.
[29] From his perspective, there were viable Charter and trial issues which the former lawyer said he explained to the Defendant. Mr. Mwangi also probed the issue of pressure because he recognized that the Defendant was about ten years younger than both of the other occupants of the car. This issue was one of the reasons counsel wanted to meet the Defendant alone. In the end, counsel was satisfied that the Defendant had not been pressured into choosing to plead guilty.
[30] Lastly, contrary to the evidence given by the Defendant on this point, I accept that part of former counsel’s testimony that at no time did the Defendant indicate that he was “innocent,” but he recalled that there were areas of the police officer’s notes with which the Defendant took issue.
[31] Although former counsel and the Defendant maintained contact in May and June, following the guilty plea on 20 May 2022, the Defendant never mentioned a desire to resile from the guilty plea until 12 August 2022. At the end of his testimony, Mr. Mwangi told the court that the Defendant did not give him much detail but he expressed that by pleading guilty he had done something he did not mean to do. “Some people” had apparently been pressuring the Defendant but because they were no longer in the picture, the Defendant felt comfortable raising the matter.
ANALYSIS
[32] It can be said that guilty pleas are the engine that drive the justice system. Notwithstanding their importance to the system or their value for victims of crime or other justice system participants, courts must strike guilty pleas that occasion miscarriages of justice.
[33] For the following reasons, I am satisfied that the Defendant’s guilty plea was unequivocal:
i. A plain reading of the transcript of the guilty plea establishes that at no time did the Defendant or his former counsel take issue with the Defendant’s desire to plead guilty or the facts underlying the plea; ii. During the plea inquiry the Defendant was asked if he was willing to admit that he was in possession of fentanyl for the purpose of trafficking. By his willingness to admit the reason for possessing the fentanyl the Defendant was also admitting that he knew of the substance he possessed; and iii. The Defendant’s testimony establishes that he answered the plea inquiry in a way that would ensure that the guilty plea would be accepted, because he would get “worse charges,” [a higher sentence] if he took the matter to trial.
[34] Despite the Defendant’s evidence that there were things about the possible Charter arguments he did not fully understand, I am not satisfied that he has established that his guilty plea was anything but fully informed.
[35] In my view, it is unreasonable to expect that a defendant must understand every aspect of her defence before she can meaningfully make an informed decision about whether or not to plead guilty. In reading the dozens of cases submitted by the parties, I am satisfied that the law does not require counsel to educate their client on every nuance of their defence before it can be said that the decision to plead guilty is fully informed.
[36] The recording of the “Directions to Counsel” is compelling. Mr. Mwangi took all necessary steps to ensure that his client was fully aware of what it meant to plead guilty, what the effects of the guilty plea were, and what consequences may follow. Despite the Defendant’s testimony, almost all of which I find completely uncompelling, self-serving, and unworthy of belief, I am not satisfied that it is proven on a balance that the guilty plea was not informed.
[37] The Defendant’s main argument is that his guilty plea ought to be struck because it was not voluntary. According to his testimony and affidavit, the Defendant masked his innocence and his true intentions from his former counsel, and ultimately the court, because he was pressured to plead guilty. He felt pressure from his older brother, whom he trusted and who was more experienced with the justice system, he knew that he would face a significantly harsher sentence if convicted at trial, he knew that his co-defendants were plotting to implicate him, and he had received anonymous messages insisting that he should plead guilty.
[38] While these factors are sufficient in some instances to overcome an individual’s freewill, for the following reasons, I am not satisfied to the requisite degree that this occurred in the Defendant’s case:
i. The Defendant never claimed that he was innocent in his discussions with his former counsel; ii. The Defendant admitted to his former lawyer at an early stage that he “might” have known about the fentanyl found under his seat; iii. From an early stage in his discussions with his former counsel and consistently throughout their relationship, the Defendant was interested to know the consequences for the other two co-defendants if one of the three of them pleaded guilty; iv. The Defendant did not call his brother to testify on the Application; v. The Defendant did not produce any evidence to corroborate the narrative that he had received anonymous messages that put pressure on him to plead guilty; vi. The Defendant has admittedly misled the court during his guilty plea; and vii. I find that the Defendant has attempted to mislead the court on material parts of his testimony during this Application.
[39] Nonetheless, I am satisfied that it is appropriate to exercise my residual discretion in this matter in order to prevent a miscarriage of justice. In finding that there would be a miscarriage of justice if the Defendant’s guilty plea were left in place, I have taken into account the following factors:
i. The Defendant’s age and the fact that he is a first-offender; ii. The likelihood that the Defendant will face a significant penitentiary sentence for the offence to which he pleaded guilty; iii. Mr. Mwangi’s legal opinion that there are triable Charter issues and defences that can be advanced on behalf of the Defendant; iv. Mr. Mwangi’s perpetual concerns that the Defendant’s true motive in pleading guilty was unknown; v. The fact that the other co-defendants are much older than the Defendant; vi. The fact that the fentanyl was found under the driver’s seat, where it may have been accessible to the co-defendant who sat in the back; and vii. The fact that the rear seat passenger had $2000 in cash on his person.
[40] When these factors are taken together, with the claim (which has not been established to the requisite degree) that the Defendant has been pressured to plead guilty, and the Defendant’s stated desire to have a trial to establish his factual innocence, I am satisfied that his guilty plea ought to be struck.
[41] This is a case where a miscarriage of justice would result from the failure to strike the Defendant’s guilty plea. The miscarriage is not likely to result because it is expected that the Defendant will be acquitted if there is a trial on the merits. The ultimate outcome in terms of the Defendant’s guilt or innocence after a trial is largely immaterial. The miscarriage arises because the Defendant believes that he is not guilty. For whatever reason, his conduct leading up to his guilty plea obscured this belief. Although he has not been diligent in maintaining the presumption of innocence, the Defendant remains entitled to it. The criminal justice system has lost nothing in the bargain made which is now sought to be rescinded by the Defendant.
[42] If the guilty plea is not struck, this Defendant will experience a miscarriage of justice because as an inexperienced young adult, he will have irrevocably lost the right to be tried upon the counts he faces because of a decision that appears to have been hastily made. As indicated at the outset, this is a close-call. Though the Defendant failed to establish that it was more likely than not that his guilty plea was involuntary, I accept that the Defendant acted imprudently for unexplained reasons but then sought to resile from his guilty plea a mere six months after he had been charged.
[43] This is not a case where the chance of a miscarriage of justice is remote if the plea is not struck. There are actual triable substantive and constitutional issues that may resolve in the Defendant’s favour that will never be litigated if the Application is dismissed.
[44] A defendant is the most important participant in the life of a criminal charge. Administrative convenience, limited prosecutorial or judicial resources, or stringent requirements must never become the rulers of a system they are designed to serve. The presumption of innocence is too precious to be easily discarded or irrevocably lost without just cause.
CONCLUSION
[45] The Defendant’s former counsel acted diligently, professionally, and honourably on the Defendant’s behalf. For reasons known only to him, the Defendant imprudently and hastily pleaded guilty and then sought to correct his mistake twelve weeks later.
[46] For these reasons, I am satisfied that the Defendant’s guilty plea must be struck.
Released: 25 January 2023 Justice G. Paul Renwick
Footnotes
[1] R. v. R.T., [1992] O.J. No. 1914 (C.A.) at para. 14.
[2] As discussed below, the guilty plea followed the completion of detailed written “Directions to Counsel” (which process was video-recorded by the Defendant’s former lawyer) and a thorough plea inquiry.
[3] R. v. Kumar, 2011 ONCA 120 at para. 34.
[4] R.T., supra, at para. 18.
[5] R.T., supra, at para. 16.
[6] R. v. McIlvride-Lister, 2019 ONSC 1869 at paras. 57-65.
[7] McIlvride-Lister, supra, at para. 61.
[8] McIlvride-Lister, supra, at paras. 61-62.
[9] I have accessed the digital audio recording of the proceedings on 23 January 2023.
[10] To be clear, I am aware that the Defendant need not establish a viable defence to succeed on the Application: R. v. Wong, 2018 SCC 25 at para. 23.
[11] This exchange took place at approximately 12:30:45 to 12:31 p.m., according to the digital audio recording of the proceedings.
[12] Digital audio recording at 2:20 p.m.