ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 126/10
DATE: 20120517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – GARY TAYLOR Appellant
David Mitchell , for the Crown/Respondent
Gary Taylor , Appearing in Person
HEARD: May 16, 2012
KELLY J.
REASONS FOR DECISION
[ 1 ] The Appellant pleaded guilty to three criminal charges on September 17, 2009. After an unsuccessful attempt to strike the pleas, the Appellant was sentenced to 60 days’ time served, a suspended sentence and one year of probation. The Appellant appeals his conviction on the basis that he received ineffective assistance of counsel.
[ 2 ] For the reasons set out below, the appeal is dismissed.
The Facts
[ 3 ] The Appellant was charged with 12 charges on three informations. He appeared before Marshall J. on September 17, 2009. On that occasion, he pleaded guilty to three offences contrary to the Criminal Code , R.S.C., 1985, c. C-46 as follows: criminal harassment, assault police and fail to comply with his recognizance.
[ 4 ] The Appellant pleaded guilty to the offences with the assistance of Counsel (Ms. Dale Jean-Pierre). When the Appellant was arraigned on the three charges, he personally pleaded guilty and did not do so through his Counsel. There is no indication that the Appellant was reluctant to do so.
[ 5 ] The facts supporting the pleas were read into the record and further summarized by Marshall J. The Appellant, personally, confirmed their truth. Marshall J. advised that she did not intend to administer the plea inquiry prescribed by the Criminal Code because she was aware that the Appellant was represented by Counsel and she expected that Counsel had done that previously. Ms. Jean-Pierre confirmed that she had completed the plea inquiry with the Appellant.
[ 6 ] After the pleas were entered, the Appellant was released on bail pending his sentencing hearing. It was anticipated that he would be assisted by “Ben” in the mental health office as it was believed that the Appellant might be suffering from an undiagnosed mental health issue. The Appellant indicated that he would follow “Ben’s” recommendations and listen to his wife who had just been made his surety.
[ 7 ] The matter was set for sentencing on December 22, 2009. The trial dates for the other matters were vacated following which the Appellant thanked the Court.
[ 8 ] On December 22, 2009 the parties appeared before the Court. The report from the mental health office had not been received and Marshall J. declined to proceed without it. She entered into some dialogue with the Appellant. It was explained that it would be beneficial to get the report in advance of sentencing. Further, it was unclear whether the trial dates of January 3, 4 and 5, 2010 had been vacated so that issue was addressed, again, in the presence of the Appellant. Sentencing was adjourned to January 14, 2010.
[ 9 ] On January 14, 2010, Ms. Jean-Pierre attended at Court with the Appellant. The mental health report had been reviewed by the trial judge. Ms. Jean-Pierre submitted that the Appellant wished to change his pleas and have a trial on the matters. Ms. Jean-Pierre asked to be removed from the record which was permitted. Thereafter the Appellant retained a new Counsel (Mr. Richard Brown).
[ 10 ] On July 23, 2010, an application was brought to strike the pleas. In an affidavit before the Court, the Appellant stated the following:
When I appeared in Court to plea, they were reading out all the charges I had agreed to plea to and I was confused. I kept looking at my wife. I only agreed to plea to two things, which were threatening bodily harm and mischief. However, at that moment I just wanted to get out of jail as I believed there was no other way to get out of jail and avoid abuse I faced in jail. I decided to follow what they were saying and plead to the charges . [Emphasis added]
[ 11 ] Marshall J. denied the application to strike the pleas. She was satisfied that the Appellant was aware of what he was doing and that the pleas were a conscious decision by the Appellant to do so.
[ 12 ] On August 6, 2010, Marshall J. sentenced the Appellant. He had served 106 days in custody but 60 days was to be reflected on his record as “time served”. He was given a suspended sentence and probation for one year. All other charges were withdrawn.
The Issue
[ 13 ] It is the position of the Appellant that Ms. Jean-Pierre instructed him to plead guilty and that notwithstanding those pleas, he could proceed to trial on those offences. This, he submits, gives rise to the allegation of ineffective assistance of counsel.
Analysis
[ 14 ] To be successful in an appeal of this nature, the threshold for establishing a claim of ineffective assistance of counsel is high. The Appellant must establish the following in order to succeed:
a. the material facts upon which the incompetence claim is based;
b. that the assistance provided by counsel was ineffective (the “performance component”); and
c. that the ineffective assistance of counsel resulted in a miscarriage of justice (the “prejudice component”). [1]
[ 15 ] I will now deal with each of these components to demonstrate why the appeal alleging ineffective assistance of counsel must fail.
a. The material facts upon which the incompetence claim is based
[ 16 ] The Appellant is required to establish the material facts in support of the incompetence claim on a balance of probabilities. In essence, the Appellant submits that his counsel instructed him to plead guilty and then proceed to trial on the same charges. This is a bald assertion made by the Appellant which is not supported by the facts.
[ 17 ] Firstly, the Appellant’s position that he was coerced to plead guilty but proceed to trial in any event was not mentioned in the affidavit filed in support of the Appellant’s application to strike the plea. Included in his affidavit of May 3, 2010 is the following: “I asked my lawyer if I plea to those things, I want the matter to go to trial. My lawyer advised me that pleading to the charges was the only way for me to get out of jail.” Accordingly, even on the Appellant’s own account, in May 2010, he did not allege that his lawyer told him that if he pleaded guilty, he could still proceed to trial on those charges. This allegation was raised thereafter.
[ 18 ] Secondly, the thought that one would plead guilty and then proceed to trial on the same charges does not make sense. This was stated by Ms. Jean-Pierre during her cross-examination regarding this proceeding. When asked about this by the Appellant in cross-examination, she said, amongst other things:
… it doesn’t make sense. If you plead guilty, you don’t get the matter to trial. … You either enter a guilty plea or the matter gets disposed of by trial and I explained all that to you ... I get instructions from you. But I have to tell you how strong the case is, what I think about this or that, what your options are but you’re the client and it’s up to you.
[ 19 ] Lastly, there was never any suggestion that trial dates would be provided for the charges that were the subject of these pleas. In fact, the opposite is true. The trial dates and the vacation of them were discussed on two occasions in the presence of the Appellant.
[ 20 ] In light of the above, the material facts upon which the incompetence claim is based have not been proven by the Appellant on a balance of probabilities.
b. That the assistance provided by counsel was ineffective
[ 21 ] In assessing whether the assistance provided by Counsel was ineffective, the Court is to evaluate the conduct of Counsel against a standard of reasonableness. Hindsight is not a consideration at this point in the inquiry. The evaluation at this stage must consider the circumstances as they existed at the time.
[ 22 ] There is a strong presumption in favour of competence. In order to succeed, the Appellant must show that the acts of Ms. Jean-Pierre could not have been the result of her professional judgment and that her performance must have been so unreasonable that it fell below professional standards.
[ 23 ] Ms. Jean-Pierre’s performance was more than reasonable and professional in my view. Her assistance was extremely effective when one examines the circumstances which I accept:
a. She met with the Appellant and was aware of his background. She had also met with the Appellant’s wife.
b. Counsel had discussed disclosure with the Appellant on several occasions.
c. Counsel attended two Crown pre-trials and a number of judicial pre-trials (six), always reporting to the Appellant.
d. Counsel followed up on instructions to pursue information provided to her by the Appellant regarding various conspiracies.
e. The Appellant was facing twelve charges on three informations. He pleaded guilty to three charges and the other nine were withdrawn.
f. The trial judge who took the plea was experienced and well aware of all applicable principles to apply.
g. Upon pleading guilty, the Appellant was released on bail so that he could obtain a mental health assessment in advance of sentencing. The procedure of obtaining a mental health assessment was explained and it appeared that the Appellant understood.
h. The disposition obtained was a record of time served of 60 days as opposed to 106 days and a suspended sentence with probation.
i. Counsel had discussed the procedure and repercussions of the plea and advised the Appellant of the steps he could take to obtain a pardon.
[ 24 ] It is my view that the assistance of counsel was more than just effective, it was exceptional as demonstrated through Counsel’s patience, time commitment and the result obtained.
c. That the ineffective assistance of Counsel resulted in a miscarriage of justice
[ 25 ] The Appellant is required to show that Counsel’s ineffective representation caused a miscarriage of justice. This occurs if the appellate court is satisfied that the appearance of the fairness of the trial or the reliability of the verdict is undermined by the ineffective assistance of counsel. A verdict will be rendered unreliable where the Appellant is able to demonstrate that had Counsel performed in a competent manner, there is a reasonable possibility that the verdict could have been different.
[ 26 ] In my view, there was no miscarriage of justice in this case because there was no ineffective assistance of Counsel. The plea was an informed one by the Appellant. He was present at arraignment and pleaded guilty himself. He listened to the facts as read out by Crown Counsel and then summarized by the trial judge. He accepted those facts as true. The Appellant was present when he was advised to attend appointments with the mental health office prior to his sentencing hearing. He agreed to do so. He was also present when the discussion occurred about vacating the trial dates and did not oppose such a proceeding.
[ 27 ] Further, the Appellant was present on the first sentencing hearing. He did not indicate any desire to strike his plea or indicate that he did not understand the proceedings. At no time at any point did the Appellant suggest that he was confused by anything and he was completely responsive to any suggestions of the trial judge. The Appellant appeared to be engaged in the process and acted voluntarily with the benefit of competent Counsel.
Conclusion
[ 28 ] For the abovementioned reasons, the appeal is dismissed.
Kelly J.
Released: May 17, 2012
COURT FILE NO.: SCA 126/10
DATE: 20120517
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – GARY TAYLOR Appellant
REASONS FOR DECISION Kelly J.
Released: May 17, 2012
[1] See: R. v. Archer , 2005 ONCA 36444 , [2005] O.J. No. 4348 (C.A.) at paras. 119-121 and R. v. Joanisse , 1995 ONCA 3507 , [1995] O.J. No. 2883 (C.A.) at paras. 63-81 .