ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-9000513-000
DATE: 20140407

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

CAMERON JOHNSON
Applicant

P. Campbell, for the Respondent

G. Tsimiklis, for the Applicant

Heard: March 27,2014

REASONS – APPLICATION TO STRIKE PLEA OF GUILTY

McMAHON J.

[1] The applicant, Cameron Johnson, applies to strike his pleas of guilty to one count of trafficking in cocaine and the charge of common assault. Mr. Johnson has discharged his former counsel, , who acted on the applicant’s behalf when the pleas of guilty were entered. He has retained Mr. Tsimiklis as his new counsel

[2] Most of the facts on this application are not in dispute.

[3] Mr. Johnson’s trial was scheduled to proceed to trial on Monday, November 4, 2013. On the morning of November 4th, no court was immediately available to conduct the trial. Moreover, Crown counsel provided the applicant’s former counsel, with some late disclosure. That morning, Counsel met with crown counsel, and they negotiated a potential resolution of the case. The resolution of the case would be in the form of a proposed joint submission as to sentence.

[4] Later on November 4, I conducted a judicial pre-trial conference at which time the joint recommendation as to sentence following a plea of guilty by Mr. Johnson was discussed. Mr. Johnson indicated to his former counsel that he wanted time to consider his position. Accordingly, the matter was adjourned until the next morning. On November 5, the applicant, through his former counsel, stated that his client wished to accept the proposed resolution and plead guilty to the offences of trafficking in cocaine and common assault. I conducted the following plea comprehension hearing:

THE COURT: Okay, and Counsel, you’ve ha[d] an opportunity to conduct a plea inquiry with Mr. Johnson?

COUNSEL: I have, Your Honour.

THE COURT: … [A]s I said yesterday, it’s important [to realize] that deciding to plead guilty is an important decision and I just want to satisfy myself that you know all the consequences. So you realize, sir, you have an absolute right to have a trial with a jury or judge alone and require the Crown to try to prove its case beyond a reasonable doubt. Do you understand you have that right?

[MR.] JOHNSON: Yes, sir.

THE COURT: Okay. And by pleading guilty, you’re giving up your right to have a trial. You understand that?

[MR.] JOHNSON: Yes.

THE COURT: Okay. Also, sir, it’s important that if a person is going to plead guilty they do so voluntarily. You can’t be receiving pressure from your family, your friends, your lawyer, the Crown Attorney, the police or the court. Is anyone pressuring you to plead guilty?

[MR.] JOHNSON: No.

THE COURT: No. Okay. And are you pleading voluntarily?

[MR.] JOHNSON: Yes.

THE COURT: Okay. And, sir, also what I said yesterday, you can only plead guilty to something you actually did. You can’t plead guilty to something you didn’t do just to get the case over or you like the result that’s being offered. Do you understand that?

[MR.] JOHNSON: Yes. Yes, sir.

THE COURT: Okay. And lastly, in a few moments, Mr. Campbell[,] the Crown Attorney[,] is going to read in what he says happened. I’m then going to ask you if that’s what happened. You can only admit to facts that actually happened. You can’t admit to something that didn’t happen just to get the case over with. Do you understand that?

[MR.] JOHNSON: Yes, sir.

THE COURT: Okay. And lastly, at the end of the day your lawyer will make submissions, the Crown will make submission[s,] but I have the final call on what your sentence will be. You understand that?

[MR.] JOHNSON: I’m sorry. I ….

THE COURT: At the end of the day, your lawyer will make submissions, the Crown Attorney will make submissions, but I will have the final call. Do you understand that?

[MR.] JOHNSON: Yes. Yes, Your Honour.

THE COURT: Okay, sir, I’m satisfied you fully appreciate the consequences of entering pleas of guilty.

[5] At this point the applicant was arraigned and his re-election taken. The pleas were entered, and the Crown Attorney read in the facts. After the facts were read in, there was the following exchange:

THE COURT: Okay, Counsel, are those facts substantially correct?

COUNSEL : Mr. Johnson instructs me that those facts are substantially correct, Your Honour.

THE COURT: Okay, is that correct, sir?

[MR.] JOHNSON: Yes.

[6] The matter was adjourned until November 22, 2013, so the applicant could get his affairs in order, and that both counsel could prepare a joint submission to be placed before the court. On the date scheduled for sentencing, I was advised by Mr. Johnson’s current counsel, Mr. Tsimiklis that the applicant wished to apply to have his pleas struck. Counsel was removed as the applicant’s counsel of record and Mr. Tsimiklis took carriage of the proceedings.

[7] The evidence on this application consists of Mr. Johnson’s affidavit and his viva voce evidence. In addition, Counsel filed an affidavit and testified at these proceedings. Further, the transcript of the proceedings of November 5, 2013, was filed as an exhibit.

[8] It is the position of Mr. Johnson that from the time he retained Mr. Christie as his counsel, he never told Counsel that he was guilty of the charges alleged. On the contrary, Mr. Johnson asserts that he made it clear to his lawyer that he was not guilty and wanted the matter to proceed to trial. He was told by Counsel on November 4 and November 5 that he had little likelihood of successfully defending the charges and that counsel had worked out a very good deal for him.

[9] It is the applicant’s evidence – both in his affidavit and at the hearing – that he felt pressure from his lawyer to plead guilty. His evidence is that they had a heated exchange over whether he should accept the resolution negotiated by his counsel. He lost confidence in Counsel and felt pressured into making a decision to plead guilty.

[10] It is the applicant’s evidence that Counsel specifically told him that during his guilty plea, Mr. Johnson should listen carefully to what I asked him and simply answer in the affirmative. The applicant acknowledges that he in fact lied to the court in his answers to these questions during the plea inquiry. However, he indicates that he did so because he was following the instructions of his lawyer. The applicant continues to maintain his innocence and his wish to have the matter decided through a trial.

[11] In his affidavit and viva voce evidence, Counsel describes having a serious discussion about the possibility of the applicant pleading guilty to the offences. Counsel agrees he informed the applicant that it was counsel’s opinion that he likely would be found guilty if the case proceeded to trial. Counsel also agrees that the matter was put over to the next day, November 5, so the applicant could consider his position. In counsel’s affidavit, he deposes the following occurred on November 5:

The [a]pplicant, despite not admitting responsibility, agreed to accept the guilty plea resolution. I did not obtain written instructions nor did I conduct a comprehensive plea inquiry with the applicant prior to him pleading guilty before Justice McMahon. The applicant maintained that he was not guilty of the offences but agreed to the resolution. I also explained that Justice McMahon may ask him certain questions as part of the guilty plea and that he should answer in the affirmative or the guilty plea may not be accepted.

[12] On the issue of whether he instructed his client on how to answer my questions during the plea inquiry, Counsels’ viva voce evidence is not quite as clear as the evidence contained in the affidavit he had sworn earlier on the morning this application was heard. Counsel may not have read the affidavit as closely as he should have. Counsel did, however, acknowledge going over the affidavit line-by-line with Mr. Tsimiklis prior to signing it. Notwithstanding this issue, several disconcerting facts are apparent from the affidavit and viva voce evidence.

[13] In both his affidavit and his viva voce evidence, Counsel’s evidence is that he never conducted a plea comprehension review with his client prior to Mr. Johnson pleading guilty. This position is completely inconsistent with my question to counsel on the day of the guilty plea:

THE COURT: Okay, and Counsel, you’ve ha[d] an opportunity to conduct a plea inquiry with Mr. Johnson?

COUNSEL: I have, Your Honour.

[14] Further, after the facts were read in during the guilty plea proceeding, there was the following exchange:

THE COURT: Okay, Counsel, are those facts substantially correct?

COUNSEL: Mr. Johnson instructs me that those facts are substantially correct, Your Honour.

[15] Based upon Counsel’s affidavit and viva voce evidence, I find that Mr. Johnson never admitted that he committed the offences. I accept Counsel’s evidence that at no time did his client ever indicate he was guilty or admit the facts to support the plea. Counsel assessed the evidence, advised his client his chances were slim, and worked out the best deal he could for the client. I accept former counsel’s evidence in his affidavit that Mr. Johnson maintained he was not guilty but agreed to the resolution.

[16] Likewise, I accept Mr. Johnson’s evidence that at no time during the discussions with his counsel did he ever admit he was guilty or admit the facts that would support a guilty plea. I also accept his evidence that he felt pressure from his lawyer to plead guilty.

[17] On this application, I recognize that Mr. Johnson has admitted under oath that he lied to this court throughout the plea inquiry. In the circumstances, however, I find Mr. Johnson to be a credible witness in relation to his assertion that at no time did he wish to plead guilty and to this day believes he is not guilty of any offence. Much of his evidence is confirmed by his trial counsel’s evidence. Where it is not, trial counsel testified that he simply does not have a recollection.

[18] I also accept Mr. Johnson’s evidence that his trial counsel advised him the judge would be asking questions and if they were not answered in the affirmative the plea would be struck. On this issue, I accept trial counsel’s evidence in his affidavit that he did explain to Mr. Johnson that the judge would ask certain questions and that if he did not answer them in the affirmative, the plea would be struck. While counsel in his viva voce evidence testifies he would not have told his client to answer untruthfully, he did tell him the consequences if Mr. Johnson did not answer the judge’s questions in the affirmative.

[19] Based upon these findings of fact, I must assess the application.

ANALYSIS

[20] The Ontario Court of Appeal has articulated that for a guilty plea to be valid it must be:

(1) voluntary;

(2) unequivocal; and

(3) informed.

See e.g. R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. Hector (2000), 2000 5725 (ON CA), 146 C.C.C. (3d) 81 (Ont. C.A.), at para. 7; and R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at paras. 45-47.

[21] Further, s. 606 of the Criminal Code reads as follows:

(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

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

(a) is making the plea voluntarily; and

(b) understands

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

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

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

[22] On this application, the burden is on the applicant to satisfy the court on a balance of probability that these preconditions have not been met: R. v. Easterbrook, 2005 12676 (Ont. C.A.), at para. 5; and R. v. Meehan, 2013 ONSC 1782, at para. 9.

[23] Based upon my findings of fact, I am satisfied on a balance of probability that the applicant did not enter his plea voluntarily. Further, I am satisfied that he neither believed at any time that he was guilty nor was he prepared to admit the facts in support.

[24] Sadly, what transpired on November 5, 2013, was a fraud on the court. Mr. Johnson pled guilty to offences that he believes he did not commit and lied to the court during the plea inquiry.

[25] What is most troubling is the role played by trial counsel. A defence counsel cannot represent a client entering a plea of guilty to an offence that the client does not admit he committed. To do so is to assist the client in perpetrating a fraud on the court. Such fraud leads to a miscarriage of justice and brings the administration of justice into disrepute.

[26] In the Defending a Criminal Case: Special Lectures of the Law Society of Upper Canada 1969 (Toronto: Richard De Boo Ltd., 1969), at p. 318, this issue was addressed in the following exchange between Chief Justice Gale and Mr. G. Arthur Martin:

Chief Justice Gale: Mr. Martin I’m going to ask you to continue with it. What is the position of counsel where his client has informed him that he is not guilty but he wishes to plead guilty … because he thinks he will get a lighter sentence…?

Mr. Martin: To permit a client to plead guilty who is innocent and who informs you that he is innocent is really in the nature of a fraud on the administration of justice and is improper….

I think … that so long as the client persists in maintaining his innocence after you have confronted him with the evidence against him, and have explained the relevant law, that it is preferable not to represent him for the purpose of entering a plea of guilty.

[27] The duty and expectations of defence counsel as described more than 45 years ago by Mr. G. Arthur Martin are still the same today.

[28] The Rules of Professional Conduct support this proposition. Rule 4.01(2) states, “a lawyer shall not … (b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest”.

[29] Rule 4.01(9) concerns defence counsel’s obligations prior to entering a guilty plea. It states as follows:

Where, following investigation,

(a) a lawyer for an accused or potential accused advises his or her client about the prospects for an acquittal or finding of guilt,

(b) the lawyer advises the client of the implications and possible consequences of a guilty plea and particularly of the sentencing authority and discretion of the court, including the fact that the court is not bound by any agreement about a guilty plea,

(c) the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged, and

(d) the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea,

the lawyer may enter into an agreement with the prosecutor about a guilty plea.

[30] Defence counsel cannot assist a client in entering a plea of guilty unless the client is prepared to admit his guilt and admit the facts required on the essential elements. If the client insists on proceeding with the guilty plea without satisfying these prerequisites, counsel must seek to be removed as counsel without breaching solicitor-client privilege. Counsel cannot participate in or be a party to an accused pleading guilty to an offence for which the accused maintains his innocence.

[31] Regrettably, I must find that trial counsel did not meet his professional or ethical obligations to the court. He breached his duty to both his client and the court in several ways. First, he knowingly participated in a guilty plea with a client who consistently maintained his innocence. Second, he advised the client how to answer the plea inquiry questions to avoid the plea being struck. Third, he advised the court he conducted a plea inquiry when he had not. Fourth, he advised the court his client had advised him the facts were substantially correct when he had received no such instruction. Fifth, he advised the Court he does not conduct plea inquires with a client in advance if he thinks the Judge will conduct a plea inquiry.

CONCLUSION

[32] The courts of this province must be able to rely on defence counsel – who is an officer of the court – to do his or her job professionally and ethically. In this case, counsel’s failure to do so has created the risk of a miscarriage of justice. To remedy the risk of a miscarriage of justice, I am ordering the pleas of guilty to be struck.

[33] The Crown Attorney elected to withdraw certain counts on the indictment based upon the plea. The indictment will now proceed to trial on all counts, including the counts that the Crown had withdrawn based on the guilty plea.

McMAHON J.

Released: April 7, 2014