ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 1894/12

DATE: 20140902

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

NILESH BARAI

T. Powell, for the Crown

M. Bhardwaj, for the Appellant

Appellant

SUMMARY CONVICTION APPEAL RULING

[On appeal from the judgment of the Honourable Justice I.B. Cowan,
dated April 19, 2012]

DALEY J.

Introduction:

[1] The appellant appeals from the judgment of the Honourable Justice I. B. Cowan of the Ontario Court of Justice at Brampton dated April 19, 2012.

[2] The appellant was charged in a six count indictment, however, the Crown only proceeded with three of the counts, namely charges of assault upon the appellant’s wife contrary to s. 266 of the Criminal Code of Canada, failure to comply with a recognizance contrary to s. 425(3) and theft of his wife’s cell phone, contrary to s. 334(b). The appellant entered guilty pleas in respect of each offence.

[3] In this Summary Conviction Appeal the appellant requests that the guilty pleas be struck and a new trial ordered.

Factual Overview:

[4] The charges against the appellant arose from an incident reported as a domestic disturbance which occurred on April 6, 2012, involving the appellant and his wife at their home, in Mississauga. It was alleged that the appellant had grabbed his wife by the throat, pushed her into a bedroom closet and closed the door. It was further alleged that following this he dragged her out of the closet, took her cell phone from her and then backed her towards a set of stairs and that he pushed her backwards down the stairs.

[5] It was accepted by the Crown that the alleged pushing by the accused of his wife was not with the intention of having her fall down the stairs, but rather with the intention of making her leave the house. The record shows however, that she actually did fall down the stairs.

[6] On August 5, 2011, the offender had entered into a recognizance before a Justice of the Peace, in the City of Toronto in respect of three counts of assault; one of the conditions of the recognizance being that he was not to be within 100 meters of any place he knew his wife lived, worked, or where she may be present. On April 7, 2012, pursuant to a warrant issued for the appellant’s arrest, he was arrested at the place of residence occupied by his wife.

[7] During the course of this appeal, evidence was provided by the appellant in the form of affidavit evidence as well as by viva voce testimony. His former counsel, Gopesh Soni, who had represented him with respect to the charges pending in Toronto, testified with respect to the appellant’s bail terms and conditions relating to those matters. His defence counsel who attended on the guilty pleas, Kas Marynick (“Marynick”), testified with respect to the circumstances surrounding the guilty pleas, including his instructions from the appellant.

[8] The appellant’s evidence on this appeal, on the whole, was entirely unreliable and unbelievable. The affidavit evidence submitted by him conflicted in many respects with his testimony on this appeal.

[9] He testified that on pleading guilty to the breach of recognizance he was lying to the Justice as he claimed that he was innocent of that offence but still entered a plea of guilty to it.

[10] In cross-examination the appellant agreed that he had stated in his affidavit dated October 9, 2012, filed in this matter, that his pleas of guilty were voluntary, however in his testimony on the appeal he asserted the contrary.

[11] Although he stated in his evidence on the appeal that both his defence counsel and the Justice were rushing him during the plea hearing, he acknowledged that both his counsel and the Justice provided him opportunities to adjourn the matter and to complete his statements, if he wished to. Ultimately no adjournment was sought by the appellant.

[12] The appellant also offered the remarkable evidence that his defence counsel advised him as follows: “… to plead guilty to whatever the judge puts in front of you.” He also testified that his counsel was “up-selling” him in that instead of trying to get him out of custody on bail he was “up-selling” him on making the guilty pleas.

[13] In the course of his evidence, the appellant’s testimony was often unresponsive to questions posed and he was clearly evasive on important matters that were at stake on this appeal.

[14] Further, in his testimony the appellant acknowledged that he was aware that a custodial sentence was a possibility on his plea of guilty to the offences charged. The allegations made by the Crown were read to the appellant in open court prior to his pleas of guilty and there was the evidence from his counsel on this appeal that they were reviewed with him in a plea inquiry prior to appearing before the Justice.

[15] The Appellant also acknowledged that at no time had anyone guaranteed to him that upon entering the pleas of guilty he would be released from custody. However, in his affidavit of October 9, 2012, he stated that his pleas of guilty were entered voluntarily for the purpose of securing his immediate release from custody.

[16] The appellant also agreed in his evidence that had he proceeded with a trial and that if he elected to give evidence, he was aware that his testimony would have resulted in him being found guilty of assault and likely guilty of theft.

[17] With respect to the charge of breach of recognizance, at the time of his plea of guilty to this offence, the appellant acknowledged that he assumed that the no contact provision in the recognizance had been varied, when it had not been and he acknowledged that he was mistaken and that he “should have waited for legal paperwork to come from the courts.” With that statement by the appellant and the submissions of his counsel that there was no basis to dispute this charge, the trial judge did not move to strike the plea with respect to the breach of recognizance.

[18] As to the voluntariness of his pleas of guilty, the appellant entered the pleas in open court and he acknowledged that he was in his “right mind” at that time and that he was capable of making voluntary decisions on the date he appeared before the court, namely on April 19, 2012.

[19] Although, on this appeal, the appellant contended that his plea of guilty to the breach of recognizance was not voluntary, his statements at the time he entered the pleas of guilty to each of the three offences before the Justice contained no qualitative differences, nor any limitations, or conditions with respect to that particular offence.

[20] The appellant also readily acknowledged that he pleaded guilty to each offence as he was motivated by the fact that he believed he would have a greater chance of being released from custody by pleading guilty.

[21] The appellant acknowledged several matters relating to the entering of the pleas of guilty including that he knowingly entered the pleas in open court; he had weighed the possibilities and decided to plead guilty. He knew he was pleading guilty to the charge of assault and was aware that he had taken his wife’s cell phone from her.

[22] On considering the clear and unambiguous statements made by the appellant in his own words, his pleas of guilty in respect of each offence were unequivocal.

[23] The appellant’s counsel Marynick had been practicing criminal law for seven years. He testified that he had dealt with approximately 200-250 guilty pleas prior to attending court with the appellant. Counsel testified that he considered the appellant’s relationship with his physician Dr. Jeeva and determined that the absence of a letter of opinion from the physician could be properly dealt with in his submissions to the Justice.

[24] In considering the case against the appellant, counsel testified that he took into account his personal history, the sentencing principles applicable and the fact that no suitable sureties were available. He further stated that based on his discussions with the appellant, if he testified at trial in a way that was consistent with his discussions with him, he was of the opinion that the appellant would be convicted of the offences charged.

[25] The appellant’s defence counsel also testified with respect to the steps taken by him prior to the guilty pleas being entered, including conducting a resolution meeting with the Crown, obtaining the agreement of the Crown to have a less aggravating submission on the facts in advance of the guilty pleas. Counsel was also able to have three of the six counts dropped including the serious charge of forcible confinement.

Analysis:

[26] The statutory provisions governing the entering of a guilty plea by an accused are found in s. 606 of the Criminal Code.

[27] In order for a plea of guilty to be valid, it must be voluntary, unequivocal and informed. The accused must be aware of the nature of the allegations made against him, the effect of his plea, the consequences of the plea, and that the plea constitutes an admission of the essential elements of the offence: R. v. T(R) (1992), 1992 2834 (ON CA), 10 OR (3d) 514 at p 519, 58 OAC 81; R. v. Saravanamuthu, 2009 1662 at para 62 (ON SC).

[28] When represented by counsel at the time an accused enters a guilty plea, the trial judge has discretion, as a matter of law, to hold no further inquiry into the factual circumstances alleged in support of the offence charged: R. v. Moser (2002), 2002 49649 (ON SC), 163 CCC (3d) 286 at para 30 (ON SC). Further, a guilty plea is presumed to be a valid and unequivocal plea, particularly where the accused person is represented by counsel: R. v. Eastmond, 2001 7498 (ON CA), [2001] OJ No 4353 at para 6 (C.A.); R. v. Eizenga, 2011 ONCA 113 at para 4, [2011] OJ No 524.

[29] The burden is on the appellant to satisfy the court, on the balance of probabilities, that his plea of guilty was involuntary: R. v. Easterbrook, 2005 12676 (ON CA), [2005] OJ No 1486 at para 5 (Ont CA).

[30] It is the accused person’s and no one else’s decision whether to plead guilty. Where an accused is represented by counsel, counsel can represent an accused who pleads guilty provided he or she has instructions on the facts which would support admissions of the actus reus and mens rea. As Hill J. stated in Moser at para 39:

… counsel after a factual investigation of the allegations through Crown disclosure or otherwise, will explain the essential legal elements of the offences charged, provide legal advice relating to defence of the allegations, and only take instructions to participate in a guilty plea proceeding where guilt is clearly acknowledged by the client.

[31] The appellant’s evidence is clear on this appeal that he was motivated to enter his pleas of guilty, in part, by his desire to secure his release from custody.

[32] The motivation to possibly secure a release from custody, by pleading guilty, may impact on an accused’s decision to plead; however, that does not invalidate the plea. The appellant acknowledged that no one guaranteed to him that he would be released from custody upon a plea of guilty. It was stated by Feldman J.A. in R. v. Pivonka, 2007 ONCA 572, [2007] OJ No 3138 at para 18:

I accept that the appellant may well have been induced by the prospect of release from prison that day rather than possibly waiting in jail for trial date. However, as this court said in King, that type of inducement alone does not vitiate a plea. In this case, I see nothing else.

[33] Similarly, in this case the appellant’s motivation may have been in part based on his hope for a release from custody, however, on the whole of the evidence before the trial judge and as offered on this appeal, that alone does not vitiate the pleas of guilty.

[34] As to the alleged incompetence of the appellant’s counsel, it is well-established that a three-stage approach is to be adopted when scrutinizing claims of ineffective representation by counsel. In order to succeed in a claim of ineffective assistance of trial counsel, an appellant must establish:

(i) the facts on which the claim of incompetence is based;

(ii) that the representation provided by trial counsel was incompetent – the performance component of the test; and

(iii) that the incompetent representation resulted in a miscarriage of justice – the prejudice component of the test: R. v. MB, 2009 ONCA 524, at para 8, [2009] OJ No 2653; see also: R. v. Taylor, 2012 ONSC 2920 at para 14, [2012] OJ No 2326.

[35] It has been stated that in considering this three-staged assessment, it is best to begin with an inquiry into the prejudice component of an ineffective assistance of counsel claim. If the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at the time the guilty pleas were taken.

[36] Prejudice can be established if the appellant can show that there is a reasonable probability that but for the alleged incompetence, the result of the proceeding would have been different. A reasonable probability in this context is a probability that is sufficiently strong to undermine the appellate court’s confidence in the validity of the verdict. As was stated by Doherty J.A. in R. v. Joanisse (1995), 1995 3507 (ON CA), 102 CCC (3d) 35, at p 64: “A reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.” See also: R. v. MB, 2009 ONCA 524 at para 10.

[37] The standard to consider in relation to the performance component of the test is one of reasonableness. Hindsight has no place in this assessment: R. v. GDB, 2000 SCC 22 at para 27, [2000] 1 SCR 520.

[38] In my view, on considering the prejudice component of the claim of ineffective assistance of counsel, the appellant has failed to demonstrate any prejudice flowing from the representation provided by Marynick. There is no evidence of any miscarriage of justice in this case. In my view, the appellant pled guilty to each of the three offences voluntarily, after being fully informed of the nature of the allegations made against him, and after being informed of the consequences of the plea and the essential elements of the offences. The appellant’s pleas of guilty, in respect of each offence, were unequivocal.

[39] As noted, I have also concluded that the motive for the appellant’s appeal is his dissatisfaction with the resulting sentence. Notably he admitted in cross-examination on this appeal that “… my sentence was unfair.”

[40] Although I have concluded that the appellant has failed to demonstrate any prejudice or miscarriage of justice which would warrant the interference by this court, after considering the record, the appellant has further failed to show any material facts upon which a claim of incompetent counsel could be sustained. The evidence offered by the appellant as to his discussions with his counsel prior to the pleas had no ring of truth whatsoever. I have concluded that Marynick provided reasonable, competent and professional advice and assistance to the appellant prior to his pleas of guilty. I found the evidence of counsel to be forthright and straightforward.

[41] I accept his evidence with respect to his dealings with the appellant prior to the pleas of guilty including his evidence as to his assessment of the appellant with respect to any signs of intoxication or any mental or physical health or cognitive or intellectual deficits. The appellant was advised of the possibility of an adjournment and acknowledged this. Counsel discussed and considered the option of obtaining psychiatric evidence with the appellant. He also communicated the Crown’s position as to sentencing to the appellant.

[42] While Marynick acknowledged that he did not conduct a plea inquiry with the appellant in accordance with s. 606 of the Criminal Code by literally reviewing each relevant subsection, I conclude, based on his testimony that he made proper inquiries and observations to be satisfied that the appellant was making voluntary pleas and that he understood the factors as contained in s. 606 (1.1)(b).

[43] Further, I find that the appellant’s counsel did properly and adequately consider with him any possible defences available with respect to the charges and in particular the breach of recognizance, as well as his account of the events surrounding the assault upon the appellant’s wife.

[44] I find that on the balance of probabilities, the appellant has failed to establish that the assistance provided by his counsel was ineffective. In my view, counsel’s performance was reasonable, professional, and effective.

Conclusion:

[45] For the reasons outlined above I have concluded that the appellant has failed to demonstrate, on the balance of probabilities, that his guilty pleas were not voluntary, informed and unequivocal. Further, I have concluded that the appellant’s guilty pleas can be taken as a reliable assessment of his culpability.

[46] For the reasons outlined, the appeal is dismissed.

[47] The appellant shall surrender to the jail from which he was released on bail within seven days from the release of these reasons. Failing the appellant surrendering, as ordered herein, the Crown may apply for a warrant for his arrest.

DALEY J.

Released: September 2, 2014