ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-900000-00AP
DATE: December 17, 2014
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KANGAKAR BALASUBRAMANIAM
Appellant
Aaron Shachter, for the Respondent
Misha Feldmann, for the Appellant
HEARD: December 11, 2014
JUDGMENT ON SUMMARY CONVICTION APPEAL
o’marra, b.p., j.
OVERVIEW
[1] On May 31, 2013 the appellant pleaded guilty in the Ontario Court of Justice to possession of cocaine. The Honourable Justice G. Sparrow entered a conviction and imposed a fine of $100.
[2] The appellant claims he misapprehended the consequences of his guilty plea. He now asks that the guilty plea be struck and a new trial ordered.
THE FACTS
[3] The appellant pleaded guilty to possession of 0.3 grams of cocaine. He had the following criminal convictions before being charged with this offence:
May 2008 – Obstruct peace officer and breach of recognizance
July 2008 – Impaired driving
April 2010 – Fail or refuse a breath sample
[4] The appellant was 25 years old when he pleaded guilty. He was born in Germany and his family moved to Canada when he was 2 years old.
[5] In an affidavit filed on consent as fresh evidence the appellant stated that he had discussed the consequences of a guilty plea with duty counsel. He told duty counsel that he “wanted a discharge”. He claimed that duty counsel told him to go ahead and try for it and that it would look better if he completed some community service hours before sentencing. He says he understood that the likely result of a guilty plea would be a small fine of $100 and a conditional discharge.
[6] When the appellant returned to court on May 31, 2013 he had completed 30 hours of community service. He now claims that duty counsel told him he “could” get a discharge for a guilty plea. He claims he understood this to mean that he would get a discharge on a guilty plea.
[7] After the plea was entered and the facts were agreed to by the appellant duty counsel on his behalf requested a conditional discharge. The crown opposed this and submitted there should be a fine of $100.
[8] Prior to the guilty plea Justice Sparrow conducted a plea comprehension inquiry and confirmed the following:
A) the appellant was sure he wanted to plead guilty and agreed with the facts to be read in by the Crown.
B) there was no pressure on the appellant to plead guilty.
C) the appellant understood that he could have a trial if he wished.
D) the final decision as to sentence rested with the Court.
[9] The appellant now claims the following:
A) he did not understand that a fine would involve a conviction being entered.
B) he would not have pleaded guilty if he had known that a fine would result in a criminal record.
C) shortly after May 31, 2013 he applied for a job at a bank and was told he could not be hired when a criminal record check showed the drug conviction.
[10] The appellant does not assert that he received ineffective assistance of counsel.
THE LAW
[11] The Criminal Code sets out the conditions for accepting a guilty plea:
S. 606.
(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 is 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.
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
[12] A valid guilty plea must be voluntary, unequivocal and informed.
R v. Jaillefer, R v. Duguay 2003 SCC 70 at para. 85.
[13] The burden is on the appellant to show why his guilty plea should be set aside.
R v. T (R.) (1992) 1992 2834 (ON CA), O.J. No. 1914 (C.A.) at para. 12
Adgey v. R (1975) 1973 37 (SCC), 2 SCR 426 at p. 431
[14] The prior experience of the accused in the criminal justice system is one factor weighing toward the validity of his plea as he has had the opportunity to participate in the process.
R v. Moser, 2002 49649 (ONSC) at para 35
ANALYSIS
[15] The appellant asserts that his greatest concern is related to the impact of the sentence on his future employment. He pleaded guilty with the assistance of duty counsel and unequivocally admitted the facts in support. His fresh evidence on this appeal makes clear that neither his counsel nor the Court told him that a conditional discharge would definitely be the ultimate disposition. He already had a criminal record with four convictions before this guilty plea and sentence took place.
[16] There is no indication that the appellant raised his specific concern regarding future employment with duty counsel. He told counsel he “wanted” a conditional discharge and was told he might obtain one. He does not suggest he was misled by counsel or the Court as to the likelihood of a conditional discharge.
[17] There is no spectre of a miscarriage of justice in this case as the facts were clearly admitted and supported the plea. Bearing in mind his criminal record and the nature of the drug he possessed, the disposition was very fair if not benevolent.
[18] I am not satisfied that the appellant has satisfied the burden of showing why this guilty plea should be struck. His after the fact dissatisfaction with some of the consequences is not a basis to allow the appeal.
RESULT
[19] Appeal dismissed.
B. P. O’Marra, J.
Released: December 17, 2014
COURT FILE NO.: CR-13-900000-00AP
DATE: December 17, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KANGAKAR BALASUBRAMANIAM
Appellant
REASONS FOR JUDGMENT
B. P. O’MARRA, J
Released: December 17, 2014