Her Majesty the Queen v. Imad Tawil
COURT FILE NO.: CR/13-10000038-00AP
DATE: 2015-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
Imad Tawil
Appellant
Counsel: Robert Wright, for the Respondent Paul Alexander, for the Appellant
HEARD: September 15, 2015
Before: Forestell J.
REASONS FOR JUDGMENT
Overview and Issues
[1] The Appellant was arrested on February 14, 2013 and charged with assaulting his wife. On February 26, 2013 the Appellant entered a guilty plea to the charge. He was sentenced on March 4, 2013 to time served plus one day in jail and two years’ probation.
[2] The Appellant was held in custody at the Toronto (Don) Jail from February 15, 2013 until his release following sentencing.
[3] The Appellant appeals his conviction on the ground that the guilty plea was not voluntary or informed. The Appellant argues that he entered the guilty plea under duress because he was in pain from a debilitating spinal disease which was inadequately treated in the jail and because he was frightened after being beaten and threatened in the jail. He also argues that he received no legal advice on the consequences of the guilty plea. The Appellant submits that on this basis a new trial should be ordered.
[4] The Appellant advanced a further argument that the failure to provide proper medical care violated his right to security of the person under s. 7 of the Charter of Rights and Freedoms (the “Charter”) and that on this basis a stay of proceedings should be granted.
[5] For the reasons that follow I have concluded that the appeal should be allowed and a new trial ordered.
Proceedings in the Ontario Court of Justice
[6] The affidavits of the Appellant and of his doctors filed on appeal indicate that the Appellant suffers from Ankylosing Spondylitis, a severe debilitating spinal disease. He requires injections of a drug called Humira every two weeks to control the illness. The Appellant’s pain increases at the end of the two week cycle when he is due to receive his next injection. He sometimes requires painkillers and was prescribed Percocet by his doctor. Humira relieves the pain but also acts as an immune suppressant making the Appellant susceptible to infection. He is required to delay the injection when he has fever, flu symptoms or an infection.
[7] The Appellant’s last Humira injection before his arrest on February 14, 2013 was on January 31st. He was due for an injection on February 13, 2013 but delayed it because he was experiencing flu-like symptoms. He intended to take the drug on February 14, 2013, but was arrested before he had an opportunity to do so.
[8] The Appellant was held in custody at 14 Division overnight following his arrest. He told the police that he needed Humira, but no medical attention was provided.
[9] On February 15, 2013 the Appellant was taken to Old City Hall bail court. He did not have a bail hearing because he did not have a surety and was told that he was not eligible for the Bail Programme. His case was adjourned to February 16th.
[10] The Appellant was taken to the Toronto (Don) Jail on February 15, 2013. He was seen by medical staff on February 16, 2013 and advised them of his condition and of the need for Humira. He did not receive any Humira. He repeated his request for the drug on February 17, 18, 19, 20 and 21.
[11] On February 21 the Appellant was given a dose of Humira to self-inject. He was not familiar with the type of needle provided and lifted the injection line too early, spilling most of the medicine. The Appellant requested a replacement dose, but did not receive one until March 3, 2013.
[12] The Appellant, in his affidavit, states that he was in excruciating pain prior to receiving the drug.
[13] The Appellant returned to court on February 16, 17, 19, 20 and 22nd, but was not able to arrange for a surety for his bail. His cousin, who was a potential surety, was not willing to have the Appellant live with him. The Appellant then returned to court on February 25th for a bail hearing. The bail hearing was commenced even though the Appellant’s cousin had decided not to act as surety. The bail hearing was adjourned because the Crown and the Justice of the Peace wanted to find out where the Appellant’s wife was living.
[14] The Appellant’s affidavit states that on the evening of February 25, 2013 the Appellant was threatened by another inmate. The inmate hit the bars of the Appellant’s cell and showed him a razor blade in his teeth telling him “I’m going to kill you tonight motherfucker.” The Appellant’s affidavit states that he had been beaten on two earlier occasions.
[15] In cross-examination on his affidavit, the Appellant stated that he was told by his cellmate that if he entered a guilty plea he would be released. He stated that on February 25, 2013 the duty counsel told him that to get out he either needed a surety or would have to plead guilty.
[16] The Appellant received assistance from duty counsel when he was at court for bail. However, he did not receive advice on pleading guilty. The duty counsel did not have time to provide advice to the Appellant.
[17] The Appellant states in his affidavit that he did not understand the nature and consequences of a plea at the time he pleaded guilty. He did not know what sentence the Crown would be seeking. He did not know that sentencing would be adjourned.
[18] The Appellant, in his affidavit, denies assaulting his wife. He states that he pleaded guilty in order to be released because he was in extreme pain and was dizzy and confused. He was also afraid as a result of the prior beatings and threat at the jail. In addition, the Appellant was aware of the risk of contracting tuberculosis in jail and was afraid that he would be susceptible because of the immune suppressant effect of the Humira.
[19] On February 26, 2013, when the Appellant returned to bail court, he said that he wanted to plead guilty. The Appellant was not represented by counsel. Duty counsel advised the Court that he had not had an opportunity to conduct a plea inquiry and therefore could not assist the Appellant with a guilty plea. Duty counsel advised the Court that he understood that the Crown would be seeking victim input before sentencing.
[20] The trial judge had the following exchange with the Appellant before the guilty plea:
THE COURT: Okay, let me do some plea inquiry first. Sir, the crown is indicating that you are charged with assault.
THE ACCUSED: Yes.
THE COURT: And it is your intention to plead guilty to that?
THE ACCUSED: I’m willing to do that. Yes.
THE COURT: Why are you willing to do that?
THE ACCUSED: Because I’m guilty.
THE COURT: Okay. And you’re admitting that you committed the assault in question?
THE ACCUSED: I had—last January, yes, I slapped my wife, unfortunately. It was a stupid mistake of me. It will never happen again. I’ve been 22 years in the country, I never had a problem with the law. This is my first time ever.
THE COURT: Okay.
THE ACCUSED: But I really regret it. I’m sorry. I apologize. I just want to go home. I’m sick.
THE COURT: And home is where?
THE ACCUSED: Where I live right now. She’s no longer there.
THE COURT: And—
THE ACCUSED: I have a spine disease called enceladus [sic]spondylitis. I’m in terrible, super pain. Ask any doctor tells you about my condition, I really need to go see my doctor as soon as possible. I am scared to go back in jail. I never been in jail ever.
THE COURT: And you have been in jail now since the 14th?
THE ACCUSED: Yes.
THE COURT: I’m prepared to take his plea now.
[21] The Appellant was arraigned and entered a guilty plea. The Crown then read in facts that alleged that the Appellant had physically abused his wife over the six years that they were married, that he hit her repeatedly with an open hand all over her body on the occasion in January that led to the charge and that he had gone to his son’s school and asked ‘alarming questions’ about the teacher who had reported her suspicions about the abuse. The Appellant, when asked if the facts were admitted, denied that he had asked alarming questions at his child’s school and said that he had gone to the school to deliver money for a field trip. He said, “But I just hit my wife, I admit that. I’m wrong. I’m guilty. I’m sorry about that. I’m seeking forgiveness from the Court. I will never do this ever again in my life.”
[22] The following exchange then occurred:
THE COURT: “I guess the question that arises from this is that you are indicating there is a narrative here that you obviously want me to take into account. And are you denying what the Crown has indicated? Not only what happened on February 15th, but the Crown is indicating that there was abuse in the past. Do you want to get involved in this Duty Counsel?
DUTY COUNSEL: I don’t know that I can, Your Honour.
THE COURT: Okay. Anyway, and the crown is relying on this past abuse as part of the narrative. I that correct?
CROWN: Yes.
THE COURT: Which goes to sentencing and obviously your plea should either deny or accept that there is…
THE ACCUSED: I accept everything you…
THE COURT: The Crown has indicated?
THE ACCUSED: Yes. I am guilty.
THE COURT: Okay.
THE ACCUSED: And I’m sorry and I apologize.
THE COURT: There will be a finding of guilt.
[23] The Crown then asked for the case to be adjourned in order to get input from the victim. Duty counsel asked for bail pending sentence which was opposed by the Crown. No bail was granted and the case was adjourned to March 1, 2014. On March 1st the Crown had not received input from the victim and the case was adjourned to March 4, 2013 for sentencing over the objection of the Appellant.
[24] On March 4, 2013 the Appellant was sentenced to 1 day in jail in addition to time served and two years’ probation.
Issues and Law
[25] To be valid, a guilty plea must be voluntary, unequivocal and informed. Where the validity of a guilty plea arises for the first time on appeal the Appellant has the onus of showing that the plea was invalid. The reviewing court may examine the trial record and additional evidence that amplifies the trial record.[^1]
[26] The issue in this case is whether the Appellant has met his onus and has shown the guilty plea to be invalid.
[27] The term “voluntary”, in the context of a guilty plea, means “the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate.”[^2]
[28] The pressures inherent in the criminal process are not in themselves enough to render a decision to plead guilty involuntary. As the Court of Appeal has observed, the decision to plead guilty will generally be made in circumstances involving pressure: People are capable of deciding what is in their best interest even when they are under considerable pressure and none of the available options are attractive.”[^3]
[29] The fact that an accused person is motivated to plead guilty in order to secure his release from custody does not by itself render a plea involuntary.[^4]
[30] Something more than the inherent pressures of the criminal process is needed to render a guilty plea involuntary.
[31] As set out by Hill J. at paragraph 33 of R. v. Moser:[^5]
…What is unacceptable is coercive or oppressive conduct of others or any circumstance personal to the individual which unfairly deprives the accused of free choice in the decision not to go to trial: Regina v. T.(R.), supra at 253; Laperrière v. The Queen (1996), 1996 203 (SCC), 109 C.C.C. (3d) 347 (S.C.C.) at 347-8 per La Forest J. (adopting the dissent of Bisson J.A. at (1995), 1995 4706 (QC CA), 101 C.C.C. (3d) 462 (Que. C.A.) at 470-1); Regina v. Rajaeefard (1996), 1996 404 (ON CA), 27 O.R. (3d) 323 (C.A.) at 331-4 per Morden A.C.J.O. (as he then was). There is, of course, no closed list of circumstances calling into question the voluntariness of a guilty plea: pressure from the court (Regina v. Djekic (2000), 2000 16822 (ON CA), 147 C.C.C. (3d) 572 (Ont. C.A.) at 575-6 per curiam; Regina v. Rajaeefard, supra at 131-4); pressure from defence counsel (Laperrière v. The Queen, supra; Regina v. Tiido, [1996] O.J. No. 3798 (C.A.) at para. 1 per curiam); incompetence of defence counsel (Regina v. Armstrong, [1997] O.J. No. 45 (C.A.) at para 2-4 per curiam); cognitive impairment or emotional disintegration of the accused (Regina v. Djekic, supra; Regina v. Thissen, [1998] O.J. No. 1982 (C.A.) at para. 5, 7 per curiam); effect of illicit drugs or prescribed medications (Regina v. Ross, supra; Regina v. Hann, [1997] O.J. No. 5157 (C.A.) at para. 2-3 per curiam) at paras. 2-3, per curiam [summarized 37 W.C.B. (2d) 32]).
[32] In this case, it is argued that the pain suffered by the Appellant impaired his ability to make a conscious volitional decision. The Crown submits that the Appellant’s evidence on this point should be rejected. The Crown argues that the medical records do not support the assertion of the Appellant. I disagree. I find that the medical records from the jail support the assertion of the Appellant that his injection was late and then spilled. I find that the letters from the Appellant’s physicians support the evidence of the Appellant ‑ that he would have been in extreme pain without his medication. I find the evidence of the Appellant to be credible. His assertion that he was in terrible pain was also made in Court before the plea when he said, “I have a spine disease called enceladus [sic]spondylitis. I’m in terrible, super pain. Ask any doctor tells you about my condition, I really need to go see my doctor as soon as possible. I am scared to go back in jail. I never been in jail ever.”
[33] I also accept the evidence of the Appellant that he was assaulted and threatened in jail. The evidence of the Appellant as to the precise timing of the threat and assaults was not clear, but that is understandable given the length of time that he was in custody. The Appellant reported his fear to staff at the jail on February 27, the day after his guilty plea. This is consistent with his stated fear on the day of his plea. There was no record of any injuries to the Appellant and I conclude that the assaults were minor. I would not have found the assaults and the threat in themselves sufficient to render the plea involuntary. The assaults and threat were circumstances that, in combination with the lack of medical care and pain suffered by the Appellant, deprived the Appellant of the ability to make a conscious volitional decision to plead guilty.
[34] I accept that the Appellant was in extreme pain and desperate to obtain medical care. Appropriate medical care was not being provided to him in the jail and there was no reason for him to believe that such care would be provided. I accept the evidence of the Appellant when he said, “I wasn’t myself at all…Like, I felt my brain is numb. I couldn’t make any decision. I couldn’t know what to do. I was horrified.” The circumstances facing the Appellant went far beyond the usual pressures faced by an accused who is in custody.
[35] My conclusion that the plea was not voluntary is sufficient to dispose of the appeal. An involuntary plea is not valid.
[36] The Appellant has also argued that the plea was not informed. It is clear from the record that the duty counsel did not have an opportunity to provide advice to the Appellant. However, the Appellant appeared to understand that he was giving up his right to a trial. He appeared to understand the nature of the allegations. He may not have understood the range of consequences available to the judge on sentence, but must have understood that a period of probation was possible given his indication to duty counsel that he would accept counselling. While the nature and extent of the advice to the Appellant was not ideal (through no fault of duty counsel) I do not find that this would have invalidated the plea.
[37] The Appellant raised a further issue on appeal. The Appellant argued that this Court should find that there was a breach of the Appellant’s s. 7 rights as a result of the conditions of his detention and should enter a stay of proceedings.
[38] This issue was not raised at trial. The record on appeal is not adequate to deal with the issue. It is not appropriate for me to deal with this issue on appeal.
[39] Therefore I order that the conviction be set aside and new trial ordered.
Forestell J.
Released: October 16, 2015
COURT FILE NO.: CR/13-10000038-00AP
DATE: 20151016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Imad Tawil
reasons for decision
Forestell J.
Released: October 16, 2015
[^1]: R. v. T.(R.), 1992 2834 (ON CA), [1992] O.J. No. 1914 (C.A.) at paras. 12 and 14; R. v. Krzehlik, [2015] O.J. No. 1254 (C.A.) at para. 5 [^2]: R. v. Rosen, 1979 59 (SCC), [1980] 1 S.C.R. 961 at 974; R. v. T.(R.), 1992 2834 (ON CA), [1992] O.J. No. 1914 (C.A) at para 16. [^3]: Krzehlik, supra, at para.35; R. v. Carty, 2010 ONCA 237, [2010] O.J. No. 1305 (C.A.) at para. 37 [^4]: R. v. Pivonka, 2007 ONCA 572 at para. 18 [^5]: 2002 49649 (ON SC), [2002] O.J. No. 552 (S.C.)