Court File and Parties
Court File No.: CR/14/40000/14900AP Date: 2016-05-31 Superior Court of Justice - Ontario
Re: Her Majesty the Queen, Respondent - and - Bharat Singh, Applicant
Before: Croll J.
Counsel: R. Wright, for the Crown, Respondent M. Rieger, for the Appellant
Heard: May 17, 2016
Endorsement
Introduction
[1] The Appellant was charged with uttering a threat to cause death to a security guard on August 25, 2013. He pled guilty on July 9, 2014, and was sentenced on October 29, 2014 to a suspended sentence and 12 months’ probation.
[2] The Appellant seeks to have his plea set aside on the basis that it was not informed because he did not appreciate the consequences of his plea. He also appeals his sentence.
Background Facts
[3] On Sunday, August 25, 2013, the police responded to a complaint from a security guard at 4645 Jane Street, Toronto about a threat to cause death to the security guard. The threat was made when the security guard was verbally accosted by the Appellant at about 3:15 a.m. in the stairwell of the building about some video surveillance that depicted the Appellant and was shown by building security to a third party. The security guard told the police that a male, later identified as the Appellant, had threatened him with being “shot like the guys on Grand Ravine and Driftwood”. The Appellant then made a phone call to an unknown person, telling this person to go get his gun. The Appellant made a gun gesture with his hand and stated to the person on the phone, “Get the boys over here now. It is done.”
[4] The Crown’s original position on the charge screening form was a conditional discharge with probation on a plea to the charge, but the Crown moved to a position of a suspended sentence and probation upon becoming aware of the Appellant’s criminal record. The Appellant has a prior conviction for impaired driving and for failing to comply with recognizance, and he received a conditional discharge for failing to comply with an undertaking.
[5] On February 20, 2014, the Appellant was self-represented and took part in an in-court judicial pre-trial (“JPT”). The Crown conveyed a guilty plea position of suspended sentence and 12 months’ probation. The Appellant advised the Court that he had decided to plead guilty for a number of reasons, including being a good role model to his daughter, and because he could not afford to miss more work days. At that time, it was suggested by the JPT judge that the Appellant may wish to do some up-front counselling and community service to better position himself for sentencing. The Appellant received some summary advice from counsel who was present that day, and the matter was put over to allow the Appellant to position himself for resolution.
[6] The Appellant’s second JPT was held on May 8, 2014, after trial counsel was retained. At this time, trial counsel advised the JPT judge (who had been the JPT judge on the prior in-court JPT) that the immigration situation was such that the Appellant would not plead guilty unless he was able to secure a conditional discharge. Trial counsel’s evidence was that he advised the JPT judge that a trial date on this matter would be preferable to exposing the Appellant to deportation. In response to this, it is the evidence of trial counsel that the JPT judge indicated that if the Appellant performed well on his anger management counselling and had a good report from the counsellor, and if he performed community service hours and had other positive material, she would impose a conditional discharge if the Appellant entered a guilty plea before her. The Crown indicated that he would continue to ask for a suspended sentence and probation on the record, but he would not seek to prevent the JPT judge from taking the plea.
[7] On July 9, 2014, the judge who had been the JPT judge conducted a plea inquiry. After ensuring that the Appellant understood that he was giving up his right to a trial, and that he was doing so voluntarily, the judge told the Appellant that she was not required to accept any submissions from counsel, that the Appellant could choose to enter his plea before another judge and that there was no guarantee as to the sentence. She confirmed that the Appellant understood all that she said, and that the Appellant was prepared to enter his plea on that basis.
[8] Following the plea inquiry, the Appellant entered his guilty plea. Counsel advised that they were not in agreement on sentence, and jointly asked that sentencing be adjourned to another date in order to prepare further items, including a Victim Impact Statement, a letter about community service hours and records from prior probation supervision.
[9] The contested sentencing hearing began on August 28, 2014. The Appellant sought the imposition of a conditional discharge and probation; the Crown sought a suspended sentence and probation. At the sentencing hearing, trial counsel noted that the issues with respect to the Appellant’s immigration status were the primary reason for seeking a discharge, and reminded the judge that he had taken the same position at the JPT. The judge questioned trial counsel about the Appellant’s prior findings of guilt, about the report from his counsellor, and about the range of appropriate sentence. The Crown made submissions that the Appellant had shown a pattern of behaviour toward persons in authority and toward the law that made the imposition of a discharge inappropriate. In this regard, the Crown relied on the Appellant’s criminal record, his prior failures to comply with two court orders, and the facts of this specific offence.
[10] At the August 28, 2014 hearing, the judge asked questions about the Appellant’s immigration status. The judge also asked for additional information, including a letter from the Appellant’s employer addressing how he deals with conflict; letters from persons who could identify changes since counselling; a letter of apology; plans to deal with future conflict; and a letter from an immigration lawyer setting out an opinion about the immigration consequences to the Appellant.
[11] Sentencing submissions continued on October 24, 2014. Two letters from immigration counsel were filed, along with the other letters requested. Submissions addressed the vulnerability of the victim, the immigration consequences to the Appellant and the appropriate range of sentence.
[12] On October 29, 2014, the Appellant received a suspended sentence and 12 months’ probation.
Fresh Evidence on Appeal
[13] The fresh evidence sought to be filed includes the affidavits of former trial counsel, Mr. Harnett, and of the Appellant as well as transcripts of cross-examinations on the affidavits. This evidence, which sets out the history of the matter, and in particular the proceedings in chambers during the second JPT, goes to the essence of the issue of whether the Appellant’s plea was informed.
[14] The proposed fresh evidence in this case is received in the “interests of justice”. Both sides agree that the fresh evidence is admissible. See R. v. Quick, 2016 ONCA 95, at para. 7, where on an appeal of conviction based on the appellant’s argument that his guilty plea was not informed, the Court of Appeal found that the appellant’s fresh evidence, consisting of the appellant’s affidavit and the affidavit of his trial counsel were admissible as it was “in the interests of justice to admit the fresh evidence because it is needed to fairly decide the appeal.” Here, too, such evidence is needed to fairly decide this appeal.
Fresh evidence
[15] In his affidavit, the Appellant states that he was confused during the first JPT when he was self-represented. He states that after the first JPT, he was referred to trial counsel by immigration counsel, and that trial counsel was going to try to secure a conditional discharge. The Appellant states that after the second JPT, which was attended by trial counsel, trial counsel told him that if he did everything the judge asked with respect to providing various letters and if he received a good report from his anger management counsellor, the judge stated that she would impose a conditional discharge. The Appellant went on to state:
The Crown Attorney would not agree with this and would ask for a conviction and probation. However, Mr. Harnett told me that because the Crown was willing to let us plead guilty in front of the Judge even after she said what she would do, he said the Crown would be basically going through the motions.
[16] The Appellant also states that when the judge told him there was no guarantee of a sentence during the plea inquiry, he expected her to say that. Based on what trial counsel had told him, “[i]t made sense that the judge wouldn’t say in open court that the sentence was guaranteed.”
Was the Appellant’s plea informed?
[17] The court may accept a guilty plea if it is satisfied that the accused is making the plea voluntarily, and that the plea is unequivocal and informed. Where a guilty plea is entered in open court by an accused who is represented by counsel, the plea is presumed valid. The onus is on the party seeking to displace this presumption: see R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; and R. v. Moser (2002), 163 C.C.C. (3d) 286 (Ont. S.C.), at paras. 29-43.
[18] The Appellant accepts that his plea was unequivocal and voluntary. He had counsel, was aware of his right to trial, and was under no duress. However, the Appellant submits that the plea was not an informed plea as he did not understand the consequences of his plea.
Did the Appellant understand the consequences of his plea?
[19] An informed guilty plea requires the accused be aware of “the nature of the allegations made against him, the effect of his plea, and the consequence of his plea”: see T.(R.), supra, at p. 519. An understanding of the consequences of his plea means a realization that convictions may flow from his plea, as well as an appreciation of the nature of the potential penalty faced. The Appellant’s past experience with the criminal justice system may be a relevant factor in assessing whether the Appellant understood the consequences of his plea: see T.(R.), at pp. 523-524.
[20] The Appellant submits that he did not understand the consequences of his plea. He submits that he would not have pled guilty if he had understood that the pre-trial judge could resile from her position at the JPT when she committed to giving him a conditional discharge.
[21] It is a question of fact as to whether the Appellant believed that he had been guaranteed a conditional discharge.
[22] As a preliminary matter, I note that the Appellant suggests that he has only basic English skills and that he was easily led by the Crown when cross-examined on his affidavit. I am not persuaded by this submission. The Appellant understands English, did not require an interpreter for any of his court appearances and has lived and worked in Canada for 10 years. A review of the transcript of his cross-examination does not indicate that the Appellant did not understand the questions that were put to him, or that he was unfairly led to reply to the questions in a certain way.
[23] A review of the transcript of the evidence, and in particular, the Appellant’s cross-examination, indicates the following:
(i) The Appellant knew that his trial counsel and the Crown were not in agreement about the proposed sentence and that the Crown was seeking a conviction.
(ii) The Appellant understood from trial counsel that the trial judge was prepared to grant a conditional discharge, but that further pre-plea work was required, including a good report from an anger management counsellor, and that the discharge was not guaranteed. Regarding the general communication with trial counsel after the JPT, the Appellant stated that the “general communication was, good news, she says that she would be willing to grant this discharge.” The Crown then asked: “But you understood that it wasn’t guaranteed. You were still gathering all of these items together”, to which the Appellant replied “yes”.
(iii) The Appellant had pled guilty on prior occasions and knew from those prior occasions, from the plea comprehension inquiry with trial counsel, and from the plea comprehension inquiry by this trial judge, that the trial judge was not bound by what was said in the pre-trial or the submissions of counsel. In particular, in this case the trial judge undertook a detailed plea comprehension inquiry, despite being informed by trial counsel that he went through the entire pre-inquiry with the Appellant. After the trial judge asked the Appellant for details of the offence he was facing, the transcript of the July 9, 2014 plea reads as follows:
THE COURT: Alright. And lastly Mr. Harnett and Mr. Van Den Bergh will make submissions to me about the sentence that they think is appropriate. I’m not required to accept any submission that they make. I believe this was judicially pre-tried before me?
MR. HARNETT: A couple of times, yes.
THE COURT: Alright. So I just want to make it clear there was a judicial pretrial, alright. So I have information that the lawyers shared with me that some other judge may not. You can choose to enter the plea before someone else if you like, you don’t have to do it before me, but it’s entirely up to you. Do you understand that?
MR. SINGH: Yes, ma’am.
THE COURT: Right. I want to also tell you there’s no guarantee as to the sentence. Do you understand that?
MR. SINGH: Yes.
THE COURT: Alright, so I may not agree with the lawyers. Are you prepared to enter your plea on that basis?
MR. SINGH: Yes, ma’am.
[24] Despite this complete plea comprehension inquiry, reiterating that there was no guarantee as to the sentence, the Appellant did not request to strike the plea.
[25] Further, at the sentencing hearing on August 28, 2014, after the trial judge asked for additional information to inform sentencing, she then stated as follows:
I am not ‑ I just want to make it clear it’s up to Mr. Singh whether he wants to provide those letters and I don’t want him to leave here thinking that if he provides those letters as a result I am telling him he will get a discharge. I want to make that clear. So I hope it’s clear…
[26] Again, there was no request to strike the plea.
[27] In R. v. Al-Diasty (2003), 64 O.R. (3d) 618 (C.A.), the accused was told by his counsel that the trial judge at the JPT had agreed not to impose a custodial sentence. In Al-Diasty, the fresh evidence suggested that the avoidance of a custodial sentence was of such importance to the accused that he entered a guilty plea, despite his intent to defend the charges and his purported innocence, on the basis that a non-custodial sentence had been guaranteed. The Court held, at para. 6, that he pleaded guilty on the basis of a mistaken belief in the consequences.
[28] This case can be distinguished from Al-Diasty. Firstly, I note that in this case, the Appellant acknowledged his guilt and intended to plead guilty as early as the first JPT. Further, the nature of the detailed plea comprehension inquiry conducted by the trial judge in this case belies its characterization as “part of the ritual”. Finally, a review of the Appellant’s cross-examination indicates that this is not a case where the guilty plea was entered “with an honest belief that the consequences were settled”: see Al-Diasty, at para. 7.
[29] While trial counsel’s evidence is that he represented the conditional discharge to his client as a secured sentence, when the evidence of the Appellant is reviewed, it is apparent that he understood that the conditional discharge was not guaranteed when he entered his plea. By the Appellant’s own account, he was left with “a positive vibe” after his trial counsel reported on the discussion at the JPT. An Appellant’s “positive vibe” does not translate into an assurance of sentence. The Appellant acknowledged his guilt, certainly hoped for the discharge, and believed that there was a strong possibility that that would be the sentence. However, I am satisfied on the fresh evidence that he understood throughout that this result was not guaranteed.
[30] Unlike in Al-Diasty, in this case there is no miscarriage of justice that requires the plea be struck. The appeal as to conviction is dismissed.
Appeal as to Sentence
[31] The Appellant further submits that the trial judge erred in principle in finding that a conditional discharge was not available to the Appellant.
[32] The trial judge recited the proper test to be considered on a conditional discharge, stating that: “[i]n this case I have considered that to impose a discharge I must be satisfied that such a disposition is in the interest of the Defendant and not contrary to the public interest (Criminal Code, Section 730).”
[33] In reaching the sentence of a suspended sentence and probation, the trial judge referred to the aggravating and mitigating factors, the principles of sentencing and the immigration status consequences. While the Crown submits that the trial judge fully considered the immigration status consequences, in my view, the trial judge in fact erred in her understanding of these consequences. The trial judge stated as follows in her reasons for sentence, “I am mindful he will have an opportunity to advance arguments in the context of any further hearing which is available to him in the immigration legislative framework.”
[34] However, there was no indication in the evidence that the Appellant would have the opportunity to advance arguments to which the trial judge referred. At the August 28, 2014 sentencing hearing, trial counsel advised that a conviction would necessarily mean that the Appellant’s immigration application would be frustrated and hence the end of his ability to stay in Canada. The evidence filed by the immigration lawyer specialist indicated that, given his record, if the Appellant was convicted for the threatening charge, his humanitarian application would be refused and there would be no reasonable likelihood of staying his removal from Canada. The immigration specialist expressed her opinion that the Appellant “will most certainly be deported”. This opinion cannot be reconciled with the trial judge’s reference to the opportunity to “advance arguments in the context of any further hearing which is available to him”.
[35] A trial judge’s sentencing decision is entitled to great deference. A court will vary a sentence only if it reflects an error in principle, demonstrates a failure to consider a relevant factor or to give appropriate weight to a relevant factor, or is demonstrably unfit: see R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 85; R. v. Shropshire, [1995] 4 S.C.R. 227, at pp. 249-251; and R. v. M.(C.A.), [1996] 1 S.C.R. 500, at pp. 565-567. Here, in my view, the trial judge’s misapprehension of the evidence as to the immigration consequences was an error in principle, allowing the appellate court to impose the sentence it deems fit. As the Court stated in Hamilton at para. 164, “[w]here a trial judge commits an error in principle, the sentence imposed is no longer entitled to deference and it falls to the appellate court to impose the sentence it thinks fit: R. v. Rezaie (1996), 112 C.C.C. (3d) 97 at 103 (Ont. C.A.)”.
[36] In this case, the Appellant was remorseful. He apologized to the complainant and took responsibility for his actions. He completed community service and anger management in advance of the sentencing hearing, and the trial judge was satisfied that he had good prospects for rehabilitation. He has a five year-old child and a partner in Canada, and he has been employed for over nine years as a welder with the same employer. That said, it is also the case that the Appellant has a criminal record and threatened the security guard in a serious way.
[37] A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.
[38] In my view, after weighing the mitigating and aggravating factors, the circumstances of the offence as reviewed by the trial judge and the circumstances of the Appellant, including the certainty of deportation, the suspended sentence imposed by the trial judge should be vacated and substituted with a discharge. A discharge is in the Appellant’s best interest and not contrary to the public interest in light of the Appellant’s remorse and the positive steps he has taken.
[39] Given that the probationary period was not stayed pending this appeal and has been completed, the discharge shall be absolute.
[40] The appeal as to sentence is allowed. Accordingly, the conviction and the sentence imposed by the trial judge are set aside and replaced by a finding of guilt and an absolute discharge.
Croll J. Date: May 31, 2016