Court File and Parties

Court File No.: 509/13 Date: 2016-08-02 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – H.B., Accused

Counsel: Philip Zylberberg, for the Crown George Fournier, for the Applicant

Heard: July 20, 2016

Publication Ban: INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE R.G.S. DEL FRATE, SUPERIOR COURT OF JUSTICE DATED NOVEMBER 24, 2014

Decision on Application

Del FRATE, J.

[1] On November 24, 2014, H.B. entered a plea of guilt to the charges of indecent assault, gross indecency, and sexual intercourse with his daughter. These charges stem from incidents that occurred between 1964 and 1980.

[2] He now brings an application to set aside his pleas since he did not understand the proceedings that took place on that date and since he is innocent of all charges.

Background

[3] Although these charges are quite dated, it was not until November 20, 2012, that H.B. was arrested on a 28-count indictment. Following a preliminary inquiry on June 25, 2013, he was committed to stand trial. Judicial pre-trials were held on September 3, 2013, and November 5, 2014.

[4] A trial date was set for November 24, 2014. Prior to that date, extensive negotiations ensued between Mr. Beckett, his then counsel, and the Crown. These resulted in a resolution whereby H.B. was to plead to three counts on November 24, 2014.

[5] The plea took place and I ordered a pre-sentence report and set a date for sentencing for January 22, 2015.

[6] On that date, Mr. Beckett removed himself from the record with the understanding that Mr. Fournier would represent H.B. in future dealings. Several adjournments were required so that Mr. Fournier could familiarize himself with the file. Eventually a date for the sentencing was set for October 9, 2015.

[7] On that date, Mr. Fournier requested a further adjournment so that he could obtain a mental capacity assessment on his client. Dr. Gagnon conducted the assessment on January 7, 2016, and a copy of this report was forwarded to counsel on January 11, 2016. Dr. Gagnon concludes that “after careful examination it is my opinion that H.B. is fit to stand trial.”

[8] The sentencing was to take place on February 23, 2016, but due to a funeral in Mr. Fournier’s family, the matter was adjourned to April 27, 2016, peremptory on the accused. The agent for Mr. Fournier indicated that H.B. wished to withdraw his plea to the charges.

[9] On April 27, 2016, and with the consent of the Crown, the matter was adjourned to July 20 and 21, 2016, for a hearing on an application to strike the plea.

[10] At this hearing, Dr. Jacques and H.B. testified. The affidavit of Mr. Beckett was entered as an exhibit.

[11] Dr. Jacques testified that his patient suffers from multiple serious ailments consisting of depression, heart disease, Type 2 Diabetes, hypertension, renal impairment, loss of hearing, significant post-traumatic stress disorder and mild dementia. Dr. Clark first diagnosed dementia in 2012. H.B. takes numerous medications to control these illnesses and overall is coping as well as can be expected.

[12] Additionally, H.B. has another stressor in his life. His wife suffers from Alzheimer’s and requires care 24 hours a day.

[13] Dr. Jacques concludes that because of his many illnesses and the stressors of his spouse and the pending court case, H.B. would not have fully understood what was happening at the time of the plea. He states that H.B. might have been cognitively capable of participating in the proceedings but he would not appreciate fully the consequences of his plea. For H.B. to understand what was happening, it would have to be explained to him in a “simple” fashion.

[14] Further, Dr. Jacques testified that in his discussions with H.B., H.B. has always maintained his innocence on all of the charges. He stated that the only reason he pled guilty was because of his understanding that he was going to get house arrest.

[15] H.B. testified that following the charges, he retained Mr. Beckett. He had numerous interviews with him to discuss the case. However, he does not remember what was discussed at those meetings. His explanation for not remembering is that he is a sick person and has multiple stressors.

[16] H.B. testified that prior to the plea, Mr. Beckett informed him of the cost of proceeding he concluded that he could not afford to continue. His understanding was that on a plea, a conditional sentence would be imposed. At no time was he told that he could face a penitentiary term but there was a discussion of a one year period of incarceration and a one year term of house arrest. He was under the impression that a court would impose house arrest because of his age, his numerous health issues, and the fact that he has to care for his spouse. Accordingly, because of economics and his expressed desire not to have the complainant testify he decided to plead.

[17] H.B. testified that at the hearing, he was confused and had difficulty hearing what was going on. He basically followed what Mr. Beckett told him to do. After each count was read, he was to answer guilty.

[18] His main recollection of November 24, 2014, is that he could not hear what was being said and he had no idea of what was going on. Mr. Fournier informed him later that the Crown was seeking a term of five years imprisonment and had he known of the Crown’s position, he never would have pled since he is innocent of all charges.

[19] Mr. Beckett indicates in his affidavit that he was aware of H.B.’s medical and financial situations. He kept H.B. apprised of all of his discussions with the Crown and of the comments of the pre-trial judges. H.B. told him “he did not ever wish his daughter to testify”. Mr. Beckett goes onto state that he informed H.B. that the Crown was seeking a penitentiary term but a more realistic sentence would be one year in custody and one year of house arrest. Also that a guilty plea would be a mitigating factor since the complainant would not testify. His affidavit was not challenged.

[20] Because of change in his instructions, Mr. Beckett sent his client for independent legal advice. Subsequently, Mr. Beckett removed himself from the record.

The Law

[21] There is no dispute between the parties as to what the law is governing the striking of a plea. As stated by Durno J. in R. v. Musoni:

There is no absolute and unrestricted right to have a guilty plea withdrawn or a peace bond quashed. R. v. Moser, [2002] O.J. No. 552 (Ont. S.C.J.) at para. 40. There must be finality to the proceedings unless the demands of justice dictate otherwise. Moser para. 42. The party seeking to quash a guilty plea bears the onus of establishing the plea was invalid on the balance of probabilities. R. v. Easterbrook, [2005] O.J. No. 1846 (Ont. C.A.). There is no finite list of valid grounds to strike a plea although the main grounds are that the plea was involuntary, uninformed or equivocal. R. v. T. (R.) (1992), 17 C.R. (4th) 247 (Ont. C.A.).

Issues

Was the plea voluntary?

[22] H.B. contends that his plea was not voluntary since it was not a conscious decision that he could make considering his health issues, his stressors, and his financial situation. Dr. Jacques supports this contention when he states that it would have been difficult for him to understand what was happening unless it was explained in a “simple” fashion.

[23] I do not accept H.B.’s contention for the following reasons:

[24] The pleas resulted after lengthy negotiations between experienced counsel. As early as August 12, 2014, the Crown wrote Mr. Beckett requesting confirmation that his client would plead guilty to the allegations involving his daughter and that H.B. intended to proceed to trial on allegations by another complainant.

[25] The Crown also indicated that a new indictment would be prepared and that the trial coordinator should be informed of the anticipated guilty pleas involving the first complainant.

[26] October 14, 2014, the Crown wrote to Mr. Beckett to determine if H.B. intended to accept responsibility for the three offences. The Crown also enclosed an “agreed statement of facts.” The Crown also indicated that the other charges would be withdrawn. The Crown requested confirmation by October 21, 2014.

[27] On November 6, 2014, Mr. Beckett replied as follows:

H.B. will be entering pleas of guilt to the three counts in the indictment. As to the facts, he will accept the agreed statement of facts except the allegation that refers to actions taken when she was four years old. He is quite adamant that nothing happened before ages eight and nine. We will request a pre-sentence report on the date of the plea and set a date for sentencing.

[28] I do not accept the evidence of H.B. and Dr. Jacques’ opinion that H.B. had no conscious understanding of what was happening. I do accept the evidence of Mr. Beckett, an experienced criminal lawyer that he apprised H.B. of all of the proceedings and the discussions that took place between himself and the Crown. It would be extremely unwise of any counsel to enter into the detailed discussions that he and the Crown undertook without the client’s involvement and knowledge.

[29] The exchange of correspondence clearly displays H.B.’s involvement in amending the agreed statement of facts. Specifically, the facts were to reflect that no actions took place before the complainant was four years old “nothing happened before ages eight and nine.” This information would have had to come from H.B. directly and to say now that he does not remember, does not assist his position.

[30] I can appreciate why Dr. Jacques would opine that his patient had no understanding of what was happening during the negotiations of the plea. His opinion is based strictly on what his patient told him. Dr. Jacques was not aware of what discussions took place between the Crown and Mr. Beckett and more particularly, of H.B.’s involvement. I fully appreciate that Dr. Jacques is testifying for the best of interest of his patient however, I cannot accept his opinion.

[31] I also do not accept H.B.’s contention that he had no understanding of what the possible penalty could have been. On this particular issue, I find that H.B. on this issue was evasive and had a very convenient memory. All he could remember was the term “house arrest.” He could not remember being advised by Mr. Beckett that the Crown would be seeking a penitentiary term or for that matter, any type of imprisonment except for “house arrest.” He finally did acknowledge that he was told that the decision would be for the judge to make but that he was convinced that in all likelihood house arrest would be the eventual result.

[32] My conclusion is reinforced when I read H.B.’s affidavit and in particular, paragraphs 10, 11, and 12. These clearly state that Mr. Beckett advised him that he could possibly receive a custodial sentence of up to one year and then a further sentence of house arrest. Although house arrest was his expectation, he fully understood that the judge had the final say in sentencing.

[33] Again, on this point, I accept the evidence of Mr. Beckett and conclude that H.B.’s plea was voluntary.

Was the plea informed?

[34] An informed plea is one where the accused understands the nature of the charges he is facing, the legal effect of the plea and the consequences of such a plea.

[35] Much of what I have stated previously applies to this test as well.

[36] I do not accept that H.B. was not aware of the discussions that led up to his eventual plea. He readily admits that he met with Mr. Beckett on numerous occasions. He stated that he does not recall the context of the discussions but he does remember that the meetings were brief and hurried.

[37] H.B. was an engaged witness in these proceedings and on several occasions I had to admonish him about his outbursts towards Crown counsel and towards his spouse. I find H.B. to be an aggressive and controlling person I cannot conclude that he would have been passive in his discussions with counsel during these negotiations.

[38] I find that H.B. has had numerous health issues and stressors but I cannot accept his contention that he did not understand what was happening during the negotiations and when he attended in court on November 24, 2014.

[39] Dr. Jacques` evidence as to his ability to understand and engage in these discussions is somewhat incongruous. On the one hand, he asks me to accept that because of his illnesses and his stressors and mild dementia he could not appreciate what was happening. On the other hand, he asks me to accept that with these same challenges, he is capable of caring for his spouse who is afflicted with Alzheimer’s. Further, he drives himself and his spouse without any restrictions.

[40] Surely, those activities require a fair degree of cognitive ability while doing them.

[41] I conclude H.B. did enter an informed plea and that as the Crown stated, he is now “second guessing” his decision.

Was the plea unequivocal?

[42] For a plea to be unequivocal, the…“circumstances” should not be such that the plea was unintended or confusing, qualified, modified, or uncertain in terms of the accused acknowledgement of the essential legal elements of the crime charged. See R. v. T. (R), [1992], 10 O.R. (3d) 514 (ONCA).

[43] On November 24, 2014, in court the following exchange took place:

THE COURT: Okay. Now Mr. Beckett, the other matter is, since it’s gonna be a plea of guilty, has your client been informed of the consequences of the plea, and is he still prepared to proceed under those circumstances?

MR. BECKETT: I’ve gone through the test in Section 606 and this is a voluntary plea Your Honour.

THE COURT: H.B., do you understand that sir?

H.B.: Yes, I do.

THE COURT: And you’re prepared to proceed then?

H.B.: Yes.

[44] After the Crown had read in the agreed statement of facts, Mr. Beckett made the following acknowledgement:

The court may accept those for the purposes of the plea sir.

[45] There is no indication whatsoever that at the time of the plea, H.B. had any difficulty hearing what was transpiring. There is no evidence of coercion or ambiguity in his plea. At no time did he contest the facts that were read in.

[46] I find that H.B. was unequivocal in his plea and I do not accept his contention that he merely did what Mr. Beckett told him to do. He may very well have followed what Mr. Beckett told him to do however, by then he knew exactly what was going to happen. I conclude that the plea was unequivocal.

Conclusion

[47] H.B. has not succeeded convincing me on a balance of probabilities that his pleas should be withdrawn. Accordingly, the application is dismissed and the return date for other outstanding matters is set to August 23, 2016, at 9 a.m.

The Honourable Mr. Justice Robert G.S. Del Frate

Released: August 2, 2016