R. v. Berhe, 2016 ONSC 8139

COURT FILE NO.: 38/14 & 39/14

DATE: 20161230

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

YOHANNES BERHE

Appellant

M. Sabat, for the Respondent

S. Wilson, for the Appellant

s.a.Q. akhtar j.

INTRODUCTION

[1] The appellant, Yohannes Berhe, appeals two separate convictions, the result of guilty pleas before Blouin J. on 7 March 2014, and Wolski J. on 22 August 2013. He argues, in both cases, that there was an ineffective assistance of counsel and the plea was not fully informed.

[2] The two appeals proceeded as a combined hearing due to the allegations made, the nature of which required viva voce evidence by the appellant and his former counsel.

[3] For the following reasons, both appeals are dismissed.

THE PLEA BEFORE BLOUIN J.

Factual Background

[4] On 7 March 2014, the appellant pleaded guilty to charges of uttering death threats and criminal harassment. The allegations with respect to uttering death threats arose on 30 December 2013, when the appellant contacted his welfare officer and, after an argument ensued, told her, “You are a whore. You are a fucking whore. I’m going to kill you, whore. You can’t hold my fucking cheque.”

[5] The allegations with respect to the criminal harassment concerned interactions between the appellant and Nora Cole, an employee of the appellant’s local Member of Parliament, Andrew Cash. Ms. Cole had previously assisted the appellant in dealings with the Canadian Revenue Agency (“the CRA”) and provided information about whom the appellant should speak to at the CRA. Subsequently, the appellant continued Ms. Cole, who had no desire to continue speaking to him. During one of their conversations, the appellant called Ms. Cole “a fucking bitch” and then went to her office, banging on the closed door. He returned on 13 January 2014. On both occasions, Ms. Cole was in the office but kept her door locked in order to avoid meeting with the appellant. Shortly afterwards, she contacted the police.

[6] During a pre-trial appearance on 25 February 2014, with disclosure outstanding, the appellant appeared on remand before a Justice of the Peace and demanded that he be traversed to the Old City Hall plea court. After some questioning by the court, the appellant indicated that he intended to plead guilty to the charges. His request was denied on the basis that he had not yet been given the victim’s statement.

[7] On 7 March 2014, before Blouin J., the appellant re-affirmed his intention to plead guilty after a plea enquiry had been held. The facts of both charges were read to the court. With respect to the criminal harassment charge, the Crown disclosed allegations which included the fact that “the victim was there and afraid and kept the door locked and would not let him come in” and that the victim “expressed concern about the appellant returning to the workplace and was anxious and afraid” of him. After the facts of each offence had been set out, the appellant confirmed his acceptance of them and was found guilty of both counts. Blouin J. imposed a suspended sentence with 2 years probation in addition to the 53 days of pre-trial custody served, to which a pre-sentence credit of 1.5:1 was applied.

The Appellant’s Position: the Plea before Blouin J.

[8] The appellant now argues that his plea was not fully informed for two reasons.

[9] First, he claims that he was unaware of a potential triable issue; he submits that Ms. Cole, in making her complaint to the police, did not actually indicate a fear of him. This ground of appeal is anchored in the appellant’s claims that he was not given disclosure before he entered the plea.

[10] Secondly, the appellant argues that he was unaware that the charges he pleaded guilty to carried immigration consequences. This, he claims, was as a result of not being properly informed by his counsel.

The Immigration Implications of the Appellant’s Plea

[11] The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IIRA”) provide as follows:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(3) The following provisions govern subsections (1) and (2):

(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

[12] Although a permanent resident of Canada, the appellant was born in Eritrea and immigrated to this country in 1988. Since then, he appears to have compiled a lengthy criminal record.

[13] Since criminal harassment is punishable by a maximum term of imprisonment of ten years, if proceeded by indictment, it fell within s. 36(1)(a) of the IIRA. Subsection (3) of the IIRA meant that notwithstanding that the Crown proceeded by way of summary conviction, the charge remained within the operation of subsection (1). By pleading guilty to criminal harassment, the appellant became subject to deportation after an immigration hearing.

A Valid Plea

[14] A voluntary plea of guilty must be informed and unequivocal. An appellant seeking to set aside a plea of guilt bears the burden of establishing its invalidity: R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519; and R. v. Eastmond, 2001 7498 (ON CA), at para. 6. The court may, in determining whether the appellant has met his onus, consider external evidence where appropriate, including affidavits and the viva voce of the appellant and former counsel: R. v. Krzehlik, 2015 ONCA 168, 124 O.R. (3d) 561, at para. 5.

[15] “A voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate” (citations omitted): T. (R.), at p. 520. In order for the plea to be informed, the appellant must be made aware of the allegations made against him as well as the effect and consequence of his plea: R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 371; T. (R.), at p. 519; and R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334, at para. 4.

[16] If, however, the appellant knew that deportation was a potential consequence of a guilty plea even though he did not appreciate how limited his options were to avoid that consequence, the plea is valid: R. v. Shiwprashad, 2015 ONCA 577, 337 O.A.C. 57, at para. 3.

Ineffective Assistance of Counsel

[17] In R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 347, at p. 59, the Court of Appeal for Ontario laid down three requirements to succeed in a claim of ineffective assistance of counsel.

[18] An appellant has the onus of establishing:

(a) the facts alleging incompetence;

(b) the actual fact that counsel was incompetent; and

(c) that the incompetence resulted in injustice.

[19] The Joanisse test was approved of by the Supreme Court of Canada in R. v. G.D.B., 2000 SCC 22, 2000 S.C.C. 22, [2000] 1 S.C.R. 520. At para. 27, Major J. set out a reviewing court’s approach to this type of allegation:

Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

[20] An appellate court must first decide whether the facts upon which the ineffective assistance claim is based have been established on a balance of probabilities. If so, the court must go on to decide if the alleged incompetence resulted in a miscarriage of justice. If there is no miscarriage of justice, the court need go no further: G.D.B., at para. 29. If, however, prejudice has been found to exist, the court proceeds to consider whether counsel was incompetent.

[21] In R. v. R.P., 2013 ONCA 53, 302 O.A.C. 78, leave to appeal refused, [2013] S.C.C.A. No. 133, Watt J.A., at para. 80, writing for a unanimous Court of Appeal for Ontario, explained the procedure in moving to the evaluation of counsel’s performance at trial:

The inquiry into prejudice examines the nature and seriousness of counsel’s alleged errors from two perspectives: the reliability of the verdict and the fairness of the process leading to that verdict: Joanisse, at p. 62. The nature of any incompetence demonstrated exerts a significant influence on the kind of inquiry required to determine the effect of that incompetence on the fairness of the trial: Joanisse, at p. 62. Where, as here, the claim of incompetence relates to specific decisions made or actions taken by trial counsel, the effect on the fairness of the trial is measured by the impact of the errors on the reliability of the verdict: Joanisse, at p. 63. The appellant must show that, with competent legal representation, there is a real probability that the appellant would not have been convicted: Joanisse, at p. 64; Strickland v. Washington, 104 S.Ct. 2052 (1984), at p. 2068.

[22] There is no doubt that an uninformed guilty plea may be caused by ineffective assistance of counsel and result in a miscarriage of justice requiring the quashing of the conviction: R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481. However, the mere assertion by an appellant that he would not have entered a guilty plea but for the ineffective assistance of counsel is insufficient without the proof of material facts: R. v. Ogden, 2013 NSCA 25, 327 N.S.R. (2d) 203; R. v. Short, 2012 SKCA 85, 399 Sask. R. 192; and R. v. Stockley, 2009 NLCA 38, 288 Nfld. & P.E.I.R. 56.

The Fresh Evidence

[23] As part of the appeal, both sides tendered fresh evidence in the form of affidavits sworn by the appellant and his former counsel, Coulson Mills, and both were cross-examined, in court.

The Affidavit Evidence

[24] In his affidavit, the appellant claimed that prior to his plea he had not seen the disclosure provided by the Crown and was unaware of the evidence against him. Having reviewed the disclosure after his plea, he discovered a flaw in the Crown’s case that had not beem communicated to him: Ms. Cole had not been afraid of him. The appellant contends that this is an essential legal element of the offence of criminal harassment. The appellant also indicated that he had not been aware of the immigration consequences of being convicted of criminal harassment and that had he known, he would have maintained a plea of not guilty. His motivation for pleading guilty was his month-long period of pre-conviction incarceration, which had deleterious effects on his health.

[25] Mr. Mills, in his affidavit, denied that the appellant did not know the full extent of the evidence against him. He made clear that he had discussed the contents of disclosure with the appellant in the cells at the Old City Hall and College Park courthouses as well as by telephone whilst the appellant was in detention. He could not, however, recall whether the immigration consequences had arisen in their conversations. Mr. Mills stated that he remembered “that interactions with the appellant were at all times challenging as the appellant sought throughout to control and dominate interactions.”

The Viva Voce Testimony

[26] In testifying, Mr. Mills re-affirmed his pre-plea discussions with the appellant. Significantly, he told the court that the appellant knew of the contents of Ms. Cole’s police statement. He restated that he could not remember raising any immigration issues with the appellant.

[27] The appellant also testified. I found him to be a very difficult witness: he was argumentative, evasive, constantly interrupting and challenging the Crown, and more interested in simply advancing his own position than answering any questions put to him. In short, his testimony lacked any semblance of credibility on the merits of either appeal. For example, when it was suggested to him that when he had previously been charged with respect to his prior convictions his lawyers explained his rights, the appellant responded in the negative, adding, “[t]hey don’t explain. I explain them, they don’t explain me.”

The Criminal Harassment Charge

[28] I turn first to the appellant’s argument that Ms. Cole’s statement did not make out the offence of criminal harassment.

[29] I had the benefit of reviewing the police notes describing the interview with Ms. Cole after her complaint. They record a series of question and answers which indicated the following: Ms. Cole described the appellant continually calling her office and being abusive towards her; he subsequently came to her office, banging upon the door; and when spoken to by Ms. Cole from behind the closed doorway, the appellant proceeded to yell at her, calling her a “white supremacist” and “racist”. Notably, she expressed her explicit concerns, telling the police, “I feel really uncomfortable, I feel really anxious and concerned he is going to come here and do something to me. I don’t know what he is capable of.” The interviewing officer noted that Ms. Cole was crying as she made these comments. She added, “I have never dealt with anyone that aggressive, that mad and that has made me feel like this before.” When asked whether she was afraid of him, she replied, “Ahhh. Yes, I’m afraid he is going to come to the office when I am alone and there will be a situation I can’t deal with.”

[30] These notes demonstrate Ms. Cole explicitly told the police of her fears regarding the appellant. Accordingly, I find that there can be no basis for the suggestion that the offence of criminal harassment could not be made out.

[31] Moreover, what emerges from the transcripts is that the appellant cared little about the disclosure before pleading guilty. On 25 February 2014, when the appellant appeared in set date court before a Justice of the Peace, Mr. Mills indicated that although he had received electronic disclosure from the Crown which included Ms. Cole’s statement to the police, he was unable to open it and therefore required a paper version which was forthcoming. The appellant, however, insisted that he wished to go to plea court. When told by this court that his counsel was awaiting Ms. Cole’s statement, the appellant repeatedly exclaimed that he was going to plead guilty that day and that he wished to be traversed to plea court.

[32] It is also clear that Mr. Mills had received disclosure of the victim’s statement by 11 February 2014, because he emailed the Crown to that effect. I also accept Mr. Mills’ evidence that he discussed the matter with the appellant prior to his plea. Mr. Mills’ copy of the police notes were tendered into evidence and demonstrate that he had highlighted the portions relating to Ms. Cole’s responses to police questions over threats to her safety.

[33] Finally, a full plea enquiry was conducted by Blouin J. prior to the plea, after which the Crown read out the full factual background relating to the offence. The appellant informed the court that his plea was voluntary and accepted the facts as set out.

[34] For the above reasons, I find the appellant to be fabricating his claims of not being fully informed by counsel, in order to avoid the consequences of his plea.

The Immigration Consequences

[35] The appellant also told the court, in cross-examination, that he had spoken to Mr. Mills about his immigration status. As previously noted, Mr. Mills testified that he did not recall any immigration issues being discussed with the appellant. The appellant’s claim that he had spoken to his counsel with respect to his immigration status was conspicuously missing from his affidavit and only emerged in cross-examination by the Crown. When asked to explain this omission, the appellant repeatedly failed to provide a coherent or credible answer.

[36] Moreover, the appellant’s testimony that he was unaware of the immigration consequences when pleading guilty to the criminal harassment charge is seriously undermined by his affidavit evidence, where he claimed to have been the subject of a removal order for a prior conviction. He claimed that the order had been stayed because he had not committed any offences for a period of three years. Assuming this to be true, the appellant must have known of the risk of potential immigration repercussions when pleading guilty to the offences before Blouin J.

[37] When challenged on this point, the appellant responded by telling the court that he believed that he would only be liable for deportation if he received a sentence in excess of two years. Once again, this information was absent from his affidavit. More significantly, it is unclear why he would hold this belief when, on his own evidence, he became the subject of the stayed deportation order after being sentenced to only 13 days pre-sentence custody for uttering a forged document in 2003. Despite his claim that this removal order was stayed, no documentation was ever produced in court to substantiate this claim.

[38] Similarly, I disbelieve the appellant’s assertion that he was unaware of the immigration consequences of the plea. I find this to be a case where the appellant knew that deportation was a potential consequence of his guilty plea but did not appreciate, or at the time care, how limited his options were to avoid that consequence as was the case in Shiwprashad. There, the court found that even if counsel had an obligation to advise the appellant with respect to immigration consequences prior to plea or arrange for such advice, there was no miscarriage of justice. I find the same principle applies in this case.

[39] Since the onus is on the appellant to establish the fact of incompetence and any resulting prejudice, I find that he has failed and that his appeal from the plea before Blouin J. is dismissed.

THE PLEA BEFORE WOLSKI J.

[40] On 22 August 2013, the appellant pleaded guilty to one count of failing to comply with a recognizance before Wolksi J. The substance of the allegation was that the appellant had breached a residence condition by failing to live at 77 Eastdale Road in Toronto between the dates of 11 April 2013 and 10 July 2013, with his surety and notify the court of any change in address within 24 hours.

[41] Although the Crown requested a custodial sentence of 30 days to be served in addition to 34 days pre-sentence custody, Wolski J. agreed with the defence that a sentence of time served or 1 additional day would be sufficient.

[42] The appellant appeals his 22 August 2013 plea on the basis that it was equivocal and involuntary due to his medical condition. He also claims that his counsel on the matter, Mr. MacAdam, failed to provide him with any disclosure and would not discuss the charges against him prior to the plea.

[43] I reject both contentions. First, with respect to the voluntary nature of his plea, the appellant made it clear during his appearance before Wolski J. that he wanted to plead guilty and did not dispute any part of the factual background during his plea appearance. Nor do I understand his former counsel, Mr. MacAdam, to be proffering a defence to the breach allegations when explaining the circumstances of the offence. In fact, Mr. MacAdam told Wolski J. that the appellant knew he was breaching his bail but did not take steps to vary that condition “until much too late”. I read Mr. MacAdam’s explanation as not only seeking to explain why the appellant could not reside at the address specified in his release conditions but also accepting that the appellant knew he could vary those conditions and failing to do so in a timely manner. That is the essence of the offence to which the appellant pleaded guilty, and I do not find a triable issue arises on the record placed before me.

[44] On this appeal, Mr. MacAdam testified that he had had several conversations with the appellant prior to the plea, explaining to the appellant that his protests against the charge - based on the bail variation that he had obtained - were meaningless because the variation was made outside the specified time limit. He told the court that during the course of his conversations, the appellant accepted the facts that gave rise to the guilty plea. If it had been otherwise, Mr. MacAdam made clear that he would not have assisted him with the plea and would have set a trial date. I find Mr. MacAdam’s account of events to make sense and to describe what truthfully occurred.

[45] By contrast, I do not accept the appellant’s evidence that he provided Mr. MacAdam with a surety that would have provided a defence to the charges. Mr. MacAdam did not testify to that effect nor was the suggestion put to him in cross-examination.

[46] Secondly, despite the appellant’s assertions that his mental and physical health impacted his decision to plead, no independent or confirmatory evidence was adduced to substantiate that claim. Mr. MacAdam, in his affidavit, made plain his view that “at no point, during any of our conversations did I get the sense that [the appellant] did not understand what was occurring with his matter or that he was not competent to provide instructions.”

[47] For the reasons set out earlier, I find the appellant to be an incredible witness who was simply seeking to revisit his pleas in the hope of retrospectively quashing them. For the same reason, I reject his evidence that Mr. MacAdam never explained the evidence against him or his options in setting a trial date. I accept Mr. MacAdam’s evidence that he discussed all matters with the appellant, who he claimed was an extremely difficult client. The record shows that the appellant wanted to plead guilty and raised no objections when the plea proceedings were undertaken.

[48] For the above reasons, I find that the appellant has failed to establish that his plea was involuntary or unequivocal. I also find that he has failed to meet his burden of establishing facts alleging incompetence on behalf of Mr. MacAdam.

[49] Accordingly, the appeal is dismissed.

S.A.Q. Akhtar J.

Released: 30 December 2016

CITATION: R. v. Berhe, 2016 ONSC 8139

COURT FILE NO.: 38/14 & 39/14

DATE: 20161230

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

YOHANNES BERHE

Appellant

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.