CITATION: R. v. Rajakulasooriyar, 2017 ONSC 1189

COURT FILE NO.: CR-15-50000067-00AP

DATE: 20170221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

THUSHEYANTHAN RAJAKULASOORIYAR

Appellant

Danielle Carbonneau, for the Crown, Respondent

Lance Beechener, for Mr. Rajakulasooriyar, Appellant

HEARD: February 14, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] The Appellant pleaded guilty to “over 80”. He now says that his plea was not free and voluntary due to great psychological pressure. He wants a new trial, as there are triable issues. I agree. For the reasons that follow, a new trial is ordered.

BACKGROUND

[2] The Appellant was arrested on August 2, 2015. He was charged with impaired driving, and operating a motor vehicle with more than 80 mg of alcohol per 100 millilitres blood – also known as “over 80”. As he was on bail at the time, he was also charged with fail to comply with a recognizance. Rather than release him, the police held him for a show cause hearing. He appeared in bail court on August 3, 2015. Based on his criminal record and his outstanding charges, the Crown sought a detention order. The Crown also sought to revoke his previous bail. He appeared the next day in bail court and was adjourned to August 5, 2015 so that his lawyer could be present.

[3] The next day, August 5, 2015, the Appellant appeared in bail court. His matter was traversed before Justice DiZio of the Ontario Court of Justice. He confirmed he wished to plead guilty but asked for a few moments with duty counsel. He then conferred with duty counsel. Duty counsel indicated that he could not represent the Appellant on the plea. Justice DiZio then conducted a plea inquiry to determine whether the Appellant’s guilty plea was free and voluntary. The Appellant indicated that it was. He was then arraigned and entered his plea. As the Crown read in the facts, the Appellant began to dispute some of them. Justice DiZio indicated that there might have been a triable issue and struck the plea. Justice DiZio stated just before striking the plea:

THE COURT: You’re telling me you might have a defence to this, but you want to plead guilty. Maybe if you hadn’t told me about all this defence I would have, you know…

[4] The Appellant’s matter was adjourned one day.

[5] The next day, on August 6, 2015 the Appellant appeared before Justice Budzinski. He again indicated that he wished to plead guilty. He was again unrepresented. Justice Budzinski conducted a plea inquiry. He asked the Crown to read the anticipated facts to the Appellant so that there would be no misunderstanding. The Appellant indicated that he understood the facts and still wished to plead guilty. He was arraigned on count 1 (impaired driving) and count 3 (fail to comply with recognizance. He pleaded guilty. Crown counsel read in the facts. The Appellant agreed that the facts were correct. Justice Budzinski found the Appellant guilty. There was no mention on the record that Justice DiZio had struck a guilty plea the day before.

[6] Justice Budzinski asked for sentencing submissions. The Appellant requested an intermittent sentence. He indicated that he was working at a restaurant. He also indicated that he was being assessed for his depression, and had a medical appointment the next day. Justice Budzinski imposed a 30-day intermittent sentence concurrent on both counts, twelve months probation, and a driving prohibition for 12 months.

[7] The Appellant has now served his custodial sentence in full and his probation. His driving prohibition was not yet complete as of the hearing of this appeal.

ANALYSIS

[8] The Appellant now appeals on the basis that his plea was not free and voluntary. He seeks to introduce two affidavits, his cross-examination transcript, and various related exhibits. The Crown consents to the admission of this material as fresh evidence on the appeal. The Crown accepts that it is in the interests of justice for the court to consider this material along with the trial record. I agree with the Crown on this point: R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 at para. 12 (C.A.); R. v. Krzehlik, 2015 ONCA 168 at paras. 3-5.

[9] Mr. Beechener argues that the Appellant’s plea was not valid. He argues that the Appellant was under pressure to plead guilty in order to access psychiatric care. Mr. Beechener was careful not to argue that the Appellant’s plea was involuntary in the sense that he was unfit by reason of a mental disorder. Rather, his position is that the Appellant was desperate to obtain treatment. As a result he was willing to plead guilty in order to obtain that treatment. This desperation robbed him of the conscious ability to make a voluntary decision.

[10] I agree.

[11] The test for the validity of a guilty plea was set out by Doherty J.A. in T.(R.), supra. In order for a plea to be valid, the plea must be voluntary and unequivocal. Doherty J.A. further stated that the plea must also be informed, in the sense that the accused must be aware of the nature of the allegations, the effect of the plea, and the consequences of the plea: R. v. T.(R.) at para. 14. The onus is on the person seeking to set aside the plea: R. v. T.(R.) at para. 12.

[12] Hill J., in R. v. Moser (2002), 2002 CanLII 49649 (ON SC), 163 C.C.C.(3d) 286 (Ont.Sup.Ct) stated the proposition this way (I excerpt the key points):

A plea of guilty must be voluntary in the sense that the plea is a conscious volitional decision of the accused to plead guilty for those reasons which he or she regards as appropriate… What is unacceptable is… any circumstance personal to the individual which unfairly deprives the accused of free choice in the decision not to go to trial… There is, of course, no closed list of circumstances calling into question the voluntariness of a guilty plea: pressure from the court… pressure from defence counsel… incompetence of defence counsel… cognitive impairment or emotional disintegration of the accused… effect of illicit drugs or prescribed medications… [citations omitted].

[13] This case has some similarities to R. v. Tawil, 2015 ONSC 6387. The accused in that case suffered from a painful spinal condition. There were difficulties obtaining that medication in custody; as well, he was subject to assaults and intimidation that made the condition worse. He pleaded guilty to assaulting his wife. He then appealed on the basis that his guilty plea was not free and voluntary. Forrestal J. stated the following at paras. 32-34:

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.

[14] In R. v. M.A.W., 2008 ONCA 555, 237 C.C.C. (3d) 560 the Ontario Court of Appeal considered the standard to be applied where an appellant claims that his or her plea was not voluntary because of a mental disorder. Laskin J.A. for the Court considered competing theories of involuntariness. The Crown argued that the same standard should be applied to whether an accused person is fit to stand trial: that an accused person understands the process, can communicate with counsel, and can make an active or conscious choice. The defence argued that a higher standard was required in order to prevent miscarriages of justice. Laskin J.A. ultimately came down on the side of the “limited cognitive capacity” test for fitness to stand trial. In his view, it made little sense that an accused person could be fit to instruct counsel or decide give evidence in the course of a trial, but not fit to make a decision to plead guilty. Laskin J.A. described the standard that must be met as follows:

To succeed on this appeal, the appellant must show that his depression deprived him of the capacity to make an active or conscious choice whether to plead guilty, or the capacity to make a "conscious volitional decision ... to plead guilty ... for reasons which he ... regards as appropriate": see T.(R.), supra, at 520. He cannot succeed if he can merely show that his decision to plead guilty was not rational or in his best interests, or even that he was incapable of making a decision that was rational or in his best interests.

[15] The Crown argues that the Appellant’s evidence is not credible and does not rise to the level required to show that the choice to plead guilty was not conscious and volitional. The medical evidence, she argues, falls short of showing that there was an issue with his fitness to stand trial or make another informed choice. The medical records do not bear out any actual medical or psychiatric condition.

[16] The Appellant does not, however, argue that it was a psychiatric condition or disorder that robbed him of the ability to make a free and voluntary choice. He argues that it was the psychological pressure he felt to get to his mental health assessment. Whether or not the assessment bore out that he actually had a psychiatric condition or disorder is beside the point. I accept the Appellant’s argument on that point.

[17] Crown counsel also points out that the Appellant is well acquainted with the criminal justice system: T.(R.), supra, at para. 36. That is true. The Appellant has a significant criminal record. It begins in 1999. In 1999 he was convicted of assault causing bodily harm, and received a 6-month sentence. In 2002 the Appellant was convicted of one count of possession of a prohibited or restricted weapon and unauthorized possession of a firearm. He received 8 months concurrent on both charges in light of time served of 7 months. He has been convicted of uttering counterfeit currency; personation with intent; possession or use of fraudulent credit cards (3 counts); possession of property obtained by crime; assault (3 counts); fraud; and failure to comply with recognizance (5 counts). He is not exactly inexperienced in the criminal justice system.

[18] The Appellant’s mental health was at issue before Justice Budzinski as a potential driver of that criminal record. He told Justice Budzinski that he now recognized that he had a mental health problem and had already referred for a mental health assessment. His family doctor, Dr. Saito, had indeed referred him for a mental health assessment on April 15, 2015, about 3 ½ months prior to being arrested on these charges. The reason for the referral was given as “depression”. The referral form noted that the Appellant had a history of insomnia, mood change, and anxiety. The mental health assessment was to take place on August 19, 2015 with Dr. Dudek at Humber River Hospital.

[19] Crown counsel also notes several problems with the Appellant’s evidence. There certainly are problems. For example, the Appellant got some dates wrong. On August 5, 2015 he told Justice DiZio that he had a mental health assessment on August 8, 2015. On August 6, 2015, he told Justice Budzinski that the appointment was the next day, August 7. In his cross-examination he indicated that he lost track of the days while in custody, and believed that his appointment was on August 8. He stated that he simply made a mistake. The Crown says that it was a decision that he made to mislead the court.

[20] I find it difficult, however, to accept that submission. I accept the Appellant’s explanation that it was a mere mistake. I also accept his explanation that he became disoriented in custody as to the dates. Whether his appointment was the next day or the next week could not possibly have been a material fact for the trial judge in determining whether to impose an intermittent sentence.

[21] The Appellant filed two affidavits in support of his appeal. The first was a hand-written affidavit that was not dated. It was likely sworn on August 26, 2015, the same day that he filed his notice of appeal. His second appeal was sworn once he had counsel, on August 31, 2016, likely about a year later. He provided the clinical notes as an exhibit to his August 26, 2016 affidavit.

[22] There are some contradictions between the two affidavits. The key point, however, that the Appellant felt himself under great psychological pressure, is pressed in both. Although the Appellant was cross-examined in detail about the contradictions, he steadfastly maintained that point. I think it is important to note that the Appellant made an appointment for a mental health assessment before being arrested on these charges.

[23] It is also relevant that nobody told Justice Budzinski that the Appellant had tried and failed to plead guilty the previous day. That is something that Justice Budzinski could, and likely would, have taken account to: R. v. Daibes, 2015 ONSC 105 at para. 12. I agree with Mr. Beechener that what obviously happened was that the Appellant took Justice DiZio’s comment to heart (and by that I mean no criticism of Justice DiZio, who approached the issue with great care) and applied it in the hearing before Justice Budzinski.

[24] At the end of the day, I am persuaded on a balance of probabilities that the Appellant’s decision to plead guilty was not a conscious volitional choice.

DISPOSITION:

[25] The appeal is allowed. A new trial is ordered.

R.F. Goldstein J.

Released: February 21, 2017

CITATION: R. v. Rajakulasooriyar, 2017 ONSC 1189

COURT FILE NO.: CR-15-50000067-00AP

DATE: 20170221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

THUSHEYANTHAN RAJAKULASOORIYAR

Appellant

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R.F. Goldstein J.