Court File and Parties

Court File No.: CR-18-30000030-00AP Date: 2018-12-10 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Rohan Shawn Getfield

Counsel: P. Alexander, for the Crown/Applicant D. Achtemichuk, for the Appellant/Respondent

Heard: 20 July 2018

Judge: s.a.Q. Akhtar J.

Factual Background and Overview

Introduction

[1] The appellant pleaded guilty to the offences of assault with a weapon, assault causing bodily harm, and failing to comply with the terms of his recognizance, on 26 November 2015, before Brownstone J. of the Ontario Court of Justice. He was sentenced to a total of 195 days imprisonment with the equivalent of 158 days of pre-sentence custody deducted, leaving 37 days to be served. In addition, the court made a number of ancillary orders including a period of probation, the taking of DNA, and a s. 109 weapons prohibition.

[2] The appellant appeals both conviction and sentence, arguing as one of his grounds that he pleaded guilty without knowing the adverse immigration consequences flowing from the sentence.

[3] Upon receiving the Notice of Appeal, the Crown requested the appellant waive solicitor-client privilege so that it could contact the counsel who appeared for the appellant at his sentencing hearing (“trial counsel”) and obtain evidence of the discussions that occurred prior to plea. The appellant refused, claiming that a waiver was neither necessary nor mandatory.

[4] The Crown applies for an order asking this court to find that the Superior Court of Justice Protocol – Allegations of Incompetence (“the Protocol”), contained in Schedule 1 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, governs the appeal and requires the appellant to provide a waiver of privilege.

Position of the Parties

[5] Mr. Alexander, for the Crown, argues that this appeal, alleging an uninformed plea, must follow the procedural framework governing the hearing of appeals alleging ineffective assistance of counsel. That framework obliges the appellant to provide a waiver of privilege so that the Crown may communicate with the appellant’s trial counsel to determine whether the appellant was informed of any adverse immigration consequences that would flow from a plea of guilty.

[6] Ms. Achtemichuk, in response argues that the Protocol does not apply because the appellant does not specifically allege incompetence or ineffective assistance of counsel. She submits that in the absence of such an allegation, forcing the appellant to conform to the requirements of the Protocol would be unnecessary, laborious and wasteful. She further argues that where an appellant argues an uninformed plea, the issue of waiver should be decided on a case-by-case basis.

The Procedural Protocol

[7] Rule 40.19 of the Criminal Proceedings Rules states that:

40.19 (1) Where a notice of appeal, factum or appeal in writing includes a direct or indirect allegation that the appellant’s trial counsel was incompetent or for any other reason provided ineffective assistance, the counsel filing the notice of appeal, factum or appeal in writing and the respondent shall notify the clerk of the appeal court forthwith of the allegation.

(2) Upon being notified in accordance with subrule (1), the clerk of the appeal court shall set a date for the attendance of the parties for directions by a judge.

(3) Where a notice of appeal directly or indirectly raises the issue of incompetence or ineffective assistance of counsel at trial, the parties to the appeal shall comply with the Superior Court of Justice Protocol – Allegations of Incompetence (Schedule 1).

[8] The Protocol creates the procedural structure to be followed in appeals based on allegations or incompetence of counsel. Paragraph 1 states:

1. Before raising the incompetence or ineffective assistance of counsel, or that counsel otherwise contributed to a miscarriage of justice, appellate counsel has an obligation to satisfy themselves as soon as possible, by personal inquiry or investigation, that there is some factual foundation for the allegation, apart from the instructions of the appellant. [Citations omitted]

[9] Amongst its numerous directions, the Protocol provides direction that appellate counsel should notify trial counsel, provide the Notice of Appeal to trial counsel, seek a waiver of solicitor-client privilege, and file that waiver with the Notice of Appeal.

Does the Protocol Apply to Allegations of Uninformed Pleas?

Does an Uninformed Plea Fall Within the Wording of the Protocol?

[10] As noted, the Protocol applies not only to direct allegations of incompetence or ineffective assistance of counsel, but also to indirect allegations: Criminal Proceedings Rules, r. 40.19(3).

[11] Paragraph 1 of the Protocol appears to expand upon the meaning of “indirect allegation” namely a claim that counsel contributed to a miscarriage of justice.

[12] Mr. Alexander contends that where an appellant has been represented by counsel and subsequently asserts that his plea was uninformed, the appeal amounts to an indirect allegation that “counsel contributed to a miscarriage of justice”. As a result, he says the appeal falls within para. 1 of the Protocol and must comply with the framework set out therein.

[13] I am not sure that a “miscarriage of justice” is required to trigger the application of the Protocol. The language of Rule 40.19(3) requires that a direct or indirect allegation of ineffective assistance. In my view, a claim that a plea was uninformed would satisfy that requirement as it indirectly alleges ineffective assistance by the claimant’s counsel. That, of itself, would mean that the Protocol would govern the process so long as the claimant indicated a link between the plea and the lack of information or advice provided by counsel.

[14] Assuming that Mr. Alexander is correct and that a “miscarriage of justice” is required, I would find, for the following reasons, that an appeal based on the ground that an a plea was uninformed would constitute an allegation that the counsel contributed to a “miscarriage of justice”.

[15] The term “miscarriage of justice” has been the subject of jurisprudence relating to s. 686 of the Criminal Code which deals how the curative proviso should be implemented at the appellate level.

[16] In R. v. Khan, 2001 SCC 86, 2001 SCC 286, [2001] 3 S.C.R. 823, at para. 69, the Supreme Court of Canada described the curative proviso as being inapplicable where a miscarriage of justice had occurred, defining that scenario as where “[t]he essential question in that regard is whether the irregularity was severe enough to render the trial unfair or to create the appearance of unfairness.” See also: R. v. Fanjoy, [1985] 2 S.C.R. 233[1985] 2 S.C.R. 233, at p. 240; R. v. Arradi, 2003 SCC 23, at para. 39; and R. v. Davey, 2012 SCC 75 at paras. 50-51.

[17] In R. v. Wong, 2018 SCC 25, the most recent Supreme Court of Canada authority on uninformed pleas, the court drew a distinction between allegations of ineffective assistance of counsel and claims of uninformed guilty pleas. Wong did not address the procedural framework to be applied in such cases: the issue was not raised because the evidence was made available to the court in that case. Instead, it focused on the substantive test, and a distinction was made between the proper approach to claims of uninformed pleas and to allegations of ineffective assistance of counsel. At para. 24, the majority of the court wrote:

[W]e agree with our colleague that the ineffective assistance of counsel framework has no relevance to this case (Wagner J.'s reasons, at para. 60). That framework focuses on the source of the misinformation (or incomplete information) rather than the misinformation itself. Assessing whether prejudice arises from misinformation does not depend upon its source. As Saunders J.A. explained at the Court of Appeal, the particular miscarriage of justice engaged in this case arises from the invalidity of Mr. Wong's plea (2016 BCCA 416, 342 C.C.C. (3d) 435, at para. 24).

[18] Significantly, at para. 5 of Wong, the majority agreed with the dissenting opinion that prejudice giving rise to a miscarriage of justice had to be established before a guilty plea could be vacated.

[19] It therefore follows that when advancing a ground that the plea was uninformed, the appellant is alleging a miscarriage of justice.

[20] The next question is whether that ground of appeal alleges, either explicitly or by implication, that trial counsel contributed to the miscarriage of justice. In my view it does.

[21] There is no doubt that defence counsel are expected to inquire into and advise upon the immigration consequences of a plea of guilt. This principle was acknowledged by Wagner J., writing for the dissent, (although not on this point), in Wong, at para. 73:

The seriousness of these consequences has led Canadian courts to adopt the broader approach and accept that an accused person's awareness of immigration consequences is relevant to the determination of whether his or her plea is sufficiently informed. As a matter of practice, it is also well established in Canada that defence counsel should inquire into a client's immigration status and advise the client of the immigration consequences of a guilty plea, and that counsel should raise the immigration consequences that might result from the client's being convicted or from a particular sentence that might be imposed at a sentencing hearing. This practice is reflected in the following criminal practice form, checklists and guidelines prepared by Legal Aid Ontario and various law societies to ensure that accused persons are entering informed guilty pleas: [citations omitted]

The provision of aids such as these by institutions of the legal profession illustrates an increasing acceptance that awareness of collateral immigration consequences is highly relevant in the criminal context and forms part of an informed guilty plea.

[22] Thus the claim that the plea was uninformed gives rise to the concern that defence counsel did not “inquire and advise” on the immigration consequences. Such an appeal therefore engages the possibility that counsel contributed in some way to a miscarriage of justice.

[23] I do not accept Ms. Achtemichuk’s submission that the case law indicates that a failure to provide advice on potential immigration consequences of a plea does not amount to ineffective assistance or incompetence on the part of counsel. The cases relied upon by Ms. Achtemichuk, R. v. Shiwprasad, 2015 ONCA 577, 328 C.C.C. (3d) 191, and R. v. Argueta, 2017 ONSC 230, explicitly decline to determine the issue, leaving it open.

[24] Accordingly, I find that this appeal is governed by the Protocol and the appellant should provide a waiver of solicitor-client privilege in order to proceed with the appeal.

Other Considerations

[25] Notwithstanding my conclusion that an appeal based on an uninformed plea of guilt falls within the definition of the Protocol, I would add that there are several practical considerations that require the application of the Protocol to these appeals. Those considerations would justify the application of the Protocol even if a miscarriage of justice were not alleged.

(1) The Crown’s Ability to Properly Respond

[26] The first is the ability of the Crown to properly respond to the appeal. As has already been noted, when an appellant raises the claim of an uninformed plea, the first question is what the appellant actually knew. As the majority in Wong, at para. 9, made clear, “the accused must first show that he or she was unaware of a legally relevant collateral consequence at the time of pleading guilty.”

[27] The court continued, at paras. 25-27:

Our framework is premised upon the view that judicial scrutiny must be directed to how the accused, and no one else, would have proceeded. The question to be answered is whether the accused would have acted differently, had he or she been armed with the knowledge of the legally relevant consequence.

That the analysis focusses on the accused's subjective choice does not mean that a court must automatically accept an accused's claim. Like all credibility determinations, the accused's claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances. Courts should therefore carefully scrutinize the accused's assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility. Such factors may include the strength of the Crown's case, any concessions or statements from the Crown regarding its case (including a willingness to pursue a joint submission or reduce the charge to a lesser included offence) and any relevant defence the accused may have. The court may also assess the strength of connection between the guilty plea and the collateral consequence, that is, whether the trigger for the collateral consequence is the finding of guilt as distinct from a particular length of sentence. More particularly, where the collateral consequence depends on the length of the sentence -- keeping in mind that a guilty plea typically mitigates a sentence -- the court may have reason to doubt the veracity of the accused's claim.

While our colleague refers to similar factors (at para. 105), he would consider them in assessing whether a reasonable person in the accused's circumstances would have been influenced in their decision to plead guilty by the information. Again, we see the analysis differently. To reiterate, it properly operates from the standpoint of the accused, and what the accused would or would not have done, knowing of the legally relevant consequence. [Emphasis added]

[28] The focus on the appellant’s actions and knowledge engages the reality, described earlier, of the presumption that defence counsel had advised the appellant of any collateral consequences to the plea.

[29] In seeking to rebut the claim that the appellant was uninformed, it is unthinkable that the Crown could not have access to the advice given by trial counsel prior to plea. Indeed, if Ms. Achtemichuk’s argument were to succeed, not only would the Crown be precluded from access to that information prior to the appeal hearing, solicitor-client privilege would bar it from cross-examining the appellant on this critical issue at the appeal proper.

[30] The majority’s direction in Wong that appellate courts carefully examine the credibility of the appellant’s assertions using “objective, circumstantial evidence” also indicates that the entire evidentiary tapestry must be placed before the court. See also: R. v. Archer (2005), 202 C.C.C. (3d) 60, at para. 159.

[31] There could be no better evidence with respect to the appellant’s knowledge than the advice of counsel and the appellant’s corresponding instructions before the plea was entered. Trial counsel’s evidence on pre-plea discussions would also be able to address other salient issues identified in Wong such as the strength of the Crown’s case and potential defences.

[32] Ms. Achtemichuk argument that the privileged information is unnecessary because the appellant makes no claim of ineffective assistance or incompetence has no merit. The appellant cannot bar the Crown and the court from access to critical - if not determinative - information simply by dressing up the ground of appeal in a superficially benign way.

[33] Nor do I accept Ms. Achtemichuk’s submission that because the appellant has an evidentiary burden, he is able to determine, as a matter of strategy, what evidence will be advanced to support his claim. According to Ms. Achtemichuk, a waiver only becomes necessary if the appellant chooses to rely on privileged evidence.

[34] I respectfully disagree. It would be an absurdity if an appellant was able to dictate what evidence could be obtained, reviewed and used to test his credibility and veracity on the issue of a lack of knowledge.

[35] When an appellant seeks to overturn a process that brings finality to the proceedings, they open the door for the Crown and the court to have access to any information relevant to their claim. There can be no dispute that this information must include the discussions with counsel prior to plea.

[36] When basing an appeal on a lack of awareness of immigration consequences, the appellant is explicitly or implicitly alleging that their own counsel did not explain those consequences. In that situation, the appellant is the guardian of the only source of information that would clarify whether such advice was given. It would be most unfair for the appellant to advance this position without the possibility for rebuttal.

Fairness to Trial Counsel

[37] Secondly, as I have already noted, even though an uninformed plea might not explicitly allege incompetence or ineffective assistance by trial counsel, the claim, by implication, raises a dark cloud over the advice given by trial counsel and imputes a failure by counsel to have acted properly.

[38] In my view, it would be deeply unfair not to allow trial counsel to provide a response. In Archer, where ineffective assistance of counsel was alleged, the court stated at para. 159:

Trial counsel was entitled, if not duty bound, to respond to the appellant's allegations against him. Not only was he entitled to respond so as to vindicate his own personal and professional reputation, there was a real danger that this court would be misled if only the appellant's version of the relevant events was before it. Counsel's duty to the proper administration of justice required that he cooperate in placing before the court the full picture of the relevant events. Nothing in counsel's affidavit goes beyond responding to the allegations of wrongdoing made against him.

A Speedier Resolution

[39] Thirdly, application of the Protocol would in many cases lead to the speedy resolution of the appeal. If trial counsel had provided the advice and had evidence of that provision, the appellant’s appeal counsel might well come to the view that the chances of success were so negligible that it was no longer viable to proceed. On the other hand, if trial counsel conceded that they had not provided the requisite information on collateral consequences, the Crown might take the view that the appeal should be conceded as the plea was no longer defensible.

[40] This is a clear answer to Ms. Achtemichuk’s assertion that applying the Protocol would be laborious and wasteful. In my view, the opposite is true.

Does the Allegation of Uninformed Plea Impliedly Waive the Privilege?

[41] The Crown’s alternative argument is that by grounding an appeal on a lack of awareness of uninformed consequences of a plea, the appellant has impliedly waived solicitor-client privilege. The jurisprudence appears to support the Crown’s position.

[42] In R. v. Dunbar (1982), 68 C.C.C. (2d) 13, the appellant alleged misconduct on the part of his former counsel, when cross-examined at the appeal hearing. Martin J.A. remarked, at para. 67, that:

Dean Wigmore states that when the client alleges a breach of duty by the attorney the privilege is waived as to all communications relevant to that issue: Wigmore on Evidence, (McNaughton Rev.), vol. 8 at p. 638. In McCormick on Evidence, 2d ed., the author states at p. 191:

As to what is a controversy between lawyer and client the decisions do not limit their holdings to litigation between them, but have said that whenever the client, even in litigation between third persons, makes an imputation against the good faith of is attorney in respect to his professional services, the curtain of privilege drops so far as necessary to enable the lawyer to defend his conduct. Perhaps the whole doctrine that in controversies between attorney and client the privilege is relaxed, may best be based upon the ground of practical necessity that if effective legal service is to be encouraged the privilege must not stand in the way of the lawyer's just enforcement of his rights to be paid a fee and to protect his reputation. The only question about such a principle is whether in all cases the privilege ought not to be subject to the same qualification, that it should yield when the evidence sought is necessary to attainment of justice.

[43] Martin J.A. added, at para. 72:

It appears to be clear that where the client on direct examination testifies to a privileged communication in part, this is a waiver as to the remainder of the privileged consultation or consultations on the some subject. Dean McCormick suggests that unless the client was surprised or misled the same rule should apply where part of the communication is revealed on cross.examination, and that the decisions to the contrary are hardly supportable.

[44] Ms. Achtemichuk argues that there has been no implied waiver because the appellant does not allege a breach of duty by counsel. For the reasons set out earlier, I am of the view that even though the appellant, in this ground of appeal, does not make explicit allegations of a breach of duty, there is an indirect assertion that proper advice was not given.

[45] Moreover, as noted, when the appellant asserts that they were unaware of the consequences of a plea in order to overturn that instance of finality, the Crown, and the appellant’s trial counsel must be able to properly investigate and respond to that assertion.

[46] In Archer, at para. 155, the court remarked that once allegations of ineffective assistance are made by an appellant, “it was essential that the Crown make a detailed inquiry into those allegations”. The court agreed that a duty of loyalty was owed by trial counsel to an appellant in these circumstances but held that trial counsel had the right to disclose confidential information in defending themselves against an allegation of misconduct or wrongdoing. At para.159, the court added:

Trial counsel was entitled, if not duty bound, to respond to the appellant's allegations against him. Not only was he entitled to respond so as to vindicate his own personal and professional reputation, there was a real danger that this court would be misled if only the appellant's version of the relevant events was before it. Counsel's duty to the proper administration of justice required that he cooperate in placing before the court the full picture of the relevant events. Nothing in counsel's affidavit goes beyond responding to the allegations of wrongdoing made against him.This passage would appear to indicate that an allegation of wrongdoing against counsel would justify waiver of solicitor-counsel privilege even if an explicit written waiver had not been provided.

[47] Based on these principles, I find that an appeal based on the allegation of an uninformed plea, by implication, results in a waiver of solicitor-client privilege to the extent that the Crown is able to fully investigate and respond to that allegation.

Conclusion

[48] For these reasons, I find that the Protocol applies to any appeals seeking to vacate a plea of guilt on the basis that they were entered because the appellant was unaware of collateral consequences.

[49] The Crown’s application succeeds and the appellant must provide a waiver of solicitor-client privilege for his appeal to proceed.

[50] I would like to commend both counsel on their excellent materials and advocacy.

Released: 10 December 2018 S.A.Q. Akhtar J.