Court File and Parties

COURT FILE NO.: CR-16-14169-00AP DATE: 20180926 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DOUGLAS MARK CHERRY Appellant

COUNSEL: M. Flagg, for the Crown Self-Represented, for the Appellant

HEARD: August 31, 2018

Reasons for Decision

di luca j. :

[1] On March 18, 2018, the Appellant, Mr. Cherry, appeared before Justice Richards of the Ontario Court of Justice and entered guilty pleas to two counts on an information, in particular dangerous driving and driving while over 80. A joint submission resulted in a sentence of 75 days less pre-trial custody, which was calculated at 30 days – for an effective sentence of 45 days in jail and in addition a three year driving probation. Three other charges were withdrawn at the request of the Crown, in particular fail to comply with probation, assault resist arrest and impaired driving.

[2] At the time of the plea, Mr. Cherry was represented by counsel.

[3] Mr. Cherry now seeks to set aside his guilty plea on the basis that his counsel was ineffective. He combines this submission with a claim that when he entered the plea he was under undue pressure from certain circumstances, including the fact that he had been on a hunger strike for a number of days, the fact that his proposed surety had decided not to assist with bail and the fact that he had been recently advised that his sister had fallen gravely ill.

[4] Fresh evidence from both Mr. Cherry and his trial counsel have been filed in affidavit form. Mr. Cherry was cross-examined on his affidavit and I have been provided with a transcript of that evidence. When this matter came before me on July 18, 2018, Mr. Cherry indicated that he wanted to cross-examine trial counsel on her affidavit. The appeal was adjourned so that Mr. Cherry could be given that opportunity and the cross-examination was done before me today.

Background Facts

[5] Mr. Cherry was arrested on February 28, 2016, and charged with the five criminal offences that are the subject of this appeal. He made a number of appearances in bail court and then retained counsel. Counsel had been referred to Mr. Cherry by one of her other clients who was in custody with Mr. Cherry. Counsel commenced work on the file, attempting to arrange for potential sureties to attend a bail hearing.

[6] On March 18, 2018, the day of plea, trial counsel attended court to meet with the Crown. She discovered that senior and very experienced defence counsel who specializes in drunk driving trials had been contacted by the Appellant’s brother as he had acted for the Appellant in the past. Senior counsel was present in court as he had anticipated being retained.

[7] Both trial counsel and senior counsel met with the Appellant and advised him of the Crown’s position on bail and on a guilty plea. This was the first time trial counsel met face to face with the Appellant.

[8] In terms of bail, the Appellant was advised that the Crown was prepared to release him with a surety on conditions. In terms of the plea, the Crown’s position was that it would take a plea on two counts, dangerous driving and drive over 80, with a sentence of 75 days less pre-trial custody and a three year driving prohibition. The Crown agreed to not file the Notice of Increased Penalty, which in view of the Appellant’s record would have resulted in a minimum sentence of 120 days on the over 80 count.

[9] Both counsel told the Appellant that the deal was a good one and worth considering.

[10] Trial counsel met with the Appellant’s brother who was the proposed surety. He indicated that he was not prepared to sign bail. He was frustrated with the Appellant’s conduct and wanted the Appellant to take responsibility for his conduct. Trial counsel advised the Appellant of this discussion. The Appellant did not have anyone else who could sign bail at that time.

[11] Trial counsel advised the Appellant that he could resolve his matter or adjourn the matter to another date. On the client’s instruction, trial counsel went back to the Crown to attempt to negotiate a withdrawal of the over 80 charge as part of the deal. The Crown refused.

[12] Trial counsel met with the Appellant in the cells and had further discussions. There is a divergence in the evidence before me as to the content of these discussions.

[13] Mr. Cherry maintains that counsel told him he should do the right thing and plead guilty. According to Mr. Cherry, trial counsel pressured and persuaded him to plead guilty and told him that he should plead guilty because of his mental health issues. Trial counsel denies telling the Appellant that he should “do the right thing” or plead guilty because of his mental health issues, though she agrees that she would have told him that he faced a potentially lengthier sentence should he take the matter to trial. On this issue, she denies telling him that it would be two years incarceration. Moreover, she indicates that she told the Appellant that the decision to plead was his alone and that she would only assist if he provided written instructions. The Appellant indicates that he discussed the merits of his defence with trial counsel, including his belief that the timing of the breath samples rendered his prosecution for drunk driving no longer viable. Trial counsel explained to Mr. Cherry that his understanding on this issue was wrong and that the prosecution remained viable.

[14] As a result of these discussions, the Appellant provided a signed direction instructing trial counsel to proceed with the plea. The written instructions, titled “Plea Comprehension” were filed as an exhibit to trial counsel’s affidavit. The instructions are detailed and accurate, with handwritten notations reflecting the nature of the plea agreement arrived at with the Crown. Mr. Cherry does not deny signing this document, though he maintains that he never read it and only signed it in haste while in court before Justice Richards.

[15] Mr. Cherry explains that at the time of the plea he was mentally exhausted, he had been on a hunger strike for a number of days and had received bad news about his sister’s health. He also believes he suffered a concussion during his arrest. In cross-examination, Mr. Cherry was unclear and inconsistent on whether he ever told his counsel about his hunger strike or about his alleged concussion.

[16] According to trial counsel, Mr. Cherry indicated that he wished to accept responsibility for his conduct and wished to make positive changes in his life. These sentiments were conveyed by trial counsel to the judge during the plea proceedings.

[17] When the matter came before Justice Richards, trial counsel indicated on the record that a plea comprehension inquiry had been done and that the Appellant wished to proceed with his plea. The judge asked the Appellant directly if he wished to plead guilty and the Appellant replied “yes, sir” He then entered the guilty pleas and the facts in support were read in. Trial counsel made submissions detailing the Appellant’s background and acceptance of responsibility. When asked by the judge whether he had anything to add, Mr. Cherry responded “I think she’s explained my reaction pretty good. Thank you”.

Analysis

[18] In R. v. Wong, 2018 SCC 25, Justices Moldaver, Gascon and Brown recently wrote:

The decision of an accused to plead guilty is plainly significant. By pleading guilty, an accused waives his or her constitutional right to a trial, relieving the Crown of its burden to prove guilt beyond a reasonable doubt. Taking this step is of such significance that it represents one of the very few decisions in the criminal process which an accused must personally take. Indeed, defence counsel are ethically bound to ensure that the ultimate choice is that of the accused.

The plea resolution process is also central to the criminal justice system as a whole. The vast majority of criminal prosecutions are resolved through guilty pleas and society has a strong interest in their finality. Maintaining their finality is therefore important to ensuring the stability, integrity, and efficiency of the administration of justice. Conversely, the finality of a guilty plea also requires that such a plea be voluntary, unequivocal and informed. And to be informed, the accused “must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea” (R. v. T. (R.), (1992), 10 O.R. (3d) 514 (C.A.), at p. 519).

[19] There is a duality to the plea bargaining process that has been long recognized in both the case law and the academic literature. First, the plea bargaining process is an essential and vital part of the criminal justice system – done properly and ethically it fosters the efficient and fair resolution of the vast majority of criminal cases before the courts. That said, there is a potentially corrosive element to plea bargaining that must be monitored to ensure that the process remains fair, informed and voluntary.

[20] In this case, the Appellant argues that his counsel was ineffective because she pressured him into taking a deal, failed to act on his instructions and failed to obtain disclosure from the Crown prior to advising him. He also argues that she was inexperienced, having never defended a case of this type.

[21] In order to succeed on this ground, the Appellant must establish not only that counsel’s conduct fell below the standard of reasonable competence, but also that a miscarriage of justice occurred.

[22] In my view, the Appellant has failed to establish that his counsel’s performance fell below the standard of competence required of counsel in the circumstances. I do not accept that trial counsel pressured the Appellant into pleading guilty. I reject the Appellant’s evidence in this regard and make the following findings. The Appellant was seen by very senior and experienced counsel, as well as by trial counsel who ultimately acted on the plea. Both advised him on the plea. The Appellant was engaged in the process of negotiation and indeed sent his trial counsel back to try to get a better deal – which she attempted to do.

[23] The Appellant was experienced in the ways of the criminal justice system and had been involved in prior negotiated guilty pleas. The plea agreement and related instructions were memorialized in a written document that the Appellant now claims he did not read and only signed under pressure. I do not accept his evidence in this regard. I find that the signed instructions accurately confirm the plea agreement as he understood it.

[24] While trial counsel did not obtain full disclosure from the Crown before assisting with the plea, I am satisfied that she was acting on her client’s instructions and with his knowledge about the absence of disclosure. Indeed, she obtained initial disclosure and was advised that the full disclosure package was not yet available. I am not prepared to find that assisting a client with a guilty plea in the absence of full disclosure is automatically an instance of ineffective assistance of counsel. In many cases, counsel will not be in a position to effectively advise a client in the absence of full disclosure. However, that is not invariably the case. In many routine cases, initial disclosure provided for the purpose of a bail hearing can be a sufficient basis upon which counsel can form a tentative opinion about a case sufficient to advise a client on the plea – subject of course to a caveat that full disclosure could change counsel’s views. In cases where a client wishes to proceed and is prepared to admit the essential facts in support of the plea, counsel can assist in negotiating and entering a plea. Whether counsel and the client feel sufficiently informed to proceed with the plea will be a fact-specific determination. In this case, I have not been provided with anything that might suggest that there was a miscarriage of justice, even assuming for the sake of argument that counsel’s failure to obtain disclosure falls below the standard of competence.

[25] On the whole, I find that his trial counsel was not ineffective. On the contrary, I accept her evidence and find that she was very effective, competent and careful. She assisted her client in obtaining a very favourable result. She spent time with him on the day in question and responded to his request for further negotiation. She did not proceed with haste and gave Mr. Cherry an opportunity to simply adjourn his matter. She obtained clear written instructions confirming the plea agreement. She appeared in court, confirmed that she conducted a plea comprehension inquiry and made proper and helpful submissions to the court. There is nothing in this record that suggests that she acted improperly. While counsel was not experienced, it would be an error in this case to draw a connection between inexperience and ineffective assistance. Indeed, I see no evidence that supports any suggestion that her inexperience was a factor in this matter.

[26] In terms of the pressures felt by Mr. Cherry, I note the comments of Justice Doherty in R. v. Carty, 2010 ONCA 237, wherein the Court of Appeal dealt with a similar complaint:

The appellant claims in his affidavit and cross-examination that he was coerced into pleading guilty by the circumstances and, to some extent, by the attitude of his trial lawyer. I have no difficulty accepting that the appellant was under pressure at the time. He was 21 years old, and in custody for the first time with no real prospect of release. He was facing a series of criminal charges, one of which was a serious allegation. His lawyer had informed him that he had no defence on that serious charge. These factors no doubt weighed heavily on the appellant’s mind when he was trying to decide what to do.

However, the circumstances in which the appellant found himself were hardly unique, and are shared by many who must decide whether to plead guilty to criminal charges. That decision by its very nature must be made when individuals are under considerable pressure. That pressure is often the product of the grim realization that there is no viable alternative to a guilty plea, and that the consequences of a guilty plea will be immediate, serious and far-reaching. The pressures inherent in the nature and timing of the decision to plead guilty cannot in and of themselves invalidate a guilty plea on appeal. People are capable of deciding what is in their best interests even when they are under considerable pressure and none of the available options are attractive.

[27] The circumstances here are no different, I am certain that Mr. Cherry felt pressure. He had a difficult choice to make and none of his options were particularly palatable. However, nothing in the evidence before me suggests that the pressures he felt were sufficient to render his guilty plea involuntary. Indeed, I am satisfied that Mr. Cherry made a free, conscious and volitional choice to plead guilty. I suspect he now regrets his decision. However, regret is not the test for setting aside a plea.

[28] The appeal is dismissed.

Justice J. Di Luca

Released: September 26, 2018

NOTE: As noted in court, on the record, these written reasons are to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written reasons that are to be relied upon.

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DOUGLAS MARK CHERRY REASONS FOR DECISION Justice J. Di Luca Released: September 26, 2018