COURT FILE NO.: 19-8718

DATE: 2020/01/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent

AND

JODY FAUCHER, Applicant Accused

BEFORE: Aitken J.

COUNSEL: Moiz Karimjee, for the Crown Respondent

Lorne Goldstein, for the Applicant Accused regarding s. 684 application only

HEARD: January 7, 2020

ENDORSEMENT

Nature of Proceedings

[1] On September 17, 2019, Jody Faucher filed an inmate notice of appeal from both conviction and sentence imposed by Boxall J. of the Ontario Court of Justice on August 30, 2019.

[2] On August 30, 2019, after there had been a judicial pre-trial attended by Crown and Defence counsel, Boxall J. accepted guilty pleas from Mr. Faucher regarding six counts of fraud and two counts of fraudulent use of a credit card. The joint recommendation of counsel was for a one-year sentence concurrent to the 18-month sentence Mr. Faucher was currently serving, which had commenced on July 4, 2018. In rendering sentence, Boxall J. altered the global sentence slightly to provide that each conviction would result in consecutive sentences of 45 days each for a total of 360 days (just less than a year), with that series of consecutive sentences being concurrent to the sentence Mr. Faucher was then serving.

[3] Lorne Goldstein brought an application on behalf of Mr. Faucher under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, for an order assigning him to act on behalf of Mr. Faucher on the summary conviction appeal. Crown counsel argued that not only should no order be made under s. 684 of the Criminal Code, but also, Mr. Faucher’s appeal should be summarily dismissed in that it raised no arguable grounds of appeal.

[4] Section 684(1) of the Criminal Code reads as follows:

684(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. [Italics added.]

Criminal Code s. 684

[5] Under s. 684(1) of the Criminal Code, as a judge of the Superior Court of Justice to which Mr. Faucher’s summary conviction appeal lies, I may assign counsel to act on his behalf on the appeal if I am of the opinion that it appears desirable in the interests of justice that Mr. Faucher be given legal assistance and he does not have sufficient means to obtain that assistance. It is not in dispute that Mr. Faucher does not have the financial means to retain counsel for the appeal, he has applied to the Ontario Legal Aid Plan, and he has been denied coverage.

[6] Before exercising my discretion to assign counsel for Mr. Faucher, there are a number of factors I may consider:

• The merits of the appeal in terms of whether there is an arguable issue;
• The complexity of the issues raised on appeal, whether Mr. Faucher can present the appeal without the assistance of counsel, and whether the court can decide the appeal without the assistance of counsel, taking into account:
  • The grounds of appeal;
  • The length and content of the record on appeal;
  • The legal principles engaged; and
  • The application of those principles to the facts of the case; and
• Mr. Faucher’s age, education, ability to understand, and ability to express himself.

[7] The grounds of appeal advanced by Mr. Faucher in his Notice of Appeal arose from circumstances where, at the time of a judicial pre-trial in the Ontario Court of Justice presided over by Boxall J., Crown and Defence counsel came to a proposed resolution of Mr. Faucher’s case, with the blessing of Boxall J. The proposal was that Mr. Faucher would plead guilty to one or more of the eight charges of fraud and credit card fraud that he was facing. The sentence proposed was one year concurrent to the 18-month sentence that Mr. Faucher was then serving. A one-year sentence starting on August 30, 2019, would terminate on August 29, 2020, subject to earlier statutory release (unless revoked) after two-thirds of the sentence had been served.

[8] In his Notice of Appeal or in his supplementary written grounds of appeal, Mr. Faucher stated that:

• His lawyer led him to believe that the one-year sentence concurrent with the earlier 18-month sentence would have started on the same date as the earlier sentence, namely July 4, 2018, instead of on the date when the sentence was being imposed, namely August 30, 2019. Mr. Faucher stated that either his counsel misinformed him or lied to him. He claimed to have been led to believe by his counsel that he would be released on December 9, 2019.
• His lawyer advised him that, practically speaking, he would only have one additional month left to serve after he finished his 18-month sentence.
• If he had not pled guilty to the outstanding charges against him, they could not have been proven at trial.
• Boxall J. confused him to a point where he could only guess what was happening in court during his sentencing.
• Boxall J. changed the joint submission regarding sentence by imposing a one-year sentence starting on August 30, 2019, instead of on July 4, 2018.
• Boxall J. changed the joint submission regarding sentence by imposing eight consecutive sentences of 45 days, one for each of the eight counts, which totalled 360 days, instead of one year. The total sentence of 360 days was concurrent to the earlier 18-month sentence. [I note that what Boxall J. did was more beneficial to Mr. Faucher than the proposed global sentence of one-year.]

[9] Lorne Goldstein appeared on Mr. Faucher’s behalf to argue the motion for the appointment of counsel under s. 684 of the Criminal Code. Mr. Goldstein advised that he had reviewed the transcript and had formed the preliminary opinion that there was no ground of appeal based on the incompetence of counsel. Instead, he argued that the ground of appeal that needed to be advanced was that Boxall J. had made an inadequate inquiry under s. 606(1.1) of the Criminal Code before accepting Mr. Faucher’s pleas of guilt, making a finding of guilt, and sentencing Mr. Faucher. That section reads:

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused

(a) is making the plea voluntarily; and

(b) understands

(i) that the plea is an admission of the essential elements of the offence,

(ii) the nature and consequences of the plea; and

(iii) that the court is not bound by any agreement made between the accused and the prosecutor.

[10] The transcript reveals that Mr. Faucher was arraigned on the eight counts in the information and entered guilty pleas regarding all of them. The Crown then set out the rather simple, straight-forward facts that supported a finding of guilt in regard to each count. Boxall J. then asked Mr. Faucher if he accepted the facts read out by the Crown as being true, to which Mr. Faucher responded: “I do”. Boxall J. asked Mr. Faucher if he was pleading guilty voluntarily, to which Mr. Faucher responded “Yes”. At that point, Boxall J. made a finding of guilt on all eight counts. Boxall J. went on to sentence Mr. Faucher.

[11] The context in which this interchange occurred is very important for the determination of the application under s. 684 of the Criminal Code:

• Mr. Faucher is 50 years of age.
• No evidence was tendered as to his level of education; however, it is clear from the written Notice of Appeal and the supplementary written explanation of his grounds of appeal that Mr. Faucher has the ability to clearly express himself in writing.
• It is evident from Mr. Faucher’s oral submissions at the previous court appearance and at the court appearance on January 7, 2020 that he is very capable of expressing himself orally, he is not shy or inhibited in doing so, and he is assertive in explaining his understanding of the facts and the law.
• Mr. Faucher is a seasoned veteran of the criminal justice system. There are 87 convictions on his criminal record starting in 1985, when he was in youth court, and continuing virtually annually until 2018.
• Many of Mr. Faucher’s convictions are for offences similar to those for which he received convictions in this case.
• Mr. Faucher had appeared before Boxall J. on at least one other occasion and had previously been sentenced by Boxall J. Both Boxall J. and Mr. Faucher recalled this experience.
• Mr. Faucher has had extensive experience with concurrent and consecutive sentences, as reflected on his criminal record.

[12] There can be no doubt that Mr. Faucher understood that in pleading guilty, he was admitting the essential elements of the offences of fraud and the fraudulent use of a credit card, and he does not suggest that that was not the case. There is also no doubt that he understood the nature of the plea of guilty, namely, that he would be subject to a sentence imposed by Boxall J. and that Boxall J. had indicated to counsel during the judicial pre-trial that their joint submission regarding sentence was reasonable.

[13] Mr. Goldstein argued that Boxall J. failed to satisfy himself that Mr. Faucher realized that Boxall J. was not bound by any agreement made between Mr. Faucher and Crown counsel during negotiations; in other words, Boxall J. was not bound by the joint submission of counsel. There are two problems with this submission:

• Section 606(1.2) states that: “the failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
• In any event, Boxall J. not only followed the spirit of the agreement made by Crown and Defence counsel that Mr. Faucher would be subject to a one-year sentence concurrent to the sentence he was currently serving but Boxall J. also reduced the sentence by five days – from one year or 365 days to a total of 360 days. Mr. Faucher has not asserted that Boxall J. deviated from the joint submission made to him by Crown and Defence counsel – except in a manner that benefitted Mr. Faucher (i.e. he reduced the sentence from 365 days to 360 days).

[14] What Mr. Goldstein and Mr. Faucher were really arguing was that Mr. Faucher did not appreciate the consequences of his guilty plea, namely that the sentence he would be receiving would start on August 30, 2019 instead of on July 4, 2018. Mr. Goldstein also submitted that it would be helpful for the Superior Court of Justice to hear Mr. Faucher’s appeal and to give direction to the Ontario Court of Justice as to the procedure to be followed when guilty pleas are being accepted by the court in keeping with the requirements of s. 606(1.1) of the Criminal Code.

[15] In R. v. Quick, 2016 ONCA 95, Laskin J.A. summarized the law regarding the validity of guilty pleas in the context of an accused person pleading guilty to dangerous driving without being aware that by doing so his driver’s licence would be suspended indefinitely under the Highway Traffic Act, R.S.O. 1990, c. H. 8 because he had two previous drinking and driving convictions.

[16] Laskin J.A. set out the following principles:

• To be valid, a guilty plea must be voluntary, unequivocal, and informed (para. 4).
• For the plea to be “informed”, the accused must be aware of the nature of the allegations and the effect and consequences of the plea (para. 4) (R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.)).
• To succeed on an appeal based on the argument that the plea was invalid due to it being uninformed, the appellant must show a failure to appreciate or an unawareness of a potential penalty that is legally relevant (para. 28) (T.R., at p. 523).
• “Legally relevant penalties” include penalties imposed by the state – either in the form of criminal penalties or non-criminal penalties, such as a suspension of a driver’s licence.
• An “informed plea” does not necessarily require an accused to understand every conceivable collateral consequence of the plea, even a consequence that might be “legally relevant”. Some of the consequences may be too remote, others may not differ significantly from anticipated consequences, and others may be too insignificant to affect the validity of the plea (para. 31).
• What is required is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateral consequences to the accused (para. 33). The question to ask is whether the information, had it been known to the accused, have mattered to him. If the answer is yes, then it is significant.

[17] Ultimately, in Quick, Laskin J.A. asked whether there was a realistic likelihood that Mr. Quick would not have pled guilty to dangerous driving and would have asked for a trial had he known that his conviction would result in his driver’s licence being automatically and indefinitely suspended. Laskin J.A. concluded that Mr. Quick would not have pled guilty to dangerous driving had he realized that his driver’s licence would be indefinitely suspended. He was a truck driver and required his licence for his livelihood.

[18] The questions that would be asked on an appeal in this case based on Mr. Faucher’s pleas not being valid would be: (1) whether Mr. Faucher failed to appreciate or was unaware of the nature of the sentence he was facing and, if so, (2) whether there was a realistic likelihood that Mr. Faucher would have pled not guilty and would have asked for a trial had he known that on conviction his sentence was going to start from the date it was imposed. On a s. 684 application, I must consider whether Mr. Faucher’s appeal is an arguable one. The threshold is a low one but must be more than stating a bold proposition with no evidence, facts, or law to support it.

[19] For several reasons, I find that Mr. Faucher has not raised an arguable issue as to whether he failed to appreciate or was unaware of the nature of the sentence he was facing. His assertions in this regard are not credible or believable in light of the statements he made in the documents he submitted to court and the interchange between himself and Boxall J. in the presence of counsel.

[20] First, there are conflicting statements made by Mr. Faucher in his Notice of Appeal and supplementary documentation filed on the appeal as to what he was told by his former counsel and he has provided no affidavit evidence from his former counsel regarding what she said to him about the sentence he would be facing if he pled guilty.

[21] In one place, Mr. Faucher claimed that he was led to believe by his counsel that the one-year sentence would run in such a way that he would be eligible for release on December 9, 2019. No explanation was offered as to why this would be his release date – it bears no clear relationship to Mr. Faucher’s earlier 18-month sentence that, according to the evidence, started on July 4, 2018. As well, it bears no relationship to the one-year sentence imposed by Boxall J., whether backdated to July 4, 2018 in someone’s mind or imposed (as required by s. 719(1) of the Criminal Code) as of August 30, 2019. Mr. Faucher offered no explanation as to how the December 9, 2019 date related to his alleged understanding that the sentence imposed by Boxall J. would be backdated to the date his 18-month sentence had started.

[22] In another place, Mr. Faucher claimed that his counsel told him that he would have only one additional month to serve after he finished his 18-month sentence. Assuming Mr. Faucher’s 18-month sentence was imposed on July 4, 2018, as indicated in his criminal record, it would terminate on or about January 3, 2020. Adding one month to that leads us to February 3, 2020, but that date bears no relationship to a one-year sentence starting, as Mr. Faucher alleged it should, when his 18-month sentence had started.

[23] The inconsistency in the submissions being made by Mr. Faucher undermines the credibility of his assertions.

[24] Second, during the hearing before Boxall J., there was an easy-going dialogue between the judge and Mr. Faucher during which time Boxall J. explained exactly what he was doing regarding sentencing and why he was doing it in the way he was. Boxall J. explained that since each of the offences to which Mr. Faucher pled guilty were separate and distinct events, it was appropriate for those sentences to be consecutive. He also explained that since those offences were separate from the offences for which Mr. Faucher was then serving 18 months, in the normal course, he should have made the 360-day total sentence consecutive to the earlier sentence. Despite this, Boxall J. advised that he was going to give Mr. Faucher a break and make the sentence concurrent to the earlier sentence.

[25] Boxall J. went on to explain that the sentence would result in Mr. Faucher being incarcerated approximately eight months on the current charges from August 30, 2019 (presumably taking statutory release into account – something Mr. Faucher would have been well aware of). When Mr. Faucher asked if the sentence was concurrent from the beginning of the 18-month sentence, Boxall J. clearly stated that it was concurrent starting “today”, in other words starting on August 30, 2019. Mr. Faucher responded “okay”. Despite the easy dialogue he was having with Boxall J. – a judge whom, earlier in the hearing, he had agreed was fair – he did not raise the issue that that had not been his understanding when he entered his pleas of guilty, that it was a significant discrepancy in his mind, and that he was not prepared to plead guilty if his concurrent sentence was only going to start on August 30, 2019. It is simply not credible that Mr. Faucher would not have said something to Boxall J. to the effect that there had been a significant misunderstanding and he did not want his guilty plea to stand, if that had been the case.

[26] Boxall J. went on to explain that he was going to craft the sentence as eight consecutive sentences of 45 days each for a total of 360 days (five days short of a year). Mr. Faucher kept saying “okay” as all of this was being explained. Finally, Boxall J. stated: “[s]o, you’re going to start serving 360 days right now”, to which Mr. Faucher stated “Okay”. Again, had this been contrary to what Mr. Faucher had been led to believe by his counsel, I have no doubt that Mr. Faucher would have raised the alarm at that time. Had it been contrary to what his counsel had understood during the judicial pre-trial or if she learned that it was contrary to what Mr. Faucher had understood after she had spoken to him, she would have raised the alarm when Boxall J. was explaining what he was doing. Had one of them done that, a course of action available to, and likely followed by Boxall J., would have been to allow Mr. Faucher to withdraw his guilty pleas and to set the matter down for trial.

[27] Mr. Goldstein focused on the fact that the lengthy explanation given by Boxall J. came after Mr. Faucher had pled guilty and after Boxall J. had accepted the plea and had made a finding of guilt. Mr. Goldstein submitted that, had the explanation been given prior to Mr. Faucher entering a plea and having it accepted, there would be no argument for Mr. Faucher to make. This submission ignores what would be the normal procedure in such matters; namely, that a trial judge faced with an accused person immediately asking to withdraw his or her guilty plea due to a misunderstanding as to the nature of the joint submission made by counsel would have been given permission to do so.

[28] In short, the explanation offered by Boxall J. as to what he was imposing on Mr. Faucher was very clear. A seasoned offender like Mr. Faucher would have understood what Boxall J. said about the sentence starting on August 30, 2019. I note that Mr. Faucher raised no concerns in front of Boxall J. and, in fact, at the end of the hearing, Mr. Faucher thanked Boxall J. There was no indication that he was concerned, unhappy, angry, disappointed or experiencing any doubt about the sentence imposed on him by Boxall J.

[29] Mr. Faucher’s failure to raise an arguable issue regarding his alleged misunderstanding of the nature of the joint submission made to and accepted by Boxall J. means that there is no arguable issue relating to: (1) the inadequacy of the inquiry made by Boxall J. under s. 606(1.1) of the Criminal Code; and (2) the incompetence of counsel, the two potential grounds of appeal raised by Mr. Faucher or by Mr. Goldstein. The absence of an arguable issue undermines the basis of making an order appointing counsel under s. 684 of the Criminal Code.

[30] In any event, even if I were to have found that there was an arguable issue – however slim – I would find that this is not a suitable case in which to exercise the court’s discretion and assign counsel to assist Mr. Faucher with his appeal.

[31] The record on appeal is very brief – a short Notice of Appeal and a 14-page transcript. Legal counsel is not required to work through a complicated record.

[32] In his supplementary written statement, Mr. Faucher stated that he was familiar with r. 40.19 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) pertaining to allegations of incompetence of counsel. Thus, Mr. Faucher does not require counsel to make him aware of the procedure to be followed if he is alleging incompetent counsel.

[33] Mr. Faucher is well able to express himself in writing and orally. He is very familiar with the criminal justice system. He is not shy or inhibited in asking the court for what he wants, and in asserting the facts and the law as he understands them.

[34] Another consideration that militates against my exercising discretion to appoint counsel under s. 684 of the Criminal Code is the issue of what is at stake in this appeal.

[35] Mr. Faucher’s earlier 18-month sentence would have been completed early in January 2020. He will be entitled to statutory release in regard to the 360-day sentence at the end of April 2020. Keeping in mind that Mr. Faucher has 87 convictions (mostly for property offences many of which are similar to the offences in this case), and considering his life of crime has extended over 34 years with a nary a gap, Mr. Faucher was extremely lucky to get the lenient sentence he did from Boxall J. If Mr. Faucher succeeded on an appeal and was allowed to rescind his guilty pleas and have the case proceed to trial, if convicted, he would likely receive a significantly longer sentence that was consecutive to the 18-month sentence he was serving at the time.

[36] In conclusion, looking at all these circumstances, I am not satisfied that Mr. Faucher has an arguable issue to pursue on appeal. Nor am I satisfied that he requires the assistance of counsel to pursue the grounds of appeal that he has identified. Finally, I do not consider this to be a case that calls out for the exercise of the court’s discretion to appoint counsel. Consequently, I decline to exercise my discretion under s. 684 of the Criminal Code to assign counsel for Mr. Faucher on this appeal.

Crown’s Motion to Summarily Dismiss the Appeal

[37] Crown counsel submitted during argument that not only should I deny the application under s. 684 of the Criminal Code, but also, I should summarily dismiss Mr. Faucher’s appeal. This motion was not brought on notice to Mr. Faucher, and Mr. Faucher was not afforded the opportunity to consider it and properly respond to it. Consequently, the Crown’s motion is dismissed without prejudice to the Crown returning the motion upon proper notice to Mr. Faucher and with a reference to the provision in the Criminal Code or the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) that would allow me to summarily dismiss a summary conviction appeal.

Aitken J.

Date: January 9, 2020

COURT FILE NO.: 19-8718

DATE: 2020/01/09

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: HER MAJESTY THE QUEEN, Respondent

AND

JODY FAUCHER, Applicant

BEFORE: Aitken J.

COUNSEL: Moiz Karimjee, Counsel for the Crown Respondent

Lorne Goldstein, Counsel for the Applicant Accused regarding s. 684 application only

ENDORSEMENT

Aitken J.

Released: January 9, 2020