COURT FILE NO.: 19-SA4342-AP
DATE: 2021/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ARIF HABIB
Accused
Counsel:
Robert Thomson, for the Crown
Paul Lewandowski, for the Accused
HEARD: November 9, 2020, January 18, 2021, April 1, 2021 and May 21, 2021.
REASONS FOR DECISION
PARFETT J.
Introduction
[1] The Appellant, Arif Habib is appealing his conviction after entering a guilty plea. He alleges that his guilty plea was not voluntary or unequivocal because he did not understand the charges against him due to language difficulties.
Background
[2] Mr. Habib was charged in March 2019 with one count of sexual assault contrary to s.271 of the Criminal Code[^1] and one count of sexual interference, contrary to s. 153 (1.1) of the Code.
[3] Mr. Habib was a driving instructor. In November 2018, during the final lesson with the complainant, he was alleged to have touched the complainant on her chest and buttocks over her clothing. The complainant, who was 16 years old at the time, told her parents what had occurred, and the police were called.
[4] Mr. Habib hired a lawyer. His first language is Pashto and he does not speak English fluently. When he went to meet his lawyer, he brought a friend, Wali Wafa, with him to assist him and act as an interpreter when necessary.
[5] Mr. Habib, his friend and the lawyer met three times. On the final occasion, Mr. Habib signed written instructions to plead guilty. He entered a plea of guilt on July 8, 2018 to the sexual assault charge and the sexual interference charge was withdrawn. He was sentenced to 60 days jail, to be served intermittently and 15 months’ probation. Both the sentence and the probation have been served in full.
[6] On August 30, 2019, Mr. Habib retained appellate counsel and filed this appeal.
Fresh evidence
[7] The Appellant testified on this appeal, as did his friend, Wali Wafa and his lawyer, Douglas Baum.
[8] Mr. Habib stated that he never fully understood the allegations that had been made against him until he spoke with the official court interpreter on the day of his guilty plea. By that time, he was in court and he felt he had no option but to proceed with the plea.
[9] Mr. Habib said he spoke to police at the station without the assistance of an interpreter because the only interpreter available was a member of his community and he did not want them to know about the allegations. His English is limited, and he did not understand all of the officer’s questions or her statements concerning the allegations.
[10] Mr. Habib indicated he had brought his friend with him to Mr. Baum’s office because he was aware he needed some assistance communicating with Mr. Baum. Mr. Wafa translated for him and he believed at the time that the information he received concerning the allegations was correct and only later discovered it was not. He recalled signing a document in Mr. Baum’s office, but not what that document was about. However, he agreed in cross-examination that Mr. Wafa was present and had translated the document for him.[^2]
[11] Mr. Habib testified that on the day of the guilty plea, he met with Mr. Baum and with the official court interpreter in a small room outside the courtroom. Mr. Habib stated that the interpreter went over the allegations with him and he told Mr. Baum that he had not done the things he was alleged to have done. However, Mr. Baum told him to plead guilty and he felt he had to go through with it. He said that Mr. Baum also told him not to say anything other than to respond ‘yes’ or ‘no’ to the questions he would be asked.
[12] Mr. Habib said he did not recall the interpreter translating a document to him that set out how the complainant had felt about what she said had happened.
[13] In court, the interpreter translated everything that was said. Mr. Habib said he decided to accept the allegations because he had been told this was in his best interests. He said he did not understand at the time that instead, the conviction would cause him problems.
[14] Mr. Habib testified that Mr. Baum told him to apologize, so when he was asked if he had anything to say, he told the court, “I apologize to the court, to all those involved and especially the family and it shouldn’t have happened at all. A human being is a weak species, I know I made a mistake and I’m really sorry.”[^3]
[15] In cross-examination, Mr. Habib stated that he had lived in Canada since 2006. He worked initially at a Subway restaurant for 12-13 years and then worked as a driving instructor. He took a course to learn how to become a driving instructor. That course was taught in English and the test he took to be certified was also in English. He agreed that he taught his students in English but observed that the instructions were short and used terminology that he had learned.
[16] Mr. Habib agreed in cross-examination that he was aware upon his arrival at the police station that the allegations against him concerned sexual misconduct and that was why he rejected the services of an interpreter from his community. He also agreed that he understood from the police interview that he was alleged to have touched the breasts of one of his students.
[17] Mr. Habib indicated that during the meetings with Mr. Baum, he advised him on several occasions that he had not touched the complainant in a sexual manner. Mr. Wafa was translating for him during the meetings. He also stated that he understood from Mr. Baum and via Mr. Wafa’s translation that he was alleged to have touched the complainant’s chest. He said that he understood Mr. Wafa’s English to the extent that he knew Mr. Wafa had told Mr. Baum that he (Mr. Habib) had not touched the complainant sexually.
[18] Prior to the meetings with Mr. Baum, Mr. Habib said he had told Mr. Wafa that he had not done anything that could be described as sexual misconduct. He told Mr. Wafa that he might have accidentally touched the complainant’s hand while it was on the steering wheel and he may also have touched her shoulder.
[19] Mr. Wafa testified that he acted as an interpreter for the Appellant during his meetings with his lawyer. He said that his role was to explain or translate anything Mr. Habib did not understand. Mr. Habib spoke English to Mr. Baum, and he stepped in whenever Mr. Habib needed assistance. He recalled that Mr. Habib stated that he may have touched the complainant’s hand when he grabbed the steering wheel. He also indicated that Mr. Habib denied touching any other parts of the complainant’s body. Mr. Wafa stated that he understood the allegations to involve touching on the shoulder and chest.
[20] Mr. Wafa also recalled being present when Mr. Habib signed a document, but he had no recollection what that document was about. However, he stated he probably explained the document to Mr. Habib. He testified that he believed that Mr. Habib and Mr. Baum understood one another, even though at times, Mr. Wafa said he found the court terminology difficult.
[21] Mr. Baum testified that he met with Mr. Habib three times prior to the date of the guilty plea. Mr. Wafa was present at all the meetings. Mr. Habib spoke English to him, but Mr. Wafa helped, particularly when the information was more complex. Mr. Baum indicated that he would not have felt comfortable dealing with Mr. Habib without an interpreter as his English was basic. In re-examination, Mr. Baum stated that Mr. Wafa’s English was good and that nothing occurred that would have led him to believe there was a problem with the interpretation. Moreover, he noted that the allegations were not complicated. They involved a straightforward allegation of inappropriate touching.
[22] Mr. Baum stated there was a discussion of the evidence and Mr. Habib was advised of the court process, his options and the potential consequences of a finding of guilt. Mr. Habib was told that it was his decision which way to proceed. Mr. Habib was also advised of the Crown’s position in the matter. Mr. Baum testified that it is not his practice to ask a client if they committed the offence alleged. He did not recall Mr. Habib stating that he had not committed the offence, although he would assume the client was innocent until told otherwise.
[23] Mr. Baum indicated that he was confident that he had received proper instructions from Mr. Habib to go ahead with the guilty plea. Mr. Habib signed plea instructions that were translated to him line by line by Mr. Wafa and Mr. Habib indicated that he understood.
[24] Mr. Baum testified that Mr. Habib did not tell him on the day of the guilty plea that he had not committed the acts as alleged. Had he done so, Mr. Baum stated that the guilty plea would not have gone ahead.
[25] In cross-examination, Mr. Baum stated that he was satisfied at the time that Mr. Habib understood what he was doing when he pleaded guilty. Mr. Baum confirmed that the Victim Impact Statements were read to Mr. Habib and translated by the interpreter. He indicated that he told Mr. Habib that he would have an opportunity to say something before being sentenced but that Mr. Habib said he did not want to say anything.
[26] Prior to the sentencing, the court took a break and Mr. Baum indicated that Mr. Habib changed his mind and decided that he would say something to the court.
Issue
[27] The only issue for this court is to determine whether Mr. Habib’s plea of guilt was voluntary and unequivocal.
Analysis
[28] Both counsel agree on the legal principles that apply in the present case.[^4]
[29] There is a strong presumption that an accused has entered a valid plea. This is especially so when the accused has had the assistance of counsel.[^5] An accused may appeal a conviction entered after he has pleaded guilty. However, a court will only permit the withdrawal of the guilty plea if there are valid grounds for doing so.[^6] The onus is on the Appellant to show that valid grounds exist.[^7]
[30] Society has a strong interest in the finality of criminal matters resolved through a guilty plea. As noted in R. v. Wong, “Maintaining their finality is therefore important to ensuring the stability, integrity and efficiency of the administration of justice.”[^8]
[31] To constitute a valid guilty plea, there are three requirements: it must be voluntary, unequivocal and informed. These requirements are set out at s. 606(1.1) of the Code.
[32] As noted in R. v. T.R., in order to be considered voluntary, the plea must be ‘the conscious volitional decision of the accused … for reasons which he or she regards as appropriate.’[^9] For the plea 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.’[^10] For the plea to be unequivocal it must be, ‘not unintended or confusing, qualified or modified or uncertain in terms of the accused’s admission of the essential legal elements of the offence’.[^11] The accused’s statement on the record that he is pleading guilty is a factor tending to demonstrate the unequivocal nature of the plea.
[33] The onus is on the Appellant to demonstrate on a balance of probabilities that one of the three requirements for a valid guilty plea was not met and the evidence presented must be ‘sufficiently credible to satisfy his onus.’[^12] Moreover, the Supreme Court of Canada noted in Wong that. ‘courts should…carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility.’[^13]
[34] Defence counsel asserts that Mr. Habib’s video statement to police amply demonstrates that his English was rudimentary as his answers at critical junctures were non-responsive. He contends that Mr. Habib did not know what it was that he was alleged to have done and consequently, his plea of guilt was not informed. Furthermore, Mr. Habib stated that he was told to plead guilty by Mr. Baum even though he unequivocally denied the allegations multiple times, including the day of the plea when the interpreter reviewed with him the allegations as set out in the Victim Impact Statements. As a result, the plea was also not voluntary.
[35] The Crown argues that the evidence in the transcript, the events that occurred on the day of the plea and the testimony of the witnesses on this appeal do not support either position taken by the Appellant. I agree.
[36] This appeal requires an assessment of credibility. Mr. Habib testified through an interpreter and I observe that that situation makes any assessment of credibility more difficult. However, there were many occasions when Mr. Habib was evasive and chose not to answer a direct question. He was clearly uncomfortable when confronted with obvious inferences to be drawn from his own testimony. One example occurred when he stated that he refused the interpreter because the interpreter was a member of his community, allegations of sexual misconduct were considered shameful and he did not want that person to know about the allegations. The obvious inference to be drawn was that Mr. Habib knew on arrival at the police station that the allegations involved sexual misconduct. However, Mr. Habib was very reluctant to agree with that inference.
[37] I do not accept Mr. Habib’s assertion that he did not understand the content of the allegations or that he did not have to plead guilty. Nor do I accept his testimony that he repeatedly told Mr. Baum that he did not commit the offence.
[38] Mr. Wafa and Mr. Baum were credible witnesses and where their evidence conflicts with Mr. Habib’s evidence, it is their evidence I accept.
[39] Mr. Habib’s facility in English is the key issue in the analysis of whether the plea was informed. He indicated that his English is rudimentary. Mr. Baum indicated that he would not have felt comfortable speaking with Mr. Habib without an interpreter present and Mr. Wafa noted that his friend’s English was basic.
[40] Mr. Habib gave a videotaped statement to police. Unquestionably, as noted by Defence counsel, there are times when Mr. Habib is non-responsive to the question asked by the officer. However, overall, he could follow what was being said and most importantly, he understood the allegations sufficiently well to be able to deny them.
[41] Furthermore, both Mr. Baum and Mr. Wafa stated that Mr. Habib spoke English with Mr. Baum and used Mr. Wafa’s skills only when he ran into difficulties. This evidence directly contradicts Mr. Habib’s evidence that he only spoke Pashto in Mr. Baum’s office and relied heavily on Mr. Wafa’s translation to understand. Moreover, while Mr. Wafa’s memory was not perfect, he was able to correctly indicate to this court the substance of the allegations and that it was that information he communicated to Mr. Habib.
[42] Mr. Habib’s own evidence indicates that he understood that it was alleged that he had touched the complainant’s breasts over her clothing. That allegation is at the core of the evidence that was presented in court during the plea.
[43] In the circumstances, I find that Mr. Habib understood the nature of the allegations and therefore, what he was pleading guilty to.
[44] The second issue is whether the plea was voluntary. As noted by the Crown, this aspect of the appeal arose out of Mr. Habib’s evidence that Mr. Baum ignored his assertions that he was innocent and pressured him into pleading guilty.
[45] As Defence counsel pointed out, the quality of the legal assistance offered by Mr. Baum was not in issue. Mr. Baum is a criminal law specialist with many years’ experience and an impeccable reputation. In his testimony, Mr. Baum was trying to walk a very fine line. On the one hand, he was being scrupulously honest with the court. On the other hand, he was trying not to hurt his former client’s chances on this appeal. Ultimately, those two goals were irreconcilable.
[46] Mr. Baum stated clearly and unequivocally that to the best of his recollection, Mr. Habib never denied the allegations and most importantly, did not tell Mr. Baum on the date of the guilty plea that he had not committed the offence as alleged. I accept that evidence.
[47] In the circumstances, the only evidence left to consider is that found in the transcript of the plea. As stated by Mr. Baum, on the date of the plea there was a court appointed, Pashto interpreter available and that interpreter translated the Victim Impact Statements line by line. Those statements contained an outline of the allegations. Mr. Habib did not deny the allegations.
[48] In court, Mr. Habib was arraigned on the sexual assault charge and he pleaded guilty. The Crown read out a synopsis of the facts. Mr. Habib was asked by the court whether he had heard the facts and he indicated he had. He was then asked whether he agreed with the facts and whether his plea was voluntary. He indicated yes to both questions.
[49] During his submissions, Mr. Baum advised the court that Mr. Habib did not want to say anything before being sentenced. After counsel’s submissions on sentence, the court took the morning recess. Mr. Baum testified that during the break, he became aware that Mr. Habib did in fact want to say something to the court prior to sentence.
[50] Mr. Habib said the following: “I apologize to the court, to all those involved and especially the family and it shouldn’t have happened at all. A human being is a weak species, I know I made a mistake and I’m really sorry.”[^14] Mr. Habib was then sentenced.
[51] Mr. Habib said that it was not until the facts were read in court that he learned the specifics of the allegations. He also stated that after hearing the contents of the VIS, he advised Mr. Baum that he had not committed any sexual assault. As noted earlier, I do not accept that statement. If Mr. Habib had any doubts about his plea of guilt, it is highly unlikely that he would have offered such a heartfelt apology to the court. He was not obliged to do it. He had initially told Mr. Baum he did not want to say anything and then after a break in the proceedings, he changed his mind. All that evidence leads to the conclusion that Mr. Habib’s plea was both voluntary and unequivocal.
Conclusion
[52] For the reasons set out above, the appeal is dismissed.
The Honourable Madam Justice Julianne Parfett
Released: June 16, 2021
COURT FILE NO.: 19-SA4342-AP
DATE: 2021/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ARIF HABIB
Accused
REASONS FOR DECISION
Parfett J.
Released: June 16, 2021
[^1]: R.S.C. 1985, c. C-46. [^2]: Exhibit #1 – Plea Instructions [^3]: Transcript, p. 20, line 21. [^4]: The legal principles set out here largely come from the Crown’s factum. [^5]: R. v. Luffin, 2009 NSCA 19 at para.44. [^6]: R. v. T.R., [1992] O.J. No. 1914, 1992 CanLII 2834 (ON CA). [^7]: At para. 12. [^8]: 2018 SCC 25 at para. 3. [^9]: T.R. at para. 16. [^10]: At para. 14. [^11]: R. v. Downes, 2012 ONCJ 45 at para. 10. [^12]: R. v. O.W., 2012 ONCA 372 at para. 12. [^13]: At para. 26. [^14]: Transcript, p. 20, line 21.