COURT FILE NO.: CR-20-10041
DATE: 2022/02/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MOHAMED AZZAM
Appellant
Aaron McMaster, Counsel for the Respondent Crown
Anser Farooq, Counsel for the Appellant Mohamed Azzam
HEARD: July 20 – 21, 2021 and September 3, 2021
REASONS FOR DECISION
SUMMARY CONVICTION APPEAL
GIBSON J.:
Overview
[1] The Appellant Mohamed Azzam plead guilty in the Ontario Court of Justice in Brampton before Epstein J. on February 28, 2020, to one count of Assault with a Weapon contrary to s. 267(a) of the Criminal Code of Canada, and one count of Assault contrary to s. 266 of the Criminal Code of Canada. The charges related to an alleged assault on his wife. He received a suspended sentence and was placed on probation.
[2] The Appellant now seeks to set aside the guilty plea entered on that date. He appeals against the conviction and the terms of the probation order.
[3] The Crown opposes the appeal.
[4] In addition to affidavit evidence, I heard viva voce evidence in this matter over two days. Evidence was heard from the Appellant Mohamed Azzam, his original counsel Lakin Afolabi, and Ryan Fritze, a junior counsel in Mr. Afolabi’s office who was present at the time the guilty plea was entered. Counsel then submitted facta and made oral submissions.
[5] The Appellant was arrested on October 3, 2019, and was charged with Assault, Assault with a Weapon, Aggravated Assault, Mischief under $5,000, Uttering Threats to Cause Death, and Possession of a Weapon. The charges related to his alleged actions against his wife. He remained in custody for 8 days prior to being granted bail.
[6] The Appellant retained a criminal defence lawyer, Lakin Afolabi, on or about November 13, 2019.
[7] On February 28, 2020, the Appellant appeared in court with Ryan Fritze, a junior lawyer from Mr. Afolabi’s office, and his plea was taken by Justice Epstein.
[8] The Appellant now submits that the plea of guilty entered by him was not valid in law. He submits that it was not valid because it was not voluntary as it was entered out of duress, compulsion and fear created by personal circumstances, including significant concerns for his family, and ineffective representation by his counsel.
[9] The Appellant submits that he was not informed by his counsel about the offences themselves and could not appreciate the consequences. He says that the consequences of a guilty plea were not explained to him and the instructions were not signed.
[10] The Appellant submits that he was facing additional pressure to plead guilty as a result of his financial circumstances. He was paying for monitoring by a GPS ankle bracelet at approximately $600 monthly, he was living in a motel, he was still maintaining the home where the complainant and his children lived, and he had lost his job.
[11] The Appellant also submits that Epstein J. did not conduct a plea enquiry, and that he was not informed by counsel that Mr. Azzam had previously expressed some equivocation about pleading guilty.
[12] The Respondent Crown submits that the Appellant has failed to establish that his plea was involuntary, uninformed or equivocal. To the contrary, it submits, the evidence discloses that the Appellant’s plea met the requirements for a valid plea, as set out in s.606(1) of the Criminal Code. The Respondent further submits that the Appellant’s original counsel Mr. Afolabi was not ineffective in his representation of the Appellant, and that even if he was, no miscarriage of justice was occasioned by his conduct. It asks the Court to dismiss the appeal.
The Law
[13] Section 606(1.1) and (1.2) of the Criminal Code provide that:
(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.
(1.2) 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.
[14] To be valid, a guilty plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and legally relevant collateral consequences of that plea: R. v. Wong, 2018 SCC 25 at paras. 3-4, and R. v. T.(R.), 1992 CanLII 2834 (ON CA), [1992] O.J. No. 1914 at p. 5 (C.A.).
[15] A voluntary plea is a conscious volitional decision by an accused person for appropriate reasons. An informed plea means that the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea. An awareness of the consequences of entering a guilty plea refers to an understanding that a finding of guilt and conviction will flow from the plea as well as an appreciation of the nature of the potential penalty: R. v. T.(R.) at paras. 5 and 7.
[16] To establish prejudice, the Appellant must show a reasonable likelihood that he would have either pleaded differently or pleaded guilty, but with different conditions: R. v. Wong at para. 19. A reviewing court must assess the veracity of an accused’s claim of prejudice, including by testing the claim against objective contemporaneous evidence: R. v. Girn, 2019 ONCA 202 at paras. 66 and 67. A reviewing court need not accept the accused’s claim automatically: Girn, at para. 70.
[17] An accused seeking to withdraw a guilty plea should show that a miscarriage of justice would result if the plea is not withdrawn: R. v. Peters, 2014 BCSC 983 at para. 11. When a miscarriage of justice is alleged, the court must consider the whole of the evidence, in assessing whether the plea was based on something other than a genuine acknowledgement of guilt.
[18] A plea entered by an accused in open court is presumed to be voluntary unless the contrary can be shown: R. v. Carty, 2010 ONCA 237, [2010] O.J. No. 1305 at para. 50 (C.A.). This presumption applies particularly when the accused is represented by counsel: Carty, at para. 37. In this case, the onus is on the Appellant to show that his plea was not voluntary. The Appellant is required to establish that the plea was invalid on a balance of probabilities: R. v. M.A.W., 2008 ONCA 555, [2008] O.J. No. 2738 at para.23 (C.A.); also R. v. Wong, 2018 SCC 25 at para.76.
Assessment
[19] The Appellant has not met his onus. This is not a case where the court can conclude that the accused has demonstrated that extrinsic pressures were such that they deprived him of the ability to make a conscious, volitional choice.
[20] There are pressures inherent on accused persons in every criminal case. Accused persons have to choose from amongst a limited number of options. The choice may boil down to choosing from amongst the least bad of a number of unappealing options. That an accused person faces external pressures is not in itself a basis to set aside a guilty plea. What is important is whether those pressures deprived them of the ability to make a choice. Pressures arising from bail conditions do not of necessity render a plea involuntary. Mr. Azzam was not in this case in a position different than that commonly faced by accused persons in domestic violence cases. He was faced with a number of probably unattractive options. But he was capable of assessing those options and making a choice. The submissions of the Appellant in this case distil down to his in effect saying, “I did not like any of the options.” This is not a basis to invalidate a guilty plea on the basis that it was involuntary.
[21] It is clear on the evidence before me that the plea actually was informed. The Appellant conceded on cross-examination that he had read the guilty plea instruction document provided to him by his counsel’s office. It set things out in detail. The Appellant has not pointed to a specific informational deficit. He merely claims a broad lack of awareness as to the nature and consequences of his plea. This is not substantiated by the evidentiary record before the Court: the Appellant was aware of the nature and consequences of a guilty plea from his prior experience in the justice system; he was aware of the nature of a guilty plea through his communications with original counsel Mr. Afolabi; he knew the process of pleading guilty from a prior experience in 2012; he was aware that in order to plead guilty, he had to be able to accept the facts in support of the plea; he was aware of the meaning of a joint submission; he reviewed the guilty plea instructions emailed to him on February 26, 2020 by Mr. Isacc Heo from Mr. Afolabi’s office, which written document outlined the parameters of the intended plea, the sentencing position to be sought, the legal consequences of the plea, and potential collateral consequences (the Appellant acknowledged on cross-examination that he reviewed these instructions sent to him in advance of the plea, and that in subsequent email correspondence he made inquiries about the consequences of a plea and confirmed his instructions to plead guilty); and, he was aware from his previous experience of the general nature of probation.
[22] The Appellant has failed to demonstrate prejudice. He has not established that he would either have pleaded not guilty, or pleaded guilty with different conditions because of additional information that would inform such a plea.
[23] The Appellant has not demonstrated that his plea was equivocal. An unequivocal plea is one that is clear on the record before the court: R. v. Moser, 2002 CanLii 49649 (ON SC). An equivocal plea is one that is unintended, confusing, qualified, modified or uncertain in regard to the accused’s acknowledgement of the essential legal elements of the crime charged: Moser, at para. 32. The Appellant criticizes Epstein J. for failing to enquire further during the proceeding at which the guilty plea was entered. This is not apt. Justice Epstein interjected and asked to confirm if the Appellant agreed that he slapped his wife and threw a phone at her, and the Appellant agreed that he did. This exchange remedies any potential uncertainty or qualification occurring during the plea allocution.
[24] The Appellant’s plea is not rendered equivocal or invalid by the fact that Justice Epstein did not conduct a full plea enquiry on the record. It would have been preferable had he done so. But s. 606(1.2) of the Criminal Code specifies that the failure of the court to fully enquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the guilty plea.
[25] The assistance rendered to Mr. Azzam by his original counsel Mr. Afolabi was far from ideal. But there is a high bar when the court is assessing whether assistance was so poor as to be ineffective. An appellant seeking to overturn a plea or conviction based on ineffective assistance of counsel faces a high burden: R. v. Al-Shammari, 2016 ONCA 614, and R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348 (C.A.). The Appellant has not met that burden here. His submissions regarding the impact of counsel failing to bring a bail variation application, or in not attempting to clarify the Crown’s understanding of the Appellant’s criminal history, are speculative. His submission that the failure of Mr. Afolabi and Mr. Fritze to fully read the report of the Appellant’s psychologist Dr. Pilowski, and that if they had presented it to the Court it might have prompted Epstein J. to do a detailed plea enquiry, is also speculative.
[26] The credibility of Mr. Azzam is a central issue on this appeal. I do not find the Appellant to be credible in his assertion that the plea was uninformed, equivocal or involuntary. The Appellant took the position in this proceeding that he had lied to the court during his guilty plea. He used those specific words. He says he lied to the court to get something he wanted: to end the bail conditions and reunite with his family.
[27] I agree with the submission of the Crown in this regard: the Appellant has either lied to the police, his original counsel Mr. Afolabi, and Epstein J. to achieve his goals in the past, or he is currently lying to achieve his present goal of overturning his guilty plea. He is not credible in this regard. Moreover, the Appellant was frequently rambling and unresponsive on cross-examination in his evidence before this Court. I did not find his evidence to be credible.
[28] In summary, the Appellant has failed to satisfy the onus on him to show on a balance of probabilities that his plea was involuntary, equivocal or uninformed. He has failed to demonstrate prejudice, or that a miscarriage of justice would result if his guilty plea is not overturned.
Order
[29] The appeal is dismissed.
M. Gibson. J.
Dated: February 4, 2022
COURT FILE NO.: CR-20-10041
DATE: 2022/02/04
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMED AZZAM
REASONS FOR DECISION
SUMMARY CONVICTION APPEAL
M. Gibson J.
Released: February 4, 2022