COURT FILE NO.: 18-C74 DATE: 2023/03/22
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JACQUES DANSEREAU
COUNSEL: Jason Pilon, for the Respondent Eric Granger, for the Appellant
HEARD: October 4, 2022
BRAMWELL, J.
Introduction
[1] The Appellant appeals, pursuant to s. 813 of the Criminal Code, the decision of Justice Gilles Renaud of the Ontario Court of Justice on June 7, 2021 convicting the Appellant of operating a conveyance while his blood alcohol concentration exceeded 80 mg of alcohol per 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code.
[2] The Appellant argues pursuant to s. 686(1)(a)(iii), which applies to Summary Conviction Appeals pursuant to s. 822(1), that a miscarriage of justice occurred when the trial judge accepted what the Appellant submits was an uninformed guilty plea without a proper plea inquiry having been conducted pursuant to s. 606(1.1) of the Criminal Code.
[3] The Appellant also brings an application to admit fresh evidence on appeal.
[4] For reasons that follow, the fresh evidence is admitted and the appeal is dismissed.
Evidence at Trial
Police and paramedic testimony
[5] A review of the trial transcript discloses the following evidence that is relevant to the issues in this appeal.
[6] At approximately 3:00 a.m. on January 1, 2018 police were called to a bar in Cornwall because there had been a fight and a man was trying to drive away. The police encountered the Appellant in the parking lot of the bar. He was in his truck with a bloody and swollen face and he smelled like alcohol.
[7] The Appellant complied with the approved screening device demand with no difficulty and registered a warning. He was served with a 72 hour suspension notice. He was then taken to the hospital by paramedics. The Appellant was able to communicate with police officers. He was upset at what he characterized as having been “jumped” in the bar. The Appellant declined to provide further information to police about what had happened inside the bar. He gave the police permission to move his truck to another location in the parking lot and to lock it.
[8] At approximately 5:00 a.m. the same day, one of the officers who had been on scene at the bar earlier in the morning, noticed the same truck being driven down a street in Cornwall. The officer began following the truck and believed that the driver took evasive action once the officer’s marked police car was spotted.
[9] The Appellant was the person driving the truck and was doing so close to his home. The officer noted that the driver made an abrupt turn and then abruptly pulled into his driveway without signalling. The Appellant appeared to be trying to conceal the car somewhat by pulling it all the way down the driveway and shutting off its lights immediately upon parking. The Appellant got out and moved quickly towards the passenger side of the vehicle as the officer approached. The Appellant was asked for his license and registration and was told the officer was checking on his sobriety.
[10] The Appellant denied driving and said he was going to plug his block heater in and was having a cigarette. It was a very cold morning.
[11] The Appellant was angry and confrontational with the officer. He was unsteady on his feet, had glossy eyes and there was an odour of alcohol coming from his breath as he yelled at the officer.
[12] At 5:27 a.m., the Appellant complied with an approved screening device demand and registered a fail. He was arrested and remained very upset. When asked whether he understood the breath demand, the Appellant responded, “I understand the whole fucking thing”.
[13] The Appellant told the arresting officer that he’d been involved in the altercation at the bar earlier and he told the officer about his injuries. The Appellant also communicated to the breath technician that he was very upset at having been “jumped” earlier in the evening.
[14] The officer testified as follows at Volume I, p. 38, line 7:
Q. Did you know or did you come to learn up to this point whether he had been to the hospital or whether he had any treatment? A. I – I believe Mr. Dansereau is the one that provided me with information, stating he had been at the hospital but was tired of waiting and left. I believe that was his information that he provided me at some point throughout the interaction but, um, I wasn’t concerned that he required any medical attention at the time when I was dealing with him, he appeared to be understanding what was taking place and he appeared to be – he didn’t appear to be in any distress or any(sic) – anything of that nature, aside from being upset. Q. Was he able to follow the directions that you were giving him? A. Yes. Q. Did he ever ask you to repeat or clarify any of the direction or demands that you gave him? A. No, he did not.
[15] The Appellant was taken to the police station where he complied with the breath demand. The readings were 150 mgs of alcohol in 100 mls of blood at both 6:30 a.m. and 6:54 a.m..
[16] The Appellant was uncooperative while the arresting officer was serving him with and explaining the documentation after the breath testing was completed. He refused to sign the required documentation as requested by the arresting officer.
[17] At Volume I, p. 43, line 7, the officer testified:
Q. Did you receive any information from Mr. Dansereau as to, any further information as to the assault that he had described at Bill’s Sports Bar and what if anything he had done as a result of that assault? A. Yes, he – he told me that he was out looking for the people that were responsible for assaulting him, and that’s why he was – he was driving. Once he had been released from the hospital, or once he left the hospital, he started looking for the people that were involved in the incident and.... Q. And when, at what point in your dealings with him does he – does he share this with you? A. He – my recollection is that he shared it multiple times, like he – he provided that information multiple times after cautioning and he – he may have mentioned it at one time as well, while being transported from the scene to the police station. I know, my recollection is that it was something that he said on more than one occasion, he was just upset with the whole events that – that night or that morning, and it was something that he brought up multiple times throughout dealings from my recollection.
[18] The Appellant remained upset with the police and threatened to sue the arresting officer for being on his property with no authority.
[19] While with the arresting officer, the Appellant was complaining about his injuries, including injuries to his ribs. The officer testified at Volume I, p. 53, line 1:
Q. Okay. And I’m going to put to you, officer, that at that time Mr. Dansereau would have been complaining about sore ribs or holding his ribs at that time as well? A. He did at times, yes, throughout interactions. Q. Okay. A. But he – he didn’t want any medical attention, stating he’d already been to the hospital, it was something that I didn’t feel there was any concern or a requirement for him to be provided any further medical attention, because he claimed he had already gone and didn’t – didn’t require any further medical care.
[20] The Appellant’s attitude and behaviour toward police did not cause any concern for the arresting officer that he was suffering from a medical or mental health issue. The officer’s evidence, at Volume I, p. 55, line 13 is as follows:
A. Just to make sure I understand what you are asking, is it due to mental health that he was acting that way or due to his intoxication, is that – am I understanding correctly? TRIAL COUNSEL: Q. Pursuant to your observations and your experience? A. I – I don’t – I didn’t see that there was any concerns for his wellbeing as far as the mental health side of things go. He appeared to be intoxicated but I didn’t feel that there was any medical or mental health components associated to that, based on his interactions with him. I don’t know if that answers your question. Q. No, that’s fine. TRIAL COUNSEL: If I can just have a moment? THE COURT: Of course, take your time. A. If there would have been concerns, I would have made arrangements for him to be assessed further, if I had felt that there was any concerns for his wellbeing, and I didn’t feel that there were.
[21] The following day, on January 2, 2018, the Appellant called police to his home for the purpose of telling an officer that while he recognized that he had not been forthcoming with police at the time, he had changed his mind and now wanted to give his account of what had happened when he was assaulted in the bar in the early morning hours of January 1, 2018. He explained to the officer that he was intoxicated at the time he was first given the chance to give his account to the police and that he hadn’t wanted to file a report then but that he had changed his mind.
[22] As part of his account given to the officer who attended on January 2, 2018 to take a report from him, the Appellant described the injuries he sustained in the attack and told the officer that he had been dizzy since the incident.
[23] The Appellant also told the officer on January 2, 2018 that he did not have many details to recount about what happened to him outside of the bar because he blacked out while in the parking lot. However, he also recounted that his first memory after blacking out was of waking up in the ambulance on the way to the hospital. The Appellant said that he then blacked out again in the ambulance but remembers waking up at the hospital. Lastly, the Appellant told the officer that he did not remember when he left the hospital after being discharged and that he did not remember going back to the bar to pick up his truck.
[24] The Appellant told the paramedic who treated him en route to the hospital that he believed that he was rendered unconscious by a kick to the face in the parking lot but that he woke up while still in the parking lot and found that the men who had attacked him were gone. He said that he got up from the ground, walked to his truck and was intending to go home when police arrived on the scene as he was backing his truck out of its parking space.
[25] The Appellant was also able to correctly tell the paramedic who he was, where he was and what the date and time were. The Appellant was alert and conscious throughout his dealings with the paramedic and the paramedic noted him to have a Glasgow Coma Scale (GCS) score of 15.
Appellant’s testimony
[26] The Appellant testified at trial that he was celebrating New Year’s Eve with friends at the bar. After midnight, he left the bar to go to his truck to get his coat and was jumped from behind by several people.
[27] The Appellant testified that he remembered being kicked in the face after which he blacked out. The next thing he remembered was a bright white light and then blacking out again. The next thing he remembered after that was waking up at 3:30 p.m. on New Year’s Day and having to go to the hospital because he was in so much pain.
[28] The Appellant testified that he did not remember getting into his truck in the parking lot of the bar or speaking to police officers or paramedics at the bar. He did not remember going to the hospital after being attacked in the bar parking lot or being in the ambulance. He had no memory of checking himself out of the hospital and no recollection of driving his truck after leaving the hospital or being stopped by police in the driveway of his house. He also testified that he had no memory of going to the police station or providing breath samples.
[29] When the Appellant went to the hospital in the late afternoon of January 1, 2018, he was told that he had a broken nose, a bruised rib and a severe concussion.
[30] The Appellant testified that he did not know that he had been issued a driving suspension notice and subsequently charged with “the impaired” until his son attended at his home on the evening of January 1, 2018 and “deciphered all the paperwork.”
[31] The Appellant testified that he went to the bar to seek a copy of the security footage from inside the bar but he was not provided with any. He confirmed that he contacted the police to advise that he wanted to file a report about the attack on him.
Dr. Ward’s testimony
[32] Dr. Ward is a forensic psychiatrist who was retained and called by the Appellant. Her report and supplementary report were filed as exhibits.
[33] Dr. Ward testified that her conclusion was that because of being kicked in the head during the altercation at the bar, the Appellant was suffering from amnesia and that he suffered from that amnesia from the time he was kicked in the head until he woke up at home in the afternoon on January 1, 2018.
[34] Dr. Ward testified that when a person is in an amnestic state, no new memories are being formed in his brain. She also stated that the Appellant’s account of having no memories after being kicked in the head would have to be accepted as true for her conclusion to be supported.
[35] Dr. Ward testified that in her opinion, given that he was suffering from amnesia when he got behind the wheel of his car after having been issued the suspension notice, his state of mind would have been such that he would not likely have been able to evaluate himself properly to know that he was impaired. Essentially, Dr. Ward concluded that, given his amnestic state because of a head injury, the Appellant acted as an automaton when he got behind the wheel of his car upon leaving the hospital and drove.
[36] In cross-examination, Dr. Ward agreed that amnesia can be more easily feigned than some other states and that the making of inconsistent statements by a person claiming amnesia could be a clue that the amnesia is feigned. She also agreed that someone in an amnestic state would not be forming new memories while in that state.
[37] Dr. Ward agreed that the hospital records indicated that the Appellant discharged himself by walking out of the hospital against medical advice, saying he was going to get a coffee and that he had a steady gait when he did so.
[38] Dr. Ward testified that at the point that the paramedics were dealing with the Appellant shortly after he was assaulted, there “should certainly [have been] some confusion on the Appellant’s part – to time, place and or person.” She also said that she would expect the Appellant to score in the 13 to 14 range on the GCS and not at 15 if he was, in fact, suffering from an amnestic episode caused by a head injury.
[39] In cross-examination, Dr. Ward confirmed that it was her opinion that, when he returned to the bar, got his truck and drove, eventually being apprehended by police at his home, the Appellant was in a state of non-insane automatism which she agreed meant “automatic behaviour occurring under the control of a non-conscious mind.”
[40] Dr. Ward agreed that she would not expect a person in a non-insane automatic state because of an external blow to the head to engage in behaviour that was deceitful or deceptive and if such deceitful or deceptive behaviour occurred repeatedly and increased in complexity, it would be even more inconsistent with a non-insane automatic state.
[41] Dr. Ward indicated that she attributed the Appellant’s quick movements, sharp turning, and failure to signal his turn as he was being observed by the arresting officer when driving close to his home to the fact that he was intoxicated at the time. However, she agreed that if that driving was to evade or deceive police, that would be inconsistent with the Appellant being in an amnestic state. The same point was made with respect to the fact that the Appellant immediately turned his lights off upon pulling into the driveway and pulled his truck all the way to the back of the driveway such that the house obscured the view of the truck from the road.
[42] Dr. Ward agreed however that the Appellant jumping out of the driver’s seat and running to the other side of the vehicle while the police were approaching him in his driveway was not consistent with objectively normal behaviour and was potentially indicative of deceptive behaviour, requiring a higher level of mental functioning than a person in an amnestic state would be capable of. Dr. Ward had not been aware of this evidence when forming her opinion.
[43] Dr. Ward also agreed that the Appellant grabbing the extension cord and claiming that he was plugging in the vehicle’s block heater while outside having a cigarette, and that he had not been driving, was deceptive in nature and inconsistent with being in an amnestic state. Dr. Ward had not been aware of this evidence when forming her opinion.
[44] Dr. Ward testified that while, individually, all these points may not be significant, cumulatively, they are problematic with respect to her ultimate opinion and she would have needed all this information to fully consider her conclusions.
[45] Dr. Ward also agreed that the Appellant attempting to deceive the police by saying he had not been driving pointed away from him being in an amnestic state because it demonstrated knowledge on his part of a motive to try to distance himself from driving, namely that he knew he had been issued a suspension notice earlier in the night and that he was potentially impaired. Put another way, there was no reason for him to try to deceive the police about whether he was driving unless he knew that there were reasons he was not supposed to be driving.
[46] Dr. Ward testified that it was reasonable to think that the Appellant’s questioning of police authority to arrest him on his own property demonstrated a higher level of thinking than one would expect from someone in an amnestic state.
[47] Dr. Ward agreed that she would expect someone who had a head injury that had caused an amnestic state would complain about pain in his head.
[48] Dr. Ward agreed that if the Appellant truly was in an amnestic state such that he was not “laying down” new memories after being kicked in the head in the parking lot of the bar, he should not have any memories of being at or leaving the hospital or of leaving the hospital because he was tired of waiting. She testified that if he had those memories, and expressed that to the arresting officer, it would be inconsistent with him being in an automatic state at the time he expressed that to the arresting officer. Dr. Ward had not been aware of this evidence when forming her opinion.
[49] Similarly, Dr. Ward agreed that it was important that the Appellant had told the arresting officer that he was “out looking for the people that were responsible for assaulting him” and that it called into question the validity of her opinion. She had not been aware of this evidence when forming her opinion.
[50] When presented with the arresting officer’s evidence as set out in paragraph 17 above, Dr. Ward agreed that none of that evidence supports her conclusion that the Appellant was engaged in non-insane automatism when he was driving on the night in question. Her response, at Vol. 4, p. 98, line 33 was “Absolutely none of it is consistent.”
[51] The following passage sums up the result of Dr. Ward’s evidence, from Vol. 4, p. 99, line 26:
Q. Knowing now, if what I have said to you are facts that are accepted, specifically with regard to what I’m going to suggest, the deceptive behaviour, the - the higher Glasgow Coma Scale which I may not have mentioned to you but it’s 15, the deceptive behaviour in the - sorry – the inconsistency with the video, the deceptive behaviour, the recollection of events that he should not be recollecting, all of the elements of deceptive (....) as I said between the quick driving, the abrupt turning, the pulling into the driveway, the pulling to the back o’ the driveway, the turning off the lights, the jumping outta the car, running to the other side, the putting the electrical cord in, the denial of driving - all of those things coupled with this other aspect - do you feel as though your opinion with regards to the ultimate issue, that is that he was engaged in an amnestic state and therefore not responsible or was acting in an unconscious fashion - do you feel - do you feel as though you’re still on the same certainty given this additional information? I know it’s a long question but I think - you’re nodding as I say this - do you know what I’m getting at? Do you feel still comfortable with that opinion? A. No, sir. Q. Okay. A. I mean, I don’t - I don’t think the – I don’t think the foundation exists for that opinion anymore based on what I’ve heard.
The Finding of Guilt
[52] At the conclusion of Dr. Ward’s cross-examination, the Court took an afternoon recess that lasted for 22 minutes. When court resumed and defence counsel (Trial Counsel) was invited to begin re-examination, he indicated that Dr. Ward could be excused.
[53] Trial Counsel advised that there had been discussions with the Crown during the break and that he had received his client’s instructions that he would change his plea to the s. 253(1)(b) offence and there would be a joint position for the Court to consider.
[54] The trial judge asked to see the Information and then had the following exchange with counsel and the Appellant, at Vol. 4, p. 104, line 29:
THE COURT: One second (....) Given (....) [Trial Counsel], the way I propose to proceed may be different from what you’re suggesting. Mr. Dansereau, can you hear me well? UNKNOWN SPEAKER: (....) THE COURT: You can remain seated, sir. It’s safer for everyone. I’d prefer if you kept your mask on. I.... (Court speaks to another person in the courtroom) What I propose to do, counsel, is this: if you have no re-examination, you do not, if you don’t wish to call the other witnesses, you do not, you don’t wish to make any submissions, you’re not asking the Crown to make any submissions - I’m much more comfortable if you’re basically inviting me on the basis of the testimony I’ve received throughout the trial to make a finding of guilt, waiving your right to call further evidence and make submissions. TRIAL COUNSEL: That’s fine with me, Your Honour. MR. PILON: That’s fine, Your Honour. We didn’t.... THE COURT: Okay. MR. PILON: In discussing with my friend – I didn’t wanna foreclose Mr. Dansereau’s mitigation of a plea... THE COURT: Oh no. MR. PILON: ...but the end result is the same and it is a joint submission. That was the thinking. THE COURT: All right. MR. PILON: But that was one of the options we discussed, Your Honour. THE COURT: There’s no (....) - the gentleman is entitled to raise every lawful defence and has done so in the circumstances. So, [Trial Counsel], your instructions are clear: the gentleman wishes the Court to take notice of the Defence he’s advanced in the circumstances. There are no defences that remain available to him. He does not wish you to make any other submissions. You’re asking me to make a finding of guilt (....) s. 253(1)(b) of the Criminal Code at the relevant time and there’ll be a joint position. TRIAL COUNSEL: Yes, Your Honour. THE COURT: Mr. Dansereau, that is what you wish me to do? To find you guilty this afternoon? Is that correct? MR. DANSEREAU: That’s what I’m told to say, Your Honour. THE COURT: Thank you. Please have a seat. In the circumstances, given the information that’s before the Court, it is an irresistible conclusion that there was an offence committed and knowingly committed at the relevant time.
[55] The joint position was conveyed by the Crown, including the fact that as part of the discussions over the afternoon recess, the Crown had agreed to forego filing the notice of its intention to seek a higher penalty despite the Appellant’s prior record for two impaired driving convictions. In advising the trial judge of the joint position, the Crown noted at one point “…jointly recommending a $3,500 fine. Being mindful of the screening position but also the maximum disposition, being also mindful of his…willingness to forego his trial – the continuation of his trial…”
[56] The trial judge then told Trial Counsel that he was content to impose the joint position that had been recommended. Trial Counsel did not add anything further.
[57] The trial judge then began to sentence the Appellant. He had this exchange with the Appellant at the commencement of the sentencing at Vol. 4, p. 111, line 5:
Mr. Dansereau, the simple reality is this: we can end it today and I agree with everything the lawyers are proposing, or we simply go back to the trial and if you’re found guilty at the end of the trial you will go to jail for six to nine months. Tell me what your choice is. MR. DANSEREAU: I’m gonna go with this, Your Honour. THE COURT: I want to make sure you understand. My hands are tied by the evidence. Your lawyer has done a significant effort on your behalf. We now have seen what the results are. If you wish to continue, as I say, that’s the result. If you don’t wish to continue then you’re not going to jail today and of course, I won’t be suspending you for a period of 10 years which is what I would do at the end of the trial.
[58] His Honour went on to sentence the Appellant during which he asked the Appellant whether he still had a driving license at that point to which the Appellant responded that he did not.
[59] At the conclusion of the sentencing, His Honour had the following exchange with the Appellant at Vol. 4, p. 116, line 5:
Mr. Dansereau, I’m not asking you to say anything that’s going to lead you into any difficulty. I simply want to make sure: is there anything you want me to explain? MR. DANSEREAU: The only thing I don’t understand, Your Honour, is if Cornwall Police woulda done their job I wouldn’t’ve been here. That’s the only thing I can say. THE COURT: That is something you’re entitled to discuss with your lawyer and to consider civil matter. I can’t help you with that, sir. Thank you, Mr. Pilon. Thank you, [Trial Counsel]. TRIAL COUNSEL: Thank you, Your Honour. THE COURT: The Clerk will meet with you in a moment, sir, to have you sign the documentation. Oh, I’m sorry, Madam Clerk - no, that’s fine. It’s a withdrawal. That’s fine. It’s not a problem. Thank you. I have both matters before me. Thank you. Good luck to you, sir.
Fresh Evidence Sought to be Admitted
[60] The Appellant seeks to admit fresh evidence on this appeal in the form of his Affidavit sworn January 12, 2022 (Appellant’s Affidavit) and an Affidavit sworn by Amanda Atto, legal assistant to Appellant’s counsel on January 11, 2022 (Atto Affidavit).
Appellant’s Affidavit
[61] In his Affidavit, the Appellant swears as follows:
a. The evidence he gave at trial was true; he has no memory of events after being kicked in the head in the parking lot of the bar and before waking up at his home in the late afternoon of January 1, 2018; b. He has always maintained this position and he understood that it provided a potential defence to the charges. He always wanted to take the case to trial and still does; c. He understood that Dr. Ward was going to testify at trial and present “some sort of medical defence” but he didn’t understand what it was. He relied on Dr. Ward and his lawyer to present the defence; d. He was not feeling well the day Dr. Ward testified. He had ringing in his ears, found it hard to move and hard to concentrate and was not thinking clearly. These are symptoms he has had from time to time since his head injury; e. He found it upsetting to hear Dr. Ward cross-examined by the Crown in part because he felt the Crown was consistently “bringing up new things”; f. During the afternoon recess after Dr. Ward’s cross-examination, he had a heated discussion with Trial Counsel in which he expressed his frustration at what the Crown was doing and his wish that Trial Counsel “fight back.” At some point he “couldn’t deal with it anymore” and he “stopped processing” what Trial Counsel was saying. Trial Counsel said “something about saying guilty” but he couldn’t “process things anymore” and “needed to get out of there”; g. When he returned to court, he did not understand that he was admitting he was guilty and that the judge would no longer have the option of finding him not guilty. He wanted to continue to fight the charges. Had he understood what was happening, he would not have agreed to it; h. He did not understand that he was admitting that he remembered driving home on the night in question or that he consciously chose to do so. He would not have agreed to do that if he’d understood; i. He always wanted and still wants a trial in which a judge decides whether he is telling the truth and whether to accept Dr. Ward’s evidence as providing him with a defence; j. He was not happy when the judge told him he was guilty in court. He called his current lawyer’s office as soon as he left court to see about appealing the decision; and k. He only found out that it had been admitted on his behalf that he was guilty after his current lawyer got the transcripts and explained to him what had happened.
Atto Affidavit
[62] In her Affidavit, Ms. Atto swears as follows:
a. She spoke to the Appellant on the phone at approximately 4:06 p.m. on June 7, 2021 (the date that Dr. Ward testified and the Appellant was found guilty); and b. The Appellant told her that he had been found guilty in Cornwall, was not happy about it and wanted to speak to his current lawyer about an appeal.
Evidence of Trial Counsel
[63] In response to the fresh evidence sought to be tendered by the Appellant, and with the consent of the Appellant, the Respondent seeks to tender fresh evidence in the form of a “Will Say” from Trial Counsel, signed September 23, 2022 as well as three pages of handwritten notes taken by Trial Counsel documenting the discussions he had with and the instructions he received from the Appellant on June 7, 2021 during the afternoon recess (“the Trial Counsel Evidence”). [1] , [2]
[64] The Trial Counsel Evidence is summarized as follows:
a. After Dr. Ward’s evidence concluded, and because of her testimony that she no longer stood by the findings in her report that were favourable to the Appellant’s defence, Trial Counsel believed that there was “no longer a foundation for the defence to seek an acquittal” and that a conviction would likely follow; b. If the Appellant was convicted, and the Crown filed the Notice of Increased Penalty, the Appellant would be sentenced to jail. So, Trial Counsel told the Appellant that he wanted to speak to the Crown and then would speak to the Appellant; c. In speaking with the Crown, Trial Counsel learned that if the Appellant pleaded guilty to the charge of operating while over 80 mg/100 ml, the Crown would not file the Notice of Increased Penalty and would seek a fine of $3500, a 3 year driving prohibition and 12 months of probation; d. Trial Counsel then met with the Appellant and told him that Trial Counsel’s view was that, considering the Appellant’s evidence and Dr. Ward’s evidence, the foundation for the defence that Trial Counsel had intended to advance no longer existed. Trial Counsel told the Appellant that a conviction would most likely follow, with an attendant jail sentence because the Crown would file the Notice of Increased Penalty. Trial Counsel then reviewed the resolution with the Appellant that he had just discussed with the Crown, using notes he had taken during his meeting with the Crown; e. The Appellant was upset about the proposed guilty plea. Trial Counsel told him that he could do nothing to salvage the defence at that point, including re-examining Dr. Ward; f. Trial Counsel was satisfied that the Appellant understood that a conviction was most likely inevitable if the trial was completed and that the Crown would file the Notice of Increased Penalty which would result in the Appellant going to jail. Trial Counsel was also satisfied that the Appellant was aware of the terms of the proposed resolution negotiated with the Crown and the consequences flowing from the conviction. The Appellant decided to agree to the proposed resolution negotiated with the Crown as a strategic decision after discussing the matter with Trial Counsel. The Appellant gave verbal instructions to Trial Counsel to accept the resolution negotiated with the Crown; g. Trial Counsel advised the Crown that the Appellant would change his plea in acceptance of the proposed resolution; and h. After the break, the Appellant was found guilty and a sentence in accordance with the proposed resolution was passed.
Cross-Examination of Appellant on his Affidavit
[65] The Appellant was cross-examined on his Affidavit during the Summary Conviction Appeal proceeding. Cross-examination elicited the following relevant evidence:
a. The Appellant never said he was guilty during the trial. He stated he was not guilty at the outset and never said otherwise. He maintains now that he is not guilty; b. Neither the Appellant nor Trial Counsel requested an adjournment at any time on June 7, 2021 for any reason including the Appellant’s ill health; c. By the end of Dr. Ward’s evidence on June 7, 2021, the Appellant just wanted to go home and put on his headphones to get the ringing out of his ears; d. When pressed on the fact that he did not ask for an adjournment, the Appellant stated that he could not concentrate, felt weak and wanted to pass out after Dr. Ward’s evidence. He could not articulate a reason why he did not speak up and share that with the trial judge on June 7, 2021; e. The Appellant agreed that the Trial Counsel Evidence provides a clear indication of what was discussed between himself and Trial Counsel during what was a roughly 20 minute conversation; f. Trial Counsel told the Appellant that his defence was not viable. The Appellant told Trial Counsel to “do whatever he wanted”; g. The Appellant felt that Trial Counsel didn’t want to do his job and that the Crown was making up a story when cross-examining Dr. Ward. The Appellant felt that Trial Counsel wasn’t doing anything about what the Crown was doing and felt that Trial Counsel should have cross-examined the Crown; h. The Appellant feels that Trial Counsel went back into court after the afternoon recess without clear instructions from him; i. The Appellant asserts that he does not recall Trial Counsel telling him that there was an option that would keep him out of jail for 4 months. He says he didn’t know what was going on and just wanted to get out of there; j. The Appellant is not sure whether Trial Counsel talked to him about changing his plea; k. The Appellant agrees that he told the trial judge that he wished the judge to find him guilty.
The Appellant’s Position
On the appeal
[66] The Appellant argues that what took place after the afternoon recess on June 7, 2021 was in substance a guilty plea, without a plea inquiry and that, as a result, it lacked a voluntary, unequivocal and informed waiver of the Appellant’s right to continue with a contested trial and its associated procedural protections.
[67] The Appellant submits that the finding of guilt in this case is the product of a miscarriage of justice and should be set aside with a new trial ordered.
[68] The Appellant is clear that there is no assertion of incompetence of any kind or ineffective assistance on the part of Trial Counsel in his representation of the Appellant.
On the fresh evidence application
[69] The Appellant submits that it is in the interests of justice to admit the fresh evidence in the form of the Appellant’s Affidavit and the Atto Affidavit.
[70] The Appellant submits that the proposed fresh evidence could not have been tendered in the trial proceeding because the Appellant was under no obligation to tender evidence of his state of mind and knowledge at the time he was convicted and the Atto Affidavit deals with a conversation that had not yet happened at the time of the trial.
[71] The Appellant submits that the proposed fresh evidence is relevant because it bears on whether he gave a voluntary, unequivocal, and informed waiver of his right to continue with his trial in the court below.
[72] The Appellant points out that the Atto Affidavit provides evidence of the Appellant’s state of mind with respect to appealing the finding of guilt within minutes of the conviction and was not therefore a product of sober second thought or becoming upset at the outcome.
[73] The Appellant submits that the proposed fresh evidence is reasonably capable of belief. The Appellant’s Affidavit deals with his state of mind at the relevant time and he can be (and was) cross-examined on it. The Atto Affidavit was sworn by a legal professional with no interest in the outcome of the proceedings.
[74] Lastly, the Appellant submits that the proposed fresh evidence, if accepted, could reasonably be expected to affect the outcome of the appeal. If the Appellant’s evidence in his Affidavit is accepted, the Appellant argues this Court must find that he did not give a voluntary, unequivocal and informed waiver of his right to have a trial in the court below.
The Respondent’s Position
On the appeal
[75] The Respondent submits that what happened after the afternoon recess on June 7, 2021 was a finding of guilt by the trial judge upon learning, from Trial Counsel, who had been instructed, that the Appellant was not seeking to continue with Dr. Ward’s evidence, would be calling no further evidence and was not seeking to make submissions. It was a finding of guilt based on the evidence heard at the trial and, as such, a plea inquiry was not required – because it was not a guilty plea.
On the fresh evidence application
[76] The Respondent submits that the proposed fresh evidence as tendered in the Appellant’s Affidavit is not “fresh evidence” because it existed, within the Appellant’s mind, at the time these events were taking place during the trial. The Respondent asserts that the Appellant did not raise his concerns with his counsel or the trial judge and was therefore not diligent in his own defence. Had he been, the evidence would have been adduced at trial.
[77] The Respondent submits that the proposed fresh evidence in the Appellant’s Affidavit fails on the second and fourth elements of the test set out by the Supreme Court of Canada in R. v. Palmer [3] , (“the Palmer test”). The second element of the Palmer test is that the proposed fresh evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. The fourth element is that the proposed fresh evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[78] The Respondent asserts that the proposed fresh evidence in the Appellant’s Affidavit fails on these elements of the Palmer test because, if accepted as true, it shows that the Appellant never changed his mind about his plea of not guilty and, given that his plea was never changed at trial, his attested state of mind is not relevant because it is consistent with what actually happened in the trial. In other words, the Respondent argues that if it is true that his intention on the date the trial ended, was to maintain a not guilty plea, it doesn’t matter that he can attest to that now, because a not guilty plea was maintained at the trial but he was found guilty, on the evidence, despite his maintaining the position that he was not guilty.
[79] The Respondent does not concede the credibility of the proposed fresh evidence in the Appellant’s Affidavit but submits that, even if it were found to meet the third criteria of the Palmer test which provides that the proposed fresh evidence must be credible in the sense that it is reasonably capable of belief, it fails, as outlined above on the first, second and fourth elements of the test and therefore should not be admitted.
[80] The Respondent submits that the proposed fresh evidence as tendered in the Atto Affidavit fails at the second and fourth elements of the Palmer test because it is merely evidence that the Appellant contacted appellate counsel shortly after being convicted at trial. The Respondent asserts that this would not have impacted upon the decision at trial because the trial judge found the Appellant guilty. The fact that the Appellant may not have wanted to plead guilty would have been irrelevant to the trial judge’s decision. Again, the Respondent asserts that the Appellant did not plead guilty. Rather, he maintained a plea of not guilty and was found guilty.
[81] The Respondent submits that the Appellant’s Affidavit and the Atto Affidavit boil down to being evidence that, at trial, the Appellant did not want to be and was unhappy afterwards, about being found guilty. The Respondent submits that this evidence fails when the Palmer test is applied and should not be admitted.
Standard of Review
[82] The standard of review on this appeal is set out in the Supreme Court of Canada’s decision in R. v. Burns [4] , at page 663 as follows:
In proceeding under s. 686(1)(a)(i), the Court of Appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it. Provided this threshold test is met, the Court of Appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [Citations omitted.]
[83] On appeal, considerable deference should be afforded to a trial judge. In R. v. Biniaris [5] , the Supreme Court of Canada stated at page 400:
Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction.
Fresh Evidence
[84] The Palmer test is generally applied when fresh evidence is tendered upon appeal. However, in cases in which incompetence or ineffective assistance of counsel or a miscarriage of justice is asserted by the Appellant, a modified test is used. In such cases, admissibility is approached by receiving the fresh evidence for the limited purpose of evaluating the miscarriage of justice claim . [6]
[85] The British Columbia Court of Appeal undertook a detailed review of the approach to fresh evidence in the context of an appeal that impugns the trial process as opposed to a substantive issue in R. v. Aulakh [7]. A helpful summary is set out starting at paragraph 58 of that decision as follows:
In R. v. Stolar , [1988] 1 S.C.R. 480 at para. 14 , the Supreme Court set out the procedure for considering a fresh evidence application where a miscarriage of justice is alleged. The procedure requires that the fresh evidence application be heard first and, unless it is obvious that the evidence does not meet the Palmer criteria, judgment reserved until the main appeal has been heard. At the conclusion of the appeal, if the court determines that the fresh evidence could reasonably have affected the result, the evidence is then admitted and the appeal allowed. If the court concludes the fresh evidence could not reasonably have affected the result, both the application for fresh evidence and the appeal (or at least the miscarriage of justice ground of appeal) must be dismissed. This procedure avoids placing the court in a position where the decision to admit fresh evidence binds the court hearing the appeal to a finding that the evidence could reasonably have affected the result at trial.
Where an application to adduce fresh evidence is made in the context of an allegation of ineffective assistance of counsel, the court is asked to admit the fresh evidence for the purpose of considering a new issue that was not considered at trial. It may be received on appeal in "the interests of justice" for the limited purpose of assessing the allegations of professional incompetence. In these circumstances, the Stolar procedure and the Palmer test must be modified. See Joanisse at 43-44, R. v. W.W. (1995), 100 C.C.C. (3d) 225 (Ont. C.A.) at 232-33, R. v. Sauve (1997), 121 C.C.C. (3d) 225 (B.C.C.A.) at paras. 16-18 , 25, and Dunbar at paras. 34-36.
The modification to the procedure and legal test for the admission of fresh evidence in these circumstances has been expressed in different ways.
The Ontario Court of Appeal in W.W. stated that the Palmer test should be disregarded in these circumstances (at 232):
The Palmer criteria do not, however, apply to all situations where fresh evidence is offered on appeal. Those criteria reflect the balancing of competing considerations relevant to the interests of justice when fresh evidence is offered to attack a determination made at trial. The same criteria cannot necessarily be applied where, as here, the fresh evidence is offered for a different purpose. The material sought to be admitted here is not directed at a finding made at trial, but instead challenges the very validity of the trial process. The nature of this material and the purpose for which it is offered places it outside the Palmer paradigm [citations omitted].
In R. v. S.G.T. , 2011 SKCA 4 , the Court described the standard for admission of fresh evidence where professional error is alleged as follows:
[36] Where an appellant contends that he received an unfair trial because of ineffective legal representation, the criteria established in Palmer [citation omitted] governing the admission of fresh evidence, give way to case-sensitive considerations.
[39] The evidential standard for admission where issues of trial fairness are concerned is that the evidence must be relevant to the remedy sought before the court of appeal, credible and convincing, and sufficient, if uncontradicted to justify the appellate court making the order sought. [Citations omitted].
In Dunbar , this Court concluded that while some aspects of the Palmer test continue to apply, the due diligence criteria should be relaxed and the "strict Stolar procedure" disregarded. At paras. 36-37, the Court stated:
... This inquiry differs from the usual situation contemplated in Stolar where the fresh evidence goes to a substantive issue at trial and a ruling that it is admissible means, according to the fourth Palmer criterion, that the fresh evidence could reasonably be expected to have affected the result at trial. Instead, where the fresh evidence is adduced to challenge the integrity of the trial process, the fresh evidence can be admitted and the question of whether a miscarriage of justice occurred then assessed to determine whether a new trial is required.
Although the due diligence factor and strict Stolar procedure may be disregarded in the context of the present case, the other Palmer criteria remain applicable. In particular, the relevance of the fresh evidence and its credibility are important factors to consider [citations omitted]. In addition, it is clear that the fresh evidence must be otherwise admissible in the sense that it complies with the generally applicable rules of evidence [citations omitted]. Evidence comprised of hearsay, speculation, opinion or mere argument is no more admissible as fresh evidence on appeal than it is at trial: [citations omitted].
Thus, fresh evidence directed to a new issue on appeal relating to the integrity of the trial process (rather than a substantive issue adjudicated at trial) will be admissible for the limited purpose of assessing the allegation of ineffective representation of counsel if it: (i) complies with the rules of evidence; (ii) is relevant to the new issue; and (iii) is credible. If the fresh evidence also relates to a substantive factual or legal issue adjudicated at trial, the Palmer due diligence criteria may be relevant. It goes without saying that the fourth Palmer criterion, the expectation that the fresh evidence would affect the result, is addressed by the parallel prejudice component of the test for ineffective assistance of counsel
[86] I find that this is the appropriate test to apply in determining the admissibility of the fresh evidence on this appeal because while no incompetence or ineffective assistance of counsel arguments are being advanced, the Appellant asserts that there was a miscarriage of justice at his trial occasioned by the way he was found guilty. This is not an appeal of the way the trial judge applied substantive law principles. It is an attack on the integrity of the trial process itself.
[87] Therefore, the proposed fresh evidence will be admissible in this appeal for the limited purpose of assessing the allegation of a miscarriage of justice in the manner of the finding of guilt if it:
i. Complies with the rules of evidence; ii. Is relevant to the issue of whether there was a miscarriage of justice in the manner of the finding of guilt; and iii. Is credible.
[88] Turning first to the evidence in the Appellant’s Affidavit and elicited during the cross-examination of him on its contents (collectively “the Appellant’s Evidence”), I find that it complies with the rules of evidence. I find that it is broadly relevant to the issue of whether there was a miscarriage of justice in the manner of the finding of guilt because it provides evidence of what was purportedly in the Appellant’s mind and his intentions with respect to his plea to the charges.
[89] I find that the Appellant’s Evidence is broadly credible in the sense that it is capable of belief. However, I do not believe and I therefore reject the parts of his evidence that characterize him as “not processing” what Trial Counsel was saying to him in their meeting during the court break, after Dr. Ward had testified and after Trial Counsel met with the Crown. I also do not believe and I therefore reject the parts of his evidence that assert that he “did not understand what was happening” in court when the parties returned after the break and he was ultimately found guilty.
[90] I make these findings because:
i. The assertion that the Appellant was not processing what Trial Counsel said to him in their meeting is contradicted by the Appellant’s answer to the trial judge when asked “Mr. Dansereau, that is what you wish me to do? To find you guilty this afternoon? Is that correct?” The Appellant answered: “That’s what I’m told to say, Your Honour.” This answer from the Appellant is not consistent with a situation in which he does not understand or has not processed what he has just discussed with his lawyer; ii. The assertion that the Appellant was not processing what Trial Counsel said to him in their meeting is contradicted by his own evidence in cross-examination on his affidavit. In cross-examination, he agreed that he was able to recall and relate significant parts of his discussion with Trial Counsel, including the fact that Trial Counsel explained to him that his defence was no longer viable. The Appellant’s purported inability to focus and concentrate and understand what was happening in his meeting with Trial Counsel and in court on June 7 seems selective and tailored to support his position on this appeal; iii. The finding of guilt and sentencing process unfolded over a period that spans approximately 25 minutes [8] and is reflected in 13 pages of transcript. In that period, the Appellant had at least five direct exchanges with the trial judge. At no time did the Appellant raise any concern with the trial judge about the Appellant’s ability to understand or to process what had happened over the court break or what was happening in court. The Appellant could offer no explanation for this during cross-examination on his affidavit; iv. The trial judge specifically told the Appellant that he wanted to make sure the Appellant understood. The trial judge specifically asked the Appellant whether there was anything that the Appellant wanted him to explain. The Appellant’s response to that was to say that he wouldn’t be there if the police had done their job. The Appellant was always responsive to questions asked of him by the trial judge. When specifically asked by the trial judge what his choice was, the Appellant answered “I’m gonna go with this Your Honour.” This is inconsistent with the Appellant not processing or not understanding what was happening. v. The Appellant called Appellate Counsel’s office minutes after being sentenced. The Atto Affidavit stated that he had just been found guilty, was not happy about it and wanted to appeal. He could not have been able to relay all of that to Ms. Atto minutes after it had happened if he had not understood and processed what had just happened. It defies logic and human experience to suggest that he was so confused and unable to concentrate during his meeting with his lawyer and while being found guilty and sentenced that he couldn’t “process” or understand what was happening and yet the confusion and inability to concentrate somehow lifted at precisely the moment when he left court, and lifted to such a degree that he was, at that point, able to fully and completely process and understand what had just happened and what he needed to do about it; vi. The Appellant’s Evidence is contradicted by that of Trial Counsel who was satisfied that the Appellant understood Trial Counsel’s advice and decided to accept it and plead guilty, as was negotiated with the Crown, in exchange for being able to avoid a jail sentence and in recognition that his defence was no longer viable; and vii. I found the Appellant to be evasive and argumentative at numerous and significant junctures in his cross-examination on his affidavit.
[91] Turning next to the Atto Affidavit, I find that it complies with the rules of evidence. I find that it is broadly relevant to the issue of whether there was a miscarriage of justice in the manner of the finding of guilt because it provides evidence of what was purportedly in the Appellant’s mind and his intentions with respect to his plea to the charges.
[92] There was no challenge to the credibility of the Atto Affidavit and I find it to be credible.
[93] Turning next to the Trial Counsel Evidence. I had concerns about whether it complies with the rules of evidence given that it is unsworn and given concerns about solicitor client privilege. However, given the submissions of both counsel on this appeal that they agree as to the form and content of it for the purposes of this appeal, I feel my concerns have been sufficiently addressed and it is appropriate to consider this part of the test for admissibility to be met.
[94] I find that the Trial Counsel Evidence is relevant to the issue of whether there was a miscarriage of justice in the manner of the finding of guilt because it is necessary, once the Appellant’s Evidence is admitted, for the Court to “get to the bottom of” [9] what occurred during the meeting between the Appellant and Trial Counsel and how that impacted what transpired shortly thereafter before the trial judge.
[95] There was no challenge to the credibility of the Trial Counsel Evidence and I find it to be credible. I note that Trial Counsel took notes of his meetings with the Crown and with the Appellant on June 7, 2021. I also note that he is bound by professional and ethical obligations in his dealings with his client, with the trial court and with this court.
[96] For the foregoing reasons, the Appellant’s Evidence, the Atto Affidavit and the Trial Counsel Evidence will all be admitted as fresh evidence on this appeal.
Was there a miscarriage of justice?
[97] The Appellant, using the language of the Ontario Court of Appeal in R. v. D.M.G. [10] , argues that a “cannibalized procedure” was followed in the present case by the trial judge and that a miscarriage of justice resulted.
[98] While the Appellant in the present case and the appellant in R. v. D.M.G. both entered pleas of not guilty, and did not at any time change those pleas, there are significant differences between the process followed in R. v. D.M.G. as compared to what unfolded in the present case. These significant differences make the present case distinguishable in my view. They are as follows:
i. There was no evidence called in R. v. D.M.G. As Watt, J.A. notes at para. 2, “…the appellant didn’t have a trial. He didn’t get to tell his side of the story. And he didn’t see or hear anyone else testify either.”
In the present case, there was a complete body of evidence before the trial judge. The entire Crown’s case was called. The Appellant testified. Dr. Ward had testified in chief and been cross-examined. There was no indication that further defence evidence would be called after Dr. Ward’s evidence concluded.
ii. The appellant in R. v. D.M.G. alleged ineffective assistance of counsel.
The Appellant is specifically not advancing such a claim in the present case.
iii. The trial record was characterized by Watt, J.A. as being “sparse” in R. v. D.M.G. and was noted to be fortunately amplified by the materials required to be filed because of the ineffective assistance of counsel argument.
In contrast, there is a complete record of the proceedings at the trial in the present case. All the witness testimony is available as are all the exchanges between the trial judge and counsel and the trial judge and the Appellant. The evidentiary record is further amplified by the fresh evidence that was admitted on this appeal.
iv. In R. v. D.M.G. , the appellant was never asked, prior to the finding of guilt, by the trial judge or anyone else on the record, whether he understood or agreed with the proposed procedure.
In the present case, the trial judge reviewed the way he proposed to proceed with counsel, as set out in paragraph 54 above. The trial judge specifically expressed that he was not seeking for the plea to be changed to guilty but to proceed to a finding of guilt based on the evidence called to that point in the trial, with the Appellant waiving the re-examination of Dr. Ward and waiving submissions. The trial judge had a clear discussion with Trial Counsel to confirm that Trial Counsel had the appropriate instructions. After confirming that Trial Counsel was content to proceed in the fashion proposed by the trial judge, the trial judge asked the Appellant whether he wished to have the judge find him guilty that day. The Appellant indicated that that was what he was “told” to say. The judge then went on to have an exchange with the Appellant prior to sentencing him in which he told the Appellant that the trial could continue but that the Appellant being convicted and going to jail would be inevitable in that case. He asked the Appellant what he wished to do and the Appellant indicated he wished to proceed as the trial judge had proposed.
v. In R. v. D.M.G. , the Crown read a statement of facts to the judge and the appellant was not asked to confirm the accuracy of the facts, nor did his counsel ever expressly admit them on his behalf. The Court of Appeal held that a finding of guilt must be based on evidence called or admissions made. Without an acknowledgement of the facts read by the Crown as being true, the Court found that this was not properly characterized as admitted evidence.
In the present case, the trial judge made the finding of guilt based on evidence that he had heard in a multiple day trial. All the Crown’s evidence had been challenged by the Appellant in cross-examination and the Appellant had lead evidence of his proposed defence. He also testified himself.
[99] Ultimately, the Court of Appeal found in R. v. D.M.G. at para. 61 , that there was a miscarriage of justice because of the way the Crown sought to discharge its burden of proof after the appellant’s plea of not guilty combined with the failure of the trial judge to conduct any inquiry into the voluntariness of the appellant’s participation and his understanding of the nature and effect of the procedure.
[100] At para. 67 -70, Watt, J.A. in R. v. D.M.G. wrote:
…I am satisfied that the procedure followed in the proceedings…caused a miscarriage of justice through procedural unfairness. The appellant’s unwavering denial of guilt was sideswiped by a procedure that resulted in a de facto admission of guilt without any inquiry into voluntariness or the appellant’s understanding of the nature and effect of this procedure.
Neither the appellant nor trial counsel ever admitted the truth or accuracy of the prosecutor’s allegations. Neither acknowledged that the prosecutor was in a position to adduce credible evidence to establish those allegations. Nor could either do so.
Persons who admit their guilt should plead guilty. The plea inquiry that s. 606(1.1) requires ensures that the plea is unequivocal, voluntary and informed.
Persons who deny guilt should plead not guilty and have a trial at which proper proof may be offered and its sufficiency or inadequacy addressed by the trier of fact. The cannibalized procedure followed here blurs the distinction between admissions and denials of guilt, is unauthorized and, as this case demonstrates, is capable of great mischief.
[101] In the present case, the Appellant denied his guilt and pleaded not guilty. He never changed that plea. The Appellant’s Evidence demonstrates that he always intended to maintain that he was not guilty. He did not plead guilty. He did not simply acquiesce to facts read into the record by the Crown. Nor did he stay silent in response to the evidence called by the Crown. The Appellant challenged the Crown’s evidence but he did so unsuccessfully. His defence was no longer viable after the cross-examination of Dr. Ward. He was found guilty by the trial judge based on evidence heard in the trial and accepted by the trial judge.
[102] Trial Counsel, speaking on the Appellant’s behalf, agreed with the trial judge’s proposal which specifically led the parties away from considering the entering of a guilty plea or what is referred to in R. v. D.M.G. and others like it as a “ nolo contendre ” plea. The trial judge referred clearly to a finding of guilt based on the evidence heard by him in the trial.
[103] Trial Counsel, speaking on the Appellant’s behalf, waived the re-examination of Dr. Ward and waived the need for the Crown to make submissions and for Trial Counsel to make submissions on the Appellant’s behalf. In the absence of an argument, based on accepted evidence, that Trial Counsel was incompetent or ineffectively assisting his client, the trial judge was entitled to accept Trial Counsel’s waiver of these few remaining steps in the trial. [11]
[104] In R. v. D.L.B. [12] , the British Columbia Court of Appeal considered an appeal of a finding that a youth was not criminally responsible on account of mental disorder (NCRMD) based in part on an allegation of ineffective assistance of counsel and in part on the failure of the trial judge to inquire as to whether she consented to the joint proposal for an NCRMD verdict, both of which she argued lead to a miscarriage of justice.
[105] At para. 46, Butler, J.A. summarized the test regarding a miscarriage of justice alleged pursuant to s. 686(1)(a)(iii) as follows:
Section 686(1)(a)(iii) concerns itself with the prejudicial impact of an event relating to the trial: R. v. Morrissey (1995) , 97 C.C.C. (3d) 193 at 220 (Ont. C.A.). It reaches all errors or events resulting in a miscarriage of justice and extends to events that lead to actual unfairness as well as to the appearance of unfairness: R. v. Khan , 2001 SCC 86 at para. 69 (per LeBel J., concurring in the result).
[106] Further, at para. 99-100:
Whether the basis of the appeal is actual unfairness or the appearance of unfairness, the irregularity must be sufficiently severe to warrant a finding that there was a miscarriage of justice: the concern is on "the gravity of the irregularity and the effect it may have had on the fairness of the trial": Khan at para. 69 . When considering whether circumstances were such that a trial was unfair or appeared to be unfair, the standard is not one of perfection, and the court must consider the circumstances as a whole. Minor irregularities are not sufficient to ground a finding of unfairness under s. 686(1)(a)(iii): Khan at para. 72 . Ultimately, the question is whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so: Khan at paras. 73-87 .
There is no strict formula for courts to follow in determining whether there was unfairness or an appearance of unfairness. However, there are a number of factors to consider, including whether the irregularity pertained to a question central to the case against the accused, the relative gravity of the irregularity, and the effect of the irregularity on the fairness of the trial or the appearance of fairness. This list is not exhaustive, and none of these factors are determinative on their own: Khan at paras. 73-87 .
[107] Butler, J.A. goes on at paragraphs 110 and 111 to conclude that to find that the unfairness in the trial process rises to the level where it causes a miscarriage of justice, the procedure followed must be “rife with errors” or “deeply flawed.” The appellant must demonstrate significant trial unfairness resulting from one or more grave irregularities.
[108] I find that while it may have been preferable, in hindsight, for the trial judge to inquire further as to what the Appellant meant when he said “that’s what I was told to say,” when the entire context of the exchanges between the trial judge and the Appellant and between the trial judge and Trial Counsel during the finding of guilt and sentencing are examined, it is clear that the trial judge relied on Trial Counsel’s representation of the Appellant and waiver of the few remaining steps for trial and convicted the Appellant based on the evidence called during the trial.
[109] There is nothing about the procedure followed that can accurately be described as “rife with errors” or “deeply flawed.” As Doherty, J.A. put it in R. v. R.T. [13] “any failings in these proceedings do not even remotely approach that level [of constituting a miscarriage of justice.]”
[110] The trial judge told the Appellant on numerous occasions throughout the trial that the Appellant should advise the court if he could not see or hear a witness or otherwise needed assistance. He was told that if he needed to meet with his lawyer during the trial, he would be given time to do so. During the impugned part of the proceedings, the trial judge asked the Appellant if he needed anything explained to him. The Appellant’s response was to hold the Cornwall Police Service responsible for the outcome.
[111] While the Appellant may have been having difficulty on the final day of the trial because of stress or the sequelae of his head injury, the trial judge cannot be expected to be aware of that without the Appellant bringing it to the judge’s attention, as he had been invited to do if he had a problem.
[112] Lastly, I conclude that even if the trial judge had inquired further into the Appellant’s agreement with the procedure being employed, the likely outcome would have been to take a break or adjourn to another day to either continue the trial or enter the finding of guilt based on the evidence called. I understand and agree with the trial judge’s conclusion that the case against the Appellant was overwhelming.
[113] This was not a situation the Appellant changed his plea to guilty and so a plea inquiry was required. It was also not a situation in which it was a “de facto” guilty plea as a result of not contesting facts read in by the Crown. It was a situation in which Trial Counsel had instructions not to proceed with the defence and to seek a resolution that would see his client not facing a jail sentence because of the Notice of Intention to Seek an Increased Penalty being filed and that is the outcome that was achieved. In my view, there is no realistic possibility that the Appellant would ever have been found not guilty on the evidence called in the trial.
Conclusion
[114] This was not a “de facto” guilty plea. There was no unfairness to the Appellant in the procedure employed by the trial judge that rises to the level of causing a miscarriage of justice. There was no miscarriage of justice. Accordingly, the appeal is dismissed.
Justice L. Bramwell Released: March 22, 2023
Footnotes
[1] Appellant’s counsel advised the Court that to streamline the issues on this appeal, and in recognition that a motion by the Respondent for a ruling that the Appellant had waived solicitor client privilege by virtue of the position he was taking would very likely be successful, the Appellant provided a waiver of solicitor client privilege limited to the discussions that took place between himself and Trial Counsel during the afternoon break on June 7, 2021. Both Counsel advised the Court that they did not view Rule 40.19 and Schedule 1 of the Criminal Proceedings Rules in the Superior Court of Justice to be applicable because the Appellant is specifically not alleging that Trial Counsel was incompetent, provided ineffective assistance or otherwise contributed to the alleged miscarriage of justice in this case.
[2] Counsel advised the Court that to streamline the issues on this appeal and to avoid inconvenience to Trial Counsel, the parties agreed that despite being an unsworn Will Say, the Trial Counsel Evidence is admissible in its present form, should the Court admit it as fresh evidence.
[5] 2000 SCC 15 , [2000] 1 S.C.R. 381
[6] R. v. D.L.B. , [2022] B.C.J. No. 73 (C.A.), para. 31
[7] [2012] B.C.J. No. 1695 (C.A.)
[8] Court resumed at 3:35 p.m. and the Atto Affidavit provides evidence that the Appellant called Appellate Counsel’s office prior to 4:06 p.m.
[9] As was described in R. v. Marriott , [2013] N.S.J. No. 40 (C.A.), para. 40 .
[10] 2011 ONCA 343 , at para. 70
[11] Korponay v. The Attorney General of Canada, , [1982] 1 S.C.R. 41, at pgs. 49-50 and 52. See also R. v. Moser , , [2002] O.J. No. 552 (S.C.J.) at paras. 37-38 .
[12] Supra , note 6.