R. v. Alexandruk, 2011 ABQB 475

Court of Queen ’ s Bench of Alberta Citation: R. v. Alexandruk, 2011 ABQB 475 Date: 20110721 Docket: 110402211S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Nicholas Frederick Alexandruk Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] On February 4, 2011, a red light camera recorded a motor vehicle proceeding westbound through a red light at the intersection of Stony Plain Road and 170 Street, in Edmonton, Alberta. The Appellant, Mr.

Alexandruk, owned the vehicle and he was issued a red light violation ticket for $287.00. On March 16, at the Provincial Court, Traffic Division, Mr. Alexandruk pled guilty to a contravention of s. 160(1) of the Traffic Safety Act , R.S.A. 2000, c. T-6 ( Act ), having committed a red light violation under s. 54(1) of the Use of Highway and Rules of the Road Regulation , Alta. Reg. 304/2002. He was issued a Time to Pay Notice with a June 30, 2011 deadline for payment of his fine. On April 8 he appealed his conviction.

Nature of the Appeal [2] Mr. Alexandruk seeks to withdraw his guilty plea on the grounds that there has been a miscarriage of justice. He seeks tohave the matter sent back to Provincial Court for a trial on the merits. Specifically, Mr. Alexandruk appeals on the following grounds: 1. He was coerced into pleading guilty by the Crown prosecutor at his First Appearance in Provincial Court, Traffic Division, onMarch 16, 2011. He was coerced again by the Traffic Division “counter staff” who issued the Government of Alberta Time to PayNotice that same day. 2.

He has a good defence; namely, that it was unreasonable for him to step on the brakes in the circumstances and that the violationoccurred only 0.5 seconds after the red light was activated. Submissions of the Parties Position of Mr. Alexandruk [3] Mr. Alexandruk submits that he was coerced to some degree into pleading guilty. He indicates that he told the Crownprosecutor he thought the judge might decide to cancel his traffic ticket. He said the Crown prosecutor responded by saying he couldnot cancel the red light ticket and that he had prosecuted many cases of red light tickets. Mr.

Alexandruk states that the Crownprosecutor told him to deal with the “counter staff”, at which point he was coerced a second time and issued a Government of AlbertaTime to Pay Notice. Mr. Alexandruk states this was his first traffic ticket and that he was unsure of how to take the prosecutor’s words.After being asked twice by the “counter staff” whether he was pleading guilty, he says he felt pressured and said “yes” but changed hismind once he went home. [4] Mr. Alexandruk submits that he has a good defence and his violation ticket should have been cancelled.

He relies on a letterhe wrote to the Provincial Court, Traffic Division, on April 4, 2011, as well as on a general statement that past news media informationhas revealed cases of faulty radar. In his letter, he takes the position that he cleared the intersection on or during the amber light. Hestates that he was probably very close to the painted walk line and that it was unreasonable to step on the brakes and have the vehiclejerk when it was a slippery road. He submits that he exercised due care in the circumstances.

He also states that he would have steppedon the brakes to stop, even abruptly, if there had been a pedestrian, a cyclist, or a vehicle proceeding through the intersection. [5] Based on the Notice of Offence to Registered Owner, the offence occurred 0.5 seconds after the red light was activated. Mr.Alexandruk’s position is that no person or computer should charge him with that kind of violation, and that this is not good grounds for a“cash-cow” ticket of $287.00. In his letter, he states that he cannot and will not plead guilty to the charge.

Position of the Crown [6] The Crown submits that there are three recognized grounds upon which an appeal court may allow an accused to change aguilty plea. The grounds are: (1) the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it; (2)the appellant did not unequivocally plead guilty to the charge as properly understood; or (3) upon the admitted facts, the appellant couldnot in law have been convicted of the offence charged (Adgey v. The Queen, (SCC), [1975] 2 S.C.R. 426, 1973CarswellOnt 39 at paras. 7-9 and R. v. Wetmore at para. 23).

[7] The Crown argues that, where a trial judge’s discretion to accept or reject a guilty plea has been exercised judicially, it willnot be interfered with lightly (Adgey at para. 6). It argues that there is nothing in evidence to suggest that Mr. Alexandruk did notappreciate that he was pleading guilty to the red light violation or that he did not do so voluntarily. It notes that there is no explanationprovided by Mr. Alexandruk as to how the alleged coercion resulted in him taking a different course of action than he had planned, nordid he seek to introduce fresh evidence on appeal to support such a claim.

The Crown further argues that the prosecutor simply indicatedhe had a strong case, which is no surprise given that red light violations are routine tickets. [8] With respect to Mr. Alexandruk’s second argument, the Crown suggests that he is arguing that his guilty plea and ticketshould be set aside on the basis of a miscarriage of justice. The Crown sets out two categories of miscarriages of justice, those relating totrial fairness and those relating to the integrity of the administration of justice (R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. 2(d) 222 atpara. 84).

The Crown submits that “[a] miscarriage of justice may be found where anything happens in the course of a trial, including theappearance of unfairness, which is so serious that it shakes public confidence in the administration of justice” (Wolkins at para. 84, andR. v. Cameron, (ON CA), 2 O.R. (3d) 633, 1991 CarswellOnt 852 at para. 22 (C.A.)). The Crown takes the positionthat red lights must be obeyed even if no one else is present on the scene and that Mr. Alexandruk has not met the heavy burden ofshowing that his guilty plea should be struck.

He has not shown that it was wrong, in that no offence had been committed, or that itwould be unjust to maintain it. Legislative and Case Law Authorities [9] A basic principle is that “[a] valid guilty plea must be voluntary, unequivocal, and informed such that the accused is awareof the nature of the allegations, the effect of his plea, and the consequences of his plea” (R. v. Caines, 2010 ABQB 616 at para. 39). [10] By virtue of s. 3 of the Provincial Offences Procedure Act, R.S.A. 2000, c. P-34 (POPA), all provisions of the Criminal Codeof Canada, R.S.C. 1985, c. C-46 (Criminal Code) that are applicable to

summary convictions and related proceedings apply to thematters covered by the POPA unless those provisions are inconsistent with the POPA. Section 686(1)(

a) of the Criminal Code, whichapplies to

summary conviction proceedings by virtue of section 822(1) of the Criminal Code, provides that a

summary conviction appealcourt may allow an appeal in three instances: (

i) where the verdict is unreasonable or unsupported by the evidence (s.s. 686 (1)(a)(i)); (ii) where the trial judge has wrongly decided a question of law (s.s. 686 (1)(a)(ii)); or (iii) where on any ground there was a miscarriage of justice (s. 686 (1)(a)(iii)). [11] The Alberta Court of Appeal has directed that, “[w]here the guilty plea results in a miscarriage of justice the plea should bepermitted to be withdrawn or set aside. A miscarriage of justice may be found when a guilty plea was not valid or when the accusedsuffered prejudice as a result of the plea” (R. v.

Hoang, 2003 ABCA 251, 339 A.R. 291 at para. 27). Therefore, Mr. Alexandruk has theburden of proving that his guilty plea is invalid or that he was prejudiced by his plea.

If he does so, it is open to me to allow his appealand order a new trial on the grounds that there has been a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. [12] The Supreme Court of Canada held that it is within the discretion of an appeal court to permit an accused to change his plea,but this discretion must be exercised judicially (Adgey at paras. 5-6). “[A]n accused may change his plea if he can satisfy the appealcourt ‘that there are valid grounds for his being permitted to do so’”. What constitutes valid grounds has not been exhaustively defined(Adgey at paras. 7-9).

Withdrawal of a guilty plea will not, however, be routinely granted as there are valid and practical policy reasonsfor only allowing it in exceptional circumstance (R. v. McKinnon, 2007 ABQB 432, 420 A.R. 301 at para. 49). [13] In R. v. Gillis, 2003 ABQB 713 at para. 25, Veit, J. summarized the general principles governing the withdrawal of guiltypleas in Alberta:

a) The court has the jurisdiction to allow an accused to withdraw a guilty plea.

b) The court's discretion in exercising its jurisdiction must be exercised judicially.

c) The onus or burden of this application is on the defence. Although there are some decisions that hold that the onus on the accused isa heavy one, particularly where he was represented by a lawyer when he pleaded guilty and when the facts were read out in court, theSupreme Court of Canada has not sanctioned that characterization of the onus.

d) The nature of the burden on the accused is "to satisfy the court" . . . "that there are valid grounds for his being permitted to do so":Adgey . Some of the circumstances that might justify the Court in permitting a change of plea include, but are not limited to, a situationwhere the applicant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it, or that hemisapprehended the effect of a guilty plea, or that, upon the admitted facts, he could not in law have been convicted of the offencecharged.

e) Alberta courts have outlined some additional situations in which a court might be persuaded that a guilty plea could be withdrawn.For example, the following list of situations outlined by the Appeal Division of the Alberta Supreme Court in 1968 was recently quotedwith approval by Sullivan, J. in the R. v. Kambeitz decision : Evidence could be led, however, to show that the defendant was "a person aggrieved" notwithstanding a plea of guilty because the pleawas based on: (

a) A lack of understanding because of illiteracy: Rex v. Olney (BC CA), [1926] 3 W.W.R. 273, 37B.C.R. 329, 46 C.C.C. 196 (C.A.); (

b) A qualified plea where an essential ingredient of the offence was denied before the

summaryconviction court: Rex v. Richmond (AB CA), [1917] 2 W.W.R. 1200, 12 Alta. L.R. 133, 29 C.C.C. 89 (App. Div); (c)An inducement held out by officers of the crown: Rex v. Stone (1932) (NS SC), 4 M.P.R. 455, 58 C.C.C. 262 (N.S.C.A.); (

d) Lack of understanding because of unfamiliarity with our language: Rex v. Ah Tom (1928) (NS SC), 60N.S.R. 1, 49 C.C.C. 204 (C.A.); (

e) Inducement by threats: Reg. v. Sanders (No. 1) (1953) (BC CA), 8 W.W.R. (NS)676, 16 C.R. 378, 106 C.C.C. 76 (B.C. C.A.); Reg v. Sanders (No.2) (1953 (BC SC), 10 W.W.R. (NS) 372, 17 C.R.354, 107 C.C.C. 317 (B.C.). I also note the case of R. v Hughes (1987) 1987 ABCA 69 , 76 A.R. 294 (Alta. C.A.) where Mr. Justice McClung speaking forthe court said (at p. 296): The appellant must go further and show that the plea is wrong and that it would be unjust to maintain it.

f) Dissatisfaction with the sentence is not a basis on which a guilty plea can be withdrawn.

g) A misapprehension about the collateral financial effects of a guilty plea, such as an increase in insurance rates, is not a basis on whicha guilty plea can be withdrawn: Kambeitz . [14] In a case similar to this one, R. v. Enterprise Rent-a-Car, 2007 ABQB 475, Veit J. considered an application by the driver of arented car to withdraw the car rental company’s guilty plea to a breach of s. 160(1) of the Act.

The rental company, as owner of thevehicle, had been issued a ticket in the amount of $287.00 based on a red light violation alleged to have been committed by the driver.Payment of the ticket by the rental company amounted to a guilty plea in law, and the driver sought to withdraw that guilty plea so thathe could proceed to trial on the charge. Veit J. cited her previous decision in Gillis as a proper statement on the requirements to withdrawa guilty plea in such circumstances. She adopted what she considered the most generous articulation of the test, set out by the AlbertaCourt of Appeal in R. v.

Hughes (1987), 1987 ABCA 69 , 76 A.R. 294 at 296 (C.A.). “The applicant must demonstrate that itwould be unjust to maintain the guilty plea” (Enterprise Rent-A-Car at para. 19). [15] The Crown has correctly stated the two general categories of miscarriages of justice: those relating to trial fairness and thoserelating to the integrity of the administration of justice (Wolkins at para. 84).

Where something occurs in the course of a trial, includingthe appearance of unfairness, “which is so serious that it shakes the public confidence in the administration of justice,” a miscarriage ofjustice will be found (Wolkins at para. 84).

Analysis [16] As the validity of his guilty plea has been raised for the first time on appeal, it is important to note that the burden of proof ison Mr. Alexandruk to satisfy me that his guilty plea is invalid (in that it was not voluntary, unequivocal, and informed) and shouldtherefore be set aside. Mr. Alexandruk argues that his guilty plea was not voluntary because he was coerced into pleading guilty by theCrown prosecutor and “counter staff” at the Provincial Court, Traffic Division. He makes no submission that his plea was equivocal oruninformed.

In fact, the Violation Ticket which accompanied the Notice of Offence to Registered Owner clearly set out the options andconsequences available to him on receipt of the ticket. [17] At paras. 19 and 28 of R. v. Earle, 2002 CarswellOnt 1083, Bentley, J. of the Ontario Court of Justice held that “[f]or a plea tobe coerced there must be some evidence that the defendant was being forced to admit that he or she committed the offence” in that “hewas being forced at the time of plea to doing what his ‘free will would refuse’”. [18] The only information before me is Mr.

Alexandruk’s version of events as set out for the first time in his Notice of Appealdated April 8, 2011 and reiterated in his oral submissions. Mr. Alexandruk placed quotation marks around the word “coerced” in hiswritten submissions. In terms of what the alleged coercion consisted of, he provided only a brief explanation that the First Appearanceprosecutor told him he could not withdraw the red light ticket and that he had prosecuted many such tickets. In oral argument, hesuggests that he felt “pressured” at the time he entered his guilty plea.

Courts have long recognized that some level of pressure andanxiety on the part an accused entering a plea is inherent in the process, and the presence of those emotions alone does not render a pleainvoluntary (R. v. R.T. (1992), (ON CA), 10 O.R. (3d) 514, [1992] O.J. No. 1914 at para. 18 (C.A.)). [19] Mr. Alexandruk did not make a fresh evidence application with respect to the coercion argument. None of his submissionswere under oath, either by way of affidavit or viva voce testimony. As such, the Crown would not have had the opportunity to cross-examine him on his version of events.

Additionally, there is no transcript of the lower court proceedings, nor any possibility of obtainingone in the circumstances. [20] In R. v. Laffin, 2009 NSCA 19, 275 N.S.R. (2d) 244 at para. 43, the Nova Scotia Court of Appeal found that, in reaching aconclusion on the validity of a guilty plea, it was to rely solely on the record before it. Specifically, the Court found that “[t]he onlyrelevant information is Mr. Laffin’s handwritten allegations throughout the materials as to the circumstances that gave rise to the chargesagainst him and what took place between himself and [his counsel].

For the court to accept these allegations as evidence in the formpresented, which precluded the Crown from cross-examination, would be unfair”: Laffin at para. 32. I do note, however, that in thatcase the accused, who was self-represented on appeal, had been given Court direction and several opportunities to file an affidavit settingout his evidence in support of his position (at para. 31). [21] In relation to Mr. Alexandruk’s argument that his guilty plea should be withdrawn on the basis of a miscarriage of justice(since he asserts he has a good defence), the only information before me are Mr.

Alexandruk’s submissions as set out in his letter to theProvincial Court, Traffic Division. As with his coercion argument, similar evidentiary concerns therefore arise. [22] The case of Enterprise Rent-A-Car Canada Ltd. is, nevertheless, on point. In considering whether the plea was unjust, Veit,J. took into consideration the defences argued by the applicant, who was also self-represented in that case.

Although a red light violationis a strict liability offence, s. 161 of the Act states that “[w]here a person is charged with an offence under this Act or a bylaw, the courttrying the case may dismiss the charge if the person satisfies the court that the offence could not have been avoided by the exercise ofreasonable care or precaution.” Veit, J. found that the defence of due diligence was not available, as the applicant in that case as much asadmitted the offence could have been avoided (at para. 26). She also found the defence of necessity was not made out.

She denied theapplication to withdraw the guilty plea, since the defences had no hope of success at trial. [23] As in Enterprise Rent-a-Car, Mr. Alexandruk argues that he was duly diligent while simultaneously admitting that theoffence could have been avoided, in that he would have stopped had there been a pedestrian, cyclist, or other vehicle present at theintersection. Although the road conditions may have been slippery, and although the offence occurred 0.5 seconds after the light turnedred, a red light violation is a strict liability offence.

To distinguish between an offence that occurs 0.5 seconds after the light turns red andone that occurs after a more prolonged period would tend to confer some discretion on drivers as to when traffic signals must be obeyed.From his submissions, Mr. Alexandruk appears to be dissatisfied with the $287.00 fine, given that his violation occurred shortly after thelight turned red. However, dissatisfaction with a sentence is not a valid basis on which to withdraw a guilty plea (Gillis at para. 25).

[ 24 ] On the plain wording of s. 161 of the Act , the burden is on Mr. Alexandruk to satisfy me “that the offence could not have been avoided by the exercise of reasonable care or precaution.” On his own submissions, he states he could have stopped his vehicle instead of proceeding through a red light. It is unlikely the due diligence defence provided at common law or that provided by s.161 would be successful. With respect to this ground of appeal, and given that there is no evidence before me that the red light ticket in issue was the product of faulty radar, Mr.

Alexandruk’s alleged “defence” is not likely to succeed. As such, there has not been a miscarriage of justice as a result of his conviction. On the basis of the record before me, his guilty plea was not wrong, nor is it unjust that it be maintained. Conclusion [ 25 ] The burden of proof in this appeal is on Mr.

Alexandruk to satisfy me that his guilty plea should be set aside and that the matter be sent back to Provincial Court for a trial on the merits. [ 26 ] He has not met the burden of proving that his guilty plea was invalid or that there was otherwise a miscarriage of justice in the proceedings below. [ 27 ] Therefore, his appeal is dismissed. Heard on the 23 rd day of June, 2011. Dated at the City of Edmonton, Alberta this 21 st day of July, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Julie Snowdon for the Crown Nicholas Frederick Alexandruk appeared on his own behalf