R v Dalling, 2016 ABQB 132

Court of Queen ’ s Bench of Alberta Citation: R v Dalling, 2016 ABQB 132 Date: 20160307 Docket: 120213384S1 Registry: Edmonton Between: Her Majesty the Queen Respondent/ Respondent on Appeal - and - Mark William Dalling Applicant/ Appellant on Appeal _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________

[ 1 ] This is a case in which the presumption of the existence of compliant conditions for accepting a guilty plea under s.606(1.1) of the Criminal Code (CC) was initially accepted at the time a guilty plea was entered, but has been rebutted since. [ 2 ] This case has a long history. On February 4, 2013, when the Appellant attended for trial in Provincial Court on a charge that he, on or about the 14 th day of November 2011, did unlawfully operate a motor vehicle while his ability to operate same was impaired by alcohol or a drug, contrary to s.253(1) (

a) CC , instead of proceeding with the trial, he pleaded guilty. Counsel for the Accused (Trial Defence Counsel) assured the Court, in accepting the plea, that there was compliance with s.606(1.1) CC. [ 3 ] The Offender subsequently hired new Counsel (Appeal Defence Counsel). A Notice of Motion to Extend Time to File Appeal filed on August 6, 2014, was granted in this Court on December 4, 2014.

The Notice of Appeal was filed December 9, 2014 and in it the grounds for appeal by the Appellant included that the “appellant did not receive the effective assistance from counsel” and the “appellant’s decision to plead guilty was an uninformed decision”. As we shall shortly see, the appeal proceeded substantially on the second ground. [ 4 ] On March 2, 2015, amended on April 9, 2015, an Application to Adduce Fresh Evidence on Appeal was filed, supported by affidavit evidence of the Appellant, and two doctors who had treated the Appellant, Dr. Wink and Dr. McArdle (collectively, the Doctors).

In his Affidavit, the Appellant swore that, prior to February 3, 2011, he had asked Trial Defence Counsel to contact Dr. Wink about the effects of the medication, prescribed to him by Dr. Wink, Zopiclone, on his behaviour leading to the charge against him, but that “[s]hortly before my trial was to begin, my lawyer indicated that due to changing circumstances, he felt a guilty plea was appropriate. I thought that he had spoken to my doctor and accepted his advice.” The guilty plea followed. He further swore that on June 20, 2013, he learned that Dr.

Wink had not spoken to Trial Defence Counsel. [ 5 ] While the competence of Trial Defence Counsel was the first ground of appeal, and it was the early focus, along with the application to adduce fresh evidence, of Counsel on the appeal in our Court, the matter turned to the issue of whether there had been compliance with s.606(1.1) CC and whether its presumptions were actually in place at the time of the guilty plea.

All subsequent proceedings focused on this issue alone and now allow me to dispose of the appeal on that basis. [ 6 ] On June 2, 2015, for reasons that are on the record, I appointed the Honourable René Foisy as a Special Commissioner (Special Commissioner), pursuant to s.683(1) (

e) CC , to “inquire into and report on: the circumstances surrounding compliance with s.606 (1.1) [CC] and the consequent validity or invalidity of [the Appellant’s] guilty plea”. [ 7 ] On November 6, 2015, the Special Commissioner issued his Report (a copy of which is attached hereto as Appendix “A”), the conclusion of which supported the subsequent position of Appeal Defence Counsel, and, ultimately, the decision I make herein.

However, Crown Counsel disagreed and provided a substantial written Memorandum of Argument, and a written Addendum thereto, filed on November 4, and November 26, 2015 respectively, in support of dismissal of the challenge to the guilty plea based on lack of effective compliance with s.606(1.1) CC .

Counsel appeared before me on December 1, 2015 and made brief submissions with respect to the Report and their arguments, prior to me reserving my decision. [ 8 ] While somewhat overlapping, it is clear from his Report that the Special Commissioner found the following facts, and came to the following conclusions, namely that: A.

Failure to Contact Doctors Relevant to a Potential Defence Facts: - the Appellant authorized Trial Defence Counsel to contact his Doctors - Trial Defence Counsel decided that the defence of involuntary intoxication was not available to the Accused and thus he did not need to contact the Doctors - Trial Defence Counsel had not considered the possible defence of automatism, and [it is inferred] consultation with the Doctors might well have been relevant to considering such a potential defence Conclusion: - “... that would have been sufficient to indicate non-compliance with s.606(1.1) [ CC ]

B. Guilty Plea on the Premise that Trial Defence Counsel had contacted Doctors Facts: - the guilty plea was entered by the Accused because he understood that Trial Defence Counsel had contacted the Doctors - the evidence of Dr.

McArdle establishes a possible basis for a defence of automatism Conclusion: - the Accused’s guilty plea was not voluntary, as it was based on a false premise - there is some basis for the possible defence of automatism to proceed on the merits [9] These findings of facts and conclusions, which I accept, are sufficient, without more, to set aside the guilty plea and returnthe matter to the Provincial Court for further proceedings – a new plea, and a first trial, if the plea is not guilty. However, it should beunderstood, that my decision is based on the involuntariness of the plea, in the context of s.606(1.1)(

a) CC, not that the tests for new orfresh evidence (the Palmer test – R. v. Palmer, (SCC), [1980] 1 S.C.R. 759) have been met. Indeed, I need not considerany application to introduce new or fresh evidence as it was not, in substance, directly and actively raised before me (see the acceptanceof this at para. 21 of the written submissions of the Crown filed November 4, 2015, in reference to R. v. Hartman, 2015 ONCA 496, andat para. 3 of the Crown’s Addendum filed November 26, 2015, although argued to the contrary at paras. 14 – 18 of the latter).

Nor do Ineed to so consider, nor do I accept that the Palmer test would have been met, had I done so. In other words, I do not decide this matteron the basis of arguments in support or, or contrary, to the law for the introduction of new or fresh evidence – full stop. To the extent thatthe evidence before, the facts found by, and conclusions reached by, the Special Commissioner might cause some to come to an oppositeposition (that conclusions regarding new or fresh evidence were legally in play), those thoughts should be rejected.

All the SpecialCommissioner was really considering was whether there was some basis on which to conclude whether the plea was involuntary, and notin compliance with s.606(1.1)(

a) CC – i.e. that the argument in that regard, was not spurious. Moreover, there was no earlier evidence ata, or any, trial to which to add new or fresh evidence. Neither the Special Commissioner, nor I, made/make any findings or conclusionthat such evidence, if called at a new trial, would be successful (or unsuccessful) to provide a defence beyond a reasonable doubt. Allthat the Special Commissioner concluded, and I decide, is that there was not effective compliance with s.606(1.1) CC, in all thecircumstances, to allow the guilty plea to stand.

The evidence of the Doctors merely allowed the Special Commissioner to conclude, andfor me to accept, that this supported the involuntariness – that is, that the Accused was, in pleading guilty, working on a different set offacts and understanding than was actually the case. [10] There is, however, one further basis for finding lack of compliance with s.606(1.1) CC. Under s.601(1.1)(b)(

i) CC the plea isto be “an admission of the essential elements of the offence”. One of those elements, which the Crown must prove beyond a reasonabledoubt is that no specific defence, including the defence of automatism, can succeed. On the basis of all the evidence presented before theSpecial Commissioner, it is now clear that the Accused was not – at the time of the guilty plea, in a position to so admit.

To the extentthat, through the submissions of Trial Defence Counsel, he appeared to have so admitted, that too was involuntary for the above reasons. [11] These two conclusions are consistent with the old test for acceptance of a guilty plea, found in R. v. Hughes, 1987 ABCA 69, 1987, A.J. No. 204, rendered March 3, 1987, although that has been substantially supplanted by s.606(1.1) CC with came intoeffect later – September 23, 2002. Additionally, in the case at Bar there was a “misapprehension” by the Accused, not present there – seepara. 10 of Hughes.

Moreover, it appears that s.606(1.1) CC is consistent with, and perhaps, motivated in part by, the earlier dissent ofLaskin and Spence JJ. In R. v. Adgey, (SCC), [1975] 2 S.C.R. 426, 13 C.C.C. (2d) 177. [12] Notwithstanding the facts found and conclusions made by the Special Commissioner, the submissions of Crown Counselwere, in effect, to make elaborate arguments: (

a) against the findings of the Special Commissioner, that the Accused’s guilty plea was“voluntary and fully informed”; (

b) that the defence of automatism could not succeed – it “is a red herring and not based on anyreasonable or credible evidence” and was “not feasible”; and (c), based on precedents, against a conclusion of incompetence of TrialDefence Counsel. [13] In response to (a), I reiterate that I accept the findings of fact and conclusions arrived at by the Special Commissioner, namelythat the guilty plea was involuntary and not fully informed. [14] As to (b), it is not a Court of Appeal’s role, on an application to argue lack of compliance with s.606(1.1) CC, to evenconsider, never mind hear and determine, the evidence and merits of a potential defence, or the potential defence itself, includingwhether it is reasonable or credible, or feasible.

That is, more correctly in the latter context, whether the Crown can succeed in provingbeyond a reasonable doubt that the defence of automatism cannot prevail – failing which, a reasonable doubt might result to the benefitof the Accused. All of these issues are matters for trial not appeal. [15] As to (c), the competence of Trial Defence Counsel, while potentially relevant in the evidence, was essentially abandoned bythe Appellant as a ground of appeal, instead relying on a breach of s.606(1.1) CC.

[ 16 ] In all of these circumstances it follows that, due to there being lack of voluntariness and a lack of effective admission under – a lack of compliance with - s.606(1.1) (

a) and (b)(

i) CC , the Appellant must not be forced to maintain his guilty plea. Put another way, had those facts and circumstances that are now known, been known at the time of the guilty plea, the learned Provincial Court Judge to whom the plea was made would have concluded that he was not satisfied that the Appellant was “making the plea voluntarily” or understood that “the plea [was] an admission of the essential elements of the offence” – i.e. that there was no potential defence to the charge. For those reasons, I allow the appeal under s.686(1)(a)(iii) CC on the basis that failure of ultimate compliance with s.606(1.1) CC, constitutes a miscarriage of justice. Thus, under s.686(2) (

b) CC, I return the matter to, and the Appellant (once again the Accused) is directed to report to, the Provincial Court at the Edmonton Law Courts, in courtroom 356 (or such other courtroom to which it may be assigned) on March 29, 2016 at 9:00 a.m. to enter a plea, and, if that plea is not guilty, to set a trial date. Heard on the 1 st day of December 2015. Dated at the City of Edmonton, Alberta this 7 th day of March 2016. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Christian Lim for the Respondent Shannon Prithipaul for the Appellant