R v Barr, 2021 ABQB 350

Court of Queen’s Bench of Alberta Citation: R v Barr, 2021 ABQB 350 Date: 20210507 Docket: 170696025Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Trevor Barr Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ I. OVERVIEW [ 1 ] Trevor Barr applies to set aside his guilty plea and for an order permitting him to re-elect to be tried by a Judge sitting with a jury.

[2] Mr. Barr was represented by an experienced criminal defence lawyer (Defence Counsel) when he appeared before me onJune 23, 2020 via Webex and pleaded guilty to one count of sexual assault. Immediately after the plea, I conducted the inquirymandated by s 606(1.1) of the Criminal Code, RSC 1985, c C-46. In response, Mr.

Barr confirmed that the plea was being enteredvoluntarily, that he understood he was giving up his right to a trial, that he would be required to admit the essential elements of theoffence, that he would get a criminal record as a result of the plea and that the criminal record would have consequences. Finally, Mr.Barr confirmed that I was not bound by any joint submission regarding sentence that might be presented to me. [3] To support the guilty plea, the Crown tendered an Agreed Statement of Facts that Mr. Barr acknowledged signing.

The factsread in by the Crown included the following: While the complainant was asleep, the Accused massaged her in an attempt to wake her. She did not wake. He performed cunnilinguson the complainant. The Accused then had penile vaginal sex with her. The complainant remained asleep the entire time. [4] In response to a question from Defence Counsel, the Accused admitted that the facts, as read by the Crown, were “true andaccurate.” [5] After the facts had been admitted, Defence Counsel sought a lengthy adjournment so that Mr. Barr could put his affairs inorder prior to sentencing.

It was anticipated that the sentencing would take place prior to early October, 2020. The Crown did notoppose the adjournment and, as a result, the matter was adjourned to a date in Queen’s Bench Appearance Court (QBAC) for the purposeof fixing the sentencing date. [6] The trial dates of July 6 to 9, 2020 were vacated on the entry of the guilty plea. [7] For a period of approximately 3 weeks after the guilty plea, Mr. Barr and Defence Counsel were in communication for thepurpose of attempting to modify the conditions of Mr. Barr’s release so that he could participate in a mediation program with his wife.

This resulted in a Variation Order that was granted on July 14, 2020. At no time during this process did Mr. Barr express any concernover the performance of Defence Counsel in relation to the guilty plea. [8] Weeks after the guilty plea was entered, Defence Counsel and the Crown made arrangements with the trial coordinators for adate to conduct the sentencing hearing. This hearing was to take place on September 14, 2020. The date for the sentencing hearing wasconveyed to Mr. Barr by email from Defence Counsel dated August 6, 2020. To this point Mr.

Barr had not raised any concernsregarding the guilty plea with Defence Counsel. However, within a matter of hours, Mr. Barr responded by email to Defence Counsel inwhich he stated “Effective Immediately, you are terminated as my attorney due to your gross negligence.” [9] On August 17, 2020, Defence Counsel appeared before me and sought leave to withdraw on the basis that there had been abreakdown in the solicitor-client relationship. I granted Defence Counsel’s application and then granted Mr. Barr an adjournment topermit him to retain new counsel. Ultimately Mr.

Fedorchuk Q.C. was retained and he immediately brought the present application to setaside the guilty plea and to re-elect to be tried by a Judge sitting with a jury. [10] The grounds for the application to set aside the guilty plea are:

a) Prior to trial, the Accused was encouraged by Defence Counsel to enter a plea of guilty to one count of contravening s 271 of theCriminal Code, notwithstanding the fact that the Accused maintained his innocence; and

b) The guilty plea was not unequivocal and not voluntary and a defence exists at law to the charge. [11] In support of the application Mr. Barr swore two Affidavits deposing to the circumstances leading to the guilty plea. Inaddition, I heard viva voce evidence from Mr. Barr and from two of his former lawyers, including Defence Counsel. Mr. Barr waivedsolicitor-client privilege to permit his former lawyers to testify. [12] The Court may permit the withdrawal of a guilty plea at any time before the sentence is imposed.

The decision to permit ordeny the withdrawal of the plea involves the exercise of discretion which must be exercised judicially: Thibodeau v The Queen, (SCC), [1955] SCR 646 at 653-654. For valid policy reasons the discretion to withdraw a guilty plea should be exercised onlyin exceptional circumstances and thus the withdrawal will not be routinely granted: R v Hoang, 2003 ABCA 251 at para 25 [Hoang]. Where the guilty plea results in a miscarriage of justice, the plea should be set aside.

A miscarriage of justice may be found when aguilty plea was not valid or when the accused suffered prejudice as a result of the plea: Hoang at para 27. [13] For the reasons that follow, I dismiss the application to set aside the guilty plea and direct that counsel arrange for asentencing date. II. WAS THE GUILTY PLEA VALID? [14] A guilty plea is valid only if it is voluntary, unequivocal and informed: R v Wong, 2018 SCC 25 at para 3 [Wong].

If theguilty plea does not meet these criteria, then the Court’s discretion should be exercised in favour of setting aside the plea. [15] In a hearing to set aside a guilty plea, the applicant has the burden of establishing that the guilty plea was invalid or that amiscarriage of justice will occur if the plea is allowed to stand: Wong at para 65; R v Peequaquat, 2019 ABCA 236 at para 62[Peequaquat]; R v Raynor, 2014 ABQB 449 at para 24 [Raynor].

This must be established on a balance of probabilities: Raynor at para24. [16] However, the applicant does not have any onus to show a viable defence to the charge in order to withdraw a plea onprocedural grounds. “[T]he prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial”: R v Rulli, 2011ONCA 18 at para 2. Imposing an onus to show a viable defence would undermine the presumption of innocence: Wong at para 23.

a) Was Mr. Barr’s Guilty Plea Voluntary? [ 17 ] The standard of voluntariness required to sustain a guilty plea is relatively low, equivalent to the test for fitness to stand trial. It requires a conscious decision to plead guilty for reasons the accused regards as appropriate. The accused need only be able to understand the process leading to the plea, communicate with counsel and make an active or conscious choice: R v Cherrington , 2018 ONCA 653 at para 21 . [ 18 ] After conducting the s 606(1.1) inquiry, I was satisfied that the plea was made voluntarily.

When I read the transcript of the June 23, 2020 proceeding and recently listened to the FTR recording, I again detected nothing that would have given any concern regarding voluntariness. [ 19 ] In the evidence before me on this application, Mr. Barr raises several grounds on which he urges me to conclude that the guilty plea was not voluntary, despite the answers he provided on the s 606(1.1) inquiry.

Those grounds can generally be summarized as follows: • The 4 different lawyers who represented him at various times in the months leading up to the guilty plea failed to adequately represent him, failed to properly assess the merits of the case and failed to challenge the admissibility of his statement to police. Mr. Barr swore in his Affidavit that “I felt like I had zero chance at trial as no one was willing to put up a defence for me.” • Mr. Barr signed a s 606(1.1) waiver form that Defence Counsel had provided to him. Before signing the form, he made an alteration to the form.

Immediately after the paragraph that includes the statement “I am entering the plea of “guilty” freely and voluntarily,” Mr. Barr made the following handwritten addition: I feel threatened by the Crown if by having my trial I will be sentenced too (sic) double the amount of time. • The Justice presiding over the March 26, 2019 pre-trial conference was reported to have told Mr. Barr’s then counsel that “proceeding to trial would be unethical.” Mr. Barr deposed that “I felt like the entire system was against me.” [ 20 ] To assess Mr.

Barr’s concerns regarding the voluntariness of the guilty plea it is necessary to provide some context. The endorsements show that his matter was originally set for trial to be held from December 16 to 19, 2019; however, the trial did not proceed because Mr. Barr discharged his then counsel. The Court adjourned the trial and put the matter over to January 24, 2020 in QBAC so that Mr. Barr could seek new counsel for the purpose of setting new trial dates. Mr. Barr did not have counsel when he appeared in QBAC on January 24, 2020.

At that time the Crown consented to a further adjournment to February 7, 2020, but indicated that it would seek to obtain new trial dates at the next QBAC appearance. On February 7, 2020, Mr. Barr again appeared in QBAC without counsel. The Court set new trial dates of July 6 to 9, 2020 and arranged for a pre-trial conference to be held on March 23, 2020. Mr. Barr had still not retained new counsel by March 23, 2020 and he advised the pre-trial Judge that he would not likely have counsel until May 2020. The pre-trial conference was conducted in open court and the proceedings were recorded.

A transcript of that pre-trial conference was provided to me. The pre-trial Judge thoroughly reviewed the case with Mr. Barr and identified many of the issues that Mr. Barr needed to consider in relation to his defence of the charges including the admissibility of his statement to police and the admissibility of the text messages he exchanged with the Complainant, both of which contain significant inculpatory statements. The pre-trial judge also discussed with Mr. Barr the potential for an application under s 276 of the Criminal Code .

A further pre-trial conference was scheduled for May 21, 2020, by which time Mr. Barr had retained Defence Counsel. [ 21 ] By the time Defence Counsel had been retained in May 2020 almost 3 years had passed from the time of the alleged offence. Thus, the file was getting quite old and well beyond the 30-month Jordan timeline. Even more importantly, by the time Mr. Barr retained Defence Counsel the trial was only 2 months away. i. Did Ineffectiveness of Legal Counsel Undermine Voluntariness? [ 22 ] Mr. Barr is highly critical of the lawyer who represented him in the months leading to the December 2019 trial dates.

He was also very critical of Defence Counsel, the lawyer representing him at the time of the guilty plea on June 23, 2020. He deposes that “I felt like I had zero chance at trial as no one was willing to put up a defence for me.” He suggests that his lawyers did not dedicate sufficient time to review disclosure to properly ascertain the merits of the case and in particular did not fully assess the admissibility of the statement he made to police. These bald assertions have no foundation in fact.

On the contrary, these alleged concerns are completely refuted by the evidence of both of the lawyers who testified on this application. Both lawyers provided a full and candid description of the steps they took in their analysis of the case and the advice they gave to Mr. Barr. Both lawyers fully discharged their duty to Mr. Barr in a competent and professional way. There is simply no evidence that Mr.

Barr received anything other than completely appropriate legal advice. [ 23 ] The legal advice that is most critical in relation to this application was that given by Defence Counsel from the time of his retainer in mid-May 2020 until the time of the guilty plea on June 23, 2020. I have read that portion of Defence Counsel’s file that was marked as an exhibit in these proceedings. I also listened carefully as Defence Counsel explained the process he followed after being retained. The evidence satisfies me that Defence Counsel undertook his responsibilities very seriously.

Within a few days of his retainer he attended a pre-trial conference and began communications with the Crown and Mr. Barr regarding the case. It is very clear that Defence Counsel fully assessed the case and made appropriate recommendations to Mr. Barr. Resolution discussions took place. Mr. Barr was a full participant in the process and made many suggestions regarding the drafting of the Agreed Statement of Facts. There is simply no evidence to support Mr. Barr’s unfounded allegations regarding the conduct of Defence Counsel. [ 24 ] The advice that Mr. Barr received from Defence Counsel was not encouraging.

When assessing the circumstances, Defence Counsel felt that the Crown had a very strong case and the chance of a successful defence was remote. He provided this advice to Mr. Barr. Criminal defence lawyers have no duty to merely tell their clients what they want to hear. Their duty is not to pacify or placate. The duty of a criminal defence lawyer is to provide frank advice to their client so that the client can make informed decisions as to how to address the charges they are facing. Sometimes defence counsel’s advice is stark. Often it is unpleasant and frequently it results in decisions to enter guilty pleas.

The fact that an accused is faced with hard news does not make the counsel who delivered that

information ineffective. “It results in the exact opposite – counsel doing his duty toward his client”: R v JCF , 2020 ABCA 315 at para 37 [ JCF ]. Nor does the hard news render a subsequent guilty plea involuntary. [ 25 ] Mr. Barr may not have liked the advice he received from Defence Counsel. But he ultimately accepted the advice and made a conscious decision to enter the guilty plea. I conclude that he decided to enter the guilty plea because he thought that it was in his best interests to do so. He recognized that Defence Counsel had formed the opinion that the Crown had a very strong case.

I conclude that Mr. Barr felt that the guilty plea was the best way to achieve a sentence that was less than the sentence he would likely receive if he was found guilty following trial. [ 26 ] Bald, inappropriate and unsubstantiated allegations of ineffectiveness made against his former lawyers do not permit the Court to grant relief. The test for relief arising from ineffectiveness assistance of counsel is strict and involves a competence component and a prejudice component: R v Lundrigan, 2020 ABCA 281 ; R v CKK , 2020 ABCA 145 ; R v Sewak , 2019 ABCA 303 .

The facts that have been tendered on this application fall far short of meeting the requirement for such relief. [ 27 ] Furthermore, the unfounded bald assertions made against his lawyers did not have any impact on the voluntariness of Mr. Barr’s guilty plea. ii. Did the Pressure Mr.

Barr Experienced Undermine Voluntariness? [ 28 ] The fact that an accused is under pressure to plead guilty does not normally vitiate the voluntariness of his or her guilty plea, unless “credible and competent evidence establishes the pressure exerted overcame the appellant’s free will”: R v Symonds , 2018 NSCA 34 at para 50 ; Peequaquat at para 50 .

In Raynor at para 72 , Justice Pentelechuk expressed this principle in the following way: It is expected that an accused person facing the prospect of a lengthy penitentiary sentence would be stressed and fearful: R v Carty , 2010 ONCA 237 at para 37 , 253 CCC (3d) 469. Subjective evidence of the accused is not sufficient. Mr. Raynor must show that his emotions reached a level significant enough to impair his ability to make a conscious, volitional choice in pleading guilty: RT at para 18.

In my view, this requires some independent corroborative evidence, or as stated in RT at para 18, “credible and competent evidence”. [ 29 ] Mr. Barr asserts that he was feeling pressure. I accept that he was under pressure. He was facing very serious criminal charges that could result in significant incarceration. The trial date was rapidly approaching. The first trial dates had been adjourned and there was no indication that another adjournment was possible. The legal advice he was receiving was not encouraging. All of these factors contributed to the pressure Mr. Barr was feeling. [ 30 ] Mr.

Barr’s evidence makes it clear that resolution discussions were ongoing throughout the course of this litigation. These discussions contributed to the pressure. In most cases, Crown resolution offers reflect the mitigating effect of a guilty plea. The plea saves the resources of the Crown and the Court and avoids the need for complainants to testify about issues that can often be traumatic. For this reason, on a guilty plea, the Crown frequently seeks a lesser sentence than that which would be sought on conviction after trial.

That is simply the nature of the resolution process and the mitigating impact of a guilty plea. That is what happened in this case. The Crown was seeking a lesser penalty on a guilty plea than it would seek at the conclusion of trial, assuming a finding of guilt. Mr. Barr knew that the mitigating effect of a guilty plea was available. However, Mr. Barr also knew that the time for taking advantage of the mitigating effect of a guilty plea was rapidly ending. [ 31 ] Mr. Barr made the handwritten addition to the s 606(1.1) waiver form completed in Defence Counsel’s office. The words that Mr.

Barr added to the form merely speaks to the pressure that Mr. Barr was feeling about the mitigating effect of the guilty plea. [ 32 ] There is no reliable evidence that any pressure Mr. Barr was under impaired his ability to make a conscious choice to enter a plea of guilty. The pressure did not prevent him from making reasoned and informed decisions. The type of pressure Mr. Barr experienced is inherent in the process and does not detract from the voluntariness of the guilty plea. iii. Did the Pre-Trial Justice Undermine Voluntariness? [ 33 ] I have considered Mr.

Barr’s evidence that the Justice at the March 23, 2019 pre-trial conference told counsel that “proceeding to trial would be unethical.” Counsel who represented Mr. Barr at the pre-trial conference testified that he was concerned about comments made at the pre-trial conference and he communicated those concerns to Mr. Barr, and also to other members of his firm. However, this lawyer testified that he fully understood his duty to his client and Mr. Barr’s right to proceed to trial.

He also testified that despite any comments made at the pre-trial conference, it was entirely proper to put the Crown to the proof of the elements of the offence at trial. [ 34 ] When Mr. Barr attended at the second pre-trial conference conducted in open Court there was no suggestion that it would be unethical to proceed to trial. On the contrary the pre-trial Judge reviewed with Mr.

Barr the various avenues that might be explored in relation to a possible defence including the issue of the admissibility of the statement he had given to police and the text messages that he had exchanged with the Complainant as well as the potential for an application under s 276 of the Criminal Code . [ 35 ] When Defence Counsel assumed conduct of the case in May 2020 he was prepared to represent Mr. Barr for the purpose of a guilty plea or for the purpose of trial, which ever Mr. Barr chose.

There is no indication of any kind that Defence Counsel felt in any way constrained by what had occurred at the March 23, 2019 pre-trial conference. [ 36 ] I conclude that nothing that took place at the pre-trial conference 14 months prior to the guilty plea had any impact on the voluntariness of the plea. iv. Conclusion – Voluntariness [ 37 ] When I consider the totality of the evidence, I am satisfied that Mr. Barr was able to understand the process leading to the

guilty plea, was able to communicate with his Defence Counsel and was able to make an active or conscious choice. [ 38 ] After the guilty plea was entered and after the trial dates were vacated, Mr. Barr changed his mind and only then sought to withdraw his guilty plea. The fact that he changed his mind at a time when the pressure of a trial date was no longer looming is of no moment and does not detract from the voluntariness of the guilty plea. [ 39 ] I conclude that Mr. Barr made a conscious decision to enter a plea of guilty. As a result, I conclude that the guilty plea was voluntary.

b) Was the Guilty Plea Unequivocal? [ 40 ] A guilty plea is equivocal when the plea offered by the accused person is ambiguous or qualified in some way or where the plea offered is capable of more than one

interpretation. [ 41 ] Mr. Barr testified that he maintained his innocence but despite this, Defence Counsel permitted him to enter the guilty plea. Mr. Barr asks that I conclude that he was maintaining his innocence at the very time that he was pleading guilty. On this basis he argues that the plea was equivocal and that this undermines the validity of the plea. [ 42 ] I do not accept Mr. Barr’s evidence that he maintained his innocence throughout. Clearly, at one point in the litigation Mr. Barr felt that he wanted to assert his innocence and strongly defend the charges.

This is the reason he abandoned resolution discussions and discharged his third lawyer on the first day of the December 2019 trail. At that time, he wanted to challenge the admissibility of his statement to police and to argue that the Crown could not meet its burden of proof. His lawyer at that time testified that due to professional obligations he was not able to take Mr. Barr’s instructions on this point and withdrew as counsel. Mr.

Barr was clearly asserting his innocence at that time, or was at least of the view that the Crown could not prove the case beyond a reasonable doubt in the absence of his statement to police. [ 43 ] However, by the time he received further advice from Defence Counsel in June 2020, Mr. Barr learned that the success of the Crown’s case was not dependent on the statement made to police. Instead the Crown could use evidence from the text messages exchanged with the Complainant subsequent to the incident along with the Complainant’s viva voce evidence to establish guilt.

He may not have liked this legal advice, but he accepted the advice and made a calculated decision to enter a plea of guilty. This decision was a risk mitigation strategy because the chance of a successful defence was small and he sought to engage the mitigating effect of the guilty plea. [ 44 ] I conclude that Mr. Barr is not being genuine when he insists that he was maintaining his innocence throughout. [ 45 ] Mr. Barr was certainly not maintaining his innocence when he appeared on June 23, 2020 and admitted the facts that clearly demonstrated his guilt.

Furthermore, there was nothing ambiguous about the answers provided by Mr. Barr to the s 606(1.1) inquiry conducted in open court. His answers were clear and decisive. [ 46 ] I conclude that the guilty plea was unequivocal.

c) Was the Guilty Plea Informed? [ 47 ] A guilty plea can only be informed if the accused person is aware of the nature and consequences of the plea, including the legally relevant collateral consequences.

A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused: Wong at para 4. [ 48 ] The Supreme Court of Canada explained in Wong at para 6 : ... accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions.

To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused's subjective claim. [ 49 ] In this case the guilty plea entered on June 23, 2020 was made with the assistance and representation of an experienced criminal defence lawyer. An accused person who enters a guilty plea in open court, with the benefit of counsel, is presumed to have understood the nature and consequences of the plea: Peequaquat at para 43 . [ 50 ] Mr.

Barr raises a number of factors that he argues demonstrate his misunderstanding of the nature and consequences of the guilty plea. Those factors can be summarized as follows: • Defence Counsel did not explain to Mr. Barr that once he entered a guilty plea he was “not able to get out of the guilty plea.” • Mr. Barr thought that he “would have absolute control over when I was sentenced.” [ 51 ] I conclude that Mr. Barr was aware of the nature and the consequences of the guilty plea. None of the issues raised by Mr.

Barr detract from that. [ 52 ] At its highest level, not being aware that he could not “get out of the guilty plea” could perhaps suggest that he was not aware that the plea was final and that after the plea he could no longer elect to proceed to trial. Issues of this nature must be assessed on a subjective basis. But in this case, such bald statements have no credibility. Mr. Barr is an intelligent man. Despite his protestation to the contrary, I conclude that he knew that the guilty plea was final.

He knew that he could not plead guilty and avoid the fast approaching trial date and then simply change his mind and arrange for new trial dates. This is a remarkable concept and I am satisfied

that Mr. Barr is not being genuine when he asserts that position. In any event, the s 606(1.1) waiver form signed by Mr. Barr in DefenceCounsel’s office expressly states that “... a guilty plea is final, and I cannot take back a guilty plea.” Furthermore, in cross-examinationMr. Barr acknowledged that a guilty plea is final. Finally, in the s 606(1.1) inquiry I specifically asked Mr. Barr whether he knew that hewas giving up his right to trial. His response was “I do understand that your Honour.” [53] Similarly, the prospect that Mr.

Barr thought that he had “absolute control” over when he would be sentenced is completelylacking in credibility. Defence Counsel sought to have the sentencing delayed until no later than early October 2020 so that Mr. Barrcould put his affairs in order. The Crown did not object to this. As a result, sentencing was postponed to a future date. This was theextent of any control Mr. Barr could have over the sentencing date. I conclude that Mr. Barr did not genuinely believe that he hadcomplete control over when the sentencing would take place. [54] The evidence satisfies me that Mr.

Barr was aware of all of the legally relevant consequences of his guilty plea. Theseconsequences were reviewed with Mr. Barr in December 2019 by the lawyer who was representing him at the time. This informationwas repeated by Defence Counsel prior to the entry of the guilty plea and are confirmed by the s 606(1.1) waiver from signed by Mr.Barr on the day prior to the entry of the guilty plea. [55] I conclude that Mr. Barr was fully informed at the time he entered the guilty plea.

d) Conclusion – Validity of Guilty Plea [56] I conclude that Mr. Barr’s guilty plea was voluntary, unequivocal and informed. The plea was a valid guilty plea. III. DID THE GUILTY PLEA PREJUDICE MR. BARR? [57] Even if a guilty plea is valid, the Court maintains an overriding discretion to vacate the plea if the circumstances demonstratethat the accused person would be prejudiced by permitting the guilty plea to stand. [58] There is no exhaustive list of circumstances in which an accused person may suffer prejudice as a result of the denial of theright to proceed to trial.

However, an accused may be prejudiced: • where the admitted facts do not make out the essential elements of the offence: R v Hughes (1987), 1987 ABCA 69 , 76AR 294|, [1987] AJ No 204 (Alta CA); • where there is a possibility of a valid defence to the charge: Raynor at para 80; R v Adgey, (SCC), [1975] 2 SCR426 at 436; • where the guilty plea creates a verdict that is inconsistent with the verdict of the co-accused: R v Herbert (1903), 6 CCC 214 (OntHCJ) at 6; and • where there is a reasonable possibility that fresh evidence would have influenced the decision to plead guilty: R c Tallefer, 2003SCC 70 at para 85. [59] Mr.

Barr puts forward only one ground to argue that he has been prejudiced. He says that he has always maintained hisinnocence and that he has a defence to the charges. The defence he puts forward relates to the admissibility of his statement to police,continuity of the text messages, consent given by the Complainant, the credibility of the Complainant and honest but mistaken belief asto communicated consent. He also testified that he did not have the necessary intent to have committed a criminal offence. [60] In the Affidavit sworn in support of this application, Mr.

Barr admits to performing sex acts on the Complainant on the nightin question. The only remaining issue is whether the Complainant consented to the sex acts. [61] In the Agreed Statement of Facts, Mr. Barr admitted that the Complainant was asleep at the time that the sex acts wereengaged in. Because of this, the facts fully supported the guilty plea. As the Supreme Court explained in R v JA, 2011 SCC 28 at para3, sexual acts that are performed on an unconscious person are not consensual even if the person consented to those acts in advance ofbeing rendered unconscious.

Conscious consent is required to ensure that women and men are not the victims of sexual exploitation, andto ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. [62] The guilty plea is also supported by R v Barton, 2019 SCC 33 [Barton]. In that decision the Supreme Court provided a clearexplanation for why the defence of honest but mistaken belief in communicated consent are not available in circumstances such as this. The consequences of Barton were reviewed with Mr.

Barr in December 2019 by the lawyer who was acting for him at the time and alsobe Defence Counsel in May and June 2020. [63] I conclude that Mr. Barr is not prejudiced by the guilty plea. There was no miscarriage of justice. IV. CONCLUSON [64] I conclude that the guilty plea to one count of sexual assault was validly made and that the guilty plea did not prejudice Mr.Barr. There has been no miscarriage of justice. I dismiss the application to set aside the guilty plea. [65] I direct that the matter be brought forward for sentencing at the earliest opportunity. Heard on the 26th day of April 2021.

Dated at the City of Edmonton, Alberta this 7 th day of May 2021. John T. Henderson J.C.Q.B.A. Appearances: Monica Sabo for the Crown Dale Wm Fedorchuk Q.C. for the Accused