R. v. Harris, 2022 BCPC 250

Citation: R. v. Harris 2022 BCPC 250 Date: 20221014 File No: 42829-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JAMIE RAE ANNE HARRIS DALE GORDON CROCKER JACK ROBERT CHARLIE ROY CEDRIC ROBINSON ORAL RULING RE JAMIE RAE ANNE HARRIS' APPLICATION TO WITHDRAW GUILTY PLEA OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J. Rutherford Counsel for the Accused Harris: S. Sheets Place of Hearing: Duncan, B.C. Date of Hearing: October 14, 2022 Date of Judgment: October 14, 2022

Introduction [ 1 ] THE COURT: I have before me the application of Jamie Rae Anne Harris on Duncan file 42829-1. Ms. Harris entered a guilty plea on August 24, 2021, in front of me in what I recall was a busy criminal remand court. She attended that court by telephone. As I recall, at that particular time a number of people, including counsel, were appearing before the Court by telephone or using the MS Teams platform. [ 2 ] Ms. Harris entered her guilty plea on Count 2.

Count 2 reads as follows: Dale Gordon Crocker, Jack Robert Charlie, Jamie Rae Anne Harris and Roy Cedric Robinson, on or about the 15th day of June, 2018, at or near Duck Bay, at Salt Spring Island, in the Province of British Columbia, in subarea 17-9 as defined in the Pacific Fishery Management Area Regulations, did fish for shellfish during a closed time, contrary to

Section 63 of the Pacific Fishery Regulations, 1993 , and did thereby commit an offence contrary to

section 78(

a) of the Fisheries Act being

Chapter F-14 of the revised statutes of Canada, 1985 as amended. [ 3 ] The present application of Ms. Harris is to withdraw her guilty plea entered at that time on August 24, 2021. It is based on information contained in her affidavit, which was sworn 30th of June 2022, and entered as an exhibit in these proceedings. There is also before me a transcript of the proceedings that occurred on August 24, 2021. Circumstances Surrounding the Guilty Plea [ 4 ] Paragraph 2 of Ms.

Harris' affidavit, reads as follows: [as read in] When entering a plea of guilty to Information 42829-1 on August 24, 2021, I did not understand the meaning of "due diligence" as mentioned by my counsel at page 6, line 45 to page 7, line 6 of the transcript of proceedings. [ 5 ] The affidavit then sets out a portion of those particular provisions of the transcript. [ 6 ] I think it is useful to read the entire portion of the transcript that relates to Ms. Harris. I am going to commence on page 6 at line 25 and continue thereafter on pages 6, 7 and 8 : THE COURT: All right. So let’s move on to Ms. Harris. Ms.

Harris is only named in one count, is that right? CNSL T. MCFADGEN: She’s named in both counts. The Crown is going to take a plea -- THE COURT: Oh. CNSL T. MCFADGEN: -- to Count 2 from Ms. Harris. THE COURT: So we’re dealing with -- you -- you’re proceeding on Count 2 with her, is that right, or not? CNSL T. MCFADGEN: Yes. Yeah, the -- the Crown -- the Crown will be taking a plea on Count 2 for her. And then, we’ll -- I expect we’ll stay Count 1 at the conclusion of sentencing. THE COURT: All right. CNSL C. HUNT: Yes, that is correct, Your Honour. My instructions from Ms.

Harris, but she can confirm, she is content to make her plea today over the telephone, knowing she could be here in person. She’s waiving reading and entering a guilty plea to Count 2 fishing in a closed time. I will indicate, for her benefit, this plea is predicated on a lack of due diligence. She did not do her [page 6, lines 40 to 47] due diligence in looking into whether this area was closed. She really didn’t know, but she, also, did not engage in due diligence required for this matter. We’ve spoken about this, I think, but I know you’ll wish to confirm that with her.

She knows that she’s not going to have a trial for this matter and she advises me that she’s making this plea voluntarily. [page7, lines 1 to 8]. THE COURT: Okay. So Ms. Harris, so you understand because you’re not here, you’re attending by telephone, I’m going to read out the charge to which Ms. Hunt says you’re entering a guilty plea. And as Ms. Hunt has indicated, you have to be doing this of your own free will. Nobody is twisting your arm. Nobody is forcing you do this. This is your choice. The other thing is, you understand that there is going to be a resolution, likely, recommended by, both, Ms.

Hunt and by Mr. McFadgen, on behalf of the Federal Crown. That’s called a joint submission. But this -- and I take it we’re not proceeding to sentencing today, is that right, Ms. Hunt? Or are we? [page 7 lines 9 to 22] CNSL C. HUNT: No, we’re not. We’re going to be asking the matter go over to the October First Nations court date. And I’ll advise -- THE COURT: Okay. CNSL C. HUNT: -- when that is -- THE COURT: All right. CNSL C. HUNT: -- in just a moment, thank you. THE COURT: Yeah, so Ms.

Harris, the matter -- there will be recommendations put to the -- to the presiding judge, likely, Judge Cutler, at the First Nations court in October. But that’s not binding on Judge Cutler. He can make his own decision about a fit sentence. Do you understand all of that?

THE ACCUSED: Yes. THE COURT: Okay. So I’m going to read out the charge to you, Ms. Harris. Its – the charge on Count 2 reads . . . [7] Then the charge in its entirety is read in. Continuing on page 8, lines 6 to 26: THE COURT: So that’s fishing in a closed area, Ms. Harris. Do you under[stand] the charge? THE ACCUSED: Yes. THE COURT: Okay. And are -- your -- what -- what plea are you entering to that charge, Ms. Harris? THE ACCUSED: Excuse me, what was that? THE COURT: What plea are you entering to that charge? Are you entering a guilty plea or -- to this charge? THE ACCUSED: Yes. THE COURT: All right.

That’s a voluntary plea. That’s your choice, is that right? THE ACCUSED: Yes. THE COURT: Okay. And as Ms. Hunt says, there’s not going to be a trial. This is going straight to sentencing in First Nations court inOctober, all right? So I’ve recorded the guilty plea and Ms. Hunt, what date is First Nations court? CNSL C. HUNT: It’s October 7th and I’m not sure if the clerk has that list available and can tell us whether it’s better to put it in themorning or afternoon. I’m okay with either. [8] The transcript then goes on to indicate the time and the location of First Nations Court.

That concluded matters relating to thetaking of the guilty plea. [9] In her affidavit, Ms. Harris, in support of the application to withdraw the guilty plea entered before me, indicates in a portion ofparagraph 2 as follows: [as read in] I was not asked by the Honourable Judge MacCarthy if I did understand the meaning of due diligence . . . [10] In the remaining paragraphs of 3 to 6, she deposes as follows, and I quote: [as read in] 3. When entering a plea of guilty to Information 42829-1 on August 24th, 2021, I was unaware of the facts to which I was pleadingguilty. 4.

I did not believe I was fishing in a closed area at the time. 5. I do not believe I am guilty of the offence. 6. This affidavit in support of an application made by Scott W. Sheets, counsel for the accused, seeking to have the guilty plea of JamieRae Anne Harris struck and replaced with a plea of not guilty. The Submissions Defence Submissions [11] Counsel for Ms. Harris has provided submissions on her behalf. The position adopted by Ms. Harris through counsel relies on thepassage quoted at page 7, line 6 of the transcript which deals with Ms.

Hunt's submission to the court, to the effect she confirmed to thecourt that she had spoken to Ms. Harris about the question of due diligence, and then goes on to say as follows: We’ve spoken about this, I think, but I know you’ll wish to confirm that with her. [12] Mr. Sheets is correct when he says that the court did not canvass either the facts or the possible defences of due diligence withMs. Harris before accepting the guilty plea that had been proffered by her with the assistance of legal counsel. [13] In submissions Mr.

Sheets suggests that the passage that I have referenced above was an actual request by counsel to canvasswith and confirm the question of due diligence with Ms. Harris, before accepting a plea. In that regard, there is an acknowledgment byMr. Sheets that all of this occurred in a busy criminal remand court; but that said, it is submitted that the record is clearly deficient interms of canvassing the requirements set out in s. 606 of the Code, when the plea was taken. Essentially, as I understand the submission,although there may have been indications from Ms.

Harris that she was pleading guilty voluntarily, there may have been a deficiency interms of taking that plea, insofar as the facts upon which she was proffering the plea were not read out and hence were absent from her. [14] Accordingly, Defence places reliance on the decision of Madam Justice Maisonville in R. v. Rogelio Emmang Malaggay, 2015BCSC 1250. Specifically reliance is placed on paragraph 18, in which Justice Maisonville reviews the decision in R. v.

K.(S.), (ON CA), 1995 24 O.R. (3d) 199 (C.A.), and the observations of Justice Carthy at paragraph 204, in setting aside the pleas,which reads as follows: I have no hesitation in concluding that the guilty pleas should be set aside. This case presents a graphic example of why it is essential tothe plea bargaining process that the accused person is prepared to admit to the facts that support the conviction. The court should not be

in the position of convicting and sentencing individuals who fall short of admitting the facts to support the conviction unless that guilt is proved beyond a reasonable doubt. Nor should the sentencing proceed on the false assumption of contrition. That did not happen here, but worse, the sentence became impossible to perform [since the probation order required counselling, which was impossible where guilt was denied]. Plea bargaining is an accepted and integral part of our criminal justice system but must be conducted with sensitivity to its vulnerabilities.

A court that is misled, or allows itself to be misled, cannot serve the interests of justice. [ 15 ] In further submissions made by Mr. Sheets, he does point to the fact that this was a voluntary attendance by Ms. Harris before this Court by way of telephone. Mr. Sheets suggests that such an attendance deprived the court of the opportunity of being able to make personal observations of Ms. Harris.

Furthermore, had she been there in person, it is suggested that her presence would have given the Court a better opportunity to fully appreciate whether or not the requirements of s. 606(1.1) were being taken into account and were satisfied when the guilty plea was proffered. Crown Submissions [ 16 ] Crown counsel has responded in opposition to defence's submissions. In that regard, Crown has relied upon four case authorities. These are as follows: R. v. Robinson , 2020 MBCA 12 ; R. v. S.T.H. , 2018 BCPC 90 ; R. v. G.F ., 2018 BCCA 81 ; R. v. Alec , 2016 BCCA 282 . I note that R. v.

S.T.H . is a decision of my own. [ 17 ] Crown correctly says that the onus is on Ms. Harris to satisfy the Court that there is a sufficient basis in order to permit the guilty plea to be withdrawn. In that regard, Crown does note that although we have the affidavit of Ms. Harris, we do not have the affidavit of previous counsel, Ms. Hunt. Crown suggests that such an affidavit is necessary to confirm some important information concerning the instructions that Ms. Hunt took and the advice that she may have provided to Ms. Harris, prior to the guilty plea being proffered in Court.

In Crown's submission, several matters which may have changed Crown's position in opposing this application were not addressed by Defence’s materials placed before the Court. All of this information could have been addressed had there been an actual affidavit from previous counsel. [ 18 ] In Crown's submissions, it is suggested that the requirements of s. 606(1.1) were addressed by me when I took the guilty plea from Ms. Harris. In terms of the Defence’s submission that there was an absence of facts or disclosure made available to Ms.

Harris, Crown, quite correctly in my view, states that the disclosure made to previous counsel certainly would have contained the information that was required for previous counsel, Ms. Hunt, to review with Ms. Harris. Again, the absence of a supporting affidavit from Ms. Hunt is the basis for Crown’s submission that this Court cannot presume that that such a review was not done. [ 19 ] However, I do have the Defence’s further submission and response that I must consider. Again it is based upon the affidavit of Ms.

Harris, wherein she deposes at paragraph 3 that she was unaware of the facts to which she was pleading guilty. Crown points out that this is a strict liability offence and what Ms. Harris may have believed or disbelieved is not relevant. What is relevant is what steps she may have taken to inform herself as to whether or not the fishing area was a closed area, that is, what due diligence she undertook. [ 20 ] Crown points out that the actual factual basis for this charge to which Ms.

Harris has entered a guilty plea is essentially captured in the wording of the charge itself, which was read out by the Court prior to taking the plea. In other words, that factual basis is contained within the information itself, which was clearly canvassed by the Court with Ms. Harris at the time of and before the guilty plea was taken. [ 21 ] Crown also raises the issue about the delay in this application coming forward.

It is clear, both on the record by way of the transcript, that this matter was being traversed over to the First Nations Court in Duncan, for the matter to be dealt with and for sentencing to occur. According to the record of proceedings in this matter, there was an October 7, 2021, appearance in First Nations Court. That was the first appearance before the First Nations Court. The matter appears to have been adjourned over and the next appearance was in that court on March 28, 2022.

There is an indication that reports that may have been ordered at the October 7, 2021 First Nations Court hearing were not then readily available. [ 22 ] As I understand it from Defence Submissions, although it is not otherwise clearly before me, concerns by Ms. Harris about the guilty plea that she had proffered on August 24, 2021, were first raised at the March 28, 2022, First Nations Court hearing. Thereafter, of course, the present application took more time to be prepared, filed and brought before this Court. That application was filed on May 12, 2022.

The Law [ 23 ] Crown submits, and I accept, that the law surrounding withdrawal of guilty pleas is correctly stated in the following cases: R. v. Robinson at paragraph 42 ; R. v. S.T.H. at paragraphs 15, 16 and 17, 18 ; and in R. v. G.F. at paragraph 33 referencing R. v. Alec . While I have taken into account the relevant provisions of the other cases, I am going to make specific reference to the decision of R. v. S.T.H. , since I am most familiar with that particular case. [ 24 ] At paragraph 15 and 16 of R. v. S.T.H. it states as follows: [15] In the O'Neill case [citation inserted: R. v.

O'Neill , 2014 BCJ No. 1188, 2014 BCSC 1072 ] the Honourable Justice K.W. Ball cites with approval [the] provisions of the R. v. Hallam decision [ infra ] specifically at paragraphs 44 and 45. Justice Ball writes as follows, starting at paragraph 44: [44] Withdrawing a guilty plea occurs only in exceptional circumstances and this case is not one of those exceptional circumstances. [45] As Brecknell P.C.J. wrote in R. v. Hallam , 2003 BCPC 333 at paras. 33 and 34 : [33] . . . An application to withdraw a guilty plea must be carefully considered and is rarely granted. [34] The reasons for that are manifold.

To permit accused persons to vacillate between claims of innocence, pleas of guilty and renewed

claims of innocence would cause great mischief. It would create chaos in the criminal justice system if it were permitted to occurregularly because it would interfere with the willingness of Crown to enter into discussions with counsel for the accused surroundingresolution of outstanding charges because the Crown could never be certain that if a plea bargain was struck the accused would adhere toit. [16] At paragraph 43 of O'Neill, Justice Ball cites with approval a decision of Mr. Justice Hill in R. v. Moser, (ONSC), [2002] O.J. No. 552 at paragraph 40.

At paragraph 43 of O’Neill, Justice Ball writes as follows: [43] Mr. O'Neill bears the onus to demonstrate his plea was not unequivocal, voluntary and informed. In Moser, supra, Hill J.summarized a judge's role in reviewing a guilty plea at para. 40: [40] It may be that following a plea of guilt, otherwise appearing valid when entered, circumstances arise which call into question theactual validity of the plea.

Where the circumstances are made known to the trial court, the presiding justice is empowered with adiscretion to conduct an inquiry into whether the plea should be rejected or struck and the case proceed to trial: Adgey v. The Queen, (SCC), [1975] 2 S.C.R. 426, supra at 189-191 per Dickson J.; Regina v. C.(N.), [2001] O.J. No. 444, supra at para. 10.Frequently referred to as an Adgey hearing, the inquiry focuses on that feature of the existing record, or as amplified, which mayreasonably hold real potential to conflict with an unequivocal, voluntary, and informed plea.

There is no absolute or unrestricted right tohave a guilty plea withdrawn. The onus, in the sense of the burden of persuasion, is upon the accused: Regina v. Eastmond, (ON CA), [2001] O.J. No. 4353, supra at para. 6, 7; Regina v. Djekic, [2000] O.J. No. 3041, supra at 575; Regina v. C.(N.), supraat para. 6, 9. [25] Continuing with reference to S.T.H. at paragraph 17, the court indicates as follows: [17] The decision of R. v. Peters [citation inserted: 2014 BCJ No. 1096, 2014 BCSC 983] was rendered by Justice S.R. Romilly.

In thatdecision, Justice Romilly cites with approval the decision of the Honourable Judge Skilnick of the Provincial Court in R. v. Greenall andCollins, 2011 BCPC. Justice Romilly says as follows at paragraph 11: [11] In R. v. Greenall and Collins, 2011 BCPC 28, Judge K.D. Skilnick reviewed the jurisprudence respecting the criteria for a validguilty plea beginning at para. 21. A helpful

summary of the principles is set out at para. 36 of the judgment: 1. In order to constitute a valid guilty plea, the plea must be voluntary, unequivocal and informed. 2. A guilty plea is voluntary if it is not the product of any coercion or duress and if there [are] no concerns about the mental capacity ofthe accused. 3. A guilty plea may be voluntary, notwithstanding that there are concerns about the accused's mental health, but where such concernsexist, the procedure set out in R. v. M.A.W. [2008 ONCA 555 at para. 33] should be followed. 4.

A plea of guilty that is entered in open court, with the assistance of experienced counsel is presumed to be voluntary unless thecontrary is shown. 5. For a guilty plea to be considered "unequivocal", it should be clear, plain and capable of being understood in only one way. A guiltyplea entered by counsel on behalf of an accused that meets these criteria can be said to be unequivocal. 6. A guilty plea will be considered to be informed where an accused has been provided with disclosure of the relevant facts on which thecase against him or her is based. 7.

Non-disclosure of evidence prior to the entry of a guilty plea will not in and of itself entitle an accused person to withdraw the plea.The test is whether a reasonable and properly informed person, put in the same situation as the accused, would have run the risk ofstanding trial if he or she had had timely knowledge of the undisclosed evidence.

If that analysis can lead to the conclusion that there wasa realistic possibility that the accused would have run the risk of a trial, if he or she had been in possession of that information or thosenew avenues of investigation, leave must be given to withdraw the plea. 8. Being informed prior to the entry of a guilty plea does not only include knowledge of the evidence against the accused, it also requiresthat an accused is aware of the effect of the plea and the consequences of the plea. An awareness of the effect and consequences does notmean knowledge of what the result of the sentencing will be. 9.

The onus is on an accused seeking to strike a guilty plea to demonstrate that a miscarriage of justice would result if the guilty plea is tostand. If this onus is met, the plea should be struck. 10. No miscarriage of justice exists where it appears that an accused is applying to set aside a guilty plea for the purposes of "makingmischief", i.e. to be obstructionist, to postpone sentencing or because the accused is dissatisfied with the outcome of the proceedings. 11.

Generally speaking, an accused's motive for entering the guilty plea is irrelevant to the question of whether or not a guilty plea shouldbe set aside, unless that motivation is relevant to the issue of whether or not a miscarriage of justice would occur if the guilty plea ispermitted to stand. 12. Where an accused is not represented by counsel, a judge should be satisfied that the requirements set out in section 606(1.1) of theCriminal Code are met before a guilty plea is accepted.

But if an accused is represented by counsel, a judge may presume that counselhas canvassed these requirements with an accused and represents, by the entry of the guilty plea, that they have been met, unless there isgood reason to suspect that this is not the case. [my emphasis added] 13. Before a guilty plea can be struck, the court must be satisfied that the accused has a defence which if proven could constitute a validdefence [note: but see R .v. Wong, infra].

See also: R. v. Moser (2002), (ON SC), 163 C.C.C. (3d) 286 (Ont. S.C.J.) at paras. 29-43. [26] Sections 606(1), (1.1) and (1.2) of the Criminal Code read as follows:

(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

(1.1) A court may accept a plea of guilty only if it is satisfied that (

a) the accused is making the plea voluntarily; (

b) the accused understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and the consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (

c) the facts support the charge.

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of theplea. Analysis [27] In this particular case, I think it is very significant that at the time the guilty plea was proffered by Ms. Harris, she wasrepresented by competent legal counsel. I am satisfied that the facts upon which the guilty plea was being proffered were clear to theaccused by way of the Court reading out the actual charge for her and then making inquiries of her about her intended plea. I am alsosatisfied based not only upon Ms.

Hunt’s specific representations to the court, made on behalf of Ms. Harris, but also on the whole of thecircumstances surrounding the taking of the guilty plea, as confirmed in the transcript of the proceedings, that the possible defence of duediligence had been canvassed with Ms. Harris by Ms. Hunt and that formed the basis for Ms. Harris offering a guilty plea. [28] Of some concern is what Mr. Sheets characterized as an invitation by Ms. Hunt to the Court that the Court should be confirmingwith Ms. Harris about a possible defence of due diligence.

Clearly, based on the record before me, that specific topic was not canvassedwith Ms. Harris by the Court. In the affidavit materials that are before me, there is no clear indication by Ms. Harris to satisfy this Courtthat she has a defence which, if proven, could constitute a valid defence. [29] However in saying so, I am mindful of the decision of R. v. Wong, 2018 SCC 25 , [2018] 1 S.C.R. 696; 2018 SCC 25.

Itstands for the propositions that an accused person seeking to withdraw their guilty plea on the basis that they were unaware of legallyrelevant consequences at the time of the plea should be required to establish subjective prejudice. To do so, the accused person must filean affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleadedguilty, but with different conditions.

Because the original guilty plea is an exercise of the accused person’s own subjective judgment, itlogically follows that the test for withdrawing that plea should also be directed to the accused person’s subjective judgment. The inquiryis subjective to the accused person, but allows for an objective assessment of the credibility of the accused person's subjective claim.Ultimately, what matters is the accused person’s decision to plead guilty or to proceed to trial, and not whether that decision is, tosomeone else, reckless or irrational.

This framework is premised upon the view that judicial scrutiny must be directed to how the accusedperson, and no one else, would have proceeded. But like all credibility determinations, the accused person's claim about what theirsubjective and fully informed choice would have been is measured against objective circumstances. Therefore, Courts must carefullyscrutinize the accused person's assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonablepossibility.

This approach strikes the proper balance between finality of guilty pleas and fairness to the accused person. The accusedneed not show a viable defence to the charge in order to withdraw a plea on procedural grounds and requiring the accused person toarticulate a route to an acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty. [30] In this case, and having regard to and applying the analytical framework set out by the majority in R. v.

Wong, I cannot concludethat there has been a miscarriage of justice by way of the plea of guilty that was proffered by Ms. Harris for this particular offence. Thefuller portions of the transcript before me, which relate not only to Ms. Harris but to other co-accused, indicate that negotiations werebeing conducted by Crown counsel with defence counsel for each of the co-accused.

There was certainly a benefit to Crown of avoidinga five-day trial, and similarly a benefit to the co-accused of having a relative degree of certainty by entering into a plea bargain withfederal Crown. [31] It is unclear on the materials before me as to what are all of the full consequences of either refusing or granting Ms. Harris’application. Mr. Sheets says, and I think he is correct, that if I dismiss this application, there is going to be a contest in the sentencinghearing, with respect to the factual matrix surrounding the circumstances, that may result in a Gardiner hearing occurring.

Conclusion [32] On the whole of my understanding of the case law to which I have made reference, and on the basis of the materials before me, Iam not satisfied that Ms. Harris has discharged the onus that is required of her. Accordingly, her application to set aside her guilty plea isdismissed. That concludes my reasons. (JUDGMENT CONCLUDED)