R. v. K.A., 2020 NUCJ 18

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. K.A., 2020 NUCJ 18 Date: 20200429 Docket: 08-18-686 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: K.A. ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): G. Lyndon Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: February 19, 2020 Matters: Application to withdraw guilty plea REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The accused, K.A., has applied to the Court to withdraw his guilty pleas to assault and sexual assault which he entered on 5 June 2019. A brief explanation of what led to his guilty pleas will put his application into context. II. BACKGROUND [ 2 ] Mr. K.A. was charged with 11 Criminal Code [1] offences on an Information sworn on 2 October 2018. Mr. K.A. was arraigned on the charges the next day. The Crown elected to proceed by Indictment and withdrew four of the charges. Mr. K.A. elected to be tried by a judge sitting alone and without a preliminary inquiry. Mr.

K.A. entered not guilty pleas to the remaining seven charges and his trial was scheduled for 9 January 2019. Mr. K.A. was represented that day by Legal Aid duty counsel. [ 3 ] Mr. K.A. appeared in court with a different lawyer (Lawyer 2) on 9 January 2019, but the trial did not go ahead. There is no endorsement on the Information explaining the reason(

s) for the adjournment. Mr. K.A. then appeared in court again on 4 February with Lawyer 2. His trial was rescheduled that day to 5 June 2019. [ 4 ] On 5 June, Mr. K.A. appeared in court accompanied by Lawyer 2. The trial did not proceed. Instead, Mr. K.A. changed his pleas from not guilty to guilty respecting the assault and sexual assault, and his lawyer requested a pre-sentence report. The sentencing hearing was then set for 19 August 2019. [ 5 ] The Indictment’s endorsements show that the sentencing hearing did not go ahead on 19 August 2019 although the pre-sentence report had been filed.

For reasons unexplained, the sentencing was then adjourned to 10 October 2019, then to 6 November 2019, then to 17 December 2019, and finally to 10 January 2020. Mr. K.A. continued to be represented by Lawyer 2 throughout. [ 6 ] Mr. K.A. appeared in court on 10 January 2020. This time, however, he was represented by a different lawyer (Lawyer 3). Lawyer 3 told me that Mr. K.A. wanted to withdraw his guilty pleas, plead not guilty and request another trial. [ 7 ] I note that a total of 214 days and six separate court appearances happened between 5 June 2019—when Mr.

K.A. pleaded guilty to assault and sexual assault—and his 10 January 2020 request to have the Court strike his pleas. [ 8 ] Mr. K.A.’s new lawyer—Lawyer 4—filed a “Notice of Application to Withdraw Guilty Plea” with the Court on 10 February 2010. I heard the application on 19 February, and I reserved my decision. These are my reasons for judgment. III. THE LAW [ 9 ] The law which I must apply on this application is well settled. A. Criminal Code section 606(1.1)

[ 10 ] A judge may accept a guilty plea from an accused only if he is satisfied that the following four criteria have been met: that the accused 1. is making his guilty plea voluntarily; 2. is admitting the basis of the Crown’s case; 3. understands the nature and consequences of his guilty plea; and 4. understands that the judge is not bound to accept the sentencing recommendations made by counsel. [2] B. Criminal Code section 606(1.1) inquiry [ 11 ] Where, as here, the accused who pleads guilty is represented by a lawyer, he presumed to have satisfied these four conditions. [3] While Mr.

K.A. is presumed to have entered a valid guilty plea, that assumption can be challenged. That is what this application is all about. C. The legal test to be met by the accused [ 12 ] To be successful, Mr. K.A. must satisfy me that his pleas were not voluntary, that they were equivocal or ambiguous and that they were not informed. Mr. K.A. must show that there is a “reasonable possibility” that he would not have pleaded guilty if the circumstances had been different. I must apply a subjective test but one which allows me to assess the objective credibility of Mr. K.A.’s subjective claim. [4] D.

The application [ 13 ] The application to withdraw a guilty plea must be accompanied by an affirmed or sworn affidavit from the accused. [5] Any relevant witness must also provide a properly affirmed or sworn affidavit and must be available to be cross examined by the prosecution. IV. THE ISSUES [ 14 ] There are three issues for me to decide: 1. Did Mr. K.A. enter his guilty pleas voluntarily? 2. Were Mr. K.A.’s guilty pleas equivocal? and 3. Did Mr. K.A. enter informed guilty pleas? In my view, Mr.

K.A. has not established that there is a reasonable possibility that he would not have pleaded guilty under different circumstances. I must dismiss his application. V. THE EVIDENCE AND POSITIONS OF THE PARTIES A. Mr. K.A. [ 15 ] Mr. K.A. filed a very brief 11 line document purporting to be an affidavit supporting his application. Given its brevity, I cite it here in full:

1. On June 5th, 2019, I plead guilty to counts #1 and # 3 in court file 08-18-686. 2. I was not under pressure to plead from the Court, the Crown prosecutor or my counsel. 3. I was under considerable pressure from the complainant. 4. She harassed me and my common law spouse, E.A.. 5. I plead guilty in the misplaced hope that the harassment would stop once the charges were dealt with. The harassment continued. 6. I am not guilty of the charges and I believe I have a good defence to those charges. 7. Attached to my affidavit, and marked as exhibit “A”, is an account set out by Ms.

E.A. with copies of some of the communications from the complainant. 8. I was present for some of her account and I truly believe the portion that I was not present for. 9. I wish to withdraw my guilty pleas and proceed to trial. [ 16 ] Mr. K.A. testified in support of his application. In direct testimony, he told me that the complainant had “constantly harassed” him, his common law and her daughter. He believed the harassment would stop if he pled guilty, but it never did. He identified two incidents in Ms. E.A.’s narrative where he was present.

At some point, the complainant contacted hem and told him he should plead guilty. [ 17 ] Mr. K.A. said he complained many times to the police, but they did not take him seriously because the complainant worked for them. He said he did not know that the complainant was subject to a court order forbidding her from having contact with him and his common law. [ 18 ] Mr. K.A. told me that Lawyer 2, who represented him from 9 January to 17 December 2019 never listened to “my side of the story”. He went on to say that “every time” he tried to explain to her, she had “deaf ears” to what he was saying.

He eventually decided he wanted another lawyer. [ 19 ] In cross examination, Mr. K.A. admitted that he had understood that he might go to jail if he pleaded guilty. About 5 June, the day he pleaded guilty, Mr. K.A. said “It was a big day for me”. He wore a blue dress shirt, and he remembered seeing the complainant in the court room. [ 20 ] Defence counsel says that Mr. K.A. was “overwhelmed” by events when he entered his guilty pleas. “He didn’t know what to do”. I infer from Defence counsel’s submissions that Mr. K.A.’s guilty pleas were involuntary because he felt he had no other choice.

I should strike the guilty pleas and permit him to go to trial. B. The Crown [ 21 ] The Crown prosecutor reviewed the applicable legal principles and said that the issue would be resolved by the application of “first principles”. He expressed a concern lest a refusal to strike the guilty pleas lead to a miscarriage of justice. In his view, Mr. K.A. had met his legal burden and should succeed with his application, but “just barely”. VI. ANALYSIS [ 22 ] I found Mr. K.A.’s evidence to be entirely self-serving.

The burden was on him to show a reasonable possibility that he would not have pleaded guilty in different circumstances. In my view, his application was lacking in several critical ways. I will deal with each one in turn.

[ 23 ] First, the 11 line document/affidavit filed by the Defence as part of his application was signed by Mr. K.A. on 6 February 2020. The witness, his lawyer, is described as a Commissioner of Oaths. But, the document is not in proper affidavit form. It does not recite that Mr. K.A. either was sworn or solemnly affirmed that the contents of the document are true. As things transpired, this important procedural flaw was not fatal as Mr. K.A. testified and was cross examined by the prosecutor. [ 24 ] Second, Mr.

K.A. claimed that he was “constantly” harassed by the complainant following the breakup of their 15-year relationship. By way of proof, an unsworn 20 page narrative prepared by Mr. K.A.’s present common-law partner was appended to his document/affidavit. In his document/affidavit, Mr. K.A. said he was present for “some” of the incidents mentioned in the narrative. In direct examination, Mr. K.A. identified only two occasions when he said he witnessed harassment by the complainant. The remainder of the appended narrative is simply the untested hearsay of an interested party. [ 25 ] Section 61(1) (

b) of the Nunavut Evidence Act [6] provides that where a witness may testify to events, her hearsay document is admissible if she is a witness to the proceedings. There is no question that Ms. E.A. could have testified to the contents of her 20 page document. Her hearsay narrative would have been admissible as evidence in this hearing had she been called as a witness subject to cross examination. However, she was not called to testify. [ 26 ] A wish to stop this alleged harassment was the only reason given by Mr. K.A. for why he pleaded guilty. In his mind, then, this was the central issue.

In my view, the Defence ought to have called evidence on this issue. [ 27 ] During Defence counsel’s submissions, I learned that Ms. E.A. was in the courtroom. She ought to have been called as a witness and made subject to cross examination by the prosecutor. I can only place weight on the two incidents in her document which Mr. K.A. adopted in his courtroom evidence. [ 28 ] Third, Mr. K.A. claimed that he reported this harassment many times to the police; however, the police did nothing because the complainant was a civilian RCMP employee. [ 29 ] This is a serious allegation.

It is easy to make allegations when there is no one present to refute them. As Mr. K.A. had to show a reasonable possibility he would not have pled guilty, I would have expected the Defence to subpoena police records outlining these many alleged reports to the police. On one occasion, Mr. K.A. claimed that the complainant tried to cause a head on collision while he was in a vehicle and she in another. Mr. K.A. claimed that he had given a statement to the police about that incident. If this in fact did happen, there would have been police records to confirm the incident. [ 30 ] Next, Mr.

K.A. stated in court for the first time that the lawyer who represented him for close to an entire year never listened to him – she had, he said “deaf ears”. This, again, is a very serious allegation; this time, one made against an officer of this Court. I would have expected the Defence to have Mr. K.A. waive solicitor-client privilege so Lawyer 2 could file an affidavit outlining her recollection of their solicitor-client relationship, the nature of the legal advice she gave him, and his instructions to her. [ 31 ] Furthermore, Mr. K.A. signed his supporting document/affidavit as recently as February 6th.

He signed the document close to a month after Lawyer 3 first told the Court that Mr. K.A. wished to withdraw his plea. Yet, Mr. K.A.’s claim that Lawyer 2 never listened to him is not mentioned in the document/affidavit. If there was any traction to this complaint, I would have expected to see it front and centre in the document/affidavit. This is, in my view, another example of Mr. K.A.’s self-serving, unsubstantiated allegations. [ 32 ] An application to withdraw a guilty plea is not a mere formality. As the prosecutor correctly said, it engages serious issues of fundamental procedural fairness and justice.

The applicant needs to put his best foot forward if he is to show a reasonable possibility he would not have pled guilty based on the three

part legal test. [ 33 ] I shall now address each part of the test in turn. A. Did Mr. K.A. enter his guilty pleas voluntarily?

[ 34 ] Mr. K.A. entered two guilty pleas on 5 June 2019. The presiding judge on 5 June did not discuss the implications of section 606(1.1) either with Mr. K.A. directly or with his lawyer. Lawyer 2 asked the court clerk to read the two charges directly to Mr. K.A. and this was done. Mr. K.A. then pleaded guilty immediately to each charge once each one was read to him. [ 35 ] The charges which were read to Mr. K.A. were worded as follows: On or between the 1 st day of October 2012 and the 31 st day of December 2012, at or near the City of Iqaluit in the Territory of Nunavut, did commit an assault on [redacted] contrary to

Section 266 of the Criminal Code . and On or between the 1 st day of October 2012 and the 31 st day of January 2013, at or near the City of Iqaluit in the Territory of Nunavut, did commit a sexual assault on [redacted] contrary to

Section 271 of the Criminal Code . [ 36 ] Even accounting for the stress an accused would experience being in court, the charges are not complicated or difficult to understand. [ 37 ] Defence counsel asserted that Mr. K.A. was “overwhelmed” and that “he did not know what to do” when he pleaded guilty. The evidence, however, does not support counsel’s assertions. There is no evidence that Mr. K.A.’s will was overborne – apart from Mr. K.A.’s evidence that he felt “hopeless” because the police were ignoring his complaints against the complainant. I put little weight on Mr. K.A.’s evidence on this point. [ 38 ] Mr.

K.A. stated in his document/affidavit that he was not pressured into pleading guilty. He told me that he understood that he might go to jail because he was pleading guilty. He was alive to the importance of what he was about to do so he made a point to wear a blue dress shirt to court on 5 June. He was aware of his surroundings, and he recalled seeing the complainant present in the body of the courtroom. [ 39 ] Mr. K.A. had had the benefit of legal advice available to him from Lawyer 2 over a five month period before he pleaded guilty.

He continued to have the benefit of that advice through the autumn of 2019 as his sentencing hearing was continually adjourned. I reject his claim that Lawyer 2 essentially ignored him and his instructions over the course of their 11 month solicitor-client relationship. [ 40 ] That said, I have no reason to reject Mr. K.A.’s claim that one of the reasons he pleaded guilty on 5 June 2019 was “in the misguided hope the [complainant’s] harassment would stop once the charges were dealt with”. However, this “misguided hope” only reinforces the inference that Mr.

K.A. knew exactly what he was doing, and that he made his pleas voluntarily. The alleged fact—which I as I noted earlier has not been proven—that Mr. K.A. believed that the complainant continued her harassment despite the guilty pleas is irrelevant to what was in his mind on 5 June 2019 when he pleaded guilty. [ 41 ] In my view, the answer to question one is yes. Mr. K.A. made his guilty pleas voluntarily. B. Were Mr. K.A.’s guilty pleas equivocal? [ 42 ] On 5 June 2019, Lawyer 2 asked the Court to take Mr. K.A.’s pleas directly from him. [7] Mr.

K.A. immediately pleaded guilty to each charge after it was read to him. His lawyer did not express any equivocations or concerns on his behalf. Neither did Mr. K.A.. Nor did Mr. K.A. ever assert any concerns he may have had about his pleas either in his document/affidavit or in his sworn evidence before me. [ 43 ] In my view, the answer to question two is no, Mr. K.A. did not enter equivocal guilty pleas.

C. Did Mr. K.A. enter informed guilty pleas? [ 44 ] We do not have the advantage of an affidavit from Lawyer 2 addressing this issue. As I stated earlier, I would have expected to receive such an affidavit in this type of application. In the absence of any credible and reliable evidence to the contrary, I must infer that Lawyer 2 provided professional legal advice to Mr. K.A. during their 11 month solicitor-client relationship. [ 45 ] Mr. K.A. has not persuaded me that he was not able to enter an informed guilty plea to each of the two charges. Indeed, Mr.

K.A. never asserted that fact either in his document/affidavit or in his sworn evidence. [ 46 ] The answer to question three is, therefore, yes. Mr. K.A. entered two informed guilty pleas. VII. DECISION [ 47 ] Mr. K.A. has not satisfied me that there is a reasonable possibility that he would not have pleaded guilty in different circumstances. Mr. K.A.’s case will proceed to sentencing. Dated at the City of Iqaluit this 29th day of April, 2020 ___________________ Justice P. Bychok Nunavut Court of Justice