R. v. Joseph Date:, 2017 BCPC 169

Citation: R. v. Joseph Date: 20170613 2017 BCPC 169 File No: 167290-2-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LUCAS GERONIMO PHILLIP JOSEPH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HIGINBOTHAM Counsel for the Crown: Patrick Weir Counsel for the Defendant: Bobby Movassaghi Place of Hearing: Victoria , B.C. Date of Hearing: June 13, 2017 Date of Judgment: June 13, 2017

[1] This hearing was held in order to determine whether there is a sufficient basis upon which to order a full-blown hearing on anapplication by the Defendant to change his plea from guilty to not guilty on a charge of sexually touching a person under the age ofsixteen. [2] In considering whether there is a sufficient basis to proceed I have reviewed the following: • A transcript of the proceedings on November 17, 2016 in which Judge Rogers took the guilty plea; • The Notice of Application to withdraw the guilty plea filed March 20, 2017; • The Order of Judge Quantz whereby the claim of privilege between the Defendant and his previous counsel is waived; • The affidavit of the Defendant sworn March 17, 2017; • The affidavit of Thomas Morino, counsel for the Defendant at the time the guilty plea was entered, sworn April 28, 2017; • A pre-sentence report prepared in anticipation of a sentencing hearing. [3] Counsel for the defendant first raises a procedural objection, arguing that there is no requirement for a threshold hearing, astook place today.

Counsel submits that this is not a Charter application such as in R. v. Vukelich, where the BritishColumbia Court of Appeal held that an accused person is not entitled as of right to a voir dire in order to challenge the constitutionalityof a search. Counsel is correct that this is not a Charter application, but the same principles that underlie the decision in Vukelich informthe process involved in an application to withdraw a guilty plea.

For example, there is a presumption of the validity of a search warrantif the supporting affidavit on its face supports the issuance of a warrant, and the presiding judge at a trial needs to be provided with agood reason to embark upon a further enquiry. Similarly, there is a presumption that a guilty plea entered while a Defendant isrepresented by counsel is valid. In R. v. Melanson (NS CA), [1983] N.S.J.

No. 453 (C.A.) Pace J.A. said at paragraph8: It is my view that an appeal court in evaluating the grounds upon which a plea of guilty can be changed should give great importance towhether at the time the accused entered his plea he was represented by counsel. Certainly an accused who is speaking to the court onhis own behalf may not fully understand the questions raised or the complexity of the law involved and, even if he did, may not reply forfear of mistake or some other reason.

However, where the accused is represented by counsel, who is trained and learned in the law, thecourt should be able to entertain and accept a plea of guilty upon the reliance that the charge has been fully explained to the accusedand that the accused not only fully appreciates the nature of the charge, but also the effect of his plea and that he is admitting the factsas alleged in the charge. [4] Of course this principle of validity takes on additional force when the facts are read in and efforts are made to ensure theDefendant, represented by counsel, understands and accepts those facts prior to the plea being accepted, as was done in this case. [5] I note as well that in Vukelich the Court of Appeal stated that the trial court has not only the right, but an obligation to controlthe course of the proceedings.

The direction to hold a “threshold” hearing in the case at bar is an example of the court controlling itsown process in order to ensure that its scarce resources are utilized in a manner that best serves the public.

A defendant does not have anautomatic right to make an application such as this and require that a full day hearing be set. [6] I therefore reject counsel for the Defendant’s submission that the hearing held today is unauthorized by law. [7] As to whether the threshold has been met in this case, I again note that at the time the plea of guilty was entered the Crownprosecutor was careful to ensure that the Defendant was apprised of the facts upon which reliance would be placed.

Judge Rogers wentfurther and explained to the Defendant in plain language that the Crown alleged that while sleeping with the complainant the Defendantplaced his hands under her clothes and fondled her genital area. Judge Rogers then asked the Defendant if he understood the basis of thecharge and the Defendant said yes, at which point Judge Rogers took and recorded his guilty plea. [8] There is no room to argue an equivocation here. The case is entirely distinguishable from the factual situation in R. v. Gill[2014] B.C.J.

No. 1296 relied upon by the Applicant, where the determinative factor in permitting the withdrawal of the guilty plea wasan equivocation as to whether the accused there was intending to admit the necessary element of intent. [9] The Defendant here deposed that his previous counsel advised him that if he pleaded guilty to one of the three charges, theother two would be “dropped.” He said he was also advised that if he proceeded to trial he would likely be convicted and face apenitentiary sentence, and that if he entered the guilty plea to the one charge he would likely only serve the minimum sentence of twelvemonths imprisonment.

This may well be true, and is not denied by Mr. Morino in his affidavit. It is the sort of advice any competentlawyer might give, but is clearly not intended to take the matter out of his client’s hands and to force the Defendant to admit to thecarefully explained underpinnings of the charge. In this case there could not have been a more careful effort to ensure the Defendantunderstood his jeopardy in pleading guilty. [10] Mr.

Morino, once privilege had been waived, deposed that he carefully explained the consequences of a guilty plea prior to thehearing date, and that the Defendant instructed him to advise Crown counsel to cancel its witnesses. He further deposed that afterentering the plea, and upon leaving court, the Defendant asked Mr. Morino to explain to a third party what had just transpired. Mr.Morino did so in the presence of the Defendant, and also explained “what it meant.” Mr. Morino swore that at no time did his clienteither object or disagree with anything Mr. Morino stated. [11] Finally, Mr.

Morino said in his affidavit that he always tells his clients that he will not plead them guilty to something they didnot do. Mr. Morino expressed confidence that the Defendant fully understood what he was doing when the guilty plea was entered.

[ 12 ] It is clear that the Defendant no longer wishes to acknowledge that he committed the act he previously admitted to in the face of the court. He gave an entirely different, and arguably completely innocent account of that night to the probation officer interviewing him for the pre-sentence report. [ 13 ] In R. v.Gill (supra) Schultes J. said the question is what Mr. Gill intended to admit at the time he entered his pleas, not what he believes now.

In that case the judge was satisfied there was at least some ambiguity or equivocation on the part of the accused as to an essential element of the offence at the time of entering the guilty plea.

In the case at bar the Defendant essentially says that he was misleading the court at the time he pled guilty, and that he should now be believed when he says that he didn’t commit the offence. [ 14 ] Were there any credible reason to think that the Defendant did not know the implications of his plea, or if there were any credible reason to believe the Defendant failed to understand the facts upon which the Crown relied, I would order this matter proceed to a hearing on the application to withdraw the guilty plea.

There is scant, if any, evidence to support either proposition. [ 15 ] The application to withdraw the guilty plea is dismissed at this threshold stage. Counsel are directed to attend at the office of the Judicial Case Manager by 11:00 a.m. June 20 to fix a date for the sentencing hearing. R. A. HIGINBOTHAM Regional Administrative Judge