R. v. Mahdavi, 2013 ONCJ 794

COURT - Newmarket DATE: July 8, 2013 Citation: R. v. Mahdavi , 2013 ONCJ 794 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MOSIN RAZA MAHDAVI RULING ON APPLICATION TO STRIKE GUILTY PLEA Heard July 8 th , 2013 Ruling July 8 th , 2013 Mr. Quilty .............................................................................................................. for the Crown Mr. Rhombus ......................................................................................................... for the accused KENKEL J.: Introduction 1 . Mr.

Mahdavi was charged with Impaired Driving and two further charges in relation to an incident in which it’s alleged that he drove through a red light at a major intersection at high speed and crashed into a TTC bus. His car was “demolished” and two bus passengers were taken to hospital. 2 . On the date set for trial Mr. Mahdavi pleaded guilty to the Impaired Operation charge and the two further charges were withdrawn. Although there was a proposed joint submission as to sentence, the matter was adjourned to permit Mr. Mahdavi to make personal arrangements for an anticipated custodial term.

After a further adjournment Mr. Mahdavi applied to the court on the second date set for sentencing to strike his guilty plea. Striking a Guilty Plea 3 . The plea entered by Mr. Mahdavi when he was represented by counsel is presumed to be valid. The burden is upon Mr. Mahdavi to show that his plea was not informed or that continuing the conviction would result in a miscarriage of justice. R. v. Eizenga 2011 ONCA 113 He does not have to show that there is a viable defence. R. v. Rulli 2011 ONCA 18 . The Circumstances of this Plea 4 . Mr. Mahdavi was scheduled for trial on May 21 st , 2013.

Although he attended at 9:30 with his mother and spoke with his lawyer, when the matter was called to be traversed to the trial court Mr. Mahdavi could not be found. The matter was held down at 10:46 a.m. and held down again at 10:57 a.m. At 11:06 a.m. Mr. Rhombus advised that Mr. Mahdavi had returned to the court area. Mr. Rhombus asked that the matter be held down as he wished to obtain his client’s instructions regarding a conversation he’d had with the Crown. 5 . An hour later Mr. Rhombus re-addressed the matter and advised that his client wished to plead guilty to one count of impaired operation. 6 .

Although counsel advised the court that he’d conducted a plea inquiry with Mr. Mahdavi to ensure a voluntary plea, the court followed its usual practice to conduct a plea inquiry on the record in all matters. The audio record shows the following conversation: THE COURT - Mr. Mahdavi, you understand you can plead not guilty and have a trial on all of these charges and if you plead guilty you’re giving up your right to have a trial do you understand that? DEFENDANT - Yes your Honour

THE COURT - Are you pleading guilty of your own free will without pressure from anyone else? DEFENDANT - Yes your Honour THE COURT - Listen to the facts that the Crown reads in on the charge you’re pleading to and I’m going to ask you directly if you admit those facts are true. THE COURT - And you know that I’ll listen to both lawyers, anything you wish to say, but I still have to sentence you as I see fit do you understand that? DEFENDANT - Yes Your Honour. THE COURT - OK we’ll proceed on that basis, stay there and we’ll have you arraigned. 7 . Mr.

Mahdavi was arraigned, the Highway Traffic Act caution was read and he pleaded guilty directly to one count of Impaired Driving. 8 . The Crown read in the facts and they were admitted by Mr. Rhombus. The court then turned to the accused and said, “Is that right Sir?” and he answered, “Yes”. Based on his plea and his admission of the facts alleged Mr. Mahdavi was found guilty of the offence. The two remaining charges were withdrawn. 9 . Prior to the plea Mr. Rhombus obtained written instructions. Those instructions as shown to the court on this application included the following acknowledgements by Mr.

Mahdavi: - That he carefully reviewed the disclosure in his case and discussed all of the evidence with his counsel - That he decided to plead guilty - That he was aware that he was giving up his right to have his trial that day by pleading guilty and that the decision to do so was voluntary without any pressure or influence - That he acknowledged the facts as alleged by the Crown in relation to the charge he was pleading to as accurate and true. - That he’d been advised of the Crown’s position as to sentence and that his counsel agreed to that position. - That the joint position as to sentence included a request for a 60 day jail sentence - That the final decision as to sentence was up to the court 10 .

Mr. Rhombus asked that sentencing be adjourned to June 4 th to allow his client time to prepare himself for an anticipated custodial sentence and in consideration of his mother’s health at the time. 11 . On June 4 th the defence requested a further adjournment of sentence to July 8 th . On July 8 th , Mr. Mahdavi asked the court to strike his guilty plea. Analysis 12 . Mr. Mahdavi submits that his plea was not voluntary. He believes there is a witness whose testimony would assist the defence but that witness did not attend the trial. Mr.

Mahdavi says that despite that circumstance he was told by his counsel that he could not obtain an adjournment and his best option was to accept the plea to the one count as offered by the Crown. 13 . Given Mr. Mahdavi’s submission to the court, Mr. Rhombus was asked by the court whether there was in fact an unavailable witness whose attendance may have assisted the defence at trial. Mr. Rhombus advised the court that although the witness might be someone known to the accused, the witness had never attended his office and he’d never been given contact information.

He hadn’t pursued it as he understood that the potential witness had given a statement to the police identifying the accused as the driver of the car that hit the bus. That evidence would be consistent with the evidence of two other Crown witnesses. It was in that context that Mr. Rhombus received written instructions from Mr. Mahdavi to resolve the matter by way of a guilty plea to one of three counts. 14 . The witnesses were waiting and the Crown was ready to proceed when Mr. Mahdavi indicated he wished to plead guilty. He was fully aware that he could have proceeded with the scheduled trial. 15 .

The evidence shows that Mr. Mahdavi was fully informed about the Crown’s case and the nature and potential consequences of a guilty plea. 16 . There is no evidence to show that Mr. Mahdavi’s plea was involuntary, in fact his written instructions and direct statements to the

court show the contrary. 17 . Mr. Mahdavi’s plea was unequivocal and was accompanied by a direct admission by him of the facts as alleged by the Crown. It’s not credible that he would admit those details if he had not been driving the vehicle while his ability to do so was impaired by alcohol as alleged. Although Mr. Mahdavi now says he has a witness and an affidavit from that witness there is no witness here today nor does Mr. Mahdavi have an affidavit from any witness.

I do not find any credible evidence or circumstance that indicates that there would be a potential miscarriage of justice if the plea was not struck. 18 . Mr. Mahdavi’s other comments to the court indicate that his central concern is the potential impact on his employment of the custodial sentence likely to be imposed on his now second conviction for impaired driving. That is a matter that can be considered at the time sentencing submissions are made and is not a reason to strike an otherwise valid plea. Conclusion 19 . Mr.

Mahdavi has failed to show on the balance of probabilities that there is any circumstance which requires that his plea of guilt be struck. 20 . The matter will proceed to sentencing. Addendum 21 . Despite some of the representations made by the defendant on the motion to strike the guilty plea, when that application was dismissed Mr. Rhombus kindly offered to remain and assist Mr. Mahdavi with sentencing. Mr. Mahdavi accepted that offer and Mr. Rhombus helped him obtain an intermittent sentence and treatment conditions on probation. In my view, Mr.

Rhombus has acted in the best tradition of the bar throughout and I commend him for offering to remain to assist with sentence where others may reasonably have considered their retainer at an end. Delivered July 8, 2013. Justice Joseph F. Kenkel