2021 QCCA 1806, 2021 QCCA 1806

Mohabir c. R. 2021 QCCA 1806 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006654-188 (500-01-119946-157) DATE: November 29, 2021 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. BENOÎT MOORE, J.A. PETER KALICHMAN, J.A. RAJESH MOHABIR APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT WARNING: An order limiting publication was issued on July 13, 2015 by the Honourable Yves Paradis of the Court of Québec, District of Montreal, under

section 486.4 Cr.C . , to prohibit the publication in any manner of any information that would establish the identity of the victim or witness. [ 1 ] This is an appeal brought with leave of the Court, [1] from Appellant’s conviction on January 30, 2018 by the Court of Québec, Criminal and Penal Division, District of Montreal (the Honourable Daniel Bédard), of two counts of sexual assault. He pleaded guilty and was immediately sentenced to sixteen months incarceration.

Appellant seeks to withdraw that guilty plea and obtain a new trial because of the manner in which the proceedings took place, despite the fact that he has served the entire custodial portion of his sentence. [ 2 ] To round out the story of the court proceedings and supplement the transcript, Appellant moves for the production of fresh evidence consisting of his affidavit outlining his understanding of what took place on January 29 and 30, 2018.

The filing of the affidavit and the transcript of the cross-examination was previously authorized by the Court and the present panel is to decide admissibility and probative value. [ 3 ] Respondent appears to agree with Appellant that the criteria enunciated in Palmer [2] do not apply to the production of fresh evidence under s. 683 Cr.C . where the new evidence is required to establish that Appellant was unaware of the collateral consequences of a guilty plea, essentially a subjective analysis. [3] Such ignorance of the consequences can lead to the conclusion that Appellant did not benefit from the fairness of the process to which an accused person is entitled. [4] While this speaks to admissibility, in assessing the probative value of the evidence, we must be convinced by it – i.e. it must be credible. [5] [ 4 ] As will be shown below, in considering Appellant’s version of events taken from the affidavit, it is certainly relevant to the issue of the withdrawal of the guilty plea and stands up to scrutiny both internally and following the cross-examination.

Hence, the affidavit and the transcript of the cross-examination will be admitted as evidence. [ 5 ] The substantive issue raised in the appeal is whether the withdrawal of the guilty plea should be allowed, the conviction set aside and a new trial ordered. [ 6 ] What follows is a

summary of the facts taken from the transcript of the proceedings before the Court of Québec, the affidavit and the cross-examination. [ 7 ] After a preliminary inquiry, Appellant was ordered to stand trial on two counts of sexual assault committed by touching the genitalia of two female customers while performing body massages in the exercise of his occupation as a massage therapist. [ 8 ] On the Friday before the two-day trial scheduled to commence on Monday, January 29, 2018, Appellant’s lawyer (apparently his third since the charges were laid) finally received a legal aid mandate and suggested to Appellant that he plead guilty.

He disagreed with that suggestion. Appellant states that there was no discussion of the substance of the case per se at that time and that the attorney had previously been unwilling to have such a discussion, since her legal aid mandate had not been approved.

[ 9 ] On Monday morning, to Appellant’s surprise, his attorney presented a motion to withdraw from the record because of a “strong breach of confidence and trust” between her and Appellant. The judge granted the motion, informed Appellant that the trial would commence the next morning and allowed him the rest of the day to prepare for trial and/or find a lawyer to represent him. Appellant stated to the judge that this did not provide him with “a chance to have a full defence” and that he did not even have a copy of his file.

The judge replied that the situation was his own doing and dismissed him until the next morning. [ 10 ] Appellant was then permitted to view the CD containing the complainants’ statements. He used the rest of the day on the Monday to make telephone calls and physically go to lawyers’ offices in an attempt to engage counsel for the trial to commence the following morning, the whole without success. [ 11 ] The next morning, faced with representing himself and feeling unable to cross-examine witnesses, he pleaded guilty.

He states that not only did he feel pressured to do this, but he thought that it would give him time to engage an attorney for the sentencing process.

However, the sentence was imposed immediately, and contrary to the understanding he formed from comments made at the preliminary inquiry that he would receive a sentence of community work, he was incarcerated for a term of 16 months. [ 12 ] Appellant argues that the plea of guilty should be set aside for the following reasons. [ 13 ] The plea was not informed, voluntary and unequivocal in that it was entered without proper knowledge of the consequences and by an accused who wanted to go to trial but was forced by the circumstances to plead guilty.

Appellant did not have the opportunity that a lawyer would have afforded him of at least negotiating a joint submission as to the sentence flowing from the guilty plea. Indeed, it does not appear that Respondent made any concession on the plea it recommended to the judge and which the judge accepted and imposed on the spot. [ 14 ] Even without considering Appellant’s affidavit, it is clear from the transcript that he did not adequately understand what was happening and was swept up by the momentum of the proceedings fuelled by the judge and Crown counsel.

Appellant was not merely an unrepresented accused, but a layman without any prior experience with the judicial system. [ 15 ] Appellant’s second argument is that the plea should be set aside in the interest of justice, which flows from the circumstances outlined above demonstrating a lack of fairness and equity in the process. * * * [ 16 ] A valid guilty plea is informed, voluntary and unequivocal. [6] The validity of a guilty plea is governed by s. 606 (1) Cr.C . : 606

(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. 606

(1) L’accusé appelé à plaider peut s’avouer coupable ou nier sa culpabilité ou présenter les seuls moyens de défense spéciaux qu’autorise la présente

partie

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

(1.1) Le tribunal ne peut accepter un plaidoyer de culpabilité que s’il est convaincu que les conditions suivantes sont remplies : (

a) the accused is making the plea voluntarily;

a) le prévenu fait volontairement le plaidoyer; (

b) the accused understands

b) le prévenu : (

i) that the plea is an admission of the essential elements of the offence, (

i) comprend que, en le faisant, il admet les éléments essentiels de l’infraction en cause, (ii) the nature and consequences of the plea, and (ii) comprend la nature et les conséquences de sa décision, (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (iii) sait que le tribunal n’est lié par aucun accord conclu entre lui et le poursuivant; (

c) the facts support the charge.

c) les faits justifient l’accusation.

(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 the plea.

(1.2) L’omission du tribunal de procéder à un examen approfondi pour vérifier la réalisation des conditions visées au paragraphe (1.1) ne porte pas atteinte à la validité du plaidoyer. [ 17 ] “(…) [T]he right to effective assistance of counsel extends to all accused persons (…)” and is “a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11 (

d) of the

Canadian Charter of Rights and Freedoms ”. [7] [ 18 ] It is somewhat surprising that the judge would allow counsel to cease representing on the morning of the trial without granting a postponement to Appellant in order to allow him to engage a new lawyer. The judge seems to have assumed that Appellant was somehow at fault or in the wrong for his lawyer’s last-minute withdrawal and for the fact that this was the third defence attorney in the file.

The lawyer mentioned certain difficulties in contacting Appellant in the weeks or months preceding the trial, but there is no explanation per se as to why she only succeeded in so doing immediately prior to the trial. Nor is the last-minute withdrawal from the file adequately explained. [8] Though the judge’s failure to postpone is not raised as an independent ground of appeal, in this case it is nonetheless an element affecting the equity of the process in a material way. [9] [ 19 ] The plea appears to have been uninformed.

Not only was Appellant not represented when he pleaded guilty, but from the affidavit we learn that he never discussed the consequences of a guilty plea with counsel while he was represented. [ 20 ] To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed.

In other words, the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea. [10] Even if the requirements for validity are met, a guilty plea may be withdrawn if the accused’s constitutional rights were infringed. [11] [ 21 ] A plea is informed when the accused is aware of the criminal consequences of the plea as well as the legally relevant collateral consequences. [12] A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused. [13] For example, in Wong , the accused’s guilty plea and sentence had adverse consequences on his immigration status. [ 22 ] In Wong , the Supreme Court of Canada observed that giving up the right to a trial by pleading guilty may, in and of itself, constitute sufficient prejudice for relief, irrespective of the chances for an acquittal. [14] [ 23 ] In the case at bar, the withdrawal of counsel and the refusal by the judge to postpone the trial pressured the accused to plead guilty in a situation in which he is not shown to have been responsible for counsel’s last-minute withdrawal.

He was so pressured by the situation into which he was placed, that he pleaded guilty against his will and in ignorance of the immediate consequences. Any explanation by the judge was rudimentary if not perfunctory. At the very least, one would have thought that an explanation, in simple terms, that a guilty plea would mean jail time was required.

Moreover, no delay to prepare submissions on sentence was offered. [ 24 ] Consequently, we have no hesitation in concluding that Appellant did not benefit from the fair and equitable proceeding to which he was entitled, irrespective of the prospect of a different ultimate outcome. Such miscarriage of justice requires that the Court authorize the withdrawal of the guilty plea and order a new trial.

FOR THE FOREGOING REASONS, THE COURT: [ 25 ] GRANTS the motion for authorization to adduce fresh evidence; [ 26 ] GRANTS permission to file in evidence Appellant’s affidavit of August 30, 2019 and the transcript of the cross-examination of October 24, 2019; [ 27 ] ALLOWS the appeal; [ 28 ] PERMITS the withdrawal of the guilty plea entered in the court below; [ 29 ] QUASHES the conviction entered and the sentence imposed by the Court of Québec, District of Montreal (the Honourable Daniel Bédard), on January 30, 2018; [ 30 ] ORDERS a new trial; [ 31 ] RETURNS the matter to the Court of Québec for such purpose.

MARK SCHRAGER, J.A. BENOÎT MOORE, J.A. PETER KALICHMAN, J.A. Mtre Victoria Nix BORO FRIGON GORDON JONES For Appellant Mtre Laurent-Alexandre Duclos-Bélanger DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: November 17, 2021