R. v. Ziegeman, 2021 BCPC 196

Citation: R. v. Ziegeman 2021 BCPC 196 Date: 20210705 File No: 231326-1-K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. BLAKE ORVILLE ZIEGEMAN ORAL RULING ON APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Applicant Ziegeman J.P. Desbarats Counsel for the Respondent Crown Patrick Beirne Place of Hearing: Surrey , B.C. Date of Hearing: April 27, 2021 Date of Ruling: July 5, 2021 INTRODUCTION

[ 1 ] This is an application by the accused, Blake Orville Ziegeman, to withdraw the guilty plea (the “Guilty Plea”) he entered on September 4, 2019 to one count of assault with a weapon, contrary to s. 267 (

a) of the Criminal Code , against Michelle McGuire (the “Complainant”), on or about November 17, 2018, under Information No. 231326-1K. [ 2 ] The Applicant submits that the Guilty Plea was uninformed, and asks the court to strike it. [ 3 ] Alternatively, the Applicant says the Crown breached his right to relevant disclosure, thereby impairing his right to make full answer and defence under s. 7 of the Charter of Rights and Freedoms (the “ Charter ”). If such a breach is established, he seeks a remedy under s. 24(1) of the Charter , namely, the striking of the Guilty Plea. [ 4 ] The Crown opposes this application.

It says the Applicant has not met the requirements to withdraw the Guilty Plea. ISSUE [ 5 ] The only issue in this application is whether the Guilty Plea should be struck. BACKGROUND [ 6 ] The Applicant is 54 years old. He is of Metis heritage. He currently lives and works in Tumbler Ridge, British Columbia. [ 7 ] The Applicant’s relationship with the Complainant (who is also approximately the same age as the Applicant), began in or around 2013. He met the Complainant at a worksite, and they began dating. The Complainant moved into the Applicant’s residence in Maple Ridge.

In or around 2017, they moved to Tsawwassen, British Columbia. [ 8 ] The Applicant’s relationship with the Complainant was difficult. They often argued, mostly about money. The Complainant was usually unemployed. During their relationship, the Applicant was receiving disability payments from his employer following a workplace injury.

They rented their residence out on Airbnb to generate additional income. [ 9 ] For several months prior to the alleged offence, the Complainant had been trying to get the Applicant to move out of their residence. [ 10 ] The allegation is that prior to leaving their shared residence on November 17, 2018, the Applicant sprayed the Complainant’s face with pepper spray (the Crown referred to this as “bear” spray), resulting in the Complainant’s eyes becoming red.

The police attended. [ 11 ] On November 18, 2018, the police arrested and charged the Applicant with one count of assault with a weapon. [ 12 ] After the arrest and release on bail, the Applicant moved in with his parents in Tumbler Ridge. [ 13 ] The Applicant retained a lawyer, Michael Beckett, to assist him in dealing with the assault charge. [ 14 ] On September 4, 2019, the Applicant entered the Guilty Plea before me.

A Gladue Report was ordered, and the matter was adjourned for sentencing. [ 15 ] In the same proceeding on September 4, 2019, the Applicant’s bail conditions were varied to allow him to have contact with the Complainant by email and text, so that he could deal with some property issues he was trying to resolve with the Complainant.

Since then, the Applicant has received hundreds of emails from the Complainant, repeatedly asking him to “fix” things between them. [ 16 ] A few weeks after the Applicant entered the Guilty Plea, the Applicant’s current partner, received a message on her Facebook (the “Facebook Message”) from the Complainant indicating that the alleged assault was “accidental.” The Applicant was present with his current partner when she received the Facebook Message from the Complainant. [ 17 ] The Applicant has attached a selection of the Complainant’s emails to him (collectively, the “Emails”) and the Facebook Message as Exhibit “A” to his affidavit dated April 27, 2021, that he has filed in support of his application.

I will say more about the Emails and the Facebook Message later in my discussion. [ 18 ] On November 5, 2019, the Applicant discharged Mr. Beckett as his counsel, and retained Mr. Jonathan Desbarats as his new counsel. [ 19 ] Also filed in support of this application is an affidavit of Brittney Andrews, who is Mr. Desbarats’ legal assistant, dated April 23, 2021, attaching as exhibits various communication between the Crown and Mr. Desbarats’ office regarding disclosure of documents relating to the Applicant’s charge. The following is a

summary of this communication: (

a) By letter dated July 10, 2019, the Crown stated that it provided three disclosure packages as at January 9, 2019, April 2, 2019 and July 10, 2019. (

b) On February 10, 2020, Mr. Desbarats emailed the Crown stating that the Applicant intends to make an application to withdraw the Guilty Plea based on new evidence, and requesting a copy of the Complainant’s criminal record (the “Criminal Record”). The email also states that the Complainant’s Criminal Record would significantly impact her credibility. (

c) More than seven months later, after further follow-up from Mr. Desbarats’ office, the Crown, on September 28, 2020, sent an email to Mr. Desbarats, indicating that it had completed searches of JUSTIN, CORNET and CPIC databases under the name Michelle Andrea McGuire, and listed the charges as set out in the table below. The Crown also indicated that the information provided “may not be complete or accurate due to the limitations on these information systems,” the systems “were searched by name only,” and that “there is no way of determining with certainty that the person referred to in the criminal record information is, in fact, the witness.”

1. 1989-09-20 Communicate for the purpose ofprostitution $100 I-D 5 days 2. 1990-06-08 Poss of a narcotic $250 I-D 10 days3. 1990-08-14

(1) Communicate for the purpose ofprostitution

(2) Obstruct peace officer (1-2) Susp Sent &Probation 12 Mos 4. 1991-05-21

(1) Communicate for the [purpose] ofprostitution

(2) Fail to appear

(3) Att obstruct justice (1-2) 7 days on each Chg& Probation 18 Mos (3) 14 days consec 5. 1992-03-05

(1) Theft under $1000 1 day6. 1992-03-10

(1) Fail to appear

(2) Theft under

(3) Communicate for the purpose ofprostitution (1-3) Susp Sent &Probation 2 years 7. 2013-09-04 Theft under $5000 $2008. 2017-04-05 Theft under $5000 1 day & Probation 6 Mos(credit for the equivalentof 2 days pre-sentencecustody) (

d) On October 22, 2020, Mr. Desbarats’ office wrote to the Crown requesting further particulars, such as court location, dispositiondate and file number, regarding the various charges on the Criminal Record. (

e) On November 26, 2020, Mr. Desbarats’ office again wrote to the Crown urging the Crown to provide the same particulars regardingthe Criminal Record requested on October 22, 2020. Mr. Desbarats’ office pointed out that the application to withdraw the Guilty Pleawas set for January 5, 2021, and they needed time to order transcripts of all matters on the Criminal Record in preparation for thewithdrawal of the Guilty Plea hearing. (

f) On April 8, 2021, Mr. Desbarats wrote to the Crown, again asking for particulars regarding the Criminal Record. He states in hisletter: We can confirm that the information the Crown provided is not complete. We ordered a transcript of one of the sentencing hearings ofthe complainant. She appeared before Judge Alexander in Port Coquitlam on 4 September 2013 on a charge of theft under $5,000. TheCrown was Bruce Stewart. In the course of that hearing, Mr. Stewart indicated that Ms. McGuire received a conditional discharge inNovember of 2011 in North Vancouver on a different charge of theft under $5,000.

It seems clear that Mr. Stewart had access to additional records relating to the complainant. Perhaps he searched by date of birth, orsome other identifier. In any event, the Crown is clearly in possession of additional information and should be in a position to provide acomplete and accurate criminal record for the complainant. Indeed, in my respectful submission, the Crown is obliged to do so under R.v. Stinchcombe and R. v. McNeil. The criminal record of a complainant for crimes of dishonesty is highly relevant to a prosecutionwhich turns on issues of credibility. Ms.

McGuire has a long and unbroken history of committing such crimes. [20] It appears that the Crown, until this day, has not disclosed the accurate and complete Criminal Record to Mr. Desbarats. THE LAW [21] The Applicant referred to the following cases in support of his position: (

a) R. v. Lessard, (ON CA), [1976] O.J. No. 74 (“Lessard”); (

b) R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326; (

c) R. v. Atlay, (BC CA), [1992] B.C.J. No. 283 (“Atlay”); (

d) R. v. T. (R.), (ON CA), [1992] 10 O.R. (3d) 514 (“T. (R.)”); (

e) R. v. Dixon, (SCC), [1998] 1 S.C.R. 244; (

f) R. v. Taillefer; R. v. Duguay, 2003 SCC 70 , [2003] 3 S.C.R. 307; (

g) R. v. Wong, 2018 SCC 25 , [2018] 1 S.C.R. 696 (“Wong”); (

h) R. v. Sidhu, 2019 BCSC 129 (“Sidhu”); and (

i) R. v. Pascal, 2020 ONCA 287 (“Pascal”).

[22] The Crown referred to the following cases in support of its position: (

a) R. v. Salary, (Information No. 170187, unreported); (

b) R. v. Joseph, [2000] B.C.J. No. 2850 (“Joseph”); (

c) R. v. Hallam, 2003 BCPC 333 (“Hallam”); and (

d) R. v. Toodlican, 2008 BCCA 269. [23] Mr. Desbarats succinctly set out the legal bases of this application and the relevant case law in his submissions. [24] He submits that the court can dispose of this application on the primary argument that the Guilty Plea was uninformed, and thatit is not necessary to resort to the alternative argument that there was a breach of the Applicant’s right to disclosure, although botharguments lead to the same remedy, namely, the striking of the Guilty Plea. [25] In light of this submission, the Crown did not make any submissions on the Applicant’s alternative argument.

I, too, will notdiscuss it in any detail, other than to refer to it in the context of discussing the primary argument. [26] I will now set out the relevant legal principles. Jurisdiction [27] This court has the jurisdiction to vacate a finding of guilt. In Lessard, the Court of Appeal for Ontario, at paras. 9 and 10, said: 9. The word “conviction” is equivocal. It is often used both to denote the adjudication of guilt and to denote the adjudication of guilttogether with the judgment of the Court upon the finding of guilt, that is, the sentence: see Regina v. McInnis, 1. O.R. (2d) 1. 10.

A judge exercising the functions of both judge and jury is not functus officio following a finding of guilt until he has imposedsentence or otherwise finally disposed of the cases. It has been recognized for well over a hundred years that a trial judge may permit anaccused who has pleaded guilty to change his plea of guilty to one of not guilty at any time before the imposition of sentence,notwithstanding the acceptance of the plea by the Court, because up to that time the proceedings have not been completed: R. v. Clouterand Health (1859), 8 Cox C.C. 237.

Discretion [28] The trial judge has a discretion to allow a guilty plea to be withdrawn, where evidence is put before the court of facts, if proven,would constitute a defence; it is not necessary to consider whether the defence would succeed: Atlay, p. 6. [29] Without question, the trial judge must exercise such discretion judicially. [30] I keep in mind the following passages in Hallam, at paras. 33 to 36: [33] I agree with the Crown's submission that withdrawal of a guilty plea is not a matter of right to an accused.

An application towithdraw 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 renewedclaims 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. [35] Furthermore, if withdrawal of guilty pleas were permitted without careful consideration by the Court to ensure that granting suchapplications were in the interests of justice the Court would be failing in its duty to ensure fairness not only to the accused but also tocomplainants and witnesses who quite rightly would feel a certain sense of relief when a guilty plea was entered. [36] In considering this Accused's application to withdraw his guilty plea I am directed by Adgey [ (SCC)] in notlimiting my analysis to matters arising from "admitted facts" but rather I am entitled to consider the broader evidence presented in thecourse of this inquiry.

Guilty plea and its validity [31] In discussing what a guilty plea is, and its validity, the Court of Appeal for Ontario, in T. (R.), at paras. 13 and 14, said: 13 A guilty plea is a formal admission of guilt. It also constitutes a waiver of both the accused’s right to require the Crown to prove itscase beyond a reasonable doubt and the related procedural safeguards, some of which are constitutionally protected: [citations omitted] 14 To constitute a valid guilty plea, the plea must be voluntary and unequivocal.

The plea must also be informed, that is the accusedmust be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea: [citationsomitted] Test for striking an uninformed guilty plea [32] In Wong, the Supreme Court of Canada set out the two-part test for striking an uninformed guilty plea, at paras. 33-35:

[33] Recall that the framework for striking an uninformed guilty plea involves two discrete steps: (1) the accused being misinformed about sufficiently serious information; and (2) that lack of information resulting in prejudice (Wagner J.’s reasons, at para. 44). While these steps are, at times, collapsed in LeBel J.’s reasons in Taillefer , in our view, its best reading maintains their separation. [34] Whether an accused is uninformed – that is, whether the information unknown to the accused falls within the scope of what an accused must know to give an informed plea – is assessed objectively.

Here, this step objectively assesses the seriousness of the unknown legal consequence. In Taillefer , this entailed assessing the “undisclosed evidence . . . together with all of the evidence already known” (para. 90). Whether undisclosed evidence is sufficiently serious to render an accused misinformed is undeniably an objective question. And it is this objective inquiry to which LeBel J. referred when outlining the objective component of the framework in Taillefer for striking a plea.

In his words, that framework considered “the volume, weight and relevance of the undisclosed evidence and the new possibilities that the opportunity to use that evidence would have offered” (para. 111). In Taillefer , applying that objective assessment led LeBel J. to conclude that the non-disclosure “led to a serious infringement of the appellant’s right to make full answer and defence” (para. 112).

But, to be clear — that infringement flowed from the objective content of the undisclosed evidence, and not from the subjective view of the appellant in that case about the significance of that evidence to his or her plea. [35] In contrast, prejudice – that is, whether the accused’s being uninformed impacted the plea — is assessed subjectively by considering whether the accused would have taken a meaningfully different course of action in pleading. This is entirely consistent with Taillefer , where prejudice was similarly assessed by considering whether the accused would have made the same plea.

In particular, a subjective analysis conforms to the direction in Taillefer that “the breach must bear on the accused’s decision to enter the guilty plea”, that courts must assess “the impact of the unknown evidence on the accused’s decision to admit guilt”, and that the test is whether “there was a realistic possibility that the accused would have run the risk of a trial, if he or she had been” informed (para. 90 (emphasis added)). We also note that Laskin J.A., when following the “general approach in Taillefer ”, applied a subjective rather than objective test ( Quick , at para. 35 ).

Similarly, the authorities that LeBel J. endorses in Taillefer when describing the proper approach to assessing prejudice also adopt a subjective approach (paras. 88-90). Other principles and directions from Wong [ 33 ] Other relevant principles and directions from Wong are as follows: (

a) The decision to plead guilty “is the decision of the accused, not a reasonable accused, or someone like the accused”: para.12. It involves “deeply personal considerations, including subjective levels of risk tolerance, priorities, family and employment considerations, and individual idiosyncrasies”: para. 11. (b) “[A]n accused seeking to withdraw a guilty plea must demonstrate prejudice by filing an affidavit establishing a reasonable possibility that he or she would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions: para. 19. (

c) An accused need not show a viable defence to the charge to withdraw a guilty plea: para. 23. (

d) In testing the accused’s claim, the focus must remain on what the particular accused would have done, and not what a reasonable accused or someone like the accused would have done. “Because the original guilty plea is an exercise of the accused’s own subjective judgment, it logically follows that the test for withdrawing that plea should also be directed to the accused’s subjective judgment”: para. 29.

DISCUSSION The parties’ position The Applicant [ 34 ] The Applicant submits that the Guilty Plea was uninformed because when he made the difficult decision to plead guilty, neither he, nor his counsel, was aware of the full details of the Criminal Record, which raises serious concerns about the Complainant’s credibility. Also, neither of them could have known the contents of the Emails at that time, as the Applicant started receiving the Emails shortly after he entered the Guilty Plea. The Emails also raise serious concerns about the Complainant’s credibility.

Furthermore, the Facebook Message raises the possibility of a defence to the charge. (I will refer to the Criminal Record, the Emails and the Facebook Message collectively, as the “Unknown Information.”) [ 35 ] The Applicant submits that he has been prejudiced by not knowing the Unknown Information before he made the decision to enter the Guilty Plea. He submits that had he known the Unknown Information, he may have elected to proceed to trial, or he may have negotiated a more favourable disposition, such as a peace bond, without admitting any guilt.

The Crown [ 36 ] The Crown submits that there is no merit to the Applicant’s application for the following reasons: (

a) At the time of entering the Guilty Plea, the Applicant was represented by experienced criminal defence counsel, Mr. Beckett, who is well known to the courts. (

b) Before entering the Guilty Plea, the Applicant had received legal advice from Mr. Beckett. (

c) There is no indication that the Applicant and Mr. Beckett did not have a positive solicitor-client relationship. (

d) Before entering the Guilty Plea, the Applicant had received three disclosure packages from the Crown, including the Report to Crown Counsel, and he was aware of the allegations against him. However, he did not advance any defence to those allegations.

(

e) The Applicant appears to be an educated and intelligent person, and does not appear to have any issues with the English language or any misunderstanding of the court process, as he holds a job and has filed an affidavit in English. (

f) The Applicant is not a “neophyte” when it comes to the criminal justice system. (

g) The Applicant would not have pled guilty if the incident had not occurred. (

h) Before entering the Guilty Plea, the Applicant confirmed to the court that Mr. Beckett reviewed s. 606(1.1) of the Criminal Code with him, and that he understood those provisions, indicating that the Guilty Plea was voluntary, and that he understood the nature and consequences of the plea. (

i) It is not the Crown’s normal practice to disclose a complainant’s criminal record to the defence, as part of the Crown’s disclosure, as the complainant is not on trial. [ 37 ] The Applicant does not allege that there was any defect in the plea enquiry. He points out that the issue is not whether he raised a defence, and whether it would be successful, but whether he was able to make an informed decision as to whether or not he should plead guilty.

Application of the Wong two-step test to the facts of this case Step one: Was the Guilty Plea uninformed? [ 38 ] As the court in Sidhu , noted at para. 18 : [18] At the first stage, the analysis focuses on whether the plea was “uninformed”. This involves an objective assessment of the “seriousness” of the unknown information, be it information about the nature of the case, or information about the consequences of the plea.

Where the plea is said to be uninformed due to lack of information concerning the consequences of the plea, the court must decide whether the consequences are “legally relevant”: Wong at para. 36 , endorsing the minority analysis at para. 102. Where the plea is said to be uninformed based on “undisclosed evidence”, the court must assess the “volume, weight and relevance of the undisclosed evidence and the new possibilities that the opportunity to use that evidence would have offered”: Wong at para. 34 , citing Taillefer at para. 111 .

In either case, the analysis at the first stage of the inquiry is an objective one. Seriousness of the Unknown Information [ 39 ] As I indicated earlier, the Unknown Information comprises the Criminal Record, the Emails and the Facebook Message. I will discuss each of these components. The Criminal Record [ 40 ] I agree with the Applicant’s submission that the “volume” of the Criminal Record is substantial. [ 41 ] From the information the Crown disclosed and the information Mr.

Desbarats uncovered, among others, there are five counts of theft, one count of obstructing a peace officer, and one count of obstructing justice (collectively, the “Relevant Offences”). This is, no doubt, a substantial record relating to dishonesty and interference with the criminal justice system. As I will discuss later, the Complainant’s attitude towards and her professed influence over the criminal justice system is troublesome. [ 42 ] Although the Crown pointed out that many of the offences on the Criminal Record are dated, it did not suggest that the Criminal Record is incorrect.

Therefore, I accept that the Criminal Record is conclusive proof that the essential elements of the offences on the Record were proven. I accord substantial weight to the Criminal Record. [ 43 ] I also agree with the Applicant that even though some of the Relevant Offences may be dated, they still reflect on the Complainant’s character, as these offences span a long period from 1990 to 2017.

I note that the Complainant, in the past, has been placed on a number of probation orders, but those orders do not appear to have deterred her from committing further similar offences. [ 44 ] Again, I agree with the Applicant that the Criminal Record is highly relevant. In this case, the Complainant is the only witness to the alleged domestic assault. Her credibility is highly relevant to the triable issue. [ 45 ] Clearly, as the Applicant submits, he could have made use of the Criminal Record in the following manner: (

a) The Applicant could have questioned the Complainant, as permitted under s. 12(1) of the Canada Evidence Act , to challenge her trustworthiness as a witness. The Relevant Offences bring into serious question the trustworthiness of the Complainant as a witness. (

b) The Applicant could have taken efforts to learn of the underlying circumstances relating to the entries on the Criminal Record, and used such information to challenge the Complainant’s credibility and to support the argument that she is using the criminal justice system to gain an advantage over the Applicant. This point becomes evident in the Complainant’s Emails, where she repeatedly threatens the Applicant to “fix” things between them, or else she will use the criminal justice system to penalize the Applicant.

If the underlying circumstances reveal, for example, in the obstruction of justice charge, that the Complainant made false allegations against another person, that would give prime opportunity to cross-examine the Complainant, and, given the Facebook Message that the pepper spraying was “accidental”, establish that the Complainant also made a false allegation against the Applicant in this case. Also, if the underlying circumstances reveal that the Complainant made a false statement to the police in the obstructing a peace officer charge, that can again be used to challenge her credibility.

This information could be used to establish that she has, in the past, lied to the police when it suited her purposes, and that she has done so, or at least raise a doubt that she has done so, in the Applicant’s case as well. (

c) The Applicant could have brought a third party records application to gain an accurate and fulsome picture of the Complainant’s criminal antecedents, including convictions in other provinces and allegations that did not result in charges, which are contained in other

databases, such as the Police Records Information Management Environment (PRIME) records maintained by municipal police forces and the RCMP. These databases contain investigative reports, which would have provided useful information for the Applicant. [ 46 ] Regarding the need for disclosure and potential use of the Criminal Record, I note the court’s discussion in Pascal , at paras. 108 to 109, 125 to 126, and 128 to 130 : [108 ] Section 12(1) of the Canada Evidence Act , R.S.C., 1985, c. C-5 , permits questioning a witness on whether they have been convicted of any offence.

The fact that a witness has been convicted of a crime is relevant to that person’s trustworthiness as a witness. Some convictions – for example, offences involving dishonesty or false statements – have a greater bearing on testimonial trustworthiness than others. . . . [109] As a general rule, an ordinary witness, unlike an accused, may be cross-examined on unrelated misconduct which has not resulted in a criminal conviction. This includes cross-examination on conduct that underlies charges outstanding against a witness at the time of their testimony.

The purpose of this cross-examination is to impeach the witness’ credibility: [citations omitted]. . . . [125] . . . it cannot be seriously suggested that the investigating police service is not in possession or control of a prospective witness’ criminal record since that force has access to records of criminal convictions through CPIC.

Likewise, at the very least where that force is the investigating agency, or a participant in a joint forces investigation into the alleged criminal conduct of a witness, that agency can be said to have possession and control of the information with which we are concerned here. [126] To engage the obligation of a police service in possession or control of information to supply that information to the prosecuting Crown, that information must be either part of the “fruits of the investigation” or “obviously relevant”. . . . [128] However, in my respectful view, the information with which we are concerned here falls within the “obviously relevant” category for disclosure purposes.

It follows that it was incumbent on the police to turn over this information to the prosecuting Crown for disclosure to defence counsel. [129] The phrase “obviously relevant” describes information that is not within the investigative file but is nonetheless required to be disclosed under Stinchcombe because it relates to an accused’s ability to meet the case for the Crown, to raise a defence or to otherwise consider the conduct of the defence: Gubbins , at para . 23.

Logically, this would include evidence that could be used to impeach the credibility of witnesses to be called to establish the accused’s guilt: Taillefer , at para. 62 . The relevance of outstanding charges in particular was emphasized by the Court in Titus , at pp. 263-64: [T]he accused is entitled to employ every legitimate means of testing the evidence called by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable of indicating that any of the prosecution witnesses had a motive for favouring the Crown.

In my opinion the outstanding indictment preferred against the witness by the same police department that had laid the present charge against Titus constitutes such a circumstance … . [Emphasis added in original.] [130] . . . A criminal record. Outstanding charges. Evidence about the circumstances underlying the relevant charges. Each available for impeachment of a witness called by the Crown. . . . Relevance is the controlling principle, not the likelihood of use or prospect of success. [ 47 ] In the Applicant’s case, it is not clear why, even after Mr.

Desbarats’ repeated requests, the Crown did not disclose the complete Criminal Record. The Crown did not provide any explanation for the lengthy delay in responding to Mr. Desbarats, or for the ultimate non-disclosure of the complete Criminal Record. This is highly problematic, particularly when the Crown was put on notice as to why the complete Criminal Record was required, and the urgency surrounding it. The Emails [ 48 ] I agree with the Applicant that the volume of the Emails is substantial.

There are 10 Emails in evidence, between September 28, 2019 and January 12, 2020, the Complainant sent to the Applicant. The recurrent theme in these Emails is the Complainant’s demand for the Applicant to “fix” things, alluding to some form of restitution to her. Also troubling in these Emails are the derogatory comments the Complainant makes about the criminal justice system participants, including the Applicant’s counsel and the Crown.

Most troubling in these Emails are the Complainant’s threats that if the Applicant does not comply with her demands for restitution, she “alone” has the power to change the outcome of the Applicant’s assault charge. [ 49 ] The following excerpts from the Emails show the Complainant’s arrogance, to some extent her ignorance, and her disrespect for the Applicant, and the criminal justice system and its participants: September 28, 2019: I know this system very well & I assure you that you will get time if I go and hand in a negative victim and pact [ sic ] statement.

October 1, 2019: You need a positive victim impact statement . . . I told you the only one that can really influence the judge in the situation is me not your lawyer October 11, 2019: . . . you’re going to trip go to jail now and you’re going to keep going back to jail cuz I know something you don’t know

November 21, 2019: I’ll not submit anything negitive [ sic ] but I want you to fix some of this. If I don’t hear back from you then I will submit the

section on “restitution” . . . November 25, 2019: You thinking you can minipulate [ sic ] a judge? Paying lawyers won’t fix this I told you you need to fix it with me or your [ sic ] going to have more issues . . . I think I need to sit down & give more evidence to police / crown if your [ sic ] not doing what’s right & insist on court . . . November 27, 2019: I still have all evidence of THAT curropt [ sic ] crown & trust me the crown is NOT going to take any more chances of getting “caught” or take any chances of upsetting me, . . . . . . I’m the ONLY one that is able to help right now.

I told you right in the beginning save your money don’t get a lawyer go in there & SAY so Sorry I f***** up I did it I’m really really sorry & this is how I fixed it. . . . . . . I told you I’d agree to a peace Bond if you would have fixed some things for me . . . January 10, 2020: I told you you would have had your peace Bond had to fix my things. So how long do you want to go to jail for? A little a lot . . . impossible without my help I’m just letting you know. That lawyer can’t help you (WORST LAWYER TOO) I’m the only one that can help January 12, 2020: . . . I’m not a “victim” more like Victor . . .

And you have a really shity [ sic ] lawyer . . . [ 50 ] The Emails are highly relevant to the assessment of the Complainant’s credibility, and I give them significant weight. The Emails suggest that the Complainant will go to any length and subvert justice for her personal gain. She seems to see nothing wrong in repeatedly using threats of punishment to coerce the Applicant to give into her demands.

Although she seems to think that she alone can “influence” the judge in the Applicant’s sentencing, those learned in the law know that the victim impact statement is only one of many factors that a judge will take into account in determining an appropriate sentence for an offender, and the judge cannot be “influenced” in any way. [ 51 ] No doubt, the Applicant can use the Emails at trial to undermine the Complainant’s credibility. The Emails are plain in their words and intent, and they raise serious concerns.

It is entirely possible that, at trial, her evidence may not be believed, and that could result in the Applicant’s acquittal. The Facebook Message [ 52 ] As I said earlier, the Complainant sent the Facebook Message to the Applicant’s current partner, after the Applicant pled guilty on September 4, 2019. The Facebook Message reads as follows: Blake my husband just plead guilty to the charge assault with a weapon he gets sentenced in a few weeks It was accidental but with God there are no accidents are there [ 53 ] While the Facebook Message was a one-time incident, it is highly relevant and significant.

It was sent after the Guilty Plea was entered, and during the Complainant’s relentless efforts to coerce the Applicant to “fix” things in her favour. [ 54 ] I agree with the Applicant that the Complainant probably did not anticipate that the Applicant could potentially use this Facebook Message in his favour. Otherwise, in all likelihood, the Complainant would not have said what she did in the Facebook Message.

As is evident from the Emails, she appears to have been of the firm belief that only she could influence the Applicant’s fate in his criminal proceedings, the Crown would not do anything to upset her, and the Applicant’s lawyer could not help the Applicant because, according to her, he was a “shitty” lawyer. [ 55 ] It is significant that she withheld this information from the Crown. If believed, this exculpatory statement would offer a defence to the Applicant’s charge.

It would seriously undermine the Crown’s case, as the Crown would likely not be able to prove beyond a reasonable doubt that the application of force was intentional, as is necessary to make out the charge of assault with a weapon. This would inevitably lead to the Applicant’s acquittal. [ 56 ] The Applicant could use the Facebook Message for multiple purposes. He could use it to advance a defence of accident. As I noted earlier, it is not necessary that the defence be successful. He could also use it in the Complainant’s cross-examination to establish that she is the maker of that statement.

If established, that would end the prosecution. If she denies it, her credibility would be called into question again, as it would be proof of a lie. [ 57 ] In the end, having considered the volume, weight and relevance of the Unknown Information and its cumulative effect, I am satisfied that the Unknown Information was sufficiently serious to render the Applicant uninformed.

[ 58 ] I am satisfied that the Applicant has met his obligation to show “a reasonable possibility” that the Unknown Information could be used to successfully challenge the Crown’s case. It is not necessary at this stage to show that such a challenge is bound to succeed, or that it is even more likely to succeed than to fail: Sidhu , para. 38 . [ 59 ] I now turn to step two of the Wong test.

Step two : Did the Applicant suffer prejudice? [ 60 ] As the court in Sidhu , noted at para. 19 : [19] At the second stage, the question to ask is whether the lack of information “prejudiced” the accused in deciding to plead guilty. This branch of the test is focused on the subjective state of mind of the accused: Wong at para. 29. The court must determine “whether the accused would have taken a meaningfully different course of action in pleading”: Wong at para. 35 .

The accused may meet this test by showing that, if he had been properly informed, there is a reasonable possibility that he would not have pleaded guilty, or would have pleaded guilty on different terms: Wong at para. 19-22 . And, as noted above, while the focus is on the subjective state of mind of the accused, the credibility or veracity of the accused’s assertion may be scrutinized by reference to the objective reasonableness of his or her actions.

As the majority put it at para. 26 of Wong : “Like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances”. [ 61 ] The Applicant submits that the lack of information has prejudiced him in deciding to plead guilty. [ 62 ] To demonstrate the prejudice he has suffered, the Applicant deposes to the following in his affidavit: (

a) At the time he entered the Guilty Plea, he was aware that the Complainant was charged with shoplifting in 2013 and 2017, as those offences occurred during their relationship, but was unaware of any other convictions on the Criminal Record (para. 17). (

b) At the time he entered the Guilty Plea, he did not fully appreciate the extent or the significance of the Criminal Record (para. 21). (

c) Having reviewed the Criminal Record, he believes that it would affect the Complainant’s credibility negatively, and could likely affect the outcome of a trial in his favour (para. 25). (

d) He believes that the Emails and the Facebook Message will assist him in discrediting the Complainant and advancing a defence (para. 26). (

e) There are significant potential consequences to the Guilty Plea, including the possibility of a jail sentence or strict conditions such as house arrest, and a weapons ban, which would affect his way of life, as he is Metis, lives in a rural community and hunts to supplement his livelihood (paras. 27 and 28). (

f) Before entering the Guilty Plea, if he had known about the extensive Criminal Record, including the crimes of dishonesty, he would have taken steps to learn more about the underlying circumstances surrounding the convictions. He would not have pled guilty, but would have elected to proceed to trial, and would have used the information he gathered to argue for an acquittal (para. 30). (

g) Similarly, if he had known about the Emails and the Facebook Message, he would not have pled guilty, but would have proceeded to trial, challenged the Complainant’s credibility, advanced a defence, and argued for an acquittal (paras. 26 and 31). (

h) Alternatively, he would have used the Unknown Information to negotiate a more favourable disposition, such as a peace bond, without admitting guilt (para. 32). [ 63 ] Entering a guilty plea is a highly subjective decision. The Applicant has deposed at para. 29 of his affidavit that entering a guilty plea was a very difficult and stressful decision for him.

He states that the consequences to him are grave: he could face incarceration; he could face strict conditions as part of his sentence; and he could lose his ability to possess a firearm, which would affect his ability to hunt and supplement his livelihood. [ 64 ] From the time the Emails started arriving from the Complainant in late September 2019, the Applicant has been diligent in taking steps to set aside his Guilty Plea. He engaged new counsel.

He made diligent efforts, through his counsel, to obtain additional information regarding the Complainant’s criminal antecedents, including obtaining transcripts of court proceedings where the Complainant pled guilty, and repeatedly pursuing the Crown to disclose the accurate and complete Criminal Record. [ 65 ] I have no reason to doubt the Applicant’s credibility or the veracity of the assertions in his affidavit.

I find his assertions as to why he would not have pled guilty, and would have proceeded to trial had he known the Unknown Information before he pled guilty entirely reasonable for the following reasons: (

a) The Criminal Record, although somewhat dated, is still significant in light of the numerous convictions for crimes of dishonesty, and convictions for interference with the criminal justice system. Such convictions, no doubt, raise credibility concerns. Therefore, the Applicant’s belief that the Criminal Record could negatively affect the Complainant’s credibility and possibly lead to an acquittal is entirely reasonable. (

b) The volume of the Emails and the recurrent message in those emails that the Complainant sees herself as the “victor” and not the “victim,” and is prepared to subvert justice for her personal gain is significant. In the context of the Complainant repeatedly discrediting the criminal justice system and its participants, and asking the Applicant to “fix” things with her directly without going to court, the Applicant’s belief that the Emails could negatively affect the Complainant’s credibility and possibly lead to an acquittal is entirely reasonable. (

c) While the Facebook Message is only one incident, it is still significant in that it opens the door for a potential defence, and a

possible end to the prosecution. Therefore, it is entirely reasonable for the Applicant to believe that he has that opportunity and to want to take that chance. [ 66 ] In all of the circumstances in this case, I am satisfied that the Applicant has demonstrated that he has suffered prejudice due to lack of information. I accept that if he had known the Unknown Information, he would not have pled guilty, but would have elected to proceed to trial, or alternatively, he would have negotiated a more favourable disposition, such as a peace bond, without admitting guilt.

CONCLUSION [ 67 ] In conclusion, I am satisfied that the Applicant has established that the Guilty Plea was uninformed. [ 68 ] I grant the Applicant’s application, and strike the Guilty Plea. By the court _________________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia