R v T(T), 2014 NUCJ 20

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v T(T), 2014 NUCJ 20 Date: 20140428 Court File: 19-13-13 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: T(T) ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Crown): P. Culver Counsel (Accused): G. Wilson Location Heard: Iqaluit, Nunavut Date Heard: March 28, 2014 Matters: Application to Strike Pleas; Criminal Code of Canada, s. 267 (a), 271 , 264.1(1) (a), 129 (

a) and 270(1) (

b) CCC REASONS FOR JUDGMENT I. INTRODUCTION [ 1 ] T.T. entered guilty pleas to a number of charges. Prior to the sentencing hearing he brought an application to have the guilty pleas struck. I granted the application, with reasons to follow. These are my reasons.

II. BACKGROUND [ 2 ] T.T. is charged with numerous offences of violence alleged to have occurred during the month of July 2013. The complainant in most of the charges is his spouse. If convicted he is likely to be sentenced to a significant period of custody. On August 15, 2013, T.T. entered not guilty pleas to the charges and the matters were set for trial during the November 4 - 8 2013 circuit in community X. On the date set for trial T.T. changed his pleas on a number of charges to guilty.

It is those proceedings that are the basis for the application before the court. [ 3 ] T.T. was in custody on November 5, 2013 and was brought to community X for the regularly scheduled court circuit. He met with duty counsel at the RCMP detachment over the lunch hour and appeared in court in the afternoon. The Court was advised by the Crown that the expectation was that T.T. would enter guilty pleas to some charges and the matters would be adjourned for the purposes of sentencing.

Defence counsel advised the court that he could not assist T.T. with the entry of pleas or the reading in of facts to support the pleas, but that if the pleas were accepted by the court then counsel would be able to assist with scheduling and procedural matters. [ 4 ] T.T. was on a Conditional Sentence Order (CSO) at the time of his arrest so the application to collapse the CSO was dealt with first and was consented to by T.T.

The court then proceeded with the arraignment of T.T. and the entry of pleas. [ 5 ] The circuit judge proceeded with a hearing and satisfied herself that the pleas conformed to s. 606(1.1) of the Criminal Code , which states:

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

a) is making the plea voluntarily; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence; (ii) the nature and consequences of the plea; and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. [ 6 ] The withdrawal of counsel for the purposes of entering the pleas is an indication that counsel was concerned about T.T.'s intention to plead guilty or whether there was an admission of the essential elements of the offence.

It is apparent that Crown counsel had concerns as well, as it was important to Crown counsel to put skeletal facts (“Agreed Facts”) before the court immediately following the taking of the pleas although the matter was going to be adjourned to a later date for sentencing. The court was advised that there were skeletal facts in written form, endorsed with a handwritten note signed by T.T. stating “I accept the above as being true.” The Agreed Facts had been read to T.T. prior to court.

Crown counsel did not read the written facts into the record so T.T. did not hear the alleged facts read out in court and was not asked if he agreed or disagreed with them. Crown counsel indicated that at a future sentencing hearing it would be putting additional facts before the court. [ 7 ] It is clear from the proceedings that the judge and counsel were alive to the concerns and issues regarding T.T.'s pleas. The Court was asked to arraign T.T. on four counts. In relation to each charge, the formal charge was read to T.T. and an exchange occurred between the court and T.T.

The discussion was as follows (Transcript p. 11 lines 11-19): #1. Charge of Assault with Weapon, to Wit a Stool Q Do you understand the charge? A Yes. Q Did you assault her with a stool on July 6, 2013? A I didn't mean to hit her, it was an accident. Q Did you throw a stool at her?

A No, I didn't throw it. [ 8 ] Defence counsel then suggested that the court put to the Accused the relevant facts from the written “Agreed Facts” which were described by counsel as a throw and a pushing motion. The written “Agreed Facts” had not yet been filed with the court (Transcript p. 12 lines 12-17). Q Did you push her with the stool? A Yes. Q Yes. So how do you plead to this charge, guilty or not guilty? A Guilty. #2. Charge of Sexual Assault on July 11, 2013 (Transcript p. 12 line 27-p. 13 lines 1-16). Q Do you understand the charge? A I was in custody that time. I was in custody since July 11.

The date is wrong. Q This is alleging that on that date, it may have been early in the morning, but on that date it alleges that you sexually assaulted RT. Did you do that? A The date is wrong, it was July 11th. Q And that's the date I read out. It was July 11th, is that correct? A Yes. Q And did you do that? A Yes. Q So your plea to that is guilty or not guilty? A Guilty. #3. Charge of uttering threats to cause serious bodily harm to RT on July 11, 2013 (Transcript p. 13 lines 26-27 & p. 14 lines 1-6): Q Do you understand that charge? A No. Q You don't understand that charge? A I never threatened her.

Q You never threatened her? A No. [ 9 ] At this point, both Crown counsel and Defence counsel intervened and suggested that the written “Agreed Facts” be filed with the court and the allegations from that document be put to T.T. Upon the court having received the Agreed Facts, the following exchange took place between the court and T.T. (Transcript p.15, lines 2-10): Q With respect to July 11th, the allegation is that RT, in an attempt to stop the assault on her, advised you that she had been unfaithful and you said “I'm going to rape you”. Did that happen? A. No.

Q. No? A. But I plead guilty to that charge. [ 10 ] At this point there was further discussion between the court and T.T. wherein T.T. told the court that he was pleading guilty just to get it over with. The court refused to accept the guilty plea in relation to this charge. It is noteworthy that the allegations in relation to the threatening charge also formed part of the written Agreed Facts signed and acknowledged by T.T. as being true. #4. Charge of assaulting a police officer (Transcript p. 15 lines 4-9): Q Do you plead guilty or not guilty? A Guilty. Q So did you fight the police at that time?

A Yeah, we both fought each other. [ 11 ] The guilty plea was accepted in relation to that charge. [ 12 ] Following the arraignment of T.T. on the four charges, there was discussion between the court and counsel regarding the preparation of a pre-sentence report, the date for the next court appearance and where T.T. would be detained. [ 13 ] The following exchange then took place between the court and T.T. (Transcript p. 23, lines 10-27, to p. 24, lines 1-10): Q ...before I continue I want to make sure that no one is putting any pressure on you today to plead guilty to those charges that we talked about.

Did you decide to plead guilty to charges and not listen to other people? You are the one who has decided that you should plead guilty? A No. It was said that if I don't plead guilty I would likely be getting sent down south. Q Do you feel any pressure to plead guilty or have you done that on your own, voluntarily? Was it your decision to plead guilty to those charges and admit responsibility? A I don't know. Q Do you understand the charges? A Yes. Q Do you understand that they are very serious charges? A Yes. Q What is the reason for your guilty plea?

Is it because you did those things or is it because there was another reason? A Yeah. I did those things but I never threatened her. [ 14 ] The court advised T.T. that the charges were serious, that he was facing a serious jail term, and that the decision as to sentence was up to the sentencing judge, regardless of any discussions between the lawyers or the positions of the lawyers as to what the sentence should be. T.T. indicated that he understood this. [ 15 ] The matter was adjourned to November 18, 2013, to a different community, that being community Y, and a pre-sentence report was ordered.

It was not expected that a pre-sentence report would be completed by November 18, but everyone felt it was important to monitor the progress of the matter.

[16] At the community Y court appearance on November 18, the court was advised that T.T. had instructed counsel to apply to have theguilty pleas struck. III. EVIDENCE ON THE APPLICATION [17] In addition to the transcripts from the November 5, 2013 and November 18, 2013 court appearances, the court had the followingevidence before it on the application to strike the pleas. A. Affidavit of David Berg [18] Mr. Berg was counsel for T.T. on the November 5, 2013 and November 18, 2013, court appearances.

He attests that he advisedT.T. that the Crown appeared to have a strong case and that if convicted a penitentiary sentence was likely. He advised T.T. that if heentered guilty pleas it may mitigate sentence such that a territorial sentence might be granted. Following this advice T.T. told Mr. Bergthat he was innocent of the charges but that he would plead guilty to try and avoid federal time and to spare his wife from having totestify. It was for this reason that Mr. Berg did not assist with the entry of the pleas. B.

Affidavit of TT [19] T.T. attests that on November 5, 2013 he told his lawyer that he was not guilty of the charges. He attests that he felt pressure toplead guilty to avoid a penitentiary sentence and to spare his wife from testifying. He also said he felt pressure to make a decision quicklyas he either had to change his plea or the trial would proceed that afternoon and his wife would have to testify. He attests that he does notread well so the “Agreed Facts” that he signed were read to him by his lawyer before he signed them. C.

Pre-Sentence Report [20] A pre-sentence report (PSR) was filed in January 2014, after the Accused made known his intention to apply to strike the guiltypleas. The PSR indicates that T.T. gave a version of facts to the probation officer that indicate that he does not accept facts that wouldsupport a guilty plea for the assault with a weapon and resisting arrest. With respect to the assault with a weapon charge, he told theprobation officer that he used the stool to block the complainant when she was “coming at him”.

With respect to the charge of resistingarrest, he told the probation officer that he wanted to put his pants on and the police grabbed him and choked him without sayinganything. Nothing was said about the sexual assault. D. Agreed Facts [21] The “Agreed Facts” which T.T. signed as being true included facts which would have supported a conviction for uttering threats. However, as previously discussed, on the same day that he signed the Agreed Facts, T.T. told the court that he did not make such astatement and was simply pleading guilty to get the matter over with. IV.

ANALYSIS [22] For a guilty plea to be valid it must be voluntary, unequivocal, and informed. A. Was the plea voluntary? [23] A plea will be involuntary when it was entered under circumstances where the ability of the Accused to make a conscious,voluntary choice, was somehow impaired R. v. T. (R.), 10 OR (3d) 514 [1992] OJ No 1914, (ONCA). A distinctionmust be made between factors that an Accused will consider and weigh when deciding whether to plead guilty or not guilty and those

factors that vitiate a plea because of involuntariness. The factors may overlap and the question may be one of degree. [ 24 ] T. T. states that he felt pressured to plead guilty because he wanted to avoid a penitentiary sentence and because he did not want his wife to have to testify. T.T. was well-advised by his lawyer as to the mitigating impact a guilty plea might have on sentence. This was an appropriate factor for him to consider when deciding what to plead. His desire for his wife to not have to testify against him was also a legitimate consideration.

There were no pressures from counsel or the court to plead guilty; on the contrary. The pleas were voluntary. B. Was the plea unequivocal? [ 25 ] There are a number of factors which lead to the conclusion that the pleas were equivocal or uncertain. They are:

i) Defence counsel's inability to assist in the taking of the pleas due to ethical constraints. ii) The Accused signed a statement of “Agreed Facts” in which he agreed that he uttered threats to the complainant yet it became clear during his court appearance that he did not admit to uttering threats. This called in to question the reliability of the entire “Agreed Facts” document. iii) The in court discussion did not review all of the alleged facts. iv) The responses of the Accused as to why he was entering guilty pleas suggested some uncertainty on his part.

v) Statements made by the Accused to the probation officer for the preparation of the PSR and information regarding his instructions to counsel, all indicate that he maintained his innocence throughout. [ 26 ] The cumulative effect of these factors is such that the pleas cannot be said to be unequivocal. [ 27 ] It is the practice in this jurisdiction for the Court to hear the facts supporting the guilty plea prior to passing sentence. If, upon hearing the facts, the Court is not satisfied that they support a finding of guilt, the court will not accept the guilty plea and will enter the matter for trial.

Given the history of these proceedings, it is likely that the Accused will not admit facts sufficient to support the pleas once the facts are read in. This would leave the Court in the position of having to rely upon the written “Agreed Facts”, which were shown to not be admitted to by the Accused within hours of having been signed by him. This would simply be unsafe. C.

Was the plea informed? [ 28 ] An informed plea is one where the Accused understands the nature of the charge, the options available, and the consequences of pleading guilty. [ 29 ] The proceedings from November 5, 2013 and the material filed in support of this application all indicate that the Accused understood the charges, the nature of the proceedings, the options available, and the consequences of choosing any particular option. The pleas were informed pleas. V. CONCLUSION [ 30 ] The guilty pleas entered by the Accused were both voluntary and informed, however they were equivocal.

For that reason, the guilty pleas are set aside and the matters are directed to be set for trial. Dated at the City of Iqaluit this 28th day of April, 2014.

____________________ Justice S. Cooper Nunavut Court of Justice