R. v. L.R.B. Date:, 2016 BCPC 172

Citation: R. v. L.R.B. Date: 20160531 2016 BCPC 0172 File No: 29941-4-KA; 30801-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.R.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.K. KEYES (Via Videoconference) Counsel for the Crown: J. Petty Counsel for the Defendant: R. Nielsen Place of Hearing: Terrace , B.C. Date of Hearing: May 31, 2016 Date of Judgment: May 31, 2016

[ 1 ] THE COURT: This is my decision with respect to the matter before the court. Introduction [ 2 ] Mr. B. applies to withdraw his guilty plea to assaulting his five-year-old stepson, C.W. Mr. Klaassen, who was Mr. B.'s lawyer at the time, entered that guilty plea in the presence of his client, who confirmed it by saying "yes" at a court appearance on April 29, 2014. [ 3 ] On June 20, 2014, Mr. B. told Mr. Klaassen that he wanted to withdraw his plea. Mr. Klaassen withdrew from representing him a few days later. [ 4 ] Mr.

B. testified that he did not intend to plead guilty to assaulting his son, because he maintains he did not assault him. He says that Mr. Klaassen did not listen to his explanation with respect to the events that occurred nor the events surrounding the taking of a statement he gave to the police, which gave rise to the charge to which he pleaded guilty. He says, and Mr. Klaassen agrees, that Mr. Klaassen told him he had no defence to the charge. He testified that although he did not assault his son, he felt he had no choice but to plead guilty because Mr.

Klaassen instructed him to do so. [ 5 ] When he pleaded guilty, he did not know that the result of that guilty plea would be that a continuing custody order would be taken by the Ministry for Children and Family Development, whom I will call "MCFD" in these reasons, thereby preventing him from parenting his children, including C. [ 6 ] The question for me to decide is whether, on the evidence that I accept, Mr. B. has satisfied me that his guilty plea was uninformed, equivocal or involuntary, or that it would be otherwise unjust to maintain the guilty plea.

Background Circumstances [ 7 ] The background to this matter is that on June 8, 2013, C. was admitted to hospital suffering from seizures. Eventually, the cause of the seizures was found to be a virus. It was not the result of any action on the part of any person. [ 8 ] However when C. was first in hospital, police and members of MCFD were concerned that C.'s symptoms were the result of having been the victim of shaking. Those same authorities suspected that Mr.

B. had shaken C. [ 9 ] One of the reasons for that suspicion was that a sibling of C. had been shaken by a previous common-law partner of C.'s mother, not Mr. B. In part because that had occurred in the past, C.'s mother and her children, as well as her more recent partner, Mr. B., were under the supervision of MCFD. [ 10 ] After Mr. B. pleaded guilty, MCFD used the fact of that guilty plea to support seeking a continuing custody order with respect to C., and that order was granted. As a result, Mr. B. has very limited access to his children, including C. Mr. B.'s Evidence [ 11 ] Mr.

B. told the court with respect to the incident that he had been bathing C. and his baby sister on the morning in question. He said he had removed C. from the bath, put a towel around his shoulders, and pushed or nudged him on the way to his bedroom, telling him to hurry up and get dressed. Mr. B. was afraid to be late getting C. to school because one of the conditions of supervision placed upon the family by MCFD was that C. could not be late for school. [ 12 ] Mr. B. said that C.'s clothes were laid out on the bed in the bedroom for him to put on. Mr.

B. then carried on attending to his baby daughter in the bathroom. [ 13 ] When he went to the bedroom, Mr. B. saw that C. had a bleeding nose, and comforted him. Mr. B. did not see how C. got a bleeding nose, but he felt bad about the child having a bleeding nose. [ 14 ] About two weeks later, when C. was in hospital due to his seizures, Mr. B. learned that the police were looking for him so he went to speak to them. He was then engaged in a very lengthy interview by Constable Proulx, during which Constable Proulx repeatedly suggested to Mr. B. that he had shaken C. Mr.

B. steadfastly denied having done so. [ 15 ] At one point in the interview, Mr. B. asked to leave to get advice, and there is a six-minute gap in the interview. Mr. B. said that he tried to go to speak with his wife who was waiting because she had the number for his lawyer, Mr. Nielsen, but was prevented from actually leaving the controlled area and obtaining his lawyer's number by Constable Proulx, who physically got in his way.

He said Constable Proulx told him it would be “in his best interest” to carry on with the interview. [ 16 ] After this thwarted attempt to obtain legal advice, the interview carried on, and in the very last few minutes, Mr. B. volunteered

information about the events two weeks earlier which led to the charges before the Court. The account of events given to the police was virtually identical to the one Mr. B. provided in court. [ 17 ] Months later, Mr. B. was charged with assaulting C., and he was assigned Mr. Klaassen as his counsel by Legal Aid. Mr. B. dropped into Mr. Klaassen's office to speak to him about the case. Mr. B. testified that he tried to tell Mr. Klaassen that he had been tricked by the police, and to explain his version of events, but he testified that Mr. Klaassen was not listening to him. [ 18 ] He says that he and Mr.

Klaassen were speaking over one another. He testified that he told Mr. Klaassen he had not been trying to discipline C. because C. had not done anything wrong. Mr. Klaassen told him if he was not disciplining C. then there was no defence to the charge. [ 19 ] Mr. B. was very frustrated that Mr. Klaassen did not understand his position and, he felt, was not listening to what he had to say regarding the event in question and his account of what had happened at the police station. [ 20 ] Mr. B. testified that he did not intend to plead guilty because he felt he was not guilty.

However, he simply went along with the guilty plea because he believed he had no choice. He believed his lawyer was there to speak for him, and that he was not allowed to speak. He said he had no money to hire a lawyer privately, and did not know he could seek different counsel from the one assigned by Legal Aid. He felt he had no choice but to do as Mr. Klaassen arranged. [ 21 ] On April 29, 2014, Mr. B. attended court. He had met with Mr.

Klaassen, who explained the sentencing and deal he had arranged with the Crown for a conditional sentence to be served in the community, as opposed to a custodial jail sentence. Mr. B. acknowledges that he pleaded guilty in court that day, although his recollection was that he did not speak, but simply nodded in the affirmative. [ 22 ] The transcript of the proceedings is as follows [as read in]: MR. KLAASSEN: Yes, Your Honour, a similar situation with respect to Mr. B.. On Mr. B.'s behalf, I waive reading of Information 30801 sequence 1, and enter a plea of guilty, Your Honour, indicating for the record that Mr.

B., on or about June 4th, 2013, did commit an assault of C.W.. Do you confirm that plea, Mr. B.? THE ACCUSED: Yes. Mr. Klaassen's Evidence [ 23 ] The information before the court was sworn in November 2013, and Mr. B. was assigned Mr. Klaassen as his counsel by Legal Aid. Mr. Klaassen obtained particulars and spoke with Mr. B. about them when Mr. B. dropped in to see him in March 2014. [ 24 ] Mr. Klaassen says that he had reviewed the particulars and had formed the opinion that there was no defence to the charge of assaulting C. unless Mr. B. had been engaged in discipline at the time. But Mr. B. told Mr.

Klaassen that C. had done nothing wrong, and he was not disciplining C. at the time. Therefore Mr. Klaassen formed the opinion that Mr. B. had no defence, and told him so. [ 25 ] In his testimony, Mr. Klaassen stated that although he had read the entire transcript of Mr. B.'s police statement, he had viewed only the beginning and end of the video and he was unaware that there was a gap in the statement in which allegedly relevant things occurred that were not recorded. Mr. Klaassen agrees that they were "cross-talking" and that Mr. B. was complaining about police trickery and was very upset. [ 26 ] Mr.

Klaassen said that he was aware that Mr. B. was very concerned about how these proceedings might affect his family, and wished to ensure that his family would be able to stay together. He testified that Mr. B. was afraid that if he went to jail, something the Crown was seeking, that his family would be ruined, specifically that MCFD would keep him away from his children forever. [ 27 ] Despite his experience in child protection matters, Mr. Klaassen did not tell Mr. B. that simply entering a guilty plea to assaulting his child would have the same effect with respect to MCFD as receiving a custodial sentence. Mr.

Klaassen simply did his best to arrange a community, as opposed to custodial, disposition. Findings of Credibility Mr. B. [ 28 ] I paid close attention to the manner in which Mr. B. gave his evidence. He is clearly a very unsophisticated person.

Although he uses legal words in superficially appropriate context, it became apparent to me that he does not actually understand what they mean. [ 29 ] For instance, he consistently referred to his police interview as his "voluntary statement", although the thrust of his position was that his statement to the police about the event was the result of trickery or coercion -- that is, not voluntary, legally speaking. All that Mr. B. meant by voluntary was that he went to the police station on his own, not under arrest. [ 30 ] Similarly, when it was suggested to him that hypothetically, had his interview with Mr.

Klaassen been recorded, it might have appeared different from his recollection, he became quite indignant that Crown counsel was in possession of a "hypothetical recording"

of his interview with his lawyer. I find that Mr. B. is a very concrete thinker, and could easily become upset and confused by legallanguage and legal concepts. I find he has difficulty expressing what he really means, in part because he has a tendency to adopt thelanguage and phrases used by those speaking to him. His ability to mimic legal jargon in context could easily lead others into believingthat Mr. B. has a level of sophistication and comprehension of legal matters that he simply does not possess. [31] I find that Mr.

B. is a credible witness and I accept his evidence, despite some minor inconsistencies, such as believing hesimply nodded when pleading guilty, when in fact he said the word "yes". Mr. Klaassen [32] I find that Mr. Klaassen was also an honest witness.

He honestly acknowledged his failure to review the entire video and thathe was unaware of the gap in the interview. [33] He had difficulty, however, acknowledging that his legal opinion, that the statement was admissible and there was no defence tothe charge, might be somewhat undermined by his failure to notice the gap in the interview. [34] Similarly, he acknowledged that he and Mr. B. were cross-talking, but he would not acknowledge that he did not listen to whatMr. B. had to say, even though that is precisely what happens when people talk over one another. [35] I am also concerned that, although Mr.

Klaassen claims to be quite experienced in child protection matters, and acknowledgedbeing aware that the effect of a guilty plea would likely be a successful application by MCFD for a continuing custody order, he did notinform Mr. B. of that almost inevitable consequence. [36] I found Mr. Klaassen to be rather rigid and authoritarian in his manner, factors which I find contributed to this unfortunatedebacle. Court Record [37] No plea inquiry was performed by the court on this occasion. Mr. B. uttered only one word. There was nothing about theproceedings to indicate positively that Mr.

B. admitted the elements of the offence, nor that he was aware of the consequences of it andwilling to proceed regardless. [38] Mr. Funnell for the Crown very fairly acknowledged that a plea inquiry by the court at this stage might very well have revealedthat the plea was equivocal. Law [39] I have considered all of the case authorities presented by counsel, but I find the most helpful to be the recent decision of theOntario Court of Appeal in R. v. Quick, 2016 ONCA 95, and the decision of Mr. Justice Schultes in R. v.

Gill, 2014 BCSC 1150. [40] In Quick, the court held that, to be valid, a guilty plea must be voluntarily, unequivocal and informed, and that for an accused'splea to be informed, the accused must be aware of the nature of the allegations and the effect and consequences of the plea.

The legallyrelevant consequences of the plea include not only the criminal penalties but also the non-criminal penalties that may result from theplea, because for some accused, the non-criminal, or “collateral” consequences of a plea may be far more serious than the criminalpenalties. [41] In order to assess whether the collateral consequence is legally relevant and important, the court recommended the following,and I quote: [33] What is called for is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateralconsequence to the accused.

A simple way to measure the significance to an accused of a collateral consequence of pleading guilty is toask: is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty andgone to trial? In short, would the information have mattered to the accused?

If the answer is yes, the information is significant. [42] The court also held that the test to be applied was a subjective one based upon whether there was a realistic likelihood that theaccused would have chosen to run the risk of a trial had he been aware of the collateral consequence. [43] In R. v. Gill, Mr. Justice Schultes the following

summary of the considerations applicable to an application to withdraw a guiltyplea: [63] Among the reasons that permit a judge to exercise his or her discretion to permit the withdrawal of a guilty plea is that theaccused never intended to admit an essential ingredient of the offence. The key authority in that area is Adgey v. The Queen, (S.C.C.)(additional citations omitted.) Adgey also explains that evidence of an accused's lack of intention to admit an essential

ingredient may arise from the admitted facts, or as part of the application to withdraw the plea. [64] A lack of such intention can lead to a guilty plea being withdrawn, because it violates the essential requirement that a guilty pleabe unequivocal: R. v. T.(R.), (Ont. C.A.). [65] In exercising his or her discretion, a judge must also be satisfied it would be unjust to uphold the plea and that there is a validdefence to the charge: R. v. Read (1994), 1994 BCCA 1 , 47 B.C.A.C. 28. However the existence of such a defence does notneed to be scrutinized at the same level as it would be at trial: R. v.

Malone, [1997] B.C.J. No. 835 (S.C.). [66] An accused's regret at his error in judgment in having entered a guilty plea is not in itself a valid reason for allowing it to bewithdrawn: R. v. Staples, 2007 BCCA 616 at para. 45. [67] Further, it is to be presumed that a guilty plea entered while represented by counsel is valid: R. v. Eizenga, 2011 ONCA 113. InR. v. Melanson [I will omit the citation], Mr.

Justice Pace used very strong language on this point at para. 8, noting that: 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 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 accused andthat the accused not only fully appreciates the nature of the charge, but also the effect of his plea and that he is admitting the facts asalleged in the charge. [68] Finally (and almost as a matter of common sense, although there is authority for it), the timeliness with which the application towithdraw the plea is brought forward is a relevant factor in assessing it: R. v.

T.W.B. (1994), (BC CA), 107 B.C.A.C.39. [44] However I note that in R. v. Quick, the Ontario Court of Appeal found that it was not necessary to show a viable defence: [38] In now asking that his plea be set aside, Quick need not show a viable defence to the charge of dangerous driving. Whether he hasa defence is irrelevant -- "... the prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial": R. v. Rulli,2011 ONCA 18, at paragraph 2. Analysis Should the court presume that the plea was valid because Mr.

B. was represented bycounsel at the time? [45] It is apparent that during their interview, Mr. Klaassen and Mr. B. were speaking at cross-purposes and that Mr. Klaassenfundamentally misunderstood what Mr. B. was trying to tell him. [46] I also find that because Mr. Klaassen had not watched the video to become aware of the gap in the interview, and because of themiscommunication with his client, Mr. Klaassen was not alerted to the potential for a challenge to the admissibility of the statement. [47] Mr. Klaassen apparently also failed to consider whether the facts admitted by Mr.

B. properly constituted the offence of assault. As a result, he told Mr. B. that there were no defences to the charges before him when that was not necessarily the case. [48] In my opinion, it would be fundamentally unjust to uphold a guilty plea due to the involvement of counsel when the guilty plearesults from advice predicated upon counsel's lack of understanding of the evidence in the case and miscommunication between clientand counsel. Was the guilty plea informed? [49] Mr.

B. did not know that the likely consequence of his guilty plea to assaulting C. would be that MCFD could obtain acontinuing custody order, placing C. permanently in the care of MCFD and depriving Mr. B. of his role as a parent. [50] His greatest fear was that MCFD would ruin his family by taking his children away. He believed if he went to jail forassaulting C., then that fear would be realized. He believed mistakenly that as long as he did not go to jail, but instead had a communitydisposition, then his family would be preserved. [51] Mr.

Klaassen knew the contrary but carried on with plea arrangements and did not inform Mr. B. that a consequence of a guiltyplea would be just as dire for him and his family as a jail sentence. [52] Mr. Funnell for the Crown argues that such a consequence is not a legally relevant consequence because it is not automaticallyimposed by statute upon the entry of a guilty plea. I disagree.

Many consequences that are very serious for an accused are not imposedautomatically, but rather by the exercise of discretion by those persons with the power to do so, such as an indefinite suspension of adriver's licence by the Superintendent of Motor Vehicles. Nevertheless such consequences might matter to an accused in deciding

whether to plead guilty. [ 53 ] In this case the decision of MCFD to seek a CCO with respect to C. is a discretionary decision, as was the decision of the court in granting it, but one which was extremely likely in the circumstances. It seems to me that if a consequence is likely to occur and it is sufficiently serious that it will matter to an accused if it does occur, then it is a legally relevant consequence. [ 54 ] It is not disputed that Mr. B.'s primary concern was the preservation of his family. For Mr.

B., the fact that pleading guilty would likely result in a CCO, the very result he sought to avoid, was not only a legally relevant consequence; to him it was the only consequence that mattered. [ 55 ] I find that had Mr. B. been informed of that collateral consequence of the guilty plea, he would not have gone along with it. I find therefore that the guilty plea was uninformed and should be set aside on that ground. Was the guilty plea voluntary? [ 56 ] Mr. B. gave evidence that he did not want to plead guilty but he did so because Mr.

Klaassen told him he had no defence, and he felt he had to do what his lawyer said. The circumstances of this case are a cautionary tale for all counsel. It is easy for educated, sophisticated, assertive lawyers, with the best of intentions, to overwhelm and over bear uneducated, unsophisticated or unassertive clients. This behaviour can occur inadvertently, but when done intentionally, it is known in the profession as "wood shedding". [ 57 ] Whether intentional or not, the effect in this case was the same. Mr. B. gave up protesting and did what he was told. I find that Mr.

B. was not willing to plead guilty and did so only because he felt he had no choice in the matter. It was therefore not voluntary. Was the guilty plea unequivocal? [ 58 ] It was argued before me that the fact that Mr. B. said the word "yes" when asked to confirm the plea should be conclusive of this issue. Indeed Mr. B. did not argue that the plea was equivocal. [ 59 ] However Mr. B. did provide extensive evidence that he did not intend to plead guilty because he did not admit to assaulting C. According to R. v.

Gill , if the accused did not intend to admit an element of the offence, then the plea is not valid because "it violates the essential requirement that a guilty plea be unequivocal". Thus the question of whether the plea was equivocal turns upon whether the accused never intended to admit an element of the offence. [ 60 ] Mr. Klaassen testified that Mr. B. had admitted his guilt, both in the statement and in Mr. Klaassen's office. I accept that Mr. Klaassen genuinely believed that Mr. B. had admitted his guilt, but I find this belief was founded upon a misunderstanding of what Mr. B. was admitting. [ 61 ] Mr.

B. admitted that he pushed or nudged C. to hurry him along to get dressed. However the child took no harm from that and went along to his room to dress. Something happened there which resulted in C. having a bloody nose, but Mr. B. was not present. Mr. B. did not admit to assaulting C. because, to his mind, pushing C. along to get dressed was not an assault. [ 62 ] Mr. Klaassen failed to consider that position and carried on as if an assault had occurred, and the only defence available were the "exercise of authority" which he described as discipline. Mr.

B. said he was not disciplining C. because C. had done nothing wrong. Mr. Klaassen then ruled out that defence and carried on as if guilt was admitted. [ 63 ] I find, however, that Mr. B. never intended to admit that he had in fact assaulted C. at all. His position all along, even in his statement to the police, was not that he had assaulted C.; rather, he had nudged or pushed C. to hurry him along to get dressed, which to his mind was not the same thing as assaulting him. [ 64 ] In my opinion, that is a proper distinction, as I will address the below.

I find therefore that the guilty plea should be set aside because it is equivocal. Is there a valid defence to the charge? [ 65 ] In R. v. Quick , Laskin J.A. was of the view that where the accused pleaded guilty while uninformed of the consequence of doing so that would have mattered to him in deciding whether to plead guilty, it is not necessary for the court to be satisfied that there is a viable defence. However in this case I believe it is important to all parties, but most importantly to Mr.

B., to note my finding on the record that there is, in my view, a viable defence to the charge in this case. [ 66 ] Legal questions are not necessarily easy, even for those engaged in the profession. In this case, it is not, in my opinion, obvious that when Mr. B. pushed or nudged C., he thereby committed the offence of assault. [ 67 ] Although it is true that theoretically any non-consensual intentional touch could be assault, to my mind, the context must still be taken into account for charges of assault to be properly sustained.

Many sorts of touching by parents of children are neither consensual nor disciplinary, but would not constitute an assault, to my mind.

[ 68 ] All parents must touch their children and much of that touching is non-consensual. For example, would grabbing a child to put him in his high chair, or into his bed, or into the bath, or while getting him dressed, when he does not want to do any of these things, constitute an assault? Would pushing a child along to hurry him up to get ready for school, or get onto the bus, or the elevator before the door closes constitute an assault? Such touching is not consensual, nor is it correction.

If such things constitute assault, it would be virtually impossible to find a parent who is not guilty. [ 69 ] I have not forgotten that C. gave a statement to the police about what happened. More than a month after Mr. B.'s statement to the police -- so more than six weeks after the events in question -- C. was interviewed. He was unable to give any account of what happened until he was asked what his foster parent had told him about why he was coming to the police.

He then gave an account of having been "thrown in the bath" by his father, apparently a different incident, and of his father hitting his mother, clearly a different incident since his mother was not present on the day in question, and also commented about events between his parents for which he had not been present.

Obviously it would be a live issue at trial what weight, if any, could be given to the evidence given by the child since it would appear to be the product of coaching by the foster parent. [ 70 ] The statement of the child provides little or no assistance to the Crown so the Crown's case rests primarily upon the statement given by Mr. B. It appears to me that no professional in this case, Crown or defence, considered that the sort of touching admitted to by Mr. B. might not constitute an assault at all. Mr. B. said he pushed or nudged the child along to hurry him up to get dressed.

I find it difficult to understand why he was charged at all if that was the evidence. It is still more difficult to understand why he would be told to plead guilty. [ 71 ] Even if the acts complained of did constitute an assault, I find there is another viable defence available to Mr. B. The statement clearly indicates that Mr. B. left the interview to seek advice and that, despite that fact, when the recording resumed after a significant gap, he had not obtained any advice. What transpired in the meantime is not recorded. [ 72 ] According to Mr.

B., Constable Proulx made remarks that to the effect that "it would be in his best interest" to carry on with the interview. That sort of remark could very well lead to a finding that the statements given thereafter were not voluntary and therefore that the statement was not admissible. [ 73 ] Additionally, it may well be that Mr. B. could establish on a balance of probabilities that he was seeking to access counsel and impeded in his efforts to do so by the actions of Constable Proulx.

If the court were satisfied that a denial of access to counsel had occurred, the statement might have been excluded under s. 24(2) of the Charter . [ 74 ] Since the statement by Mr. B. constitutes almost the entirety of the Crown's case, if that statement were not part of the evidence for the Crown, there would be almost no evidence at all against Mr. B. [ 75 ] It is not necessary for me to scrutinize such defences to the same degree as at trial in order to determine for the purpose of this application that Mr. B. has a viable defence.

I am satisfied that a proper foundation for the advancement of such a defence has been established before me. I find that Mr. B. has a viable defence for the purpose of this application. [ 76 ] Mr. Nielsen also advanced the argument that the interview technique itself, in addition to whatever transpired in the non- recorded portion, may have resulted in a finding that the statement was involuntary. There is not sufficient evidence before me to allow me to opine as to whether that argument is viable. However in view of my other findings, it is not necessary for me to decide that issue.

Is this application brought simply due to Mr. B.'s regret at having entered the plea? [ 77 ] It is clear that Mr. B. does regret that he entered the plea, but in my view that is not the reason he seeks to withdraw it. He seeks to withdraw it because he does not and did not intend to admit to assaulting his child. Was the application to withdraw the guilty plea brought in a timely fashion? [ 78 ] It appears that Mr. B. spoke to Mr. Klaassen about his desire to withdraw his guilty plea on June 20, 2014, about seven weeks after it was entered. I find that time is not inordinately lengthy.

I find this application was made in a timely fashion. [ 79 ] Mr. B.'s application to withdraw his guilty plea is granted.