R v K.A., 2021 NUCA 6

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v K.A., 2021 NUCA 6 Date: 20210507 Docket: 08-20-11 CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - K.A. Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant or witnesses must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Madam Justice Louise Charbonneau The Honourable Madam Justice Frederica Schutz

The Honourable Mr. Justice Kevin Feehan _______________________________________________________ Memorandum of Judgment Appeal from the Decision by The Honourable Mr. Justice P. Bychok Filed on the 4th day of April, 2020 ( 2020 NUCJ 18 , Docket: 08-18-686) _______________________________________________________ Memorandum of Judgment _______________________________________________________ I. Introduction [ 1 ] The appellant, Mr.

K.A., appeals a sentencing judge’s dismissal of his application to withdraw his guilty pleas to charges of assault and sexual assault on his former common-law partner: R v K.A. , 2020 NUCJ 18 (the “Decision”). He submitted before the sentencing judge and before this Court, that his pleas were not voluntary; on appeal he argues a miscarriage of justice pursuant to s 686(1)(a)(iii) of the Criminal Code . [ 2 ] The appellant entered his guilty pleas with counsel on June 5, 2019, before a different trial judge.

He maintains that at the time, he, his girlfriend, and his girlfriend’s daughter were being continuously harassed by the complainant, and he entered the pleas not because he was guilty, but because he was overwhelmed and wanted the harassment to stop.

His affidavit and testimony to this effect, offered at the time of his application to withdraw the pleas, were ultimately rejected by the sentencing judge despite the Crown’s concession that the appellant’s evidence met the test for withdrawal of the pleas. [ 3 ] While the appellant did not argue that he had been pressured by either his own counsel or the actions (or inaction) of the RCMP to plead guilty, the sentencing judge erroneously focused on the lack of evidence relating to same in dismissing the appellant’s application to strike his guilty pleas.

Similarly, while the appellant never asserted his plea was uninformed or that he did not understand the consequences of pleading guilty, the sentencing judge also erroneously focused on these factors in finding the appellant’s pleas were voluntary.

Further, the sentencing judge misapprehended and mischaracterized the appellant’s evidence as it related to the voluntariness of his pleas, while at the same time appearing to otherwise accept that the appellant’s pleas were due to his “misguided hope the [complainant’s] harassment would stop once the charges were dealt with”. [ 4 ] For the reasons following, the appeal is allowed. II. Background [ 5 ] The appellant and the complainant were in a long-term domestic relationship and have five children; by the fall of 2018, their relationship had broken down.

On October 2, 2018, the appellant was charged with assault and sexual assault of the complainant on an 11-count Information. [ 6 ] On November 9, 2018, the complainant was charged with dangerous driving and uttering threats involving the appellant and his new girlfriend, and was released on an undertaking not to directly communicate with or go to the residence or place of work of either the appellant or his girlfriend. These and additional charges were later included on another recognizance entered into by the complainant June 7, 2019, which set out the following charges against the complainant:

1. Three charges of harassment (s 264(2)(a)/(b)) of the appellant’s girlfriend between March 11, 2019 and June 7, 2019; 2. Dangerous driving (s 320.13) on March 17, 2019; 3. Assault with a weapon (a vehicle, s 267(a)) of the girlfriend on March 17, 2019; 4. Assault with a weapon (a vehicle, s 267(a)) of the appellant on March 17, 2019; 5. Breach of an undertaking (s 145(5.1), since repealed) for communicating with the appellant between March 11, 2019 and June 7, 2019; 6. Breach of an undertaking (s 145(5.1), since repealed) for communicating with the girlfriend between March 11, 2019 and June 7, 2019; 7.

Assault with a weapon (a coffee, s 267(a)) of the appellant on November 9, 2018; 8. Assault with a weapon (a vehicle, s 267(a)) of the appellant on November 9, 2018; 9. Assault with a weapon (a vehicle, s 267(a)) of the girlfriend on November 9, 2018; 10. Uttering a death threat (s 264.1(1)(a)) to the appellant on November 9, 2018; and 11. Dangerous driving (s 320.13) on November 9, 2018.

Most of the charges against the complainant pre-date the appellant’s guilty pleas of June 5, 2019. [ 7 ] As against the appellant, the Crown withdrew 4 offences and a trial date was set on the remaining matters for January 9, 2019; when the complainant became unavailable on the first trial date, the trial was ultimately adjourned to June 5, 2019. The guilty pleas [ 8 ] On June 5, 2019, the appellant’s counsel advised the original trial judge that the “matter was resolved”.

When the appellant then entered the courtroom, the counts in relation to the assault and sexual assault upon the complainant were read to the appellant, who stated “Guilty”. As is not unusual, no facts were read in or accepted by the judge. Neither counsel nor the court raised or canvassed s 606(1.1) of the Criminal Code .

Rather, the matter was immediately adjourned to August 14, 2019 for the purpose of preparing a pre- sentence report. [ 9 ] The pre-sentence report dated July 29, 2019 did not summarize or discuss any facts that would support the two offences, or contain any inculpatory admissions by the appellant. Under the heading “Family/Marital Relationships”, the report provided: The Accused reports he has had 2 significant relationships in his life. The first relationship with the mother of his children, [the complainant], he states that they were together for 14 years. . .

When asked about the relationship, he disclosed that it started out great, loving and supporting but towards the end, the Accused stated [the complainant] had become violent and kicked him out of the house, became manipulative towards the Accused and even tried to run the Accused over with her vehicle multiple times. The Accused states he is now in a relationship with [his girlfriend], where it started on a rough path due to his ex-girlfriend creating rumors about the Accused but it has since become great.

The Accused stated that if they feel there is something affecting their relationship; they know how to deal with it rather [than] having it ruin their relationship. While the writer of the report booked two appointments to meet with the complainant, she did not show up for either. The application to withdraw the pleas [ 10 ] The appellant’s sentencing went over a number of times for various reasons, but on December 19, 2019, appellant’s then

counsel advised the court, “Mr. K.A. would benefit from a second opinion”. The Crown agreed the matter ought to be adjourned, citing “the guilty plea and the voluntariness of the guilty plea”; the adjournment was granted. The sentencing judge seized himself with the matter, which was adjourned to January 10, 2020, then to January 27, 2020. [ 11 ] On January 27, 2020, the appellant’s new counsel advised the sentencing judge that a formal application for withdrawal of the guilty pleas would be filed.

In setting the matter over to February 19, 2020, the sentencing judge noted R v Wong , 2018 SCC 25 , [2018] 1 SCR 696 [ Wong ] and advised counsel, “Mr. K.A.’s affidavit and any written material... it doesn’t have to be a literary masterpiece, it can be point form. . .”. [ 12 ] The appellant’s February 6, 2020 affidavit provided: 1. On June 5 th , 2019, I plead guilty to counts #1 and #3 in court file 08-18-686. 2. I was not under any pressure to plead from the Court, the Crown prosecutor or my counsel. 3. I was under considerable pressure from the complainant. 4.

She harassed me and my common law spouse, [the girlfriend]. 5. I plead guilty in the misplaced hope that the harassment would stop once the charges were dealt with. The harassment continued. 6. I am not guilty of the charges and I believe I have a good defence to those charges. 7. Attached to my affidavit, and marked as exhibit “A”, is an account set out by [the girlfriend] with copies of some of the communications from the complainant. 8. I was present for some of her account and I truly believe the portion I was not present for. 9.

I wish to withdraw my guilty pleas and proceed to trial. [ 13 ] The application included numerous pages of the complainant’s undertakings and recognizances, which set out the 12 offences allegedly committed by the complainant against the appellant and his girlfriend, as detailed in paragraph 6, above. [ 14 ] An exhibit to the appellant’s affidavit, written by the appellant’s girlfriend, described the incidents and circumstances leading to these charges, almost all of which occurred before the appellant pleaded guilty on June 5, 2019, as accurately summarized in the appellant’s factum at paragraph 13: • On October 8, 2018 , the complainant barged into [the girlfriend]’s house, yelling.

Later that morning, she gave [the girlfriend]’s daughter “the middle finger”. [The girlfriend] wrote: “I am scared for my daughter and I”. • On October 12, 2018 , the complainant followed [the girlfriend]’s daughter home from the bar and boxed her into the driveway.

She then knocked “very hard” on the house door with her fists and kicked it with her feet, while staring at [the girlfriend]’s daughter with “a very mean face and a disgusted look on her face”. • On October 23, 2018 , the complainant called [the girlfriend] and yelled “I will kill you both”. [The girlfriend] included a screen shot of a text message exchange with the complainant in which the complainant said: “I will kill you both…You shouldn’t be talking to him and you are…You cant.” • On October 24, 2018 , the complainant attended [the girlfriend]’s workplace.

Although they did not interact, [the girlfriend] became “very anxious”. She wrote: “I started shaking knowing she was just downstairs…this unexpected visit has made me unable to work and I feared for my life at work after this incident.” • On November 8, 2018 , the complainant attended [the girlfriend]’s house and knocked on the door.

She then drove her vehicle into [the girlfriend]’s parked vehicle moving it slightly. [The girlfriend] noticed that there was a child in the backseat of the complainant’s car throughout. [The girlfriend] called the RCMP but due to numerous other calls that night, they were unable to attend or investigate. [The girlfriend] included photographs of her parked vehicle and the complainant’s vehicle. • On November 9, 2018 , [the girlfriend] picked the Appellant up from work. He was breathing quickly and said the complainant’s name. [The girlfriend] then saw the complainant’s vehicle stopped nearby.

The complainant then drove her car into [the girlfriend]’s

vehicle at 30 km/hour. The complainant exited her vehicle and approached the passenger side of [the girlfriend]’s vehicle, where the Appellant was sitting. The latter ran from the scene and [the girlfriend] called the RCMP. • On March 11, 2019, [the girlfriend] picked the Appellant up from work and the complainant followed their car all the way back to [the girlfriend]’s house. • On March 17, 2019 , [the girlfriend] was driving the Appellant toward their home when they saw the complainant driving toward them.

The complaina nt then drove into [the girlfriend] ’s lane, causing the latter to swerve and almost drive off the road. The complainant had children in her vehicle. • In April 2019 , the complainant followed [the girlfriend]’s daughter’s car, parked near her, and then yelled at her about the Appellant. • On May 12, 2019 , [the girlfriend] put her middle finger up to the complainant as the latter drove by. The complainant then went to [the girlfriend] ’s home and had her sister yell at her. • On June 5, 2019 , the complainant followed [the girlfriend]’s daughter.

That night, [the girlfriend]’s daughter made a statement to the RCMP. The girlfriend concluded her account of the harassment: Throughout this past year and half, [the complainant] went from threats to actually damaging my vehicle (twice) to stalking/following me and my daughter. [The complainant] has recruited people to hate me and ridicule me online. She has put her kids in danger while she was driving her vehicle as they were in the car while some of the times. Her actions have gone from words to actions to stalking.

I constantly fear for my safety and the safety of the public as she has no concern about people and her surroundings. [ 15 ] The appellant testified at the application hearing, and stated he was not guilty of the offences but believed the only way the harassment would stop was if he pleaded guilty: Q: Okay. And could you please explain to the court for which reason you pled guilty, sir? A: The complainant has harassed - - constantly harassed me, my girlfriend, and my girlfriend’s daughter since the first charges have came and it never stopped.

So I believed if I pled guilty, she would stop harassing, but she never stopped harassing me, my girlfriend, or her daughter. When asked about the documents in his affidavit, he said: A: These are evidence of the constant harassments that I, myself, my girlfriend. . . and her daughter were enduring throughout the months of - - once the complainant found out about my relationship with. . . my girlfriend, the complainant has constantly harassed us verbally, physically, and also on social media. So these are some of the evidence of our - - her constantly harassing us.

And there are times when me and [my girlfriend] were afraid of our lives because the complainant has multiple times said that she would either kill me or my girlfriend. [ 16 ] The appellant testified about the incidents with the complainant in which he had been personally involved, including the complainant’s attempt to cause a head-on collision, and her harassing and assaulting him at work. He stated that the RCMP had been called numerous times by him, his girlfriend and her daughter, but the complainant worked with the RCMP so he felt helpless and that their statements were falling on “deaf ears”.

The appellant said he did not know about the recognizances the complainant was under until a month before in January 2020, and “every time we did try to call, the RCMP didn’t know what’s happening. . . So it seemed like there was no way we were going to have safety from [the complainant] with her constant harassments.” He continued: Q: Okay. And you pled guilty because you - - go ahead. I don’t want to put words in your mouth. A: [The complainant] kept harassing me, [my girlfriend], and [her] daughter...

I just wanted that to stop even though I never done the - - the assaults that [the complainant] say that I did. It became overwhelming. Like on a daily basis, [the complainant] kept harassing us. She would drop by [my girlfriend] and I’s apartment, or even if she saw us throughout town, she would try to hit us or give us mean gestures and yell at us. She did that, not only to me and [my girlfriend], but also to [my girlfriend]’s 18-year-old daughter - - Q: Okay. And so you plead guilty on that day, and because you were - - you were thinking if I plead guilty, this is going to stop, right? A: Correct.

Q: And what happened after? A: It never stopped. She kept... harassing physically or also on social media. [ 17 ] The appellant testified he decided to file an application to withdraw his pleas after he got a new lawyer; he stated “my previous lawyer was not really listening to my side of the story. . . I tried to explain what was happening it went to deaf ears.

I asked for a new lawyer and then explained my whole situation, and then that’s when I decided to change my plea.” [ 18 ] During cross-examination, the appellant again explained his sole motivation to plead guilty: I figured if I pled guilty she would stop talking about me or trying to go to me - - like just get out of my life, literally. I just wanted to - - I wasn’t thinking right; because on a daily basis, I wasn’t sure if we were going to be killed or if we were going to be hurt - - badly hurt. Not just for myself but also for my girlfriend. . . So having to have those on a constant daily basis, I was tired.

I wasn’t thinking well. And after having to be in jail for awhile, having to not have that kind of actions, I realized that when I pled guilty I wasn’t in the right state of mind. . . I was tired mentally. I was tired physically. It was just too much. It was overwhelming and I figured - - well, I assumed

that if I pled guilty, all of this harassment to myself and my girlfriend or her daughter would stop. It never did. [ 19 ] The appellant admitted he knew when he pleaded guilty there was a possibility he could go to jail and he “would get away from [the complainant]. . . would have peace and quiet”. He maintained that he did not have a side deal with the complainant about the pleas, but she did call and tell him he had to plead guilty or she would press more charges.

He confirmed the complainant was in the courtroom when the pleas were entered. [ 20 ] The appellant testified he still did not feel safe in relation to the complainant, and continued to “feel unsafe for [his girlfriend] and her daughter”; he stated that he did not trust the RCMP. When asked, the appellant stated there had not been any significant problem with the complainant since “the 9 th of November and today [February 19, 2020]”.

It is unclear what year in November the appellant meant, but certainly if he meant November 2018, the evidence indicated charges were laid against the complainant after November 2018, in the first half of 2019 as listed on the recognizance of June 7, 2019. Position of the parties [ 21 ] Both counsel distinguished Wong as relating to a collateral immigration consequence of a guilty plea; here, in contrast, the appellant’s evidence was that he was “overwhelmed” by the complainant’s harassing conduct, which caused him to plead guilty even though he maintained he did not commit the offences.

The appellant’s counsel argued that his pleas were involuntary because he believed he had to plead guilty to stop the complainant’s ongoing harassment and protect himself, his girlfriend and her daughter. [ 22 ] When the sentencing judge challenged the submissions of the appellant’s counsel, she maintained there was neither an issue with nor a need to prove the RCMP or the appellant’s former counsel had failed in their respective duties or obligations.

Rather, counsel argued the issue was what the appellant subjectively believed at the time of his pleas; namely, that he felt helpless and that his will was overborne by the complainant’s harassment that he sought to stop. [ 23 ] Notably, Crown counsel also submitted the application to strike the guilty pleas should be allowed, because the appellant “made out a case on the application for the plea to be withdrawn, just barely”.

The Crown asked “the court to consider going back to first principles. . . about looking at the invalidity of the plea and considering what amounts to a miscarriage of justice. . . we could end up at the end of the day with a. . . man incarcerated on a - - the basis of a plea that he disavows. . . I think we have to look very carefully at the ultimate purpose which is whether there is a miscarriage of justice in all of the circumstances”.

Decision of the sentencing judge [ 24 ] In oral reasons the following day, the sentencing judge dismissed the appellant’s application to withdraw his guilty pleas; written reasons were released on April 29, 2020. Noting s 606(1.1) of the Criminal Code , he found the appellant had to satisfy the court “his pleas were not voluntary, that they were equivocal or ambiguous and that they were not informed”: Decision at para 12.

He ultimately concluded the appellant had not established there was a “reasonable possibility” he would not have pleaded guilty under different circumstances. [ 25 ] In making this finding, the sentencing judge found the appellant’s evidence to be “entirely self-serving” and his application “lacking in several critical ways”: 1. “[T]he 11-line” affidavit was “not in proper affidavit form” as it did “not recite that Mr. K.A. either was sworn or solemnly affirmed that the contents of the document were true.” 2.

The appellant’s evidence that he was “constantly harassed” by the complainant as supported by the unsworn evidence of [his girlfriend] of this harassment, was inconsistent with his evidence that he had only been present for two of the incidents described by her; the remainder of her account was found to be “the untested hearsay of an interested party”. Further, the sentencing judge found that the girlfriend was in the courtroom during the application, and should have been called as a witness but was not. 3.

While the appellant had claimed to have made many reports of harassment to police, the defence did not subpoena the alleged police reports, particularly finding there should have been a report of the attempted head-on collision. The appellant’s testimony that “the police did nothing because the complainant was a civilian RCMP employee” was found to be a “serious allegation. It is easy to make allegations when there is no one present to refute them”. 4.

The appellant’s evidence that his situation also fell on the “deaf ears” of his counsel, was also found to be a serious allegation, and it was expected that the appellant would waive solicitor-client privilege and produce an affidavit from defence counsel at the time of the pleas.

He further made no mention of this claim in his affidavit, making this “another example of self-serving and unsubstantiated allegations”. [ 26 ] While the sentencing judge noted that s 606(1.1) was not canvassed at the time the pleas were entered, we note the sentencing judge (having seized himself of this matter) also did not canvass this provision in order to satisfy himself as to what facts, if any, the appellant had admitted or accepted sufficient to support the charges; nor did he ask counsel whether s 606(1.1) had been properly canvassed. [ 27 ] Rather, in the absence of admitted or accepted facts, the sentencing judge held the charges read to the appellant were not

“complicated or convoluted”. And, while he recognized the appellant said he was “overwhelmed” and “did not know what to do”, thesentencing judge further held there “was no evidence that Mr. K.A.’s will was overborne apart from his evidence that he felt... ‘hopeless’because the police were ignoring his complaints”. The sentencing judge put little weight on this evidence however, on the basis theappellant otherwise stated he felt no pressure to plead guilty, and he “understood that he might go to jail...

He was alive to the importanceof what he was about to do because he made a point to wear a blue shirt to court on June 5, 2019. He was aware of his surroundings andhe recalled seeing the complainant present in the body of the courtroom.” Further, the sentencing judge found the appellant had a lawyerpresent, otherwise rejecting any claim that the lawyer “ignored him and his instructions”. [28] In dismissing the application, the sentencing judge concluded: That said, I have no reason to reject Mr.

K.A.’s claim that he pleaded guilty on June 5, 2019, and I quote him, “in the misguided hope thecomplainant’s harassment would stop once the charges were dealt with”, unquote. However, this misguided hope only reinforces theinference that Mr. K.A. knew exactly what he was doing and that he made his pleas voluntarily. The alleged fact, which as I noted earlier[has] not been proven, that Mr.

K.A. believed that the complainant continued her harassment despite the guilty pleas is irrelevant to whatwas in his mind on June 5th, 2019. [29] The sentencing judge went on to find the appellant’s guilty pleas were also unequivocal and informed. The appellant wasultimately sentenced to two years less a day incarceration, followed by twelve months’ probation. III. Grounds of appeal [30] The appellant raised two grounds of appeal: 1.

The sentencing judge committed errors of fact and errors of mixed fact and law in his assessment of whether the plea wasvoluntary, holding the appellant to a higher standard of proof than a balance of probabilities, misapprehending evidence, incorrectlyfixating on events in the courtroom to the exclusion of other, relevant evidence, and failing to fairly adjudicate the main issue. 2. The sentencing judge committed errors of law by failing to consider the application on first principles and instead formulaicallyapplying the three-part test from R. v.

Wong 2018 SCC 25 to the facts of this application, notwithstanding that both the test and factualcontext in Wong were highly distinguishable, and that counsel on the application urged His Honour to apply first principles so as to avoida miscarriage of justice. IV.

Standard of Review [31] A trial or sentencing judge has a discretion to permit an accused to withdraw a guilty plea; if the judge exercises thatdiscretion judicially, an appellate court is unlikely to interfere: R v Adgey, (SCC), [1975] 2 SCR 426 at 430, 39 DLR(3d) 553 [Adgey]. [32] As provided in Wong at para 3, a guilty plea will be valid if it is voluntary, informed and unequivocal.

All of theserequirements must be met. [33] An appeal from a conviction following a guilty plea may be launched on the basis that the plea is invalid and the conviction isthe product of a miscarriage of justice. “Section 686(1)(a)(iii) authorizes appellate intervention on any ground there was amiscarriage of justice. . . it reaches all errors or events that result in a miscarriage of justice and extends to events that lead toactual unfairness as well as to the appearance of unfairness: Khan at para. 69”: R v Lam, 2020 BCCA 276 at para 78. [34] The real prospect of a miscarriage of justice raises a question of law; further, such matters are of significance to theadministration of justice and this Court has the jurisdiction to correct them if it is in the interests of justice: R v Bawkovy, 2009 ABCA213 at para 12, 457 AR 64. [35] As provided in R v Clayton, 2014 ABCA 27 at para 10 [Clayton]: The Supreme Court of Canada has emphasized that an appellate court can set aside a plea where there are “valid grounds" to do so: see Rv Adgey, (SCC), [1975] 2 SCR 426 at 431, 39 DLR (3d) 553.

In Hoang, this Court explained that this refers to situationswhere "it appears that the appellant did not appreciate the nature of the charge, or the appellant did not intend to admit that he was guiltyof it; or where upon the admitted facts, the appellant could not have been convicted of the offence charged": at para 30. [36] "The test to set aside a guilty plea is whether the person who entered the plea entered an unequivocal and informed guilty pleaof his or her own volition”: R v Noskiye, 1996 ABCA 65 , [1996] AJ No 141 at para 5, 181 AR 105.

More specifically, “[a]plea may also be set aside as invalid where an accused leads evidence to establish that ‘his ability to make a conscious volitional choicewas overcome’”: Clayton at para 11, citing R v Wiebe, 2012 BCCA 519 at para 57, 331 BCAC 208. [37] While a guilty plea is presumptively voluntary, “[t]he key question is this: were any of the factors that the offender allegesinfluenced his or her decision to plead guilty, individually or collectively, of such a magnitude that they deprived the offender of thecapacity to decide what was in his or her own best interests?

This is a subjective inquiry”: R v Hunt, 2021 ABCA 49 at paras 43-44[Hunt]. V. Analysis

[38] Before we address the appellant’s two grounds of appeal, we wish to comment on the Crown’s preliminary position that thisappeal is moot, and also address whether this is the appropriate case to clarify the test for striking a guilty plea.

The appeal is not moot [39] The Crown’s reliance on the agreed statement of facts prepared after the withdrawal application had been dismissed to arguethe appeal itself is now moot, is no answer to the fundamental problem with the appellant’s original pleas as it relates to voluntariness.To ignore this fundamental problem now, as a result of a sentencing hearing which inevitably resulted when the appellant’s applicationwas dismissed, would serve only to seriously compound the miscarriage of justice which had occurred, as further explained below. [40] In sum, an after-the-fact justification cannot cure or excuse the sentencing judge’s flawed reasoning or the unfairness thatoccurred in this case.

Moreover, invoking mootness in these circumstances is disingenuous because, as the appellant’s counselpersuasively argued, giving effect to the Crown’s assertion would lead to an absurd result. Namely, that an accused who pleads guilty,never tries to get the plea struck, admits the facts and is sentenced, can challenge the validity of that plea on appeal without fear that thematter will be deemed moot. Yet, an accused who actually did raise the issue in the lower court, did try to get the plea struck and failed,would have his appeal dismissed on the ground of mootness.

Accordingly, we find no merit in this preliminary objection by the Crown.

This is not the appropriate case to clarify the test for striking a guilty plea [41] The test for striking a guilty plea has been described by different courts in different ways; see for example R v Cherrington,2018 ONCA 653 at para 21; R v RT (1992), (ON CA), 10 OR (3d) 514, 1992 CarswellOnt 117 at paras 16-18 (CA),R v JCF, 2020 ABCA 315 at para 30; R v Schaaf, 2017 ABCA 414 at para 20; R v Carty, 2010 ONCA 237 at paras 36-37, 253 CCC(3d) 469; R v Easterbrook (2005), (ON CA), 65 WCB (2d) 2 at para 5 (ONCA); R v Nevin, 2006 NSCA 72 at para7-8, 16-17, 20, 210 CCC (3d) 81.

During oral argument, we were invited “to clarify” the test; however, after much consideration, werespectfully conclude this is neither the proper case nor the optimal circumstances to do so. [42] First, the sentencing judge cannot be faulted for utilizing the “balance of probabilities” approach, as this formed the basis ofthe parties’ argument before him, without qualification, and was an approach supported by case law. [43] Second, the appellant did not raise as a discrete ground of appeal that the “balance of probabilities test” was either incorrect orrequired clarification; accordingly, this Court does not have the benefit of fulsome submissions, or oral argument, on this point.

Adeparture from “balance of probabilities” arguably conflicts with dicta from other Canadian appellate courts, including Alberta, and theparties did not adequately address the implications of those cases or the Supreme Court of Canada’s decision in Wong on this point. Nordo we have the benefit of the trial court’s analysis, or views. [44] Third, but most importantly, the outcome of this appeal does not turn on the test that was, or ought to have been, applied, nordoes it turn on any differences between how the sentencing judge described the test in his oral reasons versus his written reasons.

Rather,we conclude the appeal must be allowed because the sentencing judge misapprehended material aspects of the evidence and thatmisapprehension had a significant impact on his conclusion that the appellant’s application to strike his pleas should be dismissed; morespecifically, the trial judge erred in his assessment of whether the pleas in this matter were voluntary. [45] Accordingly, we leave resolution of this interesting question to another day when both counsel and the court are fullyprepared, and the issue is properly before this Court. [46] We now turn to the appellant’s two grounds of appeal, which can be dealt with together.

The sentencing judge misapprehended material aspects of the evidence relating to thevoluntariness of the appellant’s pleas, leading to a miscarriage of justice [47] In our view, the sentencing judge’s reasons reflect material errors. [48] As Wong at para 23 makes clear, an accused need not show a viable defence to the charge in seeking to withdraw a guiltyplea. Further, unlike the criteria expressed by the sentencing judge, an applicant is not required to show that the pleas were “notvoluntary, that they were equivocal or ambiguous and that they were not informed” (emphasis added): Decision at para 12.

Rather, anaccused need only show one such criterion has been met; that is, the plea was not voluntary, not unequivocal, or not informed: Hunt atparas 41, 44-46. Put another way, an appeal court “may allow an offender to withdraw a guilty plea only if the offender satisfies theappeal court that the plea was involuntary or equivocal or the product of inadequate or insufficient information”: Hunt at para 41, citingWong at para 3. [49] The appellant acknowledged his pleas were informed and unequivocal at the time they were made.

His sole argument, andsupporting evidence, was rooted in the assertion his pleas were not voluntary, his free will having been overborne by the constant andoverwhelming nature of the complainant’s harassment of him and his family, and his desire for the harassment to stop. [50] Moreover, the Crown conceded the application to strike the guilty pleas ought to be granted on the ground of lack ofvoluntariness. While the Crown concession obviously is not binding on the court, nevertheless it was a significant concession.

Yet, thesentencing judge said little more than stating this was the Crown’s position when he summarized what happened on the application.

Inour view, when the prosecution itself is not asking that an accused be held to their guilty plea, more should be said by the judge hearingan application to strike the plea about why that concession did not carry weight. [51] Further, while the sentencing judge ultimately found the appellant’s evidence to be “self-serving” and “lacking” in severalways, as recently stated in Hunt at para 44, many things may support an accused’s claim that his or her plea was not the product of freewill, including some form of external or internal pressure, or something impairing an accused’s ability to focus and think rationally.

Thisis a subjective inquiry concerning the accused’s state of mind at the time the pleas were entered. It is within this subjective analysis that

the sentencing judge fell into error. [52] A miscarriage of justice can result where a trial or sentencing judge is mistaken not only about the relevant test, but also thesubstance of material pieces of evidence, and those errors play an essential

part in the reasoning process. More specifically, an accusedwhose conviction rests on findings tainted by error, has been denied a fair hearing: R v Morrissey (1995), (ON CA),97 CCC (3d) 193 at 221, 22 OR (3d) 514 (CA); R v Lohrer, 2004 SCC 80, at paras 1-2, [2004] 3 SCR 732. [53] In this matter, the sentencing judge discounted the

summary of the girlfriend’s experiences with the complainant as hearsay,and stated the defence should have called her as a witness. He also found that RCMP reports should have been provided, on the basis offinding the appellant made a “serious allegation” that the police did nothing in the face of the complainant’s harassment.

In particular,the sentencing judge stated he would have at least expected an RCMP report of the complainant’s attempted head-on collision involvingthe appellant to have been tendered. [54] These findings ignore the application and the appellant’s affidavit, which included copies of the complainant’s undertakingand recognizance in relation to 12 charges which pre-dated or closely followed the appellant’s plea, and included multiple offences ofharassment, threats and assault with a weapon (a vehicle and coffee), all as alleged to have been committed against the appellant and hisgirlfriend.

While the complainant’s undertaking and recognizance were not mentioned at all by the sentencing judge, this evidencesupported the appellant’s claim that complaints to police had been made about the complainant’s harassment and his claim regarding hisstate of mind when he entered his pleas. [55] Further, the complainant’s recognizance in relation to multiple charges was dated June 7, 2019, that is, two days after theappellant entered guilty pleas, a timeline which lends further support to the appellant’s evidence that on the day of his pleas, he believedthe RCMP had not dealt with, nor charged, the complainant.

For the sentencing judge to question or require the appellant to producefurther police reports reflects a failure to assess this evidence and its relevance but, also, places an unreasonable burden of proof on theappellant, effectively elevating his onus to an objective one where corroboration or confirmatory evidence is required, rather thanfocusing on evidence relevant to the appellant’s own subjective beliefs. [56] Similarly, the sentencing judge misapprehended the appellant’s evidence related to his original defence counsel.

Theappellant did not argue incompetence of counsel, or that his guilty plea was the product of pressure by his counsel; rather, he merelystated that when he “tried to explain what was happening it went to deaf ears”. Once again, that the sentencing judge stated this was aserious allegation that required the appellant to waive solicitor-client privilege and produce an affidavit by counsel, reflects a materialmisapprehension of the appellant’s evidence.

Quite simply, the appellant did not need to produce an affidavit from his former counsel inorder to assert that he subjectively believed at the time of his pleas he had no other choice in the face of the complainant’s continualharassment.

To prove lack of voluntariness on the basis of his will being overborne, not by counsel but by something or someone elseentirely, did not require an affidavit from his former counsel. [57] In sum, the appellant was not required to prove his will was overborne by tendering evidence from his defence counsel orRCMP reports; nor was he required to call his girlfriend to give evidence.

As he stated in his affidavit and oral evidence, even though hemay not have been present for some of the incidents of harassment or assault on his girlfriend and her child, he believed they happened.The complainant’s undertaking and recognizance provided further evidence of his subjective belief.

As an aside, however, given theappellant’s girlfriend was present, why the court did not simply invite counsel to have her provide viva voce testimony, or at least warncounsel that the appellant was in great danger of having a volume of his evidence disregarded for hearsay reasons, is puzzling. [58] In any event, we conclude there was ample evidence on the record to establish the appellant’s pleas were not voluntary at thetime they were made, and that had the circumstances of the complainant’s harassment not been present, his plea would have beendifferent.

The sentencing judge’s findings to the contrary allow this Court to intervene on the basis that he did not properly or judiciallyexercise his discretion: Adgey at 430. [59] Finally, in the day to day reality of our Canadian criminal justice system, the manner in which these pleas were taken and thenadjourned for a pre-sentence report and sentencing hearing was not unusual; however, ultimately it fell to the sentencing judge to satisfyhimself that admitted or accepted facts supported the charges.

Pronouncing that the charges were “not complicated or convoluted” is nota lawful proxy for the court being satisfied under s 606(1.1) that an accused has accepted or admitted facts supporting the elements of theoffences charged and to which guilty pleas have been given. VI. Conclusion [60] The appeal is allowed, the guilty pleas are struck and the matter remitted for trial. Appeal heard on February 23, 2021 Memorandum filed at Iqaluit, Nunavut this 7th day of May, 2021

Authorized to sign for: Charbonneau J.A. Schutz J.A. Feehan J.A. Appearances: E. Tache-Green For the Appellant M. Bryant For the Respondent