Her Majesty the Queen - v. -, 2013 SKPC 200

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 200 Date: December 11, 2013 Information: Y367818 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - D.S.

Appearing: Tyla Olenchuk For the Crown Jonathan Bodvarson For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . DECISION I. CARDINAL , J BACKGROUND

[ 1 ] The accused, now an adult, entered a guilty plea to a charge of sexual assault that is alleged to have occurred in 1977 when he was a youth. He has applied to expunge the guilty plea on the basis that he does not recall the incident and did not wish to plead guilty. [ 2 ] He first appeared in Melfort Provincial Court on August 28, 2012, with a senior lawyer from Legal Aid appearing with him.

The matter was adjourned from time to time for disclosure to take place and to allow him to discuss the matter with his lawyer. [ 3 ] On September 25, 2012, he entered a plea of not guilty and the trial was scheduled for January 17, 2013. His lawyer appeared with him when the plea was entered. However, on January 8, 2013, the matter was brought forward and a new trial date was set for May 23, 2013. The accused was present with his lawyer on this date as well.

On May 8, 2013, counsel on behalf of the accused filed a Charter application with the Court, challenging a statement he had provided to the police and seeking to have it excluded from evidence at the trial. [ 4 ] However, before the matter could proceed to trial, it was brought forward and, on May 21, 2013, the Court was advised there would be a guilty plea on the trial date. The Crown was granted permission to cancel its witnesses.

The accused was not present on this date but his lawyer of record was present and addressed the Court. [ 5 ] On May 23, 2013, with the assistance of the senior lawyer, D.S. entered a plea of guilty to the charge. The Court did not make a section 606(1.1) inquiry as outlined in the Criminal Code . [ 6 ] The matter was adjourned to June 11, 2013 to be spoken to.

On that date, a pre-sentence report was requested by both parties, and same was ordered with a return date of August 13, 2013. [ 7 ] During his interview with the probation officer who was preparing the report, the accused told her he did not recall the incident and did not want to plead guilty. The matter came back before the Court on July 8, 2013, and Legal Aid counsel was given leave to withdraw. Mr.

Bodvarson became counsel on record and on September 3, 2013, the matter was adjourned for the expungement hearing to November 26, 2013. [ 8 ] The expungement hearing was heard on November 26, 2013 in Melfort Provincial Court. This is the decision on the expungement application.

EVIDENCE [ 9 ] The defence called three witnesses being the accused, his sister N.F. and his former lawyer, Brenda Dahlby. [ 10 ] Although there was no formal waiver of solicitor/client privilege by the accused, I expect this was simply an inadvertence on the part of counsel and for the purposes of this application, I am inferring that solicitor/client privilege is waived. Without such an inference the hearing would immediately come to an end. [ 11 ] N.F. provided some information concerning the formative years of D.S., but was not privy to any of the discussions he had with Ms. Dahlby.

Her evidence is not helpful on this application but I appreciate she is supporting her brother and has been to Court during all of his appearances. [ 12 ] The evidence as between Ms. Dahlby and her former client is quite similar. Ms. Dahlby was allowed to refer to her file and her evidence is accepted by the Court. She was a very thorough and thoughtful witness. She outlined all of the meetings she had with the accused and their discussions. It is clear that she took great care with explaining things to him and outlining his available options.

[ 13 ] The accused has a speech impediment and can be difficult to understand at times. Both counsel and the Court requested he repeat some answers due to these difficulties. He is also hard of hearing so counsel and the Court spoke loudly. However, he was understandable and as importantly, appeared to understand the questions being asked and responded accordingly. [ 14 ] During his evidence, he agreed that Ms. Dahlby met with him many times to go over his case and discuss it with him.

He agreed that she reviewed disclosure with him including his inculpatory statement to the police and the statement of the complainant. He did not complain about the representation of Ms. Dahlby, but rather indicated that he did tell her he wanted to plead guilty. He now says that it was because he wanted to get it over with, but he did not convey that to Ms. Dahlby. He also did not tell her that he doesn’t remember if he committed the offence or not. [ 15 ] He was aware that his lawyer and the Crown had made a deal that if he pled guilty they were going to agree to a year in jail.

He testified that he now wants to change his plea from guilty to not guilty to avoid going to jail and because he never committed the assault. [ 16 ] D.S. admitted that he has a previous criminal record and has previously entered guilty pleas in Court, sometimes without the assistance of counsel. [ 17 ] During her evidence Ms. Dahlby outlined that she personally met with D.S. due to his speech impediment, his difficulty with hearing, and to ensure he would not have trouble understanding her.

She felt it was better to meet in person than to discuss things over the telephone as it would allow them to take time and not rush. She testified that the accused attended at her office with a support person from the Marguerite Riel Centre and she made inquiries of that person as to his ability to understand. The support person advised her that he would not have trouble understanding and in fact, through her many conversations with him, Ms. Dahlby was satisfied that D.S. understood. [ 18 ] Ms. Dahlby testified that she met approximately 8-10 times in person with him and did not rush the meetings.

She reviewed his statement to police with him and all of the disclosure. After discussing his statement with him further she advised him at their second meeting that she would file a Charter notice in an effort to get it excluded. She did file such notice. [ 19 ] Their meetings continued into 2013. During their meetings in January and May 2013, they also discussed the complainant’s statement. On May 17, 2013, Ms. Dahlby and D.S. viewed her video statement together and discussed it in detail. Given the strength of the statement and the manner in which the complainant provided it, Ms.

Dahlby advised him that she was a strong witness. There was also detailed discussion at the meetings about possible defences and the strength and weaknesses of the case, including from the standpoint of the information D.S. was providing to Ms. Dahlby. [ 20 ] Shortly after that appointment, Ms. Dahlby testified that D.S. came to see her and gave her written instructions to enter a guilty plea to the charge of sexual assault involving sexual intercourse. In the written instructions he agreed he had sexual intercourse with the complainant who was 10 years of age at the time.

There was also a statement that he understood the Crown was seeking a sentence of one year in jail and confirmation that he understood the judge had the final decision. She indicated that she read the written instructions aloud to him, then he read them to himself, and he signed the document. Ms. Dahlby testified that at this point there was no joint submission regarding the sentence. [ 21 ] The matter was brought forward ahead of the trial date of May 23, 2013, and on May 21, 2013, the Court was advised a change of plea would be entered on May 23, 2013.

The guilty plea to the charge was entered by counsel on May 23, 2013 and the matter adjourned over to June 11, 2013. [ 22 ] Ms. Dahlby testified that initially there was no joint submission for a one year period of incarceration, but that offer had been made by the Crown and D.S. was aware of it. Sometime after May 23, 2013, Ms. Dahlby testified that D.S. left her a message that he wanted to take the one year joint submission. He and Ms. Dahlby met in person on June 7, 2013 and D.S. indicated that he wanted to accept the joint submission for one year in jail as offered by the Crown.

[ 23 ] However, after the Court ordered the pre-sentence report on June 11, 2013, and while awaiting its completion, Ms. Dahlby was advised by the probation officer on June 26, 2013, that the accused was advising her he was not guilty. Thus, Ms. Dahlby wrote him telling him that she could no longer represent him and that he should appear in Court on July 9, 2013 and speak to her if he wished. Her last contact with him was July 8, 2013. DEFENCE POSITION [ 24 ] Counsel for D.S. argued that the guilty plea entered by the accused was not informed nor unequivocal. He admits the plea was voluntarily made.

Implicit in his argument is that he may have a defence to the charge and a trial will allow him to put forward such a defence. CROWN POSITION [ 25 ] Counsel for the Crown argues that there is nothing further that Ms. Dahlby could have done for the accused in the circumstances. She argues that Ms. Dahlby was highly experienced, and took great care in discussing all aspects of the case with D.S. There was no misunderstanding that D.S. wanted to enter a guilty plea and did so with experienced counsel assisting him. As such, there are no grounds which support the expungement of the guilty plea.

THE LAW [ 26 ] The applicant bears the onus of proving, on a balance of probabilities, that his guilty plea ought to be expunged. The fact that he had a highly experienced lawyer representing him is a significant factor the Court must consider in determining if expungement of a guilty plea ought to be made: See R. v. Arcand , 2000 SKCA 60 ; R. v. Leonard , 2007 SKCA 128 . [ 27 ] As noted in R. v.

McLeod , 2011 SKPC 180 , at paragraph 13 : [13] In an expungement hearing, the onus is on the accused to establish on a balance of probabilities that his guilty plea was not voluntary, unequivocal or informed, or that for some other valid reason it should be expunged, or that a miscarriage of justice is likely to occur. Where the accused is represented by counsel, the burden on the accused is a heavy one. [ 28 ] This passage from Leonard , supra at paragraph 17 is also helpful: Voluntariness turns on the idea of a conscious volitional decision to plead guilty for reasons the accused regards as appropriate.

A guilty plea is unequivocal if it is unqualified and certain with respect to the acknowledgement of the essential facts of the crime charged. It is informed if the accused understands the nature of the charges, the legal effect of the plea and the consequences of the plea. ANALYSIS [ 29 ] The accused was represented by a lawyer with over 28 years at the bar who has practiced in the criminal law field for nearly all of that time. She is experienced, knowledgeable, thoughtful, and took great care in explaining the disclosure and providing D.S. with legal advice.

She discussed the evidence with him, weighed it, considered possible defences and possible outcomes. She had no reservations with his instructions to enter a guilty plea because she was satisfied he completely understood the implications of so doing. [ 30 ] D.S. freely acknowledged that he was not pressured or forced to enter a guilty plea and that the choice was his. He was well

[ 30 ] D.S. freely acknowledged that he was not pressured or forced to enter a guilty plea and that the choice was his. He was well informed of the case against him and reviewed disclosure provided by the Crown in detail with his lawyer. He knew the facts that underpinned the guilty plea as he had discussed those in detail with his lawyer. He was aware there would be a joint submission as to sentence. While defence counsel argued that D.S. was not aware that even with a joint submission the judge would determine the final sentence, this has little bearing in determining whether the plea should be expunged.

The accused had been told initially that when they would be arguing without the benefit of a joint submission that the judge would have the final decision. [ 31 ] As I mentioned, there was no indication the Court had inquired of counsel and D.S. as to whether the requirements of s. 606(1.1) had been complied with. The failure of the Court to make such an inquiry as to whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea, as noted in s. 606(1.2). [ 32 ] No facts were recited prior to the entering of the guilty plea.

This however, is not fatal to the guilty plea being maintained as observed in R. v. Waylon Ross , 2013 SKCA 45 . There the Court of Appeal found that such a practice did not result in the plea being uninformed. At paragraph 29, the Court stated: Section 606(1.1) of the Criminal Code is a governing provision. It mandates that a court may accept the plea of guilty only if two conditions are met. First the court must be satisfied that the accused is making the plea voluntarily. Second, the court must be satisfied the accused understands that: (

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

b) the nature or consequences of the plea, and (

c) the court is not bound by any agreement made between the prosecutor and the accused. [ 33 ] Significantly, the Code does not require that the Crown or the Court read in a statement of facts prior to taking a guilty plea. It is enough that the accused understands the essential elements of the offence. As well, I find that through her actions and detailed discussions with the accused, Ms.

Dahlby was satisfied that the accused understood that by entering a guilty plea he was admitting he had sexual intercourse with the then 10 year old complainant, that he voluntarily made that decision and that he understood the consequences flowing from the plea would likely be a period of incarceration of one year. [ 34 ] In all of the circumstances I am not satisfied, on a balance of probabilities, that the guilty plea was not entered voluntarily, or that it was equivocal, or that the accused was not fully informed before the plea was entered. [ 35 ] Accordingly, I dismiss the application. I. Cardinal, J