Her Majesty the Queen - v. -, 2016 SKPC 082

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 082 Date: June 3, 2016 Information: 39122463 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - L eslie Ivan Black Appearing: William Burge Q.C. For the Crown Brent Little For the Accused DECISION ON THE APPLICATION TO SET ASIDE THE GUILTY PLEA H.M. HARRADENCE, J INTRODUCTION [ 1 ] On April 28, 2015, Leslie Black entered a guilty plea to the following charge before His Honour Judge S.D. Loewen: On or about the 1 st day of June, A.D., 2014 at or near Prince Albert, in the Province of Saskatchewan did attempt to murder Marlene Bird contrary to

section 239 of the Criminal Code .

[2] At the time of his guilty plea, Leslie Black (the accused) was represented by Adam Masiowski. [3] Immediately after the guilty plea, Crown counsel, John Morrall, made an application for an order that the accused be assessed todetermine whether there was evidence to institute dangerous offender proceedings. In support of the dangerous offender application awritten agreed statement of facts was filed, which had been signed by both counsel and the accused. Judge Loewen ordered theassessment. [4] In addition, on April 28, 2015, Mr.

Masiowski indicated to the Court that he had conducted a plea comprehension inquirypursuant to s. 606(1.1) of the Criminal Code. Relying on this representation and Mr. Masiowski’s experience, His Honour JudgeLoewen did not conduct a full plea comprehension hearing but did receive the accused’s confirmation that he understood that he could be“designated a dangerous offender and remanded into custody for an indefinite period of time” if a dangerous offender proceeding wascommenced and successful. [5] The accused applies to set aside his guilty plea.

Both counsel have agreed, in the circumstances, that the application is properlyheard and determined by me. The assessment ordered by Judge Loewen has been completed by Dr. Lorahsbe and filed with the Court. Ihave not looked at this assessment and prior to the commencement of this hearing I requested a Court Clerk place it in a sealed envelopeon the Court file. At the commencement of this hearing, both counsel agreed that the Lorahsbe assessment should not be evidence onthis application and the report should remain sealed.

THE LAW [6] Justice Richards (now Chief Justice Richards), summarizes the law in this type of application in R v Ross, 2013 SKCA 45, atpara 27: The basic principles which govern this situation are well-settled. A guilty plea is valid if it is unequivocal, voluntary and informed. Aplea is “unequivocal” if it is unqualified and certain with respect to the acknowledgment of the essential facts of the crime charged. It is“voluntary” if the accused makes a conscious and volitional decision to plead guilty for reasons the accused regards as appropriate.

Aplea is “informed” if the accused understands the nature of the charges, the legal effect of the plea and the consequences. See: R. v.Arcand, 2000 SKCA 60 , 199 Sask. R. 4; R. v. Leonard, 2007 SKCA 128 , 307 Sask. R. 140; R. v. T. (R.) (1992), (ON CA), 17 C.R. (4th) 247 (Ont. C.A.); Criminal Code, s. 606(1.1). [7] The Ross decision interprets the requirements for a guilty plea in light of s. 606(1.1) of the Criminal Code at para 29 as follows: Section 606(1.1) of the Criminal Code is the governing provision. It mandates that a court may accept a plea of guilty only if twoconditions are met.

First, the court must be satisfied that the accused is making the plea voluntarily. Second, the court must be satisfiedthe accused understands that (

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

b) the nature and consequences of theplea, and (

c) the court is not bound by any agreement made between the prosecutor and the accused. Significantly, the Code does notrequire 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 theessential elements of the offence. [8] A guilty plea, particularly one entered with the assistance of counsel, will be presumed to be valid. In the context of anapplication to set aside a guilty plea, an accused has an evidentiary burden to demonstrate that the plea is invalid. This burden is notonerous.

It has been described by Justice Hill in R v Moser, (ON SC), [2002] OJ 552, at para 43, as where a trialjudge has a real doubt as to the validity of the plea.

The Supreme Court in R v Adgey, [1975] 2 SCR 426, (SCC),describes the test as whether the Court is persuaded that there are valid grounds to set aside the plea. [9] In R v Taillefer, 2003 SCC 70, Justice Lebel, in the context of an application to set aside a guilty plea given a failure by theCrown to provide disclosure, concludes that the test is objective in nature: [90] … The accused must demonstrate that there is a reasonable possibility that the fresh evidence would have influenced his or herdecision to plead guilty, if it had been available before the guilty plea was entered.

However, the test is still objective in nature. Thequestion is not whether the accused would actually have declined to plead guilty, but rather whether a reasonable and properly informedperson, put in the same situation, would have run the risk of standing trial if he or she had had timely knowledge of the undisclosedevidence, when it is assessed together with all of the evidence already known. Thus the impact of the unknown evidence on theaccused’s decision to admit guilt must be assessed.

If that analysis can lead to the conclusion that there was a realistic possibility that theaccused would have run the risk of a trial, if he or she had been in possession of that information or those new avenues of investigation,leave must be given to withdraw the plea.

[10] In R v Quick, 2016 ONCA 95, Justice Laskin specifically considers the objective test and rejects it in favor of a subjective test:“… although I would follow the general approach in Taillefer, I would apply a subjective test not an objective test”. The Crown saysQuick is wrongly decided and I am bound by Taillefer particularly as it is quoted and generally applied by the Saskatchewan Court ofAppeal in Ross.

Given that the evidence must be assessed in the context of this particular accused, his level of understanding, hismotivation and his mental state, I am satisfied that the only way that s. 606(1.1) can be fairly and completely interpreted is by applying asubjective test. Likewise, any application to set aside a guilty plea must be interpreted on a similar basis.

I am also satisfied that in Rossthe Court does not specifically address this issue and Taillefer can be distinguished as relating to an application to strike a guilty pleawhere there has been an infringement of the accused’s constitutional right to disclosure. [11] A critical component of s. 606(1.1) is that an accused must be informed of the consequences of the plea. This has been definedas legally relevant consequences.

In Quick, Justice Laskin recognizes the factual context in which it is necessary to make thisassessment: [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. I drawsupport for this approach from the reasons of Lebel J. in R. v. Taillefer; R. v. Duguay, 2003 SCC 70 ; [2003] 3 S.C.R. 307 andthe reasons of Watt J.A. in R. v. Henry, 2011 ONCA 289 . THE EVIDENCE [12] Both the accused and his former counsel Adam Masiowski testified at this hearing. The accused confirmed at the hearing that hehad provided a full waiver of solicitor and client privilege to permit Mr. Masiowski to testify regarding their discussions.

In addition tothe viva voce evidence, the agreed statement of facts, signed by both counsel and the accused, was filed (this is the agreement that wasfiled on April 28, 2015, before Judge Loewen), and the written instructions provided by the accused to Mr. Masiowski were alsotendered as evidence at this hearing. [13] The accused testified to a tragic background as a youth. On his ninth birthday he saw his mother stabbed to death in Edmonton. He also testified to using a variety of illegal drugs and alcohol and having seen a number of psychiatrists.

He did achieve grade nine andlater received his GED 12 while incarcerated at the Prince Albert Correctional Centre. He is able to read and demonstrated a basicunderstanding of the legal and parole system. In his evidence, Leslie Black testified to struggling with his memory. This was apparentthroughout his evidence. [14] The accused indicated in examination in-chief that his lawyer, Adam Masiowski, was not the first lawyer assigned to him byLegal Aid but he believed his first lawyer simply took an application from him and nothing further.

In cross-examination he agreed thatTerra Lennox-Zepp was his first lawyer and that she represented him from the time he was arrested until February 2015. Mr. Masiowskitestified that Ms. Lennox-Zepp appeared with the accused at his first appearance in July 2014. Ms. Lennox-Zepp consulted with Mr.Masiowski throughout the Fall of 2015 in relation to potential defences including that the accused was not criminally responsible and thedefence of non-insane automatism. [15] According to Mr.

Masiowski’s evidence, he first met the accused on February 5, 2015, when he travelled to the ReginaCorrectional Centre where the accused was on remand. The accused agreed that he met Mr. Masiowski in Regina but was uncertain as towhether this was their first meeting. The accused estimates the meeting was about one hour long. Mr. Masiowski testified that duringtheir first discussion he told the accused, “I am here to let you know how much trouble you are in”.

He further testified that his purposeat the meeting on February 5, 2015, was to develop a rapport with the accused and obtain his instructions to seek plea negotiations. [16] The accused agrees that as a result of their first meeting he expected Mr. Masiowski to begin plea negotiations. He furtheragreed in examination in-chief, that after this meeting at the Regina Correctional Centre he told Mr. Masiowski that he did not want toplead guilty to sexual assault. It is clear from the evidence of Mr.

Masiowski that there had been some discussion with the accusedregarding prison culture and the effect this type of conviction could have at a penitentiary. [17] At that time the accused faced a charge of aggravated sexual assault and attempted murder. The Crown informed Mr. Masiowskithat they would accept a plea to either charge but that the Crown would also be pursuing a dangerous offender application. According toMr.

Masiowski’s evidence, the accused was excited about the prospect of having the aggravated sexual assault charge dropped butwanted to think about whether he could admit the elements of attempted murder, particularly the intention to kill. In examination in-

chief, while being questioned by Mr. Burge, Q.C., Mr. Masiowski indicated as follows: Q Did you tell him what he would have to be admitting by pleading guilty to attempted murder? A Yes. Q And what did you tell him? A I told him that he would have to admit the intent to kill, specific intent. Q And do you recall what Mr. Black's position was regarding that? A Yes. He was not on board for making that admission at the time.

I -- well, in the discussion we had, it came out that his view of what he'd be admitting was much more broad than what I envisioned him admitting, i.e., that he would have to have sort of set out that day with the intent to kill. So through discussions we talked about a very narrow focus about the -- contemporaneously with the event itself, with the actus reus. That's the moment at which his mens rea is -- is important. And so he doesn't need to have a very long intent to kill, but he just needs to have it for some time. Q Okay. Did you receive -- when you -- when you first raised this with Mr.

Black, where did he stand at the end of that either meeting or phone call? A As we stood, I had his instructions that we would begin drafting the agreed statement of facts with Mr. Morrall. The main -- I was also instructed that he wanted to think about it. [ 18 ] On the basis of his understanding of the accused’s instructions, Mr. Masiowski proceeded to prepare a draft agreed statement of facts based on the accused’s statements to the police and the notes of the conversations the accused had previously had with Ms. Lennox- Zepp. On April 27, 2015, Mr.

Masiowski met with the accused and discussed the agreed statement of facts. The accused indicated that he wished to think about it. On April 28, 2015, Mr. Masiowski met with the accused again at the Court House and the accused signed the agreed statement of facts, just prior to the Court appearance where he pleaded guilty to the charge of attempted murder. The agreed statement of facts contains, in part, the following: 11. Sometime prior to 4:55 a.m., Marlene Bird was slowly passing out while having sex with Leslie Black. She then indicated to him that she was going to “charge him with rape”.

As a result of this, Leslie Black became engaged in a heated argument with Marlene Bird. The argument escalated to the point where Leslie Black kicked and stomped Marlene Bird multiple times, causing severe injuries to her face. 12. While Marlene Bird was incapacitated, as a result of the physical assault occasioned upon her, Leslie Black used a lighter to light her clothing on fire, the end result being that Marlene suffered severe burns to her legs, eventually leading to amputation of her legs. 13.

During the physical assault, and the act of using a lighter to ignite her clothing, Leslie Black was so infuriated because of the argument they were engaged in, that he intended his actions to cause Marlene Bird’s death. [ 19 ] The accused says in his examination in-chief that he could not recall talking to Mr. Masiowski about intention. He indicated that he was told by Mr. Masiowski that the better charge to plead guilty to was attempted murder.

After he returned to the Regina Correctional Centre, another inmate told him something different: Q So Leslie, explain then why did you and Adam decide to enter this guilty plea? A He told me that it was -- it was the better charge to plead guilty to. Q Now which charge is that that you understood as being the better one? A The attempted murder. He told me -- like he reassured that it was a lot better charge to plead guilty to. Q Did he explain to you why? A No. And after I got put -- after I got transferred back to Regina, I talked to an inmate there that knows quite a bit about the -- the court

system and he's been in and out for quite a amount of time. He's a friend of mine and we -- he'd be talking about my court cases, what's going on. And he told me that it was the worst -- it was the more worster [sic] charge to plead guilty to. [ 20 ] In cross-examination, the accused indicated that he told Mr. Masiowski he intended to kill Marlene Bird. He further acknowledged that he was upset with the victim because she was going to report him and therefore, he knocked her unconscious by stomping on her face. He agreed that he told these facts to both the police in his warned statement, and to his lawyer.

He also agreed that he told the police and his lawyer that he set the victim on fire but at this hearing he maintained this was not true and he had only admitted it because of threats he had received. He was unable to say who had threatened him. In cross-examination the accused said: Q Mr. Bird, I -- or Mr. Black, I -- I suggest to you that you told your lawyer, Adam, that this is what happened? A Yes. Q And you -- you told him that you had set Marlene on fire after you had stomped her into unconsciousness? A I -- I think so. Q And you told him that because it was the truth?

A It -- it was -- the first half was the truth. Q Pardon me? A The first half is -- is the truth. Q What's the first half? A That I stomped her out. Q Setting her on fire was the truth? A No. That would be the second half. Q Okay. Was she on fire when you came -- when you came -- when you walked back from the 7-Eleven? A I -- no. I -- I heard about what happened to her after I left, the next day, from my -- a cousin of mine. Q So you told your lawyer, Adam, that you stomped her, she was unconscious and you set her on fire, but that was not the truth? A Right.

Q Why would you tell your lawyer something like that if it's not the truth? A Because I was threatened to -- I was threatened and I was thinking of my dad's safety. Q Your dad's safety? And you say that you were threatened before you were arrested? A Right. Q And you told this to Adam sometime shortly before you entered a guilty plea? A I never told -- told him that.

Q Pardon me? A I didn't tell him that I was -- I was threatened. Q Okay. Well why don't you tell us right now, sir, who threatened you? A That's -- I'm not too sure who it was, but it's been over almost two -- two years ago.

Half -- half the faces I met, I can't recall remembering them down the road. [ 21 ] The accused did agree in cross-examination that he was aware at the time of his guilty plea that the evidence against him included his warned statement, DNA evidence, and video surveillance of him at a convenience store at the time of and in the vicinity of where the victim was found. [ 22 ] In relation to the dangerous offender proceedings, the accused testified, in examination in-chief, that he could not recall having any discussions with Mr. Masiowski regarding this potential.

In cross-examination his evidence was definite: Q Are -- are you telling us that you had no idea there would be a dangerous offender application until you were back in Regina, after you had already pled guilty? A If I knew there was a -- a dangerous offender added on, I wouldn't have pleaded guilty to -- to the attempted murder. Q Okay. Now are you telling us you didn't know until afterwards that there was going to be a dangerous or maybe be a dangerous offender application? A I -- afterwards, yes. Q You didn't know before you pleaded guilty?

A No, because I -- I told my one friend that's down in the centre there that -- he's been in and out -- I usually go to him for advice and what not like that. And I -- I believe that the Crown and my last lawyer, Adam, was working together. [ 23 ] Mr. Masiowski was cross-examined extensively by Mr. Little regarding the consequences of a guilty plea. Firstly, Mr. Masiowski acknowledged that he told the accused that he did not believe the Crown’s dangerous offender application would be successful: Q Okay. You told Mr.

Black that, in your opinion, the Crown was unlikely to get a dangerous offender indeterminate sentence, correct? A That was -- it remains my opinion, yes. Q Okay. What case law did you research or review to come to that opinion? A Much case law. I couldn't name. The main leading case right now or at the time I was entering the plea was the Boutilier case from British Columbia where a 753 was ruled unconstitutional and sent back for further argument.

Counsel I don't -- I stopped following that case because I -- I got off this case, but that was -- one of the factors that swayed my opinion was that the lack of discretion on the part of the judge was -- in that decision, is said to be fatal to the section. Also my understanding of the narrow

section number that the Crown was relying upon, the single act of a brutal nature that would require someone to be a dangerous offender, I felt it would be hard for the Crown to establish in this case. [ 24 ] Mr. Little pressed Mr. Masiowski as to whether he had reviewed the consequences of a life sentence and/or a successful dangerous offender application with the accused. Mr.

Masiowski agreed that he had not detailed to the accused the consequences as he described the accused as having a “childlike quality”, “complicated legal issues are not his forte, a lot of explanation was required and given in this case”. [ 25 ] Mr. Masiowski described to the accused, the consequences if the Crown were successful in its dangerous offender application as “jail forever”: Q Thank you. Did you ever have any discussions with Mr. Black about what might be the consequences for him if the Crown were

successful in a dangerous offender application? A Yes. Q Please tell us about that discussion. A Well, it wasn't just one discussion. It was many, but the concept appeared somewhat confusing to Mr. Black about what -- and I guess it could be confusing to anybody that's a lay person I would assume, what -- what that meant. The indeterminate sentence versus there is still some dangerous offenders that do get released. So everything I had to say to him was fairly confusing to him.

So my attempt to simplify it was to explain to him that if the Crown got their dangerous offender, just think of that like jail forever, which I thought was in lay person's language enough for him to understand. ANALYSIS [ 26 ] The accused first met Adam Masiowski on February 5, 2015. A plea was entered April 28, 2015. Both the accused and Mr. Masiowski agree that the accused provided Mr. Masiowski with instructions to investigate a plea negotiation at the meeting on February 5, 2015. [ 27 ] There is no doubt that the accused faced a difficult decision which carried life altering consequences for him.

He was faced with evidence which included video-taped surveillance, an allegation that his DNA was found inside the victim and his detailed warned statement to the police. I am satisfied that he was aware he was entitled to a trial or he could instruct his lawyer to attempt to negotiate a plea. The evidence satisfies me that he chose the latter. [ 28 ] The evidence also satisfies me that he was given the option to plead guilty to either an aggravated sexual assault or an attempted murder.

He relied on the advice of his lawyer and took several months to make this decision. [ 29 ] The difficulty of this decision for the accused cannot be understated. It is apparent from his testimony that he had a tragic background including, at an early age, witnessing his mother being stabbed to death. It is also clear from his testimony that he is not a sophisticated individual although I am unable to agree with Mr.

Little’s argument, based on the evidence, that he suffers any cognitive deficits to such an extent that his ability to understand the proceedings and instruct counsel is compromised. [ 30 ] The application to set aside the guilty plea is based on two specific areas of concern to the defence. Firstly, the defence alleges there are valid grounds to believe the accused did not intend to cause the death of the victim and that he did not voluntarily admit to this as part of his guilty plea.

Secondly, the accused maintains that he was not informed of the consequences of his guilty plea with sufficient detail to make an informed decision to plead guilty. [ 31 ] The evidence on this application demonstrates that the accused struggled with the decision to admit the intent to kill the victim. He appears now to have convinced himself that he was threatened to admit he set the victim on fire. It also appears that the accused equates this act with the intention to kill. In his testimony, he was unable to identify any individuals who had threatened him or give these threats any context.

Given this lack of detail, I have concluded that there is no foundation for the suggestion that threats caused the accused to admit he intended to kill the victim. Rather, it is likely that the accused, with the assistance of other inmates, has reconstructed this memory. [ 32 ] When I consider all of the evidence, I am unable to rely on the accused’s recollection of the discussions he had with is lawyer. The evidence indicates that he voluntarily made the decision to admit the intention to kill and this decision was supported by the alleged evidence.

Clearly, the decision was not easy for this accused but that does not mean the result was an invalid guilty plea. The decision was arrived upon after several months of deliberation by the accused and with the assistance of several discussions with his counsel. The accused indicated he had met with Mr. Masiowski 8 or 9 times. [ 33 ] In addition, I do not believe the accused’s testimony is reliable as it relates to the dangerous offender application. The proceedings before Judge Loewen, the written instructions to his lawyer and the testimony of Mr.

Masiowski, indicate that the accused knew of the dangerous offender application prior to the entry of his guilty plea.

[34] The evidence of Mr. Masiowski is an admission that the accused was not provided with all of the particulars, either of asuccessful dangerous offender application or a life sentence prior to the accused’s decision to plead guilty.

As indicated by MadamJustice Weiler in R v Shiwprashad, 2015 ONCA 577, at para 71, the decision of Justice La Forest in R v Lyons, (SCC),[1987] 2 SCR 309, supports the proposition, in strikingly similar circumstances, that an accused should be informed of the potentialconsequences of a guilty plea not the precise consequences as it relates to a dangerous offender application. [35] The issue for me is whether the accused was sufficiently informed of the consequences of his guilty plea.

In the wording usedby Justice Laskin in Quick, is there a reasonable likelihood that this accused, informed of the collateral consequence of a plea, would nothave plead guilty and gone to trial?

Having heard the evidence and watched the accused testify, I do not believe that any furtherparticulars of the potential sentence mattered to him or would have caused him to change his mind regarding the guilty plea. [36] Applying a subjective test, I find that given this accused’s level of understandings and the discussions which took place betweenhim and his counsel, he made a conscious and voluntary decision to plead guilty for reasons that were appropriate to him.

I further findthat he was sufficiently apprised of the consequences, and that his decision was informed as required by s. 606(1.1) of the CriminalCode. As a result of this decision, he signed an agreed statement of facts and written instructions to his lawyer, both of which are clearand unambiguous. He may now be questioning his decision, but in my view, there is nothing in the evidence that would suggest hisguilty plea is invalid or should be set aside. [37] In the result, the application to set aside the guilty plea is dismissed.

Dated this 3rd day of June, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ H.M. Harradence, J