Her Majesty the Queen - v. -, 2013 SKPC 119

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 119 Date: July 23, 2013 Information: 24501546 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wyatt Dupin Appearing: Trent Forsyth For the Crown Ron Piché For the Accused JUDGMENT I. CARDINAL , J BACKGROUND [ 1 ] Mr. Dupin applies to this Court to expunge the guilty pleas he entered on February 5, 2013 to charges that he unlawfully possessed cannabis marihuana for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) and that he possessed cocaine, contrary to s. 4(1) of that same Act .

[ 2 ] Mr. Dupin had retained a very experienced, senior lawyer from Melfort who attended with him at the time of entering the pleas. The Crown gave notice pursuant to s. 19 of the CDSA concerning forfeiture of offence related property being a cell phone belonging to Lindsay Dupin (father of the accused) and a half-ton truck belonging to the accused. After the pleas were entered, sentencing was adjourned to April 9, 2013 for the preparation of a pre-sentence report. [ 3 ] On April 9, 2013, Mr. Dupin appeared with the same counsel who had represented him when the guilty pleas had been entered. Mr.

Dupin had not attended to Probation Services for the preparation of a pre-sentence report so one was not prepared. Counsel for Mr. Dupin was given leave to withdraw and advised the Court that Mr. Dupin was seeking alternate counsel and may be seeking to expunge the guilty pleas. The matter further adjourned for that purpose. [ 4 ] The matter came back before the Court on April 23, 2013 and Mr. Dupin then appeared with Mr. Piché who requested a hearing be held to expunge the guilty pleas previously entered by Mr. Dupin. [ 5 ] The expungement hearing was heard on June 27, 2013, in Melfort Provincial Court.

This is the decision on the expungement application. EVIDENCE [ 6 ] The defence called two witnesses being Wyatt Dupin, the accused and Lindsay Dupin, his father. Both waived the protection of solicitor-client privilege with respect to this hearing. [ 7 ] Lindsay Dupin testified that when his 19 year old son was charged with these offences it was he who retained the senior local lawyer in Melfort to defend him.

Both he and his son were present during conversations with the lawyer. [ 8 ] He testified that the discussions between his son and counsel centred mostly around negotiating a plea with the Crown with no discussion of potential defences. A decision was made that they would not defend the charge on its merits but enter into a plea agreement.

He understood the plea agreement would be a joint submission for no jail time and that his son’s truck that had been seized would be returned to him. [ 9 ] A letter his lawyer had sent to the Crown prosecutor was tendered into evidence as Exhibit D-1 which outlined the lawyer’s understanding of the plea negotiations. The letter indicates there was to be pleas to some charges with other charges being dropped. There would be a joint submission for a conditional sentence, but the lawyer had the expectation the Crown would not return the vehicle as the Crown had no choice in the matter.

The lawyer noted that despite his advice, and a plan that would see the lending institution exercise its right of possession, the Dupins continued to pay on the vehicle. Thus, there was a request to have the notices sent out to those persons having an interest in that truck so they may secure their interest (ie: the s. 19 order). [ 10 ] Lindsay Dupin testified that he wasn’t exactly sure what was meant by a conditional sentence but believed it was a sentence served in the community.

He understood that his son would be getting his truck back upon entering a guilty plea. [ 11 ] Lindsay Dupin was in Court the day his son entered the guilty plea with his senior lawyer. He said that he understood on that day that there would be a guilty plea with no chance of jail for his son and that the truck would be returned. [ 12 ] It was not until the last month that he found out, after the plea had been entered, that this was not the case. He learned that jail was a possibility only after talking to Mr. Piché.

As far as Lindsay Dupin knew, the accused was not aware there was any chance of jail. [ 13 ] In cross-examination, he admitted there had been some discussion about defences between himself, the senior lawyer, and his son. He also said he understood what a joint submission was and that the final decision as to sentencing was up to the judge. He

understood that their options were there could be a trial or guilty pleas entered on some charges and that by entering guilty pleas they were admitting the facts as outlined by the Crown. He said that advice was given to them on February 5, 2012. He agreed that he came to Court understanding that there would be guilty pleas to certain charges. He understood that the guilty pleas were being entered and that they were free and voluntary in the sense that the senior lawyer was not forcing Wyatt to enter the guilty pleas. He acknowledged that the guilty pleas were entered with full knowledge of the facts of the case.

Concerning the return of the vehicle, although the letter from the lawyer indicated there was an expectation that the Crown would not agree to return the vehicle to Wyatt, Lindsay Dupin testified that that is not what he understood. He said that in conversations before the guilty plea he understood that if the truck would not be returned to his son, that the matter would go to trial. [ 14 ] Wyatt Dupin also testified on this application. He said his parents hired the senior lawyer for him and he had no concerns with him. He and the lawyer met four or five times and his dad was always present when they met.

During these meetings they did discuss the merits of the available defences. [ 15 ] In examination-in-chief, he testified that he understood that with the plea agreement there would be no jail time and his truck would be returned to him. There would be conditions to follow on probation. However, after the pleas were entered, he learned jail was still a possibility when he contacted Mr. Piché and he also found out that the Crown did not want to return his vehicle to him. [ 16 ] He testified he did not understand what the term “plea comprehension” meant.

He said his lawyer did not explain that by accepting a guilty plea he was waiving his right to a trial. He also said the lawyer did not explain that by entering a guilty plea the Court was not bound by any agreement the lawyers had. He said the Court did not go through this with him either. [ 17 ] In cross-examination, Wyatt Dupin advised that the senior lawyer did review disclosure and the evidence against him and he had a full opportunity to review it.

He said he fully understood all the facts that the Crown was relying upon against him and what was found in his vehicle, including his statement to the police on what was said and that he understood that he was admitting to those facts. He said he didn’t attend for the pre-sentence report even though it had been ordered as he didn’t understand that he was the one who had to go and talk to the probation officer.

He assumes that the judge said something about that, but he doesn’t believe anyone explained it to him. [ 18 ] He heard his dad testify and agreed that, like his dad, he understood what a joint submission meant and knew that if the joint submission was made it was still up to the judge to decide the final sentence. He testified that when he entered his guilty plea he knew he was admitting the facts of the Crown and that he was not coerced or forced into entering a guilty plea.

DEFENCE POSITION [ 19 ] Counsel for the accused made it clear he is not taking issue with the competence of the senior lawyer who initially represented Wyatt Dupin. However he argued that the plea comprehension contemplated by s. 606(1.1) of the Criminal Code was not done here and that Mr. Dupin’s plea was not informed. He advised that when looking at the merits of the defence, there are live issues with regard to the search and seizure involved and Mr. Dupin wants the opportunity to defend himself in Court.

He also notes that the senior lawyer’s letter indicates that it was Lindsay Dupin, the father of the accused, who was calling the shots and that might be part of the problem in that Wyatt Dupin was not the person making the decisions. CROWN POSITION [ 20 ] Crown counsel argues that the accused had one of the most experienced lawyers in Melfort representing him when the guilty pleas were entered. He argues that both Lindsay Dupin and Wyatt Dupin understood what are the essential requirements of s. 606(1.1) and there was no misunderstanding. THE LAW

[21] The onus rests upon the accused to establish on a balance of probabilities that his plea is invalid. When an accused enters aguilty plea with the benefit of counsel, such representation by counsel is a significant factor the Court must consider in determining ifexpungement of a guilty plea ought to be made: See R. v. Arcand, 2000 SKCA 60; R. v. Leonard, 2007 SKCA 128. [22] It is well known that a guilty plea entered in open Court, particularly by an accused represented by counsel, is presumed to bea valid plea: See R. v. Eastmond, (ON CA), [2001] O.J. No. 4353 at para. 6 (Ont. C.A.).

Section 606(1.1) of theCriminal Code, codifies what has long been understood to be the hallmarks of a valid plea, being one which is voluntary, unequivocal,and informed. As noted in Leonard, supra, at paragraph 17: Voluntariness turns on the idea of a conscious volitional decision to plead guilty for reasons the accused regards as appropriate. A guiltyplea is unequivocal if it is unqualified and certain with respect to the acknowledgement of the essential facts of the crime charged.

It isinformed if the accused understands the nature of the charges, the legal effect of the plea and the consequences of the plea. [23] As observed by my sister Judge Meekma 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 notvoluntary, unequivocal or informed, or that for some other valid reason it should be expunged, or that a miscarriage of justice is likely tooccur. Where the accused is represented by counsel, the burden on the accused is a heavy one.

ANALYSIS [24] In this case, both the accused Wyatt Dupin, and his father, Lindsay Dupin testified. While it may have been that LindsayDupin as a father was “calling the shots” regarding how his son should proceed with these charges and pleas, it was, at the end of theday, Wyatt Dupin’s decision. Mr. Dupin was represented by experienced counsel with many years at the bar in Saskatchewan. [25] Here the accused acknowledged that he was not pressured or forced to enter a guilty plea and that the choice was his.

He alsoadmitted that he was advised of the case against him and reviewed disclosure provided by the Crown with his lawyer. He was aware ofthe facts the Crown intended to rely upon as he had discussed those with his lawyer. He was aware that the judge would make the finaldecision as to sentence. [26] Counsel for Mr. Dupin advised that there was no indication the Court had inquired of counsel and Mr. Dupin as to whetherthe requirements of s. 606(1.1) had been complied with.

There is no evidence before the Court as to whether such an inquiry was madeby the judge, and it would be up to defence counsel to bring forward that information. In any event, the failure of the Court to makesuch 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). [27] With respect to the matter before the Court, the plea was entered and there is no indication in the endorsements that beforeaccepting the plea the Crown recited the circumstances. This as well is not fatal to the guilty plea being maintained. In R. v.

WaylonRoss, 2013 SKCA 45, the Court of Appeal found that such a practice did not result in the plea being uninformed. At paragraph 29, theCourt stated: Section 606(1.1) of the Criminal Code is a 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 the plea, and (

c) the court is not bound by any agreement made between the prosecutor and the accused.

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. [ 28 ] Wyatt Dupin may be a naive 19 year old young man as his counsel suggests. It may be that not every available defence was discussed with him in detail, but that does not mean he did not understand the nature of the proceedings or the jeopardy he faced. He understood the concept of a Conditional Sentence Order and that it meant he would serve a jail sentence in the community.

He understood what a joint submission meant and that the judge has the final decision as to sentence. He admitted his lawyer did not pressure him into entering the guilty pleas. Thus, 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. [ 29 ] For all of the above reasons, I dismiss the application. I. Cardinal, J