2014 NBPC 36, 2014 NBPC 36

2014NBPC36 CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT B E T W E E N: HER MAJESTY THE QUEEN - and – BRANDON CAMPBELL DECISION BEFORE : Judge Marco R. Cloutier AT : Saint John, New Brunswick DATE OF DECISION : February 21, 2014 APPEARANCES: Kelly Winchester, on behalf of Her Majesty the Queen Hazen Brien, on behalf of the Accused Reasons for Judgment M.R. CLOUTIER, PROV. CRT J. [ 1 ] This is a ruling on an application by the Accused, Brandon Campbell (“the Accused”), to strike guilty pleas entered before this Court on November 13, 2013. The Rule 21 hearing, frequently referred to as an Adgey hearing, was held on January 21, 2014. For reasons that follow, the application is dismissed.

I Facts Appearance of November 13, 2013 – Election and Guilty Pleas [2] On November 13, 2013, the Accused is detained and appears before the Provincial Court in Saint John. He answers to threeindictable charges: possession of cocaine for the purpose of trafficking contrary to s. 5(3)(

a) of the Controlled Drugs and Substance Act(the “Act”) (Count 1), possession of cocaine contrary to s. 4(3) of the Act (Count 2) and proceeds of crime contrary to s. 354(1)(

a) of theCriminal Code (Count 3). All offences are alleged to have occurred in Saint John, New Brunswick on November 12, 2013. [3] The co-accused is the Accused’s common law spouse. She is represented by separate and private counsel. The Crown confirms onthe record that once the Accused is sentenced, it will abandon the charges against the co-accused. [4] The Accused consults with duty counsel while detained. He then makes a first appearance. This Court reads him all charges alongwith the election. He indicates he understands.

With the assistance of duty counsel, the Accused elects to be tried before the ProvincialCourt and enters a guilty plea to all charges. The Accused personally answers the Court: “Provincial Court Judge Sir” and “Guilty Sir”. [5] With respect to sentencing, the Crown, represented by a different prosecutor than the one on this application, states its position forthe record that “people found guilty of possession of cocaine for the purpose of trafficking should serve minimum two years’incarceration in a federal institution”. The Accused remains silent and he does not react.

Duty counsel requests a Pre-Sentence Report. [6] I pause to make parenthetical remarks. With respect, the Crown’s position could be considered akin to setting a statutoryminimum period of incarceration for the offence of possession of cocaine for the purpose of trafficking. Clearly, this prerogative isreserved exclusively for Parliament. Moreover, it is only after conducting a sentencing hearing, considering the purposes and principlesenunciated in s. 718 of the Criminal Code, assessing mitigating and aggravating factors as required by s. 718.2(

a) of the Criminal Code,if any, and being alive to the fundamental principle that a sentence "must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender", that this Court will opine on what constitutes a proper sentence in this case.

Otherwise, suffice it to saythat I am well aware of the long history of jurisprudence from the Court of Appeal of New Brunswick which dictates that, absentexceptional circumstances, when sentencing drug traffickers, courts must give great weight to the principle of general deterrence andlengthy jail sentences, including some under two years, which are necessary to deter persons from entering this highly lucrative and hardto detect activity: see R. v. Madore, (NB CA), [1986] N.B.J. No. 146 (C.A.) (QL), R. v. Frost, 2012 NBCA 94 and R. v.

Martin, 2012 NBCA 95 . [7] Next in the proceedings of November 13, 2013, the Court hears the facts as narrated by the Crown. In essence, the Accused, acommunity college student, when arrested, is found with a small amount of cocaine on his person and another 8.5 grams in his vehicle.An additional 12 grams is found at his apartment along with some $5,700 in Canadian Currency. He also admits while beinginterviewed by the officers that his sole source of income is from selling drugs.

The Accused has no record. [8] To complete the picture, the Court carries out the kind of inquiry suggested by s. 606 of the Criminal Code and, in answer to thequestion: “You are definitely looking at some jail time, you understand?” the Accused replies: “Yes, Sir”. Immediately after, theAccused interrupts the Court and says: “May I add something?…Yeah, I just wanted to add something just so I get it off my chest…If youdon’t mind. I just would like to tell you she had no idea, like I kept everything from her – like she had no idea of all that.” [9] A short recess is required once the facts are related.

The Accused meets with duty counsel again. He returns before the Court andmakes it abundantly clear that any amount of money seized by the officers, as it relates to the charge of proceeds of crime, was solelyhis. In particular, he wants to clarify that “any source of income from the drugs seized was for my sole source of income, not hers.” [10] The Accused also wants to clarify that the 12 grams seized at the apartment was not cocaine. Rather, it was the legal supplement“creatine” powder, a supplement often used by those who work out.

Both the Crown and the Defense agree that: “We’ll sort it out by thetime he gets sentenced; they’ll have it analyzed”. The Crown adds: “It is what it is when they analyze it”. Duty counsel on behalf of theAccused confirms: “That is correct, Your Honour”. The Accused does not voice any disagreement. In any event, the record is clear thatthe Accused contemplates contesting one fact at the sentencing hearing; the quantity of cocaine seized as it relates to the charge ofpossession for the purpose of trafficking. [11] I pause once again to make important comments.

In my view, whether at the sentencing hearing the 12 grams of substance seizedat the apartment turns out to be cocaine or creatine, there nonetheless exists a factual basis to substantiate a charge of possession ofcocaine for the purpose of trafficking. Let me explain. The Accused admits that 8.5 grams of the substance found in his vehicle is indeedcocaine. He also admits the fact, as narrated by the Crown, that his sole source of income is from selling drugs.

What could arguably bean issue then, at the sentencing hearing, is the quantity of cocaine seized in support of the charge of possession for the purpose oftrafficking and, in particular, if it also includes the substance seized at the apartment. [12] It is my opinion that the minimal quantity of cocaine found on the Accused’s person along with the other 8.5 grams discovered inhis vehicle, coupled with his admission of relying solely on drug trafficking as income, is enough to substantiate the gravamen oressential elements of the offence of possession for the purpose of trafficking.

Likewise, it is trite law that the quantity of drug involved isnot an essential element of the offence of possession for the purpose of trafficking where, like here, there is an admission of relying ondrug trafficking as a sole source of income: see R. v. Chan (2003), (ON CA), 178 C.C.C. (3d) 269 (C.A. Ont.). Atany rate, this Court will, at the sentencing hearing, hear Kienapple arguments with respect to Count 1 and Count 2.

Clearly, thepossession of cocaine offence is included in the possession for the purpose of trafficking offence. [13] Returning to the facts relevant to this application, before adjourning for sentencing, the Court indicates that it accepts theAccused’s guilty pleas on each of the three counts. The Rule 21 Hearing of January 21, 2014

[ 14 ] At the beginning of the hearing, and by agreement of counsel, the Accused waives any solicitor-client privilege as it relates to any consultation and advice received from duty counsel: see Rule 21.06 of the New Brunswick Rules of Provincial Court Practice (the “Rules of Practice”). [ 15 ] The Accused now takes the position that his guilty pleas were not voluntary, neither unequivocal nor informed.

In an affidavit sworn to on January 7, 2013, he claims, among other things, that his main reason for pleading guilty was in response to a promise made to him that all charges against his common law spouse would be abandoned. He also asserts that duty counsel did not explain the nature of the charges against him until he appeared before the Court. Similarly, he claims that duty counsel failed to advise him that the Crown would oppose his release. He also says that he was never made aware of the sentence he was facing until raised by the Crown in open court.

Finally, he “does not believe” that a show cause hearing was discussed with duty counsel. [ 16 ] The Accused makes no claim that he was deprived of effective assistance of duty counsel. Rather, he asserts that he received incomplete advice under the circumstances. To be candid, the difference, if any, is unclear. Be that as it may, the Defence calls no expert evidence at the hearing. [ 17 ] Mr. Jeremy Erickson, duty counsel in service on November 13, 2013, testifies at the hearing.

He has practiced law since 2009, albeit not exclusively criminal law, and has been working as a full-time duty counsel since the fall of 2013. [ 18 ] Not surprisingly, Mr. Erickson does not recall every minute of his meeting with the Accused. However, he relates his usual practice when acting as duty counsel during busy “current” weeks. He first meets with the crown prosecutor to determine which charges are laid and against whom. Next, he meets with anyone in custody to review and explain those charges.

He also explains to any detainee the purpose of a first appearance along with the election process, as the case may be. Once satisfied that the detainee understands, he apprises him or her of the options which consists of either pleading guilty or not guilty or asking for an adjournment to seek further advice from private counsel with the benefit of disclosure. If a detainee decides to plead guilty, Mr. Erickson reviews the provisions of s. 606 of the Criminal Code which the presiding judge will most likely canvass.

He also has a discussion on sentencing including what to expect, what the Crown is or could be seeking, the need to adjourn for a pre-sentence report and, as the case may be, victim impact statement(s). [ 19 ] During this process, Mr. Erickson inquires with the Crown whether it objects to the detainee’s release and, in some cases, if it proceeds by way of

summary or indictable offence. [ 20 ] Specific to this case, Mr. Erickson made some brief notes. He recalls meeting with the Accused while detained. Next, he meets with the Crown Prosecutor for a synopsis of the facts which he later discusses with the Accused. Otherwise, he proceeds as per his usual practice. He particularly recollects the discussions with respect to an understanding that the charges against the Accused’s common law spouse would be abandoned once the Accused is sentenced. There are no alarm bells here, so to speak.

He does not recall the Accused saying he was pleading guilty “just to get rid of it” or that the Accused appeared intoxicated. [ 21 ] On cross-examination, the Defence suggests to Mr. Erickson that he did not discuss show cause hearing, sentencing or synopsis of the facts with the Accused. Each time, Mr. Erickson answers: “That would be unlikely”. [ 22 ] These are the main features of what occurred when the Accused entered his guilty pleas on November 13, 2013 and during the Rule 21 hearing held January 21, 2014. II Issue [ 23 ] Are the Accused’s guilty pleas invalid?

III Law and Analysis Relevant Sections of the Rules of Practice [ 24 ] Rule 21.02 provides that an application for the withdrawal of a guilty plea shall be made to the judge before whom the accused entered the plea. [ 25 ] Rule 21.05 provides that the burden of proof on the application is on the accused to satisfy the Court that there is a real doubt the plea was not unequivocal (non équivoque), voluntary (volontaire) and informed (éclairé). Relevant Sections of the Criminal Code [ 26 ]

Section 606 of the Criminal Code governs pleas. The relevant portion provides: Pleas permitted 606.

(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others. Conditions for accepting guilty plea

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused (

a) is making the plea voluntarily ; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence,

(ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. Validity of plea

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of theplea. (emphasis added) Directions from the Court of Appeal of New Brunswick [27] The New Brunswick Court of Appeal recently canvassed the jurisprudence with respect to the withdrawal of a guilty plea. In R. v.McLaughlin, 2013 NBCA 28 , it was held that an applicant must be able to demonstrate that: (

i) He was unaware of the allegations made against him in the charge; (ii) He was unaware of the effect and potential consequences of his plea; (iii) The plea was not made voluntarily; (iv) The plea was equivocal in nature. [28] The Court of Appeal also reiterated that there is a strong presumption a guilty plea, particularly one made with the assistance ofcounsel, is valid. See as well: R. v. Laffin, 2009 NSCA 19 , 2009 NSCA 19, [2009] N.S.J. No. 66 (QL) at 44; R. v. Eizenga,2011 ONCA 113 , 2011 ONCA 113, [2011] O.J. No. 524 (QL) at par. 4. [29] Likewise, in R. v. Chiasson (2008), NBCA 36 and R. v.

Miller (2011), NBCA 52 , the Court of Appeal ofNew Brunswick summarized the principles that govern an application for leave to withdraw a guilty plea: The guiding principles in considering an application for leave to withdraw a guilty plea were summarized in Brun (at para. 8): A court of appeal may allow an appellant to withdraw a guilty plea if the appellant can show that the plea was invalid, in the sense that itwas not made voluntarily or unequivocally or that it was not informed: see R. v. Claveau (L.F.) 2003 NBCA 52 , (2003), 260N.B.R. (2d) 192 (C.A.) and R. v. Nowlan (F.E.), [2005] N.B.J.

No. 474 (C.A.) (QL). As noted in R. v. Guignard, at para. 7, an appellant"must show valid grounds which would allow [him or her] to withdraw [his or her] guilty plea. This must be done by providingconvincing evidence." In R. v. Claveau (L.F.) 2003 NBCA 52 , (2003), 260 N.B.R. (2d) 192, [2003] N.B.J. No. 285 (QL), 2003 NBCA 52, DeschênesJ.A. explained as follows at para. 7: For the plea to be valid, it must be made voluntarily and unequivocally.

The plea must also be an informed one, in the sense that theaccused must be aware of the nature of the allegations made against him and of the effect and the consequences of his plea. See R. v.Lyons, (SCC), [1987] 2 S.C.R. 309.

As the previous decisions of this Court clearly indicate, a court of appeal may allow an appellant to withdraw a guilty plea only if theappellant can provide convincing evidence that the plea was invalid, in the sense that it was not made voluntarily or unequivocally orthat it was not informed. [paras. 6-8] (emphasis added) Rule 21 vs s. 686(1)(a)(iii) of the Criminal Code [30] As a preliminary observation, Rule 21 is not to be confused with s. 686(1)(a)(iii) of the Criminal Code. [31] Under Rule 21, a guilty plea can be withdrawn any time before sentencing at the discretion of the trial judge.

Where a withdrawalis requested, the trial judge is to inquire into the validity of the guilty plea. The judge may withdraw the plea at his or her discretion. [32] Where the accused has already been sentenced, and wishes to withdraw the guilty plea, the trial judge is functus and has nojurisdiction to consider an application. An appellate court may then only interfere with a guilty plea where the plea resulted in a

"miscarriage of justice" under s. 686(1)(a)(iii) of the Criminal Code. [33] As will be seen, however, jurisprudence interpreting the meaning of a valid plea, namely whether it was unequivocal, voluntaryand informed, has been equally considered in both applications similar to Rule 21 in New Brunswick and under s. 686(1)(a)(iii) of theCriminal Code. [34] In the instant case, the Accused has yet to be sentenced. As a result, the application is brought under Rule 21. General Principles [35] A guilty plea is an admission of guilt to all the legal ingredients necessary to constitute the crime charged.

That admission meansthat the accused waives his or her right to require the Crown to prove its case beyond a reasonable doubt and also constitutes a waiver ofany related procedural safeguards, some of which are constitutionally protected: see R. v.

T. (R.) (ON CA), (1992),10 O.R. (3d) 514 (C.A.), at p. 519. [36] To assist the court in coming to a conclusion that an accused’s guilty plea is informed, the Crown should read in a statement ofalleged facts to justify the plea that has been entered and ask the accused to admit that those facts are substantially correct: see R. v.Corkum, (1984), 1984 ABCA 226 , 64 A.R. 354 (C.A.).

However, this procedure is not required by s. 606 of the CriminalCode. [37] In fact, s. 606 (1.2) of the Criminal Code provides that the omission of the court to inquire into whether the accused understandsthat he or she is admitting to the essential elements of the offence and understands the nature and consequences of his or her plea doesnot affect the guilty plea’s validity.

Therefore, in my view, the Crown’s failure to read in an agreed statement of alleged facts and toobtain an accused’s admission that those facts are substantially correct at the time of the guilty plea does not, in and of itself, affect thevalidity of the plea. This conclusion finds support in the case of Eizenga, supra. [38] In Eizenga, supra, the accused asserted that his guilty plea was involuntary. However, the court ruled that a plea entered in opencourt is presumed to be voluntary unless the contrary is shown: see R. v. T. (R.) supra, at p. 520.

Nothing in the record suggested thatthe accused’s plea was involuntary. Eizenga was present in court and pled guilty. He said nothing when Mr. Trudell assured the courtthat Eizenga was admitting enough to substantiate the gravamen or essential elements of the fraud charge. Eizenga had not filed anaffidavit as fresh evidence that any discussions off the record rendered his plea involuntary, nor did he submit that he was under anydisability which affected the voluntariness of his plea. The accused made no claim of ineffective assistance by counsel.

The accused hadtherefore not displaced the presumption that his guilty plea was voluntary. [39] Equally important, in Eizenga, supra, there was nothing on the record suggesting that the guilty plea was ever predicated on therebeing an agreed statement of facts. There was never any guarantee that the statement of facts would be as the accused wanted it. Indeed,the parties had always contemplated that Eizenga may contest the facts at the sentencing hearing.

At the court appearance on September27, 2005, in Eizenga’s presence, counsel for the Defence informed the court that having an undisputed statement of facts was only anaspiration to be worked on by counsel after the plea was entered. [40] Where charges are read to an accused who then personally enters a plea, it tends to demonstrate the unequivocal character of theplea: see R. v. T. (R.) supra, at pp. 520-521; R. v. Eastmond, (ON CA), [2001] O.J. No. 4353 (C.A.), at par. 6; andR. v. Moser (2002), (ON SC), 163 C.C.C. (3d) 286 (Ont.

S.C.), at par. 32. [41] Further, where an accused is represented by counsel at the time of his plea, then in the absence of any unusual circumstances(such as a challenge to the competence or professionalism of counsel), the court may infer that counsel took the necessary steps to ensurethat his client understood the nature and consequences of a guilty plea. See Eastmond, supra, at paras. 6-7; R. v. Dallaire, [2001] O.J.No. 1722 (C.A.), at par. 2; R. v. Thissen, [1998] O.J.

No. 1982 (C.A.), at par. 6; and Moser, supra, at paras. 34, 37-39. [42] A voluntary plea refers to the conscious volitional decision by the accused to plead guilty for reasons which he or she regards asappropriate: see R. v. Rosen, (SCC), [1980] 1 S.C.R. 961 at p. 974, 51 C.C.C. (2d) 65 at p. 75. Guilty Plea Complete Without

Summary of Facts Agreed by Accused [43] More importantly, a guilty plea can be complete even in the absence of a

summary of facts agreed to by the accused. Saidotherwise, a guilty plea entered in the absence of an agreed upon statement of fact is not, in and of itself, invalid. This is particularly truein light of s. 606 (1.2) of the Criminal Code. It could also be contemplated that some facts will be contested at the sentencing hearing.Finally, the law does not oblige a judge to question him or herself as to the accused’s motives for pleading guilty: R. v. Khanfoussi,[2010] J.Q. No.10303 (QL).

Onus on the Applicant - Balance of Probabilities [44] The onus is on the applicant to convince the court, on a balance of probabilities, that the guilty plea is invalid and should be setaside. A trial judge’s decision not to strike a guilty plea is a valid exercise of his or her discretion: see R. v. Eizenga, 2011 ONCA 113.

An illustration of Unequivocal, Voluntary and Informed Plea [45] In R. v. Bulcock, [2010] Q.J. No. 3348, the court repeated that, to be deemed valid, a guilty plea needs to possess three attributes.It must be unequivocal, voluntary and informed, and the court must be convinced of the existence of these attributes.

LaBelle J. went onand discussed all three: 34 To be unequivocal, "the circumstances should not be such that the plea was unintended or confusing, qualified, modified, or uncertain in terms of the accused's acknowledgement of the essential legal elements of the crime charged:...".13 Nothing on the recordshows or even suggests that the plea entered by the Petitioner was anything other than unequivocal. 35 Was it voluntary?

The Petitioner testified that he pleaded guilty because he did not want to go back to jail and by doing so hereceived what he wished for, his release from detention. 36 There is also a mention that he wanted to protect a friend who, to this day, is still unknown. The plea entered by the Petitionerwould not prevent the authorities from laying charges and the person ultimately being found guilty. Further, the claim of the Petitionerthat he did not know if charges were laid against M. Izurieta is unbelievable.

To testify that absolutely no information regarding this event transpired between the petitioner and his friend from January 2008 to this day is a fallacy.14 37 As for the fact that he did not want to go back to jail, while this may be true, it does not affect this aspect of his plea. If the Courtgave effect to this argument, it would most likely jeopardize the whole criminal system. 38 As was mentioned earlier, the Petitioner received competent representation and the plea was entered in open court.

This gives it a presumption of validity.15Finally, he recognized the facts that gave rise to the accusation.16 40 Was the plea informed? Again, there is nothing before the court to suggest otherwise. It was stated in Moser: "The accused must generally know the jeopardy faced by way of possible punishment. Often the seriousness of the offences is self-evident and therefore so too is the exposure to a stiff custodial disposition."18 (emphasis added) [46] In R. v. Burrett, [2011] O.J.

No. 3865 (QL), a review of the transcript suggested that the accused had fully and voluntarilyparticipated in the guilty plea proceedings. The plea was held valid. Guilty Plea in Exchange for Withdrawal of Charges Against Spouse [47] In R. v. Joseph, [2000] B.C.J. No. 2850, the accused argued that his lawyer had not adequately informed him of his options atthe time he accepted the plea. There were inculpatory statements made by Joseph in an undercover operation, which had been ruledadmissible. Joseph had been aware of the circumstances of the offence, the evidence against him and the consequences of his plea.

Hehad time to reflect on his options and was motivated by a desire to protect his wife from potential prosecution. The accused had notprotested his innocence and there was no injustice in refusing to set aside the guilty plea. [48] In R. v. Moore, [2004] B.C.J. No. 2923, 2004 BCPC 560, the accused did not establish that his plea was wrong or that it wouldbe unjust to uphold the plea. The court accepted the evidence of the solicitor over that of Moore as to the events leading up to the guiltyplea. Moore was fully engaged in the process and knew what the results of the plea were.

He had confirmed his plea before being askedto do so by the court. Moore was represented by counsel at the time. The plea was made in a voluntary and unequivocal manner. Itappeared that the accused was, in part, motivated by his wish to ensure that Ms. Read did not face charges for production and that thosecharges against her would be stayed. He said as much to the court. [49] In R. v. Riley, 2011 NSCA 52 (QL), the accused agreed to plead guilty to production of marijuana in exchange for thewithdrawal of charges against his wife.

He was granted a conditional discharge and a 10 year mandatory firearms prohibition wasimposed. He alleged that counsel had not advised him of the mandatory firearms prohibition. However, the accused failed to establishthat the lack of knowledge of the prohibition caused him a prejudice. As there was no basis to conclude that the accused would havedone anything different had he been aware of prohibition, the guilty plea was not set aside. D.R.

Beveridge J.A. commented as follows: 38 In the case at bar, the appellant does not frame his prayer for relief as a breach of his rights, but instead argues that he should nowbe permitted to withdraw his guilty plea because he was not fully informed in terms of what the sentencing court was required by law todo. In my opinion, a purely subjective test does not seem appropriate. Nonetheless, there should be at least some evidence from anappellant that had he been fully informed, he would not have pled guilty.

A bald assertion by an appellant is not likely to be sufficient.There must be some objective basis to convince the Court there is a reasonable possibility that a reasonable person in thosecircumstances would have made a different decision.

39 Here there is absolutely no evidence that had the appellant known of the mandatory firearms prohibition order, he would not havepled guilty. He filed two affidavits with this Court. His affidavits are silent on this point. Nor is there any evidence to suggest anyreasonable possibility that a reasonable person in the circumstances of the appellant would have decided differently.

There is nosuggestion in the affidavits, nor was there in argument, of even a glimmer of a potential Charter motion, an affirmative defence, or anyprospect of being able to raise a reasonable doubt on the charge of production of marijuana. 41 There were no such inducements or threats or any unfair aspect surrounding the decision by the appellant to plead guilty. In fact, hegot what he bargained for. The appellant wanted to have his wife released from the prosecution. With his guilty plea, he achieved that.The Crown offered no evidence and she was acquitted.

I am not satisfied that even if he had known of the mandatory minimum firearmsprohibition he would not have pled guilty. (emphasis added) [50] In R. v. Sundstrom, 2012 BCCA 385 , the accused pled guilty in exchange for stay of charges filed against his commonlaw spouse who later confessed that she turned him in to police. The accused's plea was voluntary and unequivocal. It was made forreasons the accused regarded as appropriate at the time, namely the charges against his common law spouse being abandoned. There wasno suggestion that he misunderstood the nature of the plea.

Likewise, there was no reason to believe that counsel for the accused was notcompetent or that he failed to inform the accused of the consequences of pleading guilty. The emotional pressure to which the accusedwas subjected by his common law spouse was no different from the pressures felt by other accused persons for personal, family orfinancial reasons.

Applying the law to this matter [51] On a review of the totality of the circumstances, and in applying the law as we have seen, there exists no qualifications, or anyuncertainty, causing doubt on the validity of the Accused’s pleas, in particular having regard to the following: • Were the pleas unequivocal? The Court read the charges to the Accused who then personally entered his guilty pleas.

Thisdemonstrates the unequivocal character of the pleas; • The Accused fully and actively participated in both the election and the pleas by personally answering to the Court; • There is no suggestion the Accused misunderstood the nature of the charges; • The Accused’s guilty pleas are presumed valid; • Nothing on the record shows or even suggests that the pleas entered by the Accused were anything other than unequivocal; • The co-accused, the Accused’s common law spouse, was represented by separate and private counsel; • The Accused was represented by duty counsel at the time of his pleas.

Therefore, in the absence of any unusual circumstances(such as a challenge to the competence or professionalism of counsel), this Court infers that duty counsel took the necessary steps toensure that the Accused understood the nature and consequences of his guilty pleas; • Duty counsel was presumably competent when he represented the Accused on his election and pleas and while this Courtconducted the s. 606 inquiry; • Other than some bald assertion, there is no evidence, and it was not shown, that the Accused received anything less thancompetent representation from duty counsel, Mr.

Erickson; • The Court accepts the evidence of duty counsel, Mr. Erickson, over that of the Accused as to the events leading up to the guiltypleas; • The Accused’s version of events as described in his affidavit is not evidence. I do not give any weight to it. A bald assertion by the

Accused is not sufficient. I would go further. The Accused’s statements contained in his affidavit are unreliable. They are completely at odds and cannot be reconciled totally, or in part, with his demeanor when he proceeded with his election and upon entering his guilty pleas on November 13, 2013; • There is no reason to believe that Mr.

Erickson, acting as duty counsel for the Accused, was not competent or that he failed to inform him of the consequences of pleading guilty to each of the three charges; • There is nothing on the record suggesting that the guilty pleas were ever predicated on there being an agreed statement of facts. In fact, it was contemplated upon entering guilty pleas that the Accused, at the sentencing hearing, may contest a certain fact (i.e. the exact quantity of cocaine seized relative to the possession for purpose of trafficking charge).

Any submissions that the Accused’s guilty pleas were premised on the condition that the facts were or would be totally agreed upon, however remote, is not supported by the record; • The absence of an entire agreement on the facts as narrated by the Crown does not, in and of itself, render the Accused’s guilty pleas invalid. Likewise, on the specific facts of this case, it cannot be said that the pleas are incomplete.

This is particularly true in light of s. 606 (1.2) of the Criminal Code ; • Most importantly, the Accused only took issue with one fact, namely the exact quantity of cocaine seized relative to the possession for purpose of trafficking charge.

T he facts that were undisputed clearly satisfy every element of the offence of all three counts to which he pled guilty; • Prior to the Court accepting the guilty pleas, the Accused repeatedly acknowledged facts supporting the existence of the constituent elements of the offences, namely by interrupting the Court to say: “ It was all mine, none was hers”; • Upon entering guilty pleas, the s. 606 inquiry under the Criminal Code was completed and the Accused indicated, among other things, “no one is forcing me to plead guilty”. • It cannot be said that the Accused’s guilty pleas was coerced or made under duress.

They were made by him for reasons he regarded as "appropriate", such as on the understanding that the Crown would abandon all charges against his common law spouse; • There were no inducements or threats or any unfair aspect surrounding the decision by the Accused to plead guilty. In fact, he got what he bargained for. The accused wanted to have his common law spouse released from the prosecution.

With his guilty pleas, he attempted to achieve that; • The emotional pressure to which the Accused may have been subjected to, perhaps by his common law spouse, was no different from the pressures felt by other accused persons for personal, family or financial reasons; • Were the pleas informed? The seriousness of the charges to which the Accused pled guilty is self-evident and therefore so too is the exposure to a stiff custodial disposition. Moreover, the A ccused requested a pre-sentence report which is an indication that he knew he was facing jail time.

The nature of the charges, in and of itself, implied that a jail sentence would be in order; • There is absolutely no evidence that, had the Accused known that the Crown was seeking a minimum sentence of two years of incarceration, he would not have pled guilty. The Accused’s affidavit is silent on this point.

Nor is there any evidence to suggest any reasonable possibility that a reasonable person, in the circumstances of the Accused, would have decided differently; • Similarly, the Accused failed to establish that his alleged lack of knowledge that the Crown was seeking a sentence; a minimum of two years of incarceration, caused him prejudice. Again, there is no basis to conclude that the Accused would have done anything differently had he been aware the Crown was seeking such a sentence; • This is not a case where the Accused had always maintained his innocence from day one and suddenly pled guilty the morning of

trial. Rather, on his very first appearance, the Accused, to use his words : “wanted to get off his chest, that all drugs were his and that the co-accused knew nothing about this”. In other words, this is not a case where the Accused had protested his innocence on the first appearance; • There is no evidence that the Accused was under disability or intellectually challenged so as to have affect on the voluntariness of his pleas . Recall that he was enrolled at New Brunswick Community College at the time. Equally important, the Accused made no claim of ineffective assistance of counsel.

He has therefore not displaced the presumption that his guilty pleas were voluntary. IV DISPOSITION [ 52 ] To use the words of the Court of Appeal of New Brunswick in Chiasson , supra, I find that the Accused has not adduced any convincing evidence that his guilty pleas were invalid. [ 53 ] It is trite law that a valid guilty plea must not be disturbed by a calculated scheme designed to manipulate the system: see Regina v. Gurney , [2001] O.J.

No. 2227 (QL) (C.A.), at par. 1 . [ 54 ] In the instant case, I am convinced that the Accused wanted just that, to manipulate the system. [ 55 ] I find that the guilty pleas entered by the Accused on November 13, 2013 were unequivocal, voluntary and informed. [ 56 ] In the result, I conclude that the Accused has failed to demonstrate on a balance of probabilities that his guilty pleas were invalid. I decline to strike and set aside the guilty pleas. For these reasons, I have decided to dismiss the application.

Dated at Saint John, New Brunswick, this 21 st day of February, 2014. ______________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court