R. v. Greenall and Collins Date:, 2011 BCPC 28

Citation: R. v. Greenall and Collins Date: 20110207 2011 BCPC 0028 File No: 66847-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHELLEY ANN GREENALL and GREGORY OWEN JUDE COLLINS RULING ON APPLICATION OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: S. Price Counsel for the Defendant: V. Panchmatia Appearing in person: G. O. J. Collins Place of Hearing: Abbotsford, B.C.

Dates of Hearing: October 26, 2010, January 19. 2011 Date of Judgment: February 7, 2011 Introduction [ 1 ] The Accused Shelley Ann Greenall and Gregory Owen Jude Collins are jointly charged with the unlawful production of marihuana and with possession of marihuana for the purpose of trafficking. The offences are alleged to have occurred on or about May 12, 2007 in the District of Mission, British Columbia. On November 3, 2009, the Accused appeared with their counsel Mr. Markovitz, at which time the Accused Greenall entered a plea of guilty to the offence of production.

The matter was adjourned for sentencing, and the sentencing was adjourned on a number of occasions because of the non-appearance of defence counsel. [ 2 ] Finally, on June 22, 2010, the Honourable Judge Caryer of this Court adjourned sentencing to July 21, 2010 on the understanding that sentencing would proceed on that date either with or without counsel. On July 21, 2010 Mr. Markovitz did not appear with his clients and at that time and I directed that Ms. Greenall’s sentencing would proceed. Duty Counsel felt that he was unable to assist the Accused Greenall on that date.

Sentencing was adjourned to July 30, 2010 for the Ms. Greenall to find new counsel to assist her on sentencing. [ 3 ] On July 30, 2010 Mr. Panchmatia appeared as counsel for Ms. Greenall. He was given a further brief adjournment to confirm his instruction and on August 11, 2010 he made an application to withdraw Ms. Greenall’s plea of guilty. A hearing of that application was held on October 26, 2010 and concluded on January 19, 2011. Following are my reasons for my ruling on Ms. Greenall’s application to strike her guilty plea.

Record of Proceedings [ 4 ] A consideration of this application calls for a review of the record of proceedings. In my view this is relevant to considering the Crown’s position that the application to withdraw the plea is not based on proper considerations, but is in fact based on Ms. Greenall’s dissatisfaction with the probable outcome of sentencing (not a proper reason to allow a plea to be withdrawn). The Crown asks me to infer that this yet another attempt by this Accused to delay proceedings and obstruct this matter from being concluded. It is also relevant to Mr.

Panchmatia’s position that his client has a valid defence, and that her previous counsel did not properly. I am asked to infer that, from the number of times that Ms. Greenall’s previous client failed to appear with his client and adjourned the matter to dates when he was not present in court, she was obviously not getting very good representation. [ 5 ] I suspect that most if not all of the judges who have touched this file in recent times have been concerned about the number of court appearances and about how long it took for this matter to reach the stage that it has.

There was some mention of delay in the submissions of counsel, but there has been no suggestion of an application for a stay of proceedings based on delay. This is no doubt because most if not all of the delay is for reasons attributable to the Accused or to their counsel. I am unable to ascribe much if any of the delay either as being attributable to the Crown or as systemic delay. The following table summarizes the appearances and what happened on each one. On each appearance Crown counsel was present and was ready to proceed: Date Presiding Judge Accused Defence Counsel What Happened?

May 12, 2007 Alleged offence date October 4, 2007 Information sworn

November 22, 2007 Hoy Appeared after warrant issued for Collins in AM. None on Record Adjourned to get counsel December 6, 2007 Hoy Bench warrants issue. Collins appears late and warrants are vacated. None on record, Accused state that they intend to retain Mr. Markovitz Adjournment to get counsel. December 24, 2007 Romano Non-appearance with the consent of Crown None on record Adjourned for arraignment January 7, 2008 Gardner None. Crown consents to note non-appearance.

None on record Adjourned for arraignment January 17, 2008 Gardner Both present None on record but Accused tell the court that they have retained Mr. Markovitz Adjourned for arraignment February 7, 2008 Skilnick Greenall only. Warrant application for Collins adjourned. None on record. Accused states that she has Mr. Markovitz’ available dates. Adjourned for arraignment and for counsel to file report. February 14, 2008 Maltby Both present. Counsel not present, but arraignment report finally filed. Adjourned to case manager to fix trial dates. September 4, 2008 MacDonald Neither appeared.

No appearance Adjourned for Crown to contact counsel. September 5. 2008 Romano Collins (by video), Greenall not present No appearance Adjourned for warrant application for Greenall September 12, 2008 Young Greenall not present No appearance. Crown advises of discussion with Mr. Markovitz about possible conflict Adjourned for warrant application for Greenall September 19, 2008 Lenaghan Neither present No appearance, Crown advises of discussion with Mr.

Markovitz Adjourned for warrant application and trial confirmation September 25, 2008 Ball Collins (by video), Greenall not present None Adjourned for warrant application and trial confirmation October 2, 2008 Hoy Neither present. (Collins no longer in custody) None Bench warrants issue for arrest of both Accused, trial date struck October 31, 2008 Rounthwaite Collins present, Greenall absent Mr. Markovitz present. He states that the reason for the previous non-appearance was due to erroneous advice on his part. Adjourned for Accused Greenall to confirm new date November 6, 2008 J.P.

Holt Greenall absent (Collins not required to attend) None Bench warrant issued for Greenall January 4, 2009 J.P. Dodwell Greenall in custody (Collins not required) None Greenall released January 19, 2009 J.P. Holt Greenall present (Collins not required) None Adjourned for Greenall to contact counsel January 26, 2009 Gardner Neither present at first. Warrant issues for arrest of Greenall, who appears later in the day. Warrant vacated.

None Adjourned to confirm new trial date March 9, 2009 Caryer Greenall present, Collins absent None Trial confirmation adjourned March 18, 2009 Skilnick Greenall present, Collins absent None Trial confirmation adjourned March 25, 2009 Romano Neither present None Trial confirmation adjourned at Crown request April 8, 2009 Caryer Greenall present, Collins absent None Trial confirmation adjourned, bench warrant issued for Collins April 16, 2009 Caryer Neither present, Crown only trial confirmation None Trial confirmed, bench warrant vacated April 24, 2009 Ball Neither present None. Mr.

Markovitz withdraws from the record by letter. Crown given leave to denotify witnesses April 27, 2009 Caryer Neither present at first. Bench warrants issue for both. Warrants vacated later in the day when both Accused arrive.

None Trial adjourned, Accused to get new counsel May 4, 2009 Caryer Accused present None Adjourned for Accused to retain counsel May 21, 2009 Skilnick Both present None Adjourned to fix a new trial date May 27, 2009 Maltby Neither present None Bench warrants issued May 28, 2009 Gardner Both present in custody Duty counsel Accused released on cash bail, adjourned to fix new trial date June 1, 2009 Romano Collins present, Greenall appearing by video None Adjourned to fix new trial date June 4, 2009 Skilnick Both present None Adjourned to fix new trial date June 12, 2009 Gardner Neither present Mr.

Markovitz Adjourned for trial confirmation hearing October 1, 2009 Skilnick Neither present None Trial confirmation adjourned with consent of Crown October 14, 2009 Gardner Neither present None Trial confirmation adjourned with consent of Crown October 21, 2009 Skilnick Both present None, but report filed Trial confirmed, adjourned for trial November 3, 2009 Romano Both present Mr.

Markovitz Guilty plea entered by Accused Greenall, adjourned for sentencing January 19, 2010 Crabtree Both present None Sentence adjourned, pre-sentence report not ready March 19, 2010 Caryer Both present None Sentencing adjourned, pre-sentence report not ready May 21, 2010 Maltby Both present None Sentencing adjourned because counsel unavailable May 25, 2010 Hoy Both present None Sentencing adjourned because counsel unavailable June 22, 2010 Caryer Both present None Sentencing adjourned peremptorily because counsel unavailable

July 21, 2010 Skilnick Both present None Sentencing commenced, but adjourned for application to strike plea [ 6 ] This table illustrates how the Accused have been shown every courtesy in allowing them to obtain counsel. Although the Accused had actually retained counsel, a large number of the adjournments arose because counsel was not present at the vast majority of court appearances and had neither sent an agent to appear for him, or provided the Accused with instructions that would have moved the case along.

Even on many of those occasions when neither the Accused nor counsel appeared, the Crown extended great courtesy in not applying for a warrant. Crown often consented to adjourn the file in order to contact defence counsel. No explanation was put forth as to why counsel for the Accused failed to appear for sentencing on four occasions, even where the transcript suggests that the dates that the sentencing was adjourned to were set with input from the office of the defence counsel as to his available dates. On many of them, the transcript suggests that Mr.

Markovitz was appearing in other courts on the dates set for sentencing. Even when Judge Caryer directed that the sentencing would proceed on the next date, the Accused appeared without their counsel. Mr. Markovitz was not asked about this by either counsel when he testified. Even if one is to give Mr. Markovitz the benefit of the doubt that all of these appearance dates were set without his input as to his availability, he does not appear to have displayed any concern or diligence about setting the sentencing on a date on which he was available.

Time and time again the Accused were put over to fend for themselves. Evidence on the Sentencing Hearing [ 7 ] Mr. Panchmatia called a total of three witnesses in support of his client’s application to strike her guilty plea. The Accused Greenall testified that the alleged offence occurred on property owned by her co-accused, and that while she stayed at that residence for some of the time, her principal residence was with her mother in Coquitlam. On the property on which the alleged marihuana grow operation was found, there are three buildings, two houses and a quonset.

Counsel has referred to the house at the front of the property as the “front house” and the other house, located at the back of the property, as the “target residence.” It was Ms. Greenall’s evidence that, when she lived on the property, she stayed in the front house. She testified that Mr. Collins lived in the target residence.

She testified that she occasionally visited him at the target residence and that she knew that he had a marihuana grow operation at that residence, but that she did not tend to the crop. [ 8 ] She testified that she pled guilty to the offence of production of marihuana because she was advised by her counsel that she could not “beat the charge” and that if convicted, she and her co-accused would go to jail. She testified that if she pled guilty, she was told that the charges against her co-accused would be dropped and that she would get a sentence of probation.

She testified that she was advised to plead guilty and she accepted what Mr. Markovitz told her. She added “I thought I was guilty because I was there when the police came.” [ 9 ] In cross-examination, Ms. Greenall agreed that the entry of her guilty plea was not the product of any coercion. In her words “nobody forced me.” She testified that she pled guilty based on her counsel’s advice. She added that Mr. Markovitz has been her lawyer for 11 years and that he was her counsel on a previous occasion when she pled guilty in 1997 to the offence of possession of cocaine for the purpose of trafficking.

She said that she intended to contest this charge until her lawyer advised her that she had no defence. [ 10 ] Morgan Zazula, the probation officer who prepared Ms. Greenall’s pre-sentence report, gave evidence about his interview in preparation of the Pre-Sentence Report. The report reads as follows, regarding Ms. Greenall’s attitude and understanding of the offence: “Ms. Greenall advised that she was aware that her common law spouse was growing marihuana plants in their residence and that she feels was a minor amount.

She took responsibility for the offence in order to prevent her common law from being sentenced to a custody term just as she states she did for previous boyfriends.” [ 11 ] Mr. Markovitz testified as part of the case for the Applicant. According to the submissions of Mr. Panchmatia, pursuant to a conversation that he and Mr. Markovitz had, a subpoena was left at Mr. Markovitz’ office and Mr. Markovitz would appear in court on the return date of the subpoena despite the lack of personal service, but on the return date, Mr. Markovitz did not attend. The matter was adjourned for personal service on Mr.

Markovitz and he appeared on January 19, 2011 in response to the subpoena to give evidence in this matter. [ 12 ] Mr. Markovitz testified that he believed that he was retained on behalf of both Accused through a legal aid retainer and not a private retainer. He testified that he had obtained a written waiver of solicitor-client privilege from his clients to testify in this matter, and both Accused confirmed on the record that they were waiving any such privilege.

He testified that initially he had concerns that it may have been a conflict of interest for him to represent both Accused, but he satisfied himself that no such conflict existed because “their defence was identical.” He testified that he lost contact with both Accused in the spring of 2009, but re-established contact after they both showed up on what was supposed to be their second trial date. [ 13 ] Mr. Markovitz testified that on November 3, 2009, he met with Crown Counsel Ms. Gill prior to the commencement of the trial that morning.

In the course of those discussions, it was agreed that the Crown would accept a plea of guilty from either of the Accused to either count, whereupon the Crown would stay the charges against the other Accused. Upon receiving this news, Mr. Markovitz testified that he approached his clients and in the course of those discussions, he told them that Ms. Greenall probably would not receive a jail sentence because she had no criminal record. (This was what the Crown had said was its understanding, although Ms. Greenall clearly knew that this was not the case.) There was of course no obligation on Ms.

Greenall to disclose her prior record to the Crown or to the court. [ 14 ] After speaking to his clients, Mr. Markovitz testified that he spoke to the Crown again and understood the position of the Crown to be that if Ms. Greenall pled guilty and if she received a favourable pre-sentence report, the Crown would not oppose the imposition of a conditional sentence order as Ms. Greenall’s sentence. He relayed this news to his clients and told them to talk it over. Mr. Markovitz testified that he never informed his clients that there would be no jail if Ms. Greenall pled guilty. He testified that Ms.

Greenall’s agreement to plead guilty was motivated in large part by the fact that her co-accused would be spared a jail sentence. He testified that “Shelly would not have agreed to plead guilty but for the charges against Greg being stayed.” [ 15 ] Mr. Markovitz testified that he told Ms. Greenall that if she intended to plead guilty, she must admit guilt for committing the offence, even if she was only admitting to the most minor circumstances. He stressed to her that her guilty plea had to be an acceptance of some degree of guilt and asked her if she understood that.

He testified that she told him that she understood this and was willing to plead guilty on that basis. He testified that she had admitted to circumstances on which a finding of guilt could rest. [ 16 ] A transcript of the proceedings shows that Mr. Markovitz waived the formal reading of the information and entered the plea of guilty on behalf of his client. The presiding Judge, Judge Romano, spoke directly to the Accused Greenall, informing her that she had just entered a plea of guilty to a charge of producing a controlled substance. [ 17 ] In his evidence, Mr. Markovitz was critical of Crown Counsel Ms.

Gill, stating that he believed that Ms. Gill had not honoured her agreement. It is difficult to understand how this is in any way a fair criticism of Ms. Gill. At the time of the making of the plea negotiation, Ms. Gill understood that Ms. Greenall had no previous record, when in fact she had two previous convictions for drug offences. Ms. Greenall was aware of this, Ms. Gill was not. Ms. Gill stated on the record, before Judge Romano, that her position on sentence would be formulated “depending on what’s actually in the pre-sentence report.” In my view any criticism of Ms.

Gill’s conduct in this matter is completely without merit. [ 18 ] In cross-examination, Mr. Markovitz testified that he has been a member of the bar since 1993 and that he has practised primarily criminal law in that time and is experienced in the defence of drug offences. At the time of his discussion with the Accused he was very familiar with the case disclosed against them. Based on his knowledge of the case alleged against Ms. Greenall, he had no concerns about her entering a plea of guilty to a charge of production of marihuana. He also testified that he did not observe anything that would suggest that Ms.

Greenall’s guilty plea was the product of any coercion on the part of her co-accused. He testified that he made it clear to Ms. Greenall that she should only plead guilty if she was admitting to some degree of guilt, and that she made it clear to him that she was doing so. Position of the Parties [ 19 ] On behalf of the Accused Greenall, Mr. Panchmatia argues that his client has never acknowledged her guilt in this matter.

At the time of entry of plea the facts on which her plea was based were not canvassed, and if they had been it would have been apparent that it was improper for her to plead guilty because there is no evidence that she had ever done anything more than acquiesce to the presence of the grow operation on Mr. Collins’ property.

[20] On behalf of the Crown, Mr. Price states that by entering her guilty plea after having had the benefit of legal advice from an experienced defence counsel withfull knowledge of the case against her, Ms. Greenall has admitted to the offence. Her plea was not the product of any duress or compulsion and the possibility of adefence does not amount to absence of culpability on the part of Ms. Greenall. Applicable Law [21] In order to constitute a valid guilty plea, the plea must be: (

a) Voluntary (

b) Unequivocal and (

c) Informed. [22] In R. v. J.G.T. 2003 BCCA 1, the court held that the onus is on an accused to show that any of these requirements have not been met. Rowles J.A. wrote (atpara. 17): When seeking to set aside a plea, the appellant bears the onus of establishing that his guilty plea was not voluntary, not informed or not unequivocal. Generallyspeaking, affidavit evidence is required to support such a submission because a guilty plea is presumed to be voluntary. [23] The onus is on the applicant, not on the Crown.

At this stage the applicant has already admitted guilt, and considerations of guilt beyond a reasonable doubt nolonger apply. The reason for this was articulated by Associate Chief Judge Brecknell in R. v. Moore 2004 BCPC 560, where he stated, at para. [22]: To permit accused persons to vacillate between claims of innocence, guilt and renewed claims of innocence would cause great mischief.

It would create chaos in thecriminal justice system if it were permitted to occur regularly because it would interfere with the willingness of Crown to enter into discussions with counsel for theaccused surrounding resolution of outstanding charges. (

a) Voluntariness [24] A plea of guilty that is entered in open court, with the assistance of experienced counsel is presumed to be voluntary unless the contrary is shown. (See R. v.Swanson 2000 BCCA 177 at para. 24). [25] At times a court may have concerns about the voluntariness of a plea because of an accused person’s limited mental capacity. This is not a concern in this case,but when this concern arises, the process best followed is that set out by Laskin J.A. of the Ontario Court of Appeal in R. v.

M.A.W. 2008 ONCA 555 at para. 33 [26] In this case, the voluntariness of this plea is not an issue, because the Accused Greenall is not alleging that her guilty plea was the product of any coercion orthat it was not her voluntary choice to enter the plea. (

b) Unequivocal [27] For a guilty plea to be considered “unequivocal”, it should be clear, plain and capable of being understood in only one way. It is clear from the transcript thatneither the Accused Greenall not Mr. Markovitz expressed any equivocation at the time the plea was entered. Judge Romano also made it clear to this Accused whatoffence she was pleading guilty to. A plea entered in these circumstances will be considered to be unequivocal, as illustrated in R. v. D.W.S. 2008 BCCA 453 at para.20. (

c) Informed [28] In order to enter a valid guilty plea, an accused person must know the relevant facts on which the case against him or her is based. In R. v. Taillefer 2003 SCC70 , [2003] 3 S.C.R. 307, Lebel J. held that non-disclosure of relevant facts by the Crown may entitle an accused to withdraw a plea of guilty. The test is setout by the court in para. 90 as follows: The accused must demonstrate that there is a reasonable possibility that the fresh evidence would have influenced his or her decision to plead guilty, if it had beenavailable before the guilty plea was entered.

However, the test is still objective in nature. The question is not whether the accused would actually have declined toplead guilty, but rather whether a reasonable and properly informed person, put in the same situation, would have run the risk of standing trial if he or she had hadtimely knowledge of the undisclosed evidence, 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 the accused would have run therisk 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. [29] An accused must be aware of the nature of the allegations against him or her, the effect of the plea and the consequences of the plea. An awareness of theconsequences does not mean knowledge of what the result of the sentencing will be. In R. v. Lyons (SCC), [1987] 2 S.C.R. 309, Laforest J. Wrote: 107.

Subsequent dissatisfaction with the "way things turned out" or with the sentence received is not, in my view, a sufficient reason to move this Court to inquire intothe reasons behind the election or plea of an offender, particularly where there is nothing to suggest that these were anything other than informed and voluntary acts;see, e.g., Antoine v. R. (1984), (QC CA), 40 C.R. (3d) 375 (Que.

C.A.) [30] An accused person’s motivation for pleading guilty is generally irrelevant to the question of whether or not that accused has knowingly acknowledged that he orshe was guilty of the offence charged. (See, for example R. v. Raymond 2009 QCCA 808 at para. 100; R. v. Nersysyan 2005 QCCA 606, paras. 6-9; R. v. Hunt 2004ABCA 88 at paras. 15-21.) [31] An exception to this principle exists where such consideration factors into whether or not permitting the plea to stand would result in a miscarriage of justice.(For an example of this, see the comments of Taylor J. in R. v.

Joseph 2000 BCSC 1891 at para. [49].) (

d) Other considerations [32] Section 606(1.1) sets out certain requirements that a court must be satisfied of before taking a guilty plea. I believe it to be the practice of most judges to inquireon the record as to whether each of these requirements have been met in those cases where an unrepresented accused appears before the court. But when a plea isentered by counsel, the judge is not required to make these inquiries on the record. Section 606 (1.2) provides:

(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 the plea. [33] The practice of judges not to make these inquiries where an accused is represented by counsel is an acceptable one. As stated by our Court of Appeal in R. v.J.G.T., supra: [19] The taking of the plea was not done formally but it was done in accordance with the accepted practice in this Province. A plea entered by counsel binds theaccused.

Nothing in the transcript suggests that the appellant's intention was to do anything other than to admit fully his guilt for the offence and to admit thecircumstances of the offence as read out by Crown counsel, with the exception of the qualification that he had not held the complainant upside down.

In the circum​-stances, the judge was not bound to interrogate the appellant before accepting his guilty plea through counsel. [34] The case law suggests that there is one further consideration in determining whether or not a guilty plea should be withdrawn, that being whether or notpermitting the plea to stand would result in a miscarriage of justice. In R. v. Adgey (SCC), [1975] 2 S.C.R. 426, Dickson J. (as he then was) stated thatthere is no exhaustive list of circumstances that support the withdrawal of a guilty plea. In R. v. Sullivan 2004 BCSC 683, Cole J. stated, at para. [38], that the onus is

on an accused seeking to strike a guilty plea to demonstrate that a miscarriage of justice would result if the guilty plea is to stand. In that case, the distinction was notedbetween a miscarriage of justice and an accused who simply wants to make things difficult and “create mischief for the court.” In R. v.

Joseph 2000 BCSC 1891,Taylor J. stated this proposition more succinctly at para. 49: There is an overreaching factor, being that the accused must establish that his plea was wrong and that it would be unjust to uphold the plea. [35] Finally, one other consideration in an application of this nature is the availability of a potentially viable defence to the charge. This appears to be a necessarypre-requisite to the striking of a guilty plea. The existence of a potentially viable defence does not entitle one to have his or her guilty plea struck.

However a pleashould not be struck unless a potentially viable defence is shown to exist. In R. v. Read 1994 BCCA 1 , [1994] BCJ No. 1491 (B.C.C.A.), Legg J.A. wrote (atpara. 43): The appellant is seeking to withdraw a guilty plea on appeal. The trial judge's discretion with respect to accepting guilty pleas should not be interfered with lightly. Anappellate court will only interfere with a guilty plea if the appellant can establish that there are valid grounds for so doing.

There is no evidence to justify theconclusion that the appellant did not appreciate the nature of the charge or the effect of his plea or that his plea of guilty was not a voluntary one. A guilty plea enteredin open court is presumed to be voluntary unless the contrary is proven (R. v. R.T. (1992), (ON CA), 58 O.A.C. 81 (C.A.) at 84. Further, theappellant must establish that his plea was wrong and that it would be unjust to uphold the plea (R. v. Hughes (1987) 76 A.R. 295 (C.A.) at 296.

Finally, the court mustbe satisfied on the evidence before it that the appellant has a defence which if proven could constitute a valid defence (R. v. Adgey (1973), (SCC), 13C.C.C. (2d) 177 (S.C.C.) at 191. In view of the statement of admissions dated January 15th, 1989, I am not satisfied that there is any evidence before us that theappellant has a defence which could constitute a valid defence. (Emphasis added.) (

e) Summary [36] Upon a review of the applicable law, I would summarize the principles which apply in an application of this nature as follows: 1. In order to constitute a valid guilty plea, the plea must be voluntary, unequivocal and informed. 2. A guilty plea is voluntary if it is not the product of any coercion or duress and if there no concerns about the mental capacity of the accused. 3. A guilty plea may be voluntary, notwithstanding that there are concerns about the accused’s mental health, but where such concerns exist, the procedure set out inR. v. M.A.W. should be followed. 4.

A plea of guilty that is entered in open court, with the assistance of experienced counsel is presumed to be voluntary unless the contrary is shown. 5. For a guilty plea to be considered “unequivocal”, it should be clear, plain and capable of being understood in only one way. A guilty plea entered by counsel onbehalf of an accused that meets these criteria can be said to be unequivocal. 6. A guilty plea will be considered to be informed where an accused has been provided with disclosure of the relevant facts on which the case against him or her isbased. 7.

Non-disclosure of evidence prior to the entry of a guilty plea will not in and of itself entitle an accused person to withdraw the plea. The test is whether areasonable and properly informed person, put in the same situation as the accused, would have run the risk of standing trial if he or she had had timely knowledge ofthe undisclosed evidence.

If that analysis can lead to the conclusion that there was a realistic possibility that the accused would have run the risk of a trial, if he or shehad been in possession of that information or those new avenues of investigation, leave must be given to withdraw the plea. 8. Being informed prior to the entry of a guilty plea does not only include knowledge of the evidence against the accused, it also requires that an accused is aware ofthe effect of the plea and the consequences of the plea. An awareness of the effect and consequences does not mean knowledge of what the result of the sentencing willbe. 9.

The onus is on an accused seeking to strike a guilty plea to demonstrate that a miscarriage of justice would result if the guilty plea is to stand. If this onus is met,the plea should be struck. 10. No miscarriage of justice exists where it appears that an accused is applying to set aside a guilty plea for the purposes of “making mischief”, i.e. to beobstructionist, to postpone sentencing or because the accused is dissatisfied with the outcome of the proceedings. 11.

Generally speaking, an accused’s motive for entering the guilty plea is irrelevant to the question of whether or not a guilty plea should be set aside, unless thatmotivation is relevant to the issue of whether or not a miscarriage of justice would occur if the guilty plea is permitted to stand. 12. Where an accused is not represented by counsel, a judge should be satisfied that the requirements set out in section 606(1.1) of the Criminal Code are met beforea guilty plea is accepted.

But if an accused is represented by counsel, a judge may presume that counsel has canvassed these requirements with an accused andrepresents, by the entry of the guilty plea, that they have been met, unless there is good reason to suspect that this is not the case. 13. Before a guilty plea can be struck, the court must be satisfied that the accused has a defence which if proven could constitute a valid defence. Analysis [37] On the evidence presented, I am satisfied that when the Accused Greenall entered her guilty plea before Judge Romano on November 3, 2009, the plea wasentered voluntarily.

She admits herself that she was not coerced, pressured or threatened to enter this plea by anyone. Nothing in the evidence suggests that she did nothave an operating mind at the time the plea was entered, and her counsel does not suggest that the plea was not made voluntarily. [38] I am also satisfied that the plea was unequivocal. This is clear both from the transcript of proceedings before Judge Romano and from the discussion that theAccused had with her counsel prior to entry of the plea. It was the evidence of Mr. Markovitz that he was careful to explain to Ms.

Greenall that by pleading guilty shewas admitting to some degree of guilt and that she acknowledged her guilt to him. [39] I am satisfied that the plea was entered following full disclosure of the Crown’s case. No complaint of non-disclosure has been made by Ms. Greenall. I amalso satisfied that the plea was entered after she had been informed by her counsel of the consequences and possible outcomes of sentence. Mr. Markovitz testified thathe explained to Ms. Greenall why he thought that a community based sentence was a probable outcome for her. He explained that this was based on the erroneousbelief that Ms.

Greenall had no previous criminal record, something that she clearly knew was not true. Mr. Markovitz also testified that he was careful to instruct hisclient that a jail sentence was a possible outcome and that he could not guarantee any result for her. [40] The evidence does not suggest that any miscarriage of justice would occur if the guilty plea is permitted to stand. Any miscarriage of justice would occur if awrongful conviction would result. Mr. Panchmatia suggests that this is what would happen here if the guilty plea was not struck because Ms.

Greenall claims to have avalid defence, i.e. that she never participated in the production of this marihuana. She had knowledge of its existence, but did not help produce it in any way. [41] The difficulty with this however is that her evidence is in conflict with that of Mr. Markovitz. It is his evidence that this conflicts with what Ms. Greenall toldhim prior to the entry of the guilty plea. He testified that he was conscientious in making certain that Ms. Greenall was admitting to some degree of guilt before the pleawas entered.

He also testified that on the evidence, one plausible outcome of a trial would have been a conviction being entered against both of his clients. [42] I agree that there is good reason to be concerned about the quality of representation that Ms. Greenall received from Mr. Markovitz. However these concernsare primarily about Mr. Markovitz’ appearing in court when he was supposed to, not about the quality of his advice. Given Mr, Markovitz’ experience as counsel andin defending drug matters, it has not been shown that he provided bad legal advice, or that any decisions made by Ms.

Greenall were based on incompetent or incorrectlegal advice.

[ 43 ] It is clear from the evidence of Mr. Markovitz that Ms. Greenall was quite content to admit guilt when she believed that a jail sentence was not in the cards. She changed her mind only when the Crown changed its position upon discovery of her previous record. The evidence of Mr. Markovitz satisfies me that Ms. Greenall understood that by pleading guilty she was admitting that she committed this offence and that when pointedly asked by Mr. Markovitz if she was admitting her guilt in this matter, she agreed that she was.

On these facts, no miscarriage of justice can be said to exist if the plea is permitted to stand. The burden of establishing this rests with Ms. Greenall on a balance of probabilities. On the evidence of Mr. Markovitz (called as part of Ms. Greenall’s case), that burden has not been met. [ 44 ] I have considered the motivation on the part of Ms. Greenall in entering her guilty plea. It is obvious that one factor for her plea was so that charges against he co-accused would be stayed. This motivation is not relevant to this application because it not a part of any miscarriage of justice.

Her desire to change her plea is based on prospective outcome, not on an absence of guilt. The snail’s pace with which this matter has proceeded is indicative of someone wanting to, in the words of R. v. Joseph , “make mischief”, as opposed to someone asserting their bona fide innocence. Ruling [ 45 ] For the foregoing reasons I am satisfied that Ms. Greenall’s plea of guilty was properly made. The onus is on her to show why her guilty plea should be struck. She has not met that onus and her application to strike her plea is dismissed.

Dated at the City of Abbotsford, in the Province of British Columbia, this 7 th day of February, 2011. _______________________ K. D. SKILNICK, P.C.J.