R. v. Crowe, 2023 BCPC 192

Citation: R. v. Crowe 2023 BCPC 192 Date: 20230621 File No: 68150-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DAVID FRANCIS CROWE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: Ms. E. McCormick Counsel for the Defendant: Mr. P. McMurray Place of Hearing: North Vancouver , B.C. Date of Hearing: May 9, May 10, and June 16, 2023 Date of Judgment: June 21, 2023

A. Introduction: [ 1 ] On December 8, 2021, David Crowe entered guilty pleas to two counts of fraud on a nineteen count indictment. By way of application filed on October 20, 2022, he now seeks to withdraw those pleas. [ 2 ] The issue here is whether he should be permitted to do so. Given that his application is brought prior to his being sentenced, I have discretion to grant the relief he seeks. That discretion must be exercised judicially.

This requires a determination of the veracity of his claim that his guilty pleas were invalid, because – despite his saying in open court that they were voluntary - they, in fact, were not. Given that his subjective state at the time of the pleas is at issue, his credibility is a key factor here. [ 3 ] The materials filed on the application are: i. Transcript of court proceedings – Dec. 8, 2021; ii. Affidavit of David Crowe; iii. Affidavit of Deborah Crowe, Mr. Crowe’s mother; iv. Affidavit of Richard Crowe, Mr. Crowe’s father; v. Affidavit of Michael Klein, KC, Mr.

Crowe’s former lawyer. [ 4 ] No affiant was sought to be cross-examined. David Crowe was the only witness on the application: He testified in direct and was cross-examined on that evidence and on his affidavit. [ 5 ] The cases relied on by the parties as setting out the law on this application are: R. v. Klassen , 2023 BCCA 103 ; R. v. Wong , 2018 SCC 25 ; R. v. Alec , 2016 BCCA 282 . The Crown also provided R. v. Adamec , 2021 BCSC 1831 ; R. v. Salai , 2007 ABCA 30 ; R. v.

Tayongtong , 2021 ONCA 281 , as a result of my questions relating to the use to which I could make on this application of my observations of Mr. Crowe at the time he entered the pleas. Finally, I have considered R. v. Singh , 2014 BCCA 373 ; R. v. Gates , 2010 BCCA 378 and R. v. Smith , 2023 BCCA 236 , and had the benefit of counsels’ written submissions on those cases. [ 6 ] The court file contains the Record of Proceeding and a voir dire Ruling from an unsuccessful challenge by Mr.

Crowe to the sub-facial validity of a search warrant executed in the investigation underpinning the charges. [ 7 ] Below, I set out the Parties’ positions; the file background; the applicable legal principles and then turn to a consideration of the evidence on the application in the context of those principles. The Parties’ Positions: [ 8 ] Mr. Crowe says that his guilty pleas were not voluntary, in that he had no realistic choice but to plead guilty, given his financial reliance on his parents and pressure from them to resolve the case; given Mr.

Klein’s advice and position, and, finally, given his mental state, due, in large part, to his use of cocaine and methamphetamine. [ 9 ] He does not argue that the plea inquiry conducted on December 8, 2021 pursuant to s. 606(1.1) of the Criminal Code was inadequate. Nor does he describe Mr. Klein, KC, as anything other than an experienced and highly capable criminal defence lawyer; he does not allege anything akin to ineffective assistance of counsel. [ 10 ] The Crown says that Mr.

Crowe has failed to establish, with reliable and credible evidence, that his guilty plea to two of the nineteen charges he faced, was anything but ‘voluntary’ within the meaning of the Criminal Code . The Crown notes that a guilty plea made in open court is presumed valid and says that Mr. Crowe has failed to displace that presumption with reliable and credible evidence. B. Background: [ 11 ] Information 68150 was sworn on August 8, 2020, charging Mr. Crowe with 6 counts of fraud, (s. 380(1) of the Code ); 6 counts under s. 403(1)(

b) of the Code ; 4 counts under s. 402.2(1); and a count each under s. 355(a), s. 342(1)(c.) and s. 376(2)(b). The charges proceeded by way of indictment. [ 12 ] The Record of Proceedings shows that Mr. Crowe was in custody at his first court appearance on these charges, on August 12, 2020. It also shows that he was represented by Mr. Klein that day. [ 13 ] After multiple appearances in custody, Mr. Crowe was released on bail on April 30, 2021.

He was arraigned on that day, as well: He elected trial by Provincial Court Judge and entered pleas of not guilty to all of the charges. [ 14 ] As is the Court’s current practice, pre-trial conferences were conducted, off the record, before judges other than the trial judge: The first pre-trial conference was on December 22, 2020, before Mr. Crowe was arraigned; according to the Record of Proceedings, Mr. Klein appeared on his behalf at the pre-trial. The second pre-trial conference was on June 3, 2021. The Record of Proceedings does not indicate who appeared for Mr.

Crowe on that date and while there is no record of the conference, on October 18, 2021, Mr. Klein stated that the file had been “pre-trialled to death.” [ 15 ] October 18, 2021 was the first day of a voir dire in this matter, arising from Mr. Crowe’s application to challenge the sub-facial

validity of a search warrant issued in the investigation underpinning the charges. The search warrant in question had been executed at Mr. Crowe’s parents’ home in May, 2019. That voir dire proceeded on October 18, 19 and 21st. Mr. Crowe was present throughout. [ 16 ] During that voir dire , Mr. Klein stated that he had secured from the Crown a significant concession on behalf of Mr. Crowe, about a Charter breach in relation to the facial validity of the warrant, which would be subject of a later argument under s. 24(2) of the Charter. [ 17 ] On November 17, 2021 I ruled that Mr.

Crowe had not established a breach of s.8 of the Charter in relation to the search warrant grounds; consequently, his application on the voir dire was dismissed. [ 18 ] After that voir dire ruling, the next anticipated step was to move to a hearing under s. 24(2) of the Charter to determine the admissibility of evidence gathered, in light of the conceded Charter breach by means of an error on the face of the warrant. That was set to begin on December 8, 2021. The trial proper was scheduled to begin on January 4, 2022. [ 19 ] Instead, Mr. Crowe entered the two guilty pleas at issue here on December 8th. [ 20 ] Mr.

Crowe was present at that appearance, in open court, in person, as was Mr. Klein. According to affidavit evidence, Mr. Crowe’s father, Richard Crowe, was also in attendance at court with his son. [ 21 ] Mr. Klein addressed the Court following the calling of the case by Crown counsel, advising of Mr. Crowe’s intention to change his pleas to counts 1 and 5. I then conducted a s. 606(1.1) inquiry, asking Mr. Crowe, in relation to his decision to plead guilty to Count 1, “So is your intention to plead guilty, is that voluntary? Nobody is pressuring you?” To which Mr. Crowe replied, “Yes.” [ 22 ] In relation to Mr.

Crowe’s stated intention to plead guilty to count 5, the following exchange occurred: “So same question. That’s a voluntary decision to plead guilty?” Mr. Crowe replied, “Yes.” [ 23 ] Following the s. 606(1.1) inquiry, Mr. Crowe entered a guilty plea to counts 1 and 5 in his own voice. [ 24 ] Mr. Klein stated that a bit of time was needed, in order to “put some restitution together,” which he anticipated would be ordered at sentencing. Counsel advised it would be a joint submission. The case was adjourned to December 14 th for the Judicial Case Manager to

schedule a 30 minute sentencing hearing. [ 25 ] The sentencing was initially set for January 10, 2022. I was unexpectedly unavailable that date. It was then set for March 18, 2022. Due to Mr. Crowe’s unavailability, it was then adjourned to April 26, 2022. He discharged Mr. Klein on or about April 25th. [ 26 ] The Record of Proceedings shows that Mr. Klein withdrew as counsel of record on April 26, 2022 and sentencing was adjourned, with a new time estimate of one hour. On May 17, Mr. Crowe next appeared for the purpose of advising the Court that he had retained new counsel.

He made three appearances with different counsel, on May 26, 31 and June 16; appeared without counsel twice and, ultimately, retained Mr. McMurray, who began appearing on his behalf as of August 22, 2022. C.

The Law: [ 27 ] A guilty plea must be voluntary, unequivocal and informed; (see: Wong , para. 3 ). [ 28 ] A guilty plea made in open court is presumed to be voluntary, unless the contrary is shown; (see: Alec , para. 72 ). [ 29 ] A voluntary guilty plea is “the product of an accused’s conscious, volitional decision to plead guilty for reasons which he or she regards as appropriate;” (see: Alec , para. 72 ). [ 30 ] Society has a strong interest in the finality of guilty pleas: their finality is “important to ensuring the stability, integrity, and efficiency of the administration of justice;” (see: Wong , para. 3 ; see, also: Alec , para. 78 ). [ 31 ] Until sentence is imposed, a trial judge has the discretion to allow an accused person to withdraw their guilty plea.

That discretion must be exercised judicially; (see: Alec , para. 74 ). [ 32 ] At paragraph 77 of Alec , the Court sets out factors to consider on such an application. These are discussed below in these Reasons. [ 33 ] Delay is a factor; (see: Alec , para’s. 78 & 79). [ 34 ] The inquiry is into the subjective judgment of Mr. Crowe at the time; it involves a credibility assessment of Mr.

Crowe’s claims of involuntariness, measured against “…objective, circumstantial evidence to test its veracity against a standard of reasonable possibility;” (see: Wong , para. 26 ). [ 35 ] In Wong the accused sought to withdraw his guilty plea on the basis that it was uninformed, in that he did not appreciate the immigration consequences attendant on the plea. In that context, the Court stated: [29] …Because the original guilty plea is an exercise of the accused’s own subjective judgment, it logically follows that the test for withdrawing that plea should also be directed to the accused’s subjective judgment.

This approach properly balances society’s interest in the finality of guilty pleas and fairness to the accused by striking the accused’s plea only where he or she would have proceeded differently. D. The Evidence: i. Admissions and denials of guilt

[ 36 ] In his affidavit filed on this application, Mr. Crowe avers: I deny the allegations made by in support of counts 1-19 of Information 68150 and want to have a trial so that I can properly defend myself against these charges. [ 37 ] During cross-examination, it was put to Mr. Crowe that he had told Mr. Klein that he committed the crimes set out in the Information. Mr. Crowe testified, in reply, “No, I did not…” He testified to the effect that as a result of his multiple conversations with Mr. Klein, Mr. Klein assumed that because Mr.

Crowe associated with people involved in the crimes, that he had committed them. He testified that he told Mr. Klein that he “did not do it.” [ 38 ] In contrast, Mr. Klein avers in his affidavit that “…there was no doubt that Mr. Crowe told me about his involvement in the offences and he had no answer to the allegations that could raise any sort of defence,” (see: para. 17); and “…Mr. Crowe advised me that he committed the offences,” (para. 22), and “…given Mr. Crowe’s instructions to me about his guilt, Mr. Hammond’s purported evidence would be useless to Mr.

Crowe’s defence,” (para. 31(a)). [ 39 ] Exhibit D to Mr. Klein’s affidavit is an email from Mr. Klein to Mr. Crowe sent on December 3, 2021 at 11:39 am. The message includes: David, I cannot take instructions that are clearly contrary to the facts. As I stated, there is no exculpatory evidence. Ethically, I cannot suggest otherwise or even ask. You have admitted to me your participation in these offences. Whether something was said or not is irrelevant. It cannot be true. (My underlining). I think it is easily explained by your addiction and a delusion.

I cannot and will not take your instructions to question the constable on something I know is not true. You may wish to consider hiring someone else for that. Please let me know your instructions. [ 40 ] Exhibit D also includes a string of emails, forwarded to Mr. Crowe by Mr. Klein on November 30, 2021 at 11:30 am; the email string is comprised of messages between Mr. Klein and Mr. Weinstein, an Ontario lawyer retained by Mr. Crowe to defend him against charges arising in Ontario. That email string contains the facts the Crown in this case proposed to put before the Court on sentencing following Mr.

Crowe’s guilty pleas. [ 41 ] The proposed facts set out in the email can be fairly described as ‘bare bone’ facts establishing that in February, 2019, Mr.

Crowe obtained a bike from MEC, using someone else’s credit card, without their permission, to MEC’s detriment in the amount of $6247.50; that he tried to do that again, but was foiled; that in March, 2019, he obtained furniture using credit cards in two other people’s names, whose permission he did not have to do so, to the detriment of the furniture shop in the amount of $9,128. (Restitution is referred to as being $6,247.50 to MEC; $9,128 to the furniture shop; total: $15,375.50). [ 42 ] Also in Exhibit D is Mr. Crowe’s reply to Mr.

Klein, emailed 90 minutes after these messages – including the proposed facts – were sent to him. In his reply, Mr. Crowe writes: Michael, none of those facts are what I am worried about .

Please tell me if admiring (sic) to those facts also had the following fallout…. (I read “admiring” to be intended to be “admitting” and the underlining is mine). [ 43 ] He then sets out his cogent and fairly complex queries as to the impact admitting the proposed facts would have on what he believed to be current, ongoing investigations into much larger frauds, (where he was the RCMP’s suspect), with particular regard to a phone number found in the challenged search warrant Information to Obtain. [ 44 ] Exhibit E to Mr. Klein’s affidavit is an email from Mr.

Crowe, sent on December 6, 2021 at 3:34 p.m., in which Mr. Crowe writes: “I understand that if the police have this information it isn’t exculpatory of all charges and wouldn’t ask you to suggest that…” (my underlining). [ 45 ] The emails discussed above are documents made contemporaneously to the events under consideration. Mr. Crowe did not reply to Mr. Klein’s December 3 rd email, along the lines of, “No, I did not admit to you my participation in these offences,” or anything of the kind.

He was not concerned about the proposed facts outlining his commission of a fraud and attempted fraud against MEC, and a fraud against the furniture company; he had different concerns, which he stated. It is clear that he was not shy about challenging Mr. Klein or pursuing issues of particular interest to him; if he had disagreed with Mr. Klein’s description of his instructions about admitting his participation in the offences or outlined facts, I am satisfied he had the wherewithal to say so. There is no evidence that he did. [ 46 ] Mr. Klein was not cross-examined on his affidavit.

He is a respected, senior member of the criminal defence bar. The contemporaneous emails are consistent with his affidavit averments. Where his evidence differs with Mr. Crowe, I prefer Mr. Klein’s evidence. [ 47 ] Mr. Crowe’s testimony, before this Court, that he did not admit to Mr. Klein that he committed the offences is not supported by any independent evidence, but, rather, is inconsistent with the available relevant objective evidence. It is not believable and I afford it no weight at all. I find that Mr.

Crowe has lied about this in an effort to persuade the Court that his application to withdraw his guilty pleas should be granted.

ii. Instructions re: Plea Agreement [ 48 ] Mr. Crowe testified that he repeatedly told Mr. Klein that he did not want to accept the plea offer. Mr. Klein says that, as well, in his affidavit. [ 49 ] Emails in evidence between the two reflect that Mr. Crowe told Mr. Klein not to accept the offer; to proceed to trial, with Mr. Crowe’s apparent focus being on obtaining disclosure about a possible police agent. [ 50 ] However, Mr. Klein avers that these various discussions and instructions all occurred prior to Mr.

Crowe’s accepting his advice that a “plea was the best option and agreed to the plea proposal and the agreed upon facts supporting the plea.” He avers that he confirmed those final instructions by email. [ 51 ] On December 7, 2021, the morning before the s. 24(2) application was to start, Mr. Klein sent an email to Mr. Crowe at 9:32 a.m. confirming Mr. Crowe’s instructions that he “wish[es] to plead guilty to the facts that I have provided to you…. When you enter the pleas, the judge will ask if you are doing so voluntarily and that you are not being coerced into pleading.

I assume you will say you are voluntarily pleading…” [ 52 ] Mr. Crowe did not write back to Mr. Klein and explain that he was not voluntarily pleading guilty; he testified that he did not tell Mr. Klein that his pleas would not be or were not voluntary. [ 53 ] As noted, the plea instructions were not given on the eve of trial, with the attendant pressure that that might entail; rather, December 8th was an appearance set for Mr. Crowe to pursue a Charter application if he wanted to: the trial was set to begin some three weeks later, on January 4th. iii.

Events after the Pleas and Timing [ 54 ] Despite testifying here to the effect that his guilty pleas on December 8 th were not voluntary, after those pleas and before discharging Mr. Klein, Mr. Crowe took steps to pay the restitution which counsel anticipated would be ordered at his sentencing on the two counts to which he had plead guilty. Mr. Klein mentioned payment of restitution in Mr. Crowe’s presence, in open court, following his pleas, on December 8th: Mr. Klein avers that restitution was paid. [ 55 ] I find that Mr.

Crowe’s taking the non-compelled step of making restitution is inconsistent with his current position that his guilty pleas to the two offences (both of which include an element of deprivation of others by fraudulent conduct), were invalid because they were not pleas voluntarily made. [ 56 ] After the January 10th sentencing did not proceed, Mr. Klein and Mr. Crowe had various phone conversations and emails about resetting the sentencing date; central to these discussions was the stage of Mr. Crowe’s Ontario prosecution, as a conviction there would likely adversely impact Mr. Crowe’s results here, in Mr.

Klein’s view. Mr. Crowe’s affidavit includes as exhibits three emails from him to Mr. Klein on February 1, 2022; nowhere in any of these communications does he mention that his pleas on December 8th were not voluntary; he does not address the pleas at all, but directs his full attention to the sentencing issues in the Ontario case. [ 57 ] While Mr. Crowe testified to the effect that he could not stand up to Mr. Klein and his father, in relation to the pressure he says they were bringing to bear on him to plead guilty, I find that these February 1, 2022 emails to Mr. Klein belie this. [ 58 ] Mr.

Crowe did not file an application to withdraw his guilty pleas before the sentencing date, ultimately set for April 26, 2022. There is no reliable, credible evidence consistent with Mr. Crowe’s professed discontent with the state of the pleas, or with their being anything but voluntary and valid, from December 8 th until Mr.

Klein’s discharge. [ 59 ] To the contrary, the restitution payment is consistent with his arranging affairs in anticipation of sentencing following his guilty pleas, in the ordinary course, and the three emails he authored, after delay of the sentencing, are completely lacking any evidence of concern about his pleas. The delay in sentencing gave him a further opportunity to raise the issue with counsel, but he never did. [ 60 ] Mr.

Crowe had no satisfactory explanation for there being no evidence of his raising even a spectre of concern about the voluntariness of his guilty pleas, for which he was preparing for sentencing, over the four following months, despite continuing to deal with his lawyer. iv. No Lawyer [ 61 ] Mr. Crowe testified that Mr. Klein told him that if he did not plead guilty, he would not represent him anymore and that, in his mind, he had no access to other lawyers; that if he did not plead, he would not have a lawyer. [ 62 ] I find that the evidence surrounding his retaining Mr. Klein is relevant here. [ 63 ] Mr.

Crowe testified that his father had arranged for Mr. Klein to represent him, as a result of his dad’s connections at his golf club. [ 64 ] Similarly, Richard Crowe avers that he “took steps to retain Michael Klein KC on David’s behalf after he was charged,” which was August, 2020. [ 65 ] Mr. Klein’s evidence is different: Mr. Klein says that Mr. Crowe retained him in May, 2019. I note that the search warrant challenged and subject of the Charter challenge was executed at Mr. Crowe’s parents’ home on May 7, 2019, proximate to when Mr. Klein says Mr. Crowe sought his services; this makes sense.

It also undercuts the idea that Mr. Crowe somehow relied on his father to organize his legal representation and eliminates any spectre that Mr. Crowe, himself, was somehow ill-equipped to get himself a lawyer.

[66] Both Richard and Deborah Crowe aver that they have “provided financial support for David’s legal expenses since he has beenon judicial interim release…” (April 30, 2022). Neither says that they are paying all of his legal fees. Further, I infer from this languagethat Mr. Crowe had other resources available to him, and managed to secure counsel on his own, without their involvement or finances,as of May, 2019. [67] Mr. Klein avers that that he did tell Mr.

Crowe that if he wanted to proceed to trial, (pursuing disclosure with no defence, in Mr.Klein’s view), he was “free to secure new counsel,” given, as well, that in Mr. Klein’s view, the counts in the proposed plea agreementwere easily proven and Mr. Crowe’s instructions were no longer rational, in that he did not care about the negative consequences ofproceeding to trial, (para. 24, Klein affidavit). Mr. Klein notes that Mr. Crowe was unemployed at the time and, thus, Mr.

Klein“believe[s] he would have been eligible for legal aid should he have wished to retain new counsel,” (para. 30, Klein affidavit). [68] I accept as likely, as stated by Mr. Klein, that given that Mr. Crowe was unemployed and faced indictable fraud charges, hewould likely have been able to obtain counsel through Legal Aid. While Mr. Crowe says that he thought he would have no lawyer if Mr.Klein ceased acting for him–and that he would not have a lawyer if his parents stopped paying for one–that evidence must be consideredin context: Mr.

Crowe is not a neophyte to the criminal courts: he has managed to retain counsel in Ontario and in BC; he has been inpre-trial custody, for months, in a setting where he would likely interact with others dealing with counsel representation issues. He wouldhave been given the Brydges warning upon arrest, and thus told that legal aid was available; (see: R. v.

Brydges, (SCC), [1990] 1 SCR 190). [69] As pointed out by the Crown, while he is clearly used to his parents providing him money for his wants and needs, (despite beingin his forties), he has found the wherewithal and means to secure current counsel on this application. I do not accept his testimony that hethought that if Mr. Klein ceased to act, he would be without a lawyer facing these serious charges. [70] When I consider all of the evidence on this hearing, I conclude that it is not likely that it is true. v. Direct evidence relating to ‘voluntariness’ [71] I note that Mr.

Crowe testified that he was “forced” to live with his parents in BC, given what had occurred in relation to Rehab;that his family held the purse strings. He testified that they “forced him to Rehab.” He testified that he “had to go back to live with hisparents….” That his father “has no choice but to support him”…. [72] He testified that “on pain of death,” he would have denied using drugs when residing at a sober house in Nanaimo paid for by hisparents.

Given his other evidence, I understand this to be an admission that he would have lied about his using drugs, to avoid theunpleasant consequences of his parents realizing that he was using drugs when they were paying for housing with the understanding thathe was clean and sober. [73] He also testified that “till my dying day, I will feel like I was forced to do it; had no choice,” in reference to his guilty pleas. [74] In cross-examination, Mr. Crowe was asked if he lied when he said “yes,” that the guilty pleas were voluntary, during the pleainquiry in open court.

He testified: “I still don’t like the word lie… In recovery you can’t… I didn’t think it was a lie… I didn’t think Ihad a choice; I apologize… I said what I said; … I didn’t mean it; I wish you could understand the pressure I was under.” [75] Earlier, he testified to the effect that he was in a “pressure-cooker” in the courtroom with Mr.

Klein on one side and his father onthe other, believing that, (as a result of his email sent to himself earlier), he had made clear that something untoward was occurring in thecourtroom at the time and the police would intercede, thus preventing his invalid guilty plea from being accepted. Given my findingswith regard to the other evidence on this application and my findings, particularly, in relation to Mr. Crowe’s sophistication, hisdishonesty with regard to his instructions to Mr.

Klein and the lack of evidence of impairment, I do not accept his evidence that hisdecision to advise the Court that his pleas were voluntary was the result of anything other than his independent volition. vi. Mr. Crowe’s drug use/impairment/state of mind [76] According to Mr. Klein, Mr. Crowe retained him in May, 2019. As discussed above, I find that that is so. [77] Mr. Klein avers that “[w]hen Mr. Crowe first came to me, he was in the throes of a drug addiction. I understood Mr. Crowe to beaddicted to methamphetamine.

He had been dealing with the addiction for many years and when I first met him, to me the signs ofaddiction were obvious. As well, his father confirmed Mr. Crowe’s struggles,” (Klein affidavit, para. 12). [78] Given that he was first retained in May, 2019, I conclude that that is when Mr. Klein first met Mr. Crowe and when he observedhim to be in the throes of drug addiction. [79] According to Mr. Crowe, he had been in rehabilitation since May 2019. [80] Mr. Klein states that at some point he believed that Mr. Crowe was manifesting psychological impairment, based on his tellingMr.

Klein that he had been followed to their meeting; that his computers–and possibly Mr. Klein’s computer–were compromised and thathis parents’ residence, (where he lived), was “bugged.” Mr. Klein states that he concluded that Mr. Crowe was suffering from “someform of psychosis with some delusional paranoia,” but was of the view that he was still able to rationally discuss the offences andprovide instructions, (Klein affidavit, para. 16). None of these observations of Mr. Crowe are said to have occurred on the morning ofDecember 8, 2021. [81] There is no evidence in Richard Crowe’s affidavit relating to signs of Mr.

Crowe’s drug use shortly before or on December 8th,nor any evidence relating to Mr. Crowe’s having an impaired operating mind of any kind around that time, in his father’s view (Mr.Crowe had lived with his parents for many months, in compliance with bail terms). [82] Similarly, there is no evidence in Deborah Crowe’s affidavit about observations giving rise to concerns about Mr. Crowe’s

mental state leading up to December 8th or on that date. [83] A number of the emails sent by Mr. Crowe to Mr. Klein are complex, detailed, sophisticated in thought and cogent. They are notramblings or consistent in any way with impairment of thought or judgment, apart from his own reference to being delusional, but givenmy concerns about Mr. Crowe’s penchant for manipulating this process, arising from other evidence here, I put no weight on thosereferences. [84] Turning to the December 8th court appearance, nothing in Mr.

Crowe’s presentation, affect, speech pattern, behavior, or anyother aspects of demeanor gave rise to any concern, whatsoever, as to whether he had an operating mind; understood the questions; wasappropriately and adequately engaged in the exchange. If there had been any sign at all, that he was impacted by substance, fatigue,limited cognition or the like, the plea process would have stopped. The fact that it proceeded is consistent with there being no basiswhatsoever of any concern in that regard. [85] Further, the Court had the assistance of experienced defence counsel representing Mr.

Crowe and nearby him, during thisimportant stage of the proceedings. He raised no concern as to his client’s capacity to engage in the proceedings that day, as well. [86] Mr. Crowe did not present in any way in a manner unusual upon leaving the body of the courtroom that day. [87] As was the case in Singh, no expert evidence was led here with regard to Mr. Crowe suffering any kind of impairment onDecember 8th that impacted his ability to make a voluntary decision to plead guilty or not. In Singh, the court observed: [37] …Mr.

Singh’s assertions about his impaired mental state are not supported by any expert evidence, are refuted by his trial counseland are not corroborated by the affidavit evidence of his uncle. In my view, he has failed to establish that his cognitive functioning fellbelow the modest threshold for understanding his guilty plea. [88] While here, I appreciate that Mr.

Crowe is saying that there was a constellation of factors that led to the pleas being involuntary,one of those factors, as I understand it, is his asserted heavy drug use at the time, including his smoking methamphetamine on the ferrybefore court on December 8th, and attendant adverse impacts on his brain functioning, having regard to his assertion of delusions andconcerns seemingly indicative of paranoia. However, there is no independent, objective reliable evidence that corroborates Mr.

Crowe’stestimony of being under the influence of drugs on December 8th or being adversely impacted by consumption then or on December 7th,when he instructed Mr. Klein that he would accept the plea deal. I put no weight on his uncorroborated evidence in that regard. [89] Having considered all of the evidence on this issue, I conclude that there is insufficient reliable and credible evidence about Mr.Crowe’s being impaired to support a reasonable possibility that mental impairment adversely affected his ability to make a voluntarydecision about pleading guilty on December 8th. vii. Mr.

Crowe’s sophistication [90] I find that Mr. Crowe, at 42, is sophisticated in relation to criminal court matters. [91] In his email to Mr. McMurray sent on October 10, 2022, he describes five (5) days being set for trial by Mr. Klein and Crowncounsel “…which is way too short and gets them in under 18 months…..” I understand Mr. Crowe, here, to be referring to the reasonabletime to trial limit set in the Supreme Court of Canada decision R. v. Jordan, 2016 SCC 27 , [2016] 1 SCR 631, with regard totrials in a Provincial Court setting. In an email to Mr. Klein on December 3, 2021, Mr. Crowe instructs Mr.

Klein to ask the investigatingofficer if he is aware of any “CI” used to gather information about him; I understand “CI” to refer to “confidential informer.” He instructsMr. Klein, repeatedly, to pursue information about a person he believes is a police agent, in the face of foregoing the plea deal. [92] He outlines the possible factual nexus between a phone number set out in the search warrant affidavit subject of the voir direruling in relation to matters which he believes to be still under investigation; (see: Exhibit D to Klein affidavit). [93] On November 22, 2022, Mr. Klein advises Mr. Weinstein, (Mr.

Crowe’s Ontario lawyer), that Mr. Crowe has “some hope thatbecause we will need more time, we may run into a Jordan issue.” Mr. Crowe has concerns about how this plea deal in BritishColumbia might affect the Ontario charges. These considerations are the considerations of a person familiar with and well-versed incriminal law considerations. [94] In the December 3rd email to Mr. Klein, Mr. Crowe writes that while he could survive a year or two in jail, “the same cannot besaid for a relapse,” so he must put his mental health first by pursuing the police agent issue.

He also writes that he has concluded that hisprimary objective is to “deal with issues in my life regarding drug induced delusion and my denial of it…” [95] However, according to Mr. Crowe’s affidavit, in or about May 2020, he had already relapsed and was using drugs again. Hetestified that despite living at a ‘sober’ house upon leaving Edgewood Treatment Centre in April, 2021, he was again using drugs. Hetestified that by December 7th–just four days after his email referring to a risk of relapse–he had progressed from smokingmethamphetamine to injecting it. In his email to Mr.

McMurray on October 10, 2022, he writes: “As I mentioned at the time I had beenout of rehab for 6 months, but there had been a few slips. I don’t know what role that played if any, but at the time I didn’t thin (sic) I hadany choice….” [96] In light of these other statements, Mr. Crowe’s December 3rd email about wanting to avoid a relapse makes no sense; accordingto the other things he has said, he had already relapsed. [97] I note that that December 3rd email begins: “Given your analysis my father and I agree that it is legally advantages [sic] to takethe plea.… “ [98] Mr.

Klein describes the evidence seized pursuant to the search warrant as showing “a sophisticated scheme to create and obtainfalse identities and credit cards,” (para. 7, Klein affidavit). That was Mr. Crowe’s sophisticated scheme. The evidence in the case also

included “high resolution video that easily identified Mr. Crowe involved in a fraudulent transaction and then an attempted transaction and another count involving a chair purchase for which there were witnesses;” (para. 10, Klein affidavit). viii. Other [ 99 ] In his email to Mr. McMurray, Mr. Crowe writes that “Klein pulls Preston Hammond up on his computer and exactly a year from when Preston claims to have worn a wire to my parents’ house North Van dismisses his outstanding charges.” [ 100 ] Mr. Klein’s evidence is different: “…I did in fact go onto the Court Services Online and see if Mr.

Hammond actually existed and his name arose…” Mr. Klein makes no reference to charges against Hammond or charges against Hammond being dismissed in circumstances that might be seen to relate to Mr. Crowe, or at all; just that a person by that name actually exists. [ 101 ] This is relevant to Mr. Crowe’s being found by this Court to be unreliable. ix. Mr. Crowe’s emails to himself, before and after the guilty pleas [ 102 ] I turn now to Mr. Crowe’s bizarre and self-serving emails from December 7 and 8, 2021. [ 103 ] Mr.

Crowe writes three emails to himself, which are exhibits to his affidavit on this application: the first is sent on December 7, 2021 at 8:43 p.m.; the second is sent on December 8, 2021 at 8:24 a.m.; and the last, on December 8, 2021 at 8:16 p.m. [ 104 ] In the first email, Mr. Crowe writes that Mr. Klein has: … told me that the judge will ask me if it is voluntary and that I must say it is and not coerced. He says I must respond this way no matter how or how many times the judge asks. But that is not the case. I do not want to plea. It is not voluntary.

And I just think there should be a record of that…. [ 105 ] That statement is inconsistent with other, reliable evidence: Mr. Klein’s December 7th email confirming Mr. Crowe’s instructions, says nothing of the kind; rather, he writes that: …the judge will ask if the plea is voluntarily made and that you are not being coerced into pleading. I assume you will say you are voluntarily pleading. Mr. Klein does not tell Mr. Crowe how to reply to the judge or what to say to such an inquiry; rather, he says what he expects will be his client’s reply. It is left up to Mr. Crowe as to how he replies. [ 106 ] While Mr.

Crowe testified to the effect that he thought that the police or someone was monitoring his computer such that they would see his message of December 7th–sent to no one other than himself–and stop the travesty of his involuntarily pleading guilty–I do not find this believable in the slightest. As set out above, Mr. Crowe is sophisticated in the ways of criminal proceedings and investigations. [ 107 ] In his last email to himself, he writes: “As expected I was forced to plead today.

Didn’t want to before, didn’t want to after, but my lawyer forced me to.” [ 108 ] He makes no mention in these emails of facing a trial without the benefit of counsel; he makes no reference to his father’s pressure–both points which he now says were operating forces at the time. [ 109 ] If Mr.

Crowe actually thought that the police were monitoring his computer, it seems unlikely that he would have set out, in detail, in emails written on his computer, his concerns about whether the proposed plea facts would connect him to phone number 604- 773-3200 in relation to an active police investigation in which he says he is the “RCMP’s only and main suspect.” (See: his email to Mr. Klein dated November 30, 2021 at 2:00 p.m.; Exhibit D to the affidavit of Mr. Klein). [ 110 ] While Mr. Klein may have concluded, as a layperson, that Mr.

Crowe was, at times, acting in a manner consistent with paranoia and delusion, his observations are, frankly, isolated instances and arise from Mr. Crowe’s statements, some of which were close in time to December 8th. [ 111 ] I have concluded that Mr. Crowe is dishonest and manipulative. It may be that his assertions to Mr. Klein about delusions was ‘laying track’ for this application. Certainly, he is aware of the benefit that delay can enure to an accused and April 26, 2022 is now fourteen months ago.

However, I do not make that finding nor rely on it in arriving at my decision here, but observe that, all in all, it is not beyond the realm of possibility. [ 112 ] Given the findings I do make here, I simply put no weight on Mr. Crowe’s evidence that the emails he wrote were intended for a third party to read, with his expectation that they would intercede with the process of his pleading guilty, given the findings that I have made here. E. Consideration of the Alec factors: [ 113 ] I now turn to a consideration of the factors in Alec , referred to above. i. Was the accused present at the time of the plea?

A: Yes. ii. Does he have a meritorious claim that he was incompetently represented at the time of plea? A: No. iii. Was a s. 606(1.1) Code inquiry undertaken? A: Yes.

iv. Was the plea entered by Mr. Crowe personally? A: Yes. v. Is there any evidence that the accused’s plea was involuntary? A: As set out above, there is no reliable, credible evidence that Mr. Crowe’s pleas were involuntary. vi. Does the record reflect equivocation about the plea? A: No. vii. Does the record, on this application, establish that Mr. Crowe did not fully appreciate the nature of the charge in respect of which the plea was entered? A: No. viii. Does the record on this application establish that he was uncertain about the consequences of the plea? A: No. ix.

Does the record on this application establish that Mr. Crowe did not intend to admit a fact which is an essential ingredient of the offence in respect of which the plea was entered? A: As discussed above, Mr. Crowe had no problem with the proposed facts, which disclosed all essential elements of two frauds and an attempted fraud: count 1 charges fraud; count 5 charges fraudulent personation. x. Do the facts read into the record following the plea support a conviction?

A: Here, I have regard to the proposed facts, rather than facts read into the record. (The comments with regard to (ix), above, are relevant here). xi. Has Mr. Crowe tendered evidence explaining why the plea is invalid and why the underlying conviction should be set aside as a miscarriage of justice? A: There is no credible, reliable evidence on this point. xii. How much time passed between the entry of the plea and the accused’s first assertion that the plea is invalid? Has any explanation been given for delay challenging the validity of the plea?

A: The first assertion that the plea was invalid was after April 26, 2022, which was over four months after the pleas. Sentencing was set for January 10, March 18th and then April 26, 2022. Restitution was paid. Mr. Crowe wrote to Mr. Klein three times on February 1st and never raised the issue of his guilty plea being anything but voluntary. No explanation has been given as to the delay challenging the validity of the pleas. [ 114 ] The answers in relation to the factors identified in Alec all militate against Mr. Crowe’s application. F. Conclusion: [ 115 ] Based on the findings above, I conclude that Mr.

Crowe has failed to establish the veracity of his claim that his guilty pleas were involuntary, to even a standard of reasonable possibility. [ 116 ] As mentioned at the outset, society has an interest in guilty pleas being final and there is a presumption that a guilty plea made in open court is voluntary. Mr. Crowe has failed to show otherwise and that presumption is not rebutted. [ 117 ] Given the evidence and my findings, Mr. Crowe has failed to satisfy me that I should exercise my discretion in his favour and I decline to do so: Mr.

Crowe’s application to strike the guilty pleas is dismissed. ___________________________ The Honourable Judge L. Smith Provincial Court of British Columbia