2013 NBCA 28, 2013 NBCA 28

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 118-12-CA GLEN McLAUGHLIN APPELLANT -and- HER MAJESTY THE QUEEN RESPONDENT GLEN McLAUGHLIN APPELANT -et- SA MAJESTÉ LA REINE INTIMÉE McLaughlin v. R., 2013 NBCA 28 McLaughlin c.

R., 2013 NBCA 28 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Bell L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Provincial Court: August 27, 2012 (conviction) Appel d’une décision de la Cour provinciale : Le 27 août 2012 (déclaration de culpabilité) History of case: Decision under appeal: Unreported Historique de la cause : Décision frappée d’appel : Inédite Appeal heard: January 30, 2013 Appel entendu : Le 30 janvier 2013 Judgment rendered: April 25, 2013 Jugement rendu : Le 25 avril 2013

Counsel at hearing: For the appellant: Glen McLaughlin appeared in person For the respondent: Lindsay J. Paul Avocats à l’audience : Pour l’appelant : Glen McLaughlin a comparu en personne Pour l’intimée : Lindsay J. Paul THE COURT The application for leave to appeal conviction is dismissed. LA COUR La demande d’autorisation d’interjeter appel de la déclaration de culpabilité est rejetée. The following is the judgment delivered by THE COURT I.

Introduction [ 1 ] The matter presently before the Court is one in which Glen McLaughlin seeks permission to withdraw his guilty plea made on August, 27, 2012, wherein he admitted to having operated a motor vehicle on August 24, 2012, while prohibited from doing so. [ 2 ] On May 13, 2009, a judge of the Provincial Court ordered the imprisonment of Mr. McLaughlin for a number of offences, including driving offences, and issued an order that he be prohibited from operating a motor vehicle for three years. The Crown contends the three-year period started to run from Mr.

McLaughlin’s release date, being April 6, 2011. Mr. McLaughlin says the order is unclear. He claims an ambiguity is apparent on the face of the prohibition order where the words “from this date” are struck out and replaced by the words “plus period of incarceration”. Mr. McLaughlin, without any evidence in support of his assertion, suggests that change may have been made some time after the judge signed the order. However, at the time he pled guilty, Mr.

McLaughlin acknowledged that, after having been stopped by the police in June, 2012, he received notice from the Motor Vehicle Branch, prior to the August 24 th incident, that he was “disqualified” from operating a motor vehicle. We would add, parenthetically, that the June 2012 encounter with the police resulted in a charge of driving while prohibited to which Mr. McLaughlin pled not guilty and is awaiting trial. [ 3 ] This Court must be cautious not to conflate the facts, potential evidence and potential arguments in relation to the June incident (the first charge of driving while prohibited since Mr.

McLaughlin’s release from prison) with the relief sought in the present appeal. Here, Mr. McLaughlin seeks leave to admit fresh evidence and, as indicated, to withdraw his guilty plea to the charges arising from the August incident. Before conducting any analysis regarding the issues raised by Mr. McLaughlin, it is useful to visit the transcript of the August 27 hearing: THE COURT: […] And how do you wish to plead? MR. MCLAUGHLIN: No preliminary. THE COURT: No preliminary hearing. And how do you wish to plead?

MR. MCLAUGHLIN: Guilty. THE COURT: You understand that in pleading guilty you’re admitting these, this offence, in other words that you were driving and at that time you were prohibited. You understand that? You have to say yes or no. MR. MCLAUGHLIN: Yes. Yes, sir. THE COURT: Okay. Okay. And that I can only accept it if it’s made freely and voluntarily. In other words, there’s nothing that’s forcing you against your will to commit – or, to plead guilty to this.

In other words, the fact that you’re being detained isn’t the, the reason that you’re pleading guilty, you are pleading guilty because you’re admitting the offence. MR. MCLAUGHLIN: Your Honour, I’m pleading guilty because I drove the car. The difference between whether I was under suspension or disqualified on the first time I got caught is something I will (inaudible) to deal with later. THE COURT: Perfect. MR. MCLAUGHLIN: But I was, did two weeks after I was pulled over the first time, I did get a letter from the Motor Vehicle Branch saying I was disqualified even though they told me beforehand I wasn’t.

THE COURT: Alright. MR. MCLAUGHLIN: They were contacted by the R.C.M.P. and the R.C.M.P. said they must have made a mistake so they sent me a new letter with a new date to get my license back two weeks after my last charge, so whether someone screwed up or not the first time, I did have a letter for the second time, Your Honour. I’m not gonna sit in jail for six or eight months and try to fight it with no money and no job, I just want to deal with these charges and I’ll fight the first one later. THE COURT: Alright. And you understand that I’m going to have to impose a sentence here today? MR.

MCLAUGHLIN: I do, sir. THE COURT: Okay. And knowing that, you plead guilty? MR. MCLAUGHLIN: Yes, I do. THE COURT: Thank you, I accept your plea. Now with respect to the second charge that you did by doing this breach the undertaking that you gave to Judge Horsman on the 25 th of June by failing to keep the peace and be of good behaviour, and you’ve elected Provincial Court, how do you wish to plead to that? MR. MCLAUGHLIN: Guilty. THE COURT: Thank you, sir. Okay. [Emphasis is mine.][Transcript, pp. 43-45]

[4] Mr. McLaughlin entered those pleas with the assistance of counsel. Neither he, nor hiscounsel, requested Crown disclosure prior to entering the plea. We would observe they may have concluded disclosure was unnecessarygiven that immediately prior to the plea they had participated in Mr. McLaughlin’s show cause hearing held pursuant to s.515 of theCriminal Code, at which time a prohibition order was marked as an exhibit. That order is not before us, nor is there any application forits admission as fresh evidence. II. Analysis A. Fresh Evidence [5] Mr.

McLaughlin seeks to admit his driver records from the Motor Vehicle Branch whichpurport to show different “suspension” dates as well as a copy of part of the first page of the prohibition order. Section 683(1)(

d) of theCriminal Code permits the admission of fresh evidence on appeal where its admission would be “in the interests of justice”. Thecircumstances in which the interests of justice would permit the admission of fresh evidence have been identified in what is commonlycalled the Palmer test, a test first articulated in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126(QL), recently re-iterated in R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, and recently applied in New Brunswick in: Chen v. R.,2013 NBCA 7, [2013] N.B.J. No. 15 (QL); M.K. v. R., 2010 NBCA 71, 364 N.B.R. (2d) 166; and R. v.

Goulette, 2009 NBCA 49, 350N.B.R.(2d) 152. Essentially, the Palmer test holds that fresh evidence:

a) should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle willnot be applied as strictly in a criminal case as in civil cases;

b) must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

c) must be credible in the sense that it is reasonably capable of belief; and

d) must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [6] There is no doubt the fresh evidence from the Motor Vehicle Branch is credible. The thirdprong of the Palmer test is therefore met with respect to that evidence. However, the evidence from the Motor Vehicle Branch does notmeet any of the other criteria. It was clearly discoverable by the exercise of due diligence, and was irrelevant in the face of theadmissions made by Mr. McLaughlin.

As for the fresh evidence offered in relation to the prohibition order, the document submittedconstitutes only part of the first page of the purported order. The signature of the judge who signed the order pursuant to

Section 260 ofthe Criminal Code is incomplete. Furthermore, the portion of the order to be signed by the offender pursuant to s. 260(2) is absent onthe document Mr. McLaughlin seeks to admit as fresh evidence. Absent the complete document, we are not satisfied the proposedevidence is credible. In addition, the complete document was readily available by the exercise of due diligence. Furthermore, given theexchange between the trial judge and Mr.

McLaughlin, we are not satisfied the admission of part of the first page of the purported ordercould reasonably have been expected to change the result. [7] It is for these reasons that we dismissed the motion to admit fresh evidence. B. Withdrawal of guilty plea [8] Prior to entering his guilty plea, Mr. McLaughlin had access to the prohibition order which

was signed by him and the Provincial Court judge on May 13, 2009. All parties acknowledge that order, prepared on a pre-printed form, reads in part, that Mr. McLaughlin is prohibited: […] from operating a motor vehicle on any street, road, highway or other public place for a period of 3 years XXXXXXXX PLUS PERIOD OF INCARCERATION. The words “from this date” are struck from the pre-printed form and replaced by the reference to the “period of incarceration”. Mr.

McLaughlin contends he does not know whether the pre-printed form was altered by the judge at the time she signed the order or whether someone else made the changes at a later date. According to him, that confusion renders his plea ambiguous. [ 9 ] There is a strong presumption a guilty plea, particularly one made with the assistance of counsel, is valid ( R. v. Laffin , 2009 NSCA 19 , [2009] N.S.J. No. 66 (QL) at 44; R. v. Eizenga , 2011 ONCA 113 , [2011] O.J. No. 524 (QL) at para. 4 ).

Furthermore, because the withdrawal of a guilty plea raises a question of mixed law and fact, leave is required pursuant to s. 675(1)( a) (ii) of the Code . [ 10 ] This Court recently canvassed the jurisprudence with respect to the withdrawal of a guilty plea in such cases as R. v. Miller , 2011 NBCA 52 , 374 N.B.R. (2d) 302; R. v. Tower , 2010 NBCA 27 , 358 N.B.R. (2d) 190; R. v. Monteith , 2010 NBCA 77 , [2010] N.B.J. No. 346 (QL), leave to appeal refused [2010] S.C.C.A. No. 439 (QL), and R. v. Edgett , 2008 NBCA 65 , 336 N.B.R. (2d) 321. Essentially, Mr. McLaughlin 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. [ 11 ] We are not satisfied any of the pre-requisites are met in this case. Other than Mr. McLaughlin’s assertion the pre-printed form may have been altered after the judge signed it, he has offered no evidence to rebut the presumption that the plea was valid. We dismiss Mr. McLaughlin’s application to withdraw his guilty plea. III. Conclusion [ 12 ] In the circumstances, the application for leave to appeal conviction is dismissed.

______________________________ B. RICHARD BELL, J.A. ______________________________ KATHLEEN A. QUIGG, J.A. ______________________________ BRADLEY V. GREEN, J.A.