Her Majesty the Queen - v. -, 2015 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 007 Date: January 13, 2015 Information: 38280356, 38280355, 38282293 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - A.Q. and V.S. Appearing: D. Kim Jones For the Crown Rod Simaluk For A.Q. Marianna Jasper For V.S. Note: Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way.

DECISION ON APPLICATION TO EXPUNGE GUILTY PLEAS M. BEATON, J INTRODUCTION [1] A.Q. and V.S. were both charged with approximately 30 charges relating to making child pornography, sexual assaults withweapons, assaults with weapons, and assaults causing bodily harm against three female complainants under the age of 18 years. V.S.sought bail with the assistance of duty counsel and her bail was denied. A.Q. never sought bail. Both accused had their matters set forpreliminary hearing set on October 21, 2013. At that time Noah Evanchuk represented V.S. and Carson Demmans represented A.Q.

Onthe date of the preliminary hearing, both accused entered guilty pleas to amended charges and the matter was adjourned to December 5,2013 for a sentencing hearing. On that date, both counsel sought leave to withdraw and subsequently both accused applied to expungethe majority of the guilty pleas. [2] On the date set for the expungement hearing, V.S. through her counsel advised the Court that she was maintaining her guiltyplea to making child pornography.

A.Q. advised the Court through her counsel that she was maintaining her guilty plea to the charge ofusing a cucumber, hammer and potato in committing a sexual assault on S.S. and also to the charge of making child pornography. THE LAW [3] The Saskatchewan Court of Appeal in R v Leonard, 2007 SKCA 128 (QL), 307 Sask R 140, summarized the law regardingexpungement of pleas as follows: [17] It is well settled that, in order to be valid, a guilty plea must be voluntary, unequivocal and informed.

Voluntariness turns on theidea of a conscious volitional decision to plead guilty for reasons the accused regards as appropriate. A guilty plea is unequivocal if it isunqualified and certain with respect to the acknowledgement of the essential facts of the crime charged. It is informed if the accusedunderstands the nature of the charges, the legal effect of the plea and the consequences of the plea. See: R v R.T. (1992), (ON CA), 58 OAC 81; 17 CR (4th) 247 (C.A.); Adgey v R, (SCC), [1975] 2 SCR 426; 13 CCC (2d) 177; R vMoser, [2002] OTC 119; (ON SC), 163 CCC (3d) 286 (Sup.

Ct.). [18] Since 2002, these basic principles have been reflected in ss. 606 (1.1) and (1.2) of the Criminal Code. They read as follows: 606 . . .

(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.

(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. [4] A guilty plea entered in open court will be presumed to be voluntary unless the contrary is shown (see R v R.T.). [5] The onus is upon each accused to satisfy the court that her plea should be expunged on a balance of probabilities. The fact

that an accused is represented by counsel at the time of the guilty plea is one of the factors that is to be measured when coming to an ultimate factual determination on the issue of whether the accused has satisfied the court that her plea had not been entered voluntarily, or was equivocal, or was uninformed . [ 6 ] Similarly, if an accused is represented by counsel, a judge may presume that counsel has canvassed the requirements of s. 606(1.1) of the Criminal Code with an accused and that counsel represents, 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 (see R v Greenall , 2011 BCPC 28 (QL)). [ 7 ] Judge Nightingale in R v Couillonneur , 2007 SKPC 2 (QL), explained why the onus should be on the accused to demonstrate that the pleas should be expunged.

At paragraph 24, he stated: ... It is because, balanced against the rights of an accused person to the full protection of the law, including those rights guaranteed by the Canadian Charter of Rights and Freedoms , exist the rights of the community to what has been called “judicial finality” in the administration of the criminal justice system .... In Porter the Nova Scotia Court of Appeal referred to someone who, having pleaded guilty and then tries to plead not guilty and insist on a trial on the merits of the case as “playing fast and loose with the administration of justice”.

EVIDENCE [ 8 ] In determining whether the pleas entered in this case should be expunged, I reviewed the transcript of the proceedings when pleas were entered, the court records and the viva voce evidence presented at this hearing. Both the accused testified on their own behalf and as solicitor/client privilege was waived, the Crown called Mr. Evanchuk and Mr. Demmans as witnesses. The Crown also filed a copy of an e-mail which the Crown prosecutor, Kim Jones had forwarded to both counsel in an attempt to resolve the charges prior to the preliminary hearing.

This e-mail which contained a plea proposal was marked as Exhibit P-1. [ 9 ] Based on the transcript and the court record, I note that on the date of the preliminary hearing Mr. Demmans asked for an adjournment of the hearing and for a Court-ordered psychiatric assessment of A.Q. to determine her criminal responsibility at the time of the offences. Mr. Demmans advised that in speaking with his client that morning, her thinking was clearer than on prior occasions and she seemed to be showing some insight that her thinking was impaired at the time of the offences. In response to Mr.

Demmans’ application for an assessment, Mr. Evanchuk stated that he had discussed this new development with V.S. that morning and that they were not seeking an adjournment of the preliminary hearing. On the basis of Mr. Demmans’ arguments, the Court refused to order an assessment at this stage in the proceedings. The Crown advised that the three complainants all under the 18 years were present and the Crown was prepared to call evidence.

Given the Court’s ruling, both counsel asked for some time to see if a resolution could be reached. [ 10 ] The Court adjourned for approximately 30 minutes and when Court reconvened, counsel advised that they had reached an agreement. Amendments were made to the various charges by consent and pleas were entered by each lawyer on behalf of his client. Each amended charge as they pertained to each individual accused was read out loud by the Crown.

The accused were present in the courtroom when guilty pleas were entered. [ 11 ] V.S. pled guilty to the following charges: - did in committing an assault on S.S. use a weapon being wax, a knife, a hammer, a frying pan, an extension cord and a high heeled shoe; - did in committing an assault on S.C. use a weapon to wit: a fork; - did in committing a sexual assault on S.S. use a weapon to wit: a cucumber, a hammer and a potato; - did make child pornography;

- did in committing an assault on J.C. cause bodily harm to her; - did in committing an assault on J.C. use a weapon to wit a green extension cord. [ 12 ] A.Q. pled guilty to the following charges: - did in committing an assault on S.S. use a weapon being wax, a knife, a hammer, a frying pan, an extension cord and a high heeled shoe; - did in committing a sexual assault on S.S. use a weapon to wit: a cucumber, a hammer and a potato; - did make child pornography; - did in committing an assault on J.C. cause bodily harm to her; - did in committing an assault on J.C. use a weapon to wit a green extension cord; - did in committing a sexual assault on J.C. use a weapon to wit: a cucumber. [ 13 ] When the Court asked to hear a

summary of the facts, counsel advised that an agreed statement of facts would be filed prior to November 6. All parties agreed however that a psychiatric assessment should be ordered for both accused to assist with sentencing and that the matter be adjourned for sentencing to December 5. When the Court suggested that a pre-sentence report might be helpful, both defence counsel stated that only a psychiatric assessment was being sought.

The Court did not make inquiries pursuant to s. 606(1.1) of the Criminal Code . [ 14 ] I now propose to summarize the evidence which was presented during the expungement hearing. [ 15 ] I wish to first address the e-mail marked as Exhibit P-1. This two page e-mail details suggested amendments to various charges that would in effect combine all of the assault with weapons charges and all of the sexual assault with weapons charges. On the second page of the e-mail, the Crown summarizes to which counts it was seeking guilty pleas, for each accused.

It is clear from this e- mail that this plea proposal was open to negotiation. I note that pleas were entered as per Exhibit P-1 with one exception. V.S. did not plead guilty to sexual assault on J.C. [ 16 ] A.Q. testified as follows: • She first spoke to her lawyer Carson Demmans while she was in the court house cells a couple of months after being arrested and that they did not speak about her outstanding charges in any great detail. She did not feel mentally stable at that time nor did she feel stable when speaking to him over the next few months.

• On the preliminary hearing date she, her mother who is the co-accused, Mr. Evanchuk and Mr. Demmans all met together in one room. • Although it was not her idea to meet together, she did not object to this meeting. • Mr. Evanchuk did all of the talking and Mr. Demmans said nothing. • Mr. Evanchuk told both accused that they should plead guilty because they were guilty. • She understood Mr.

Evanchuk to state that if this case became a debacle in the paper, the judge would give her an automatic 10 years and that she could be sentenced to 16 years in prison. • She was aware that the Crown would seek six years incarceration upon guilty pleas being entered. • Although she gave instructions to enter guilty pleas, she believed that she was simply pleading guilty to making child pornography via video and photos and in using the objects depicted in the video to commit sexual assaults. • Mr.

Evanchuk told her all the weapons listed in the charges were seen in the video. • She knew that she had been charged with 30 charges and a number of them were being combined for guilty pleas. • She was aware of the charges that she had been facing but once back at Pinegrove, she was wondering about the other objects which had been mentioned in Court, for example the potato and knife, as she denied using those objects to commit assaults. • She stated that days after entering the pleas she called Mr.

Demmans to discuss her pleas as she did not remember all the objects “being there” or “where these objects came from”. • She asked Mr. Demmans if entering pleas had been the right thing and Mr. Demmans advised that it was.

At that time she believed that she had only pled guilty to making child pornography and sexual assaults with objects as shown on the video of the assaults. • She was aware of what the complainants said had occurred, even though she had personally not seen the disclosure and she denied committing certain offences. • She never went over any plea proposal document and only had 10 minutes to make a decision regarding pleas. • She felt fear and pressure and felt that her only choice was to plead guilty. She also felt that she was having a serious mental breakdown at this time.

She believed that the plea discussion with the lawyers lasted 10 minutes. • Individual charges were not discussed with the lawyers. • She was very inconsistent when questioned about hearing guilty pleas being entered in Court. At first she stated that she knew that guilty pleas were being entered but that she did not realize to which charges she was pleading guilty. Later under cross-examination, she

said that she had been out of the room when pleas had been entered. Still later, she admitted being in Court when the pleas were entered but that she did not remember any pleas being entered. • In particular, she did not remember amendments being made to various charges in court nor did she hear objects being mentioned in court as being used in the assaults.

She also did not remember any charges regarding J.C. being read in Court. • There had been no discussion regarding the ordering of a psychiatric report prior to pleas being entered. • She did not realize guilty pleas had been entered for assaulting a number of complainants with weapons until she went through the agreed statement of facts with Mr. Demmans the day prior to the date set for sentencing.

During this meeting, she disagreed with most of the facts. [ 17 ] V.S. also testified in this application as follows: • She was denied bail at a show cause hearing conducted by duty counsel. • She first spoke to her lawyer Mr. Evanchuk by telephone three to four days before the preliminary hearing, notwithstanding that she had left numerous messages. • The call lasted less than 10 minutes and during this call Mr. Evanchuk explained the purpose of the preliminary hearing and he answered her questions. • She wasn’t sure if she spoke to Mr.

Evanchuk on her own the date of the preliminary hearing because she had already told him that she was going to plead guilty. • When she first spoke with Mr. Evanchuk about guilty pleas, it was by telephone. • She described a meeting among the two accused and both lawyers on the preliminary hearing date. • During that meeting Mr.

Evanchuk told her to plead guilty and that she agreed to plead guilty “up to the pictures”. • She would not plead guilty to bruising or beating anyone. • She believed that she might be sentenced to imprisonment for 6-7 years after guilty plea to making child pornography. • After pleas had been entered, she believed that she could tell her side of the story or that there would be a trial. • If she didn’t take the deal, she thought she could be sentenced to 16 years in jail. • Both lawyers told her not to state anything in Court. In particular Mr.

Demmans stated that some clients make things worse for themselves by speaking in Court.

• Mr. Evanchuk did not want the accused to turn this into a debacle. • She had never seen any plea offer document and she and her lawyer did not go through each charge. She did admit however that she was aware of the charges she was facing. • Mr. Evanchuk did all the talking during this meeting and she felt scared. • She could not remember any pleas being entered to any other charges other than to the charge of making child pornography.

She said that she thought she was pleading guilty to what was shown on the camera. • She was never told that a deal with the Crown was not binding on the Court. [ 18 ] Under cross-examination she said the following: • She asked Mr. Demmans many questions and he answered them. • She spoke to Mr. Demmans about the charge of using a fork to assault S.C. and advised that she did not stab S.C. Her use of the fork was just to get S.C’s attention. • She and A.Q. spoke when they were downstairs (which I assume means the court house cells) and A.Q. told her that she was changing her pleas.

V.S. stated that she was as well, and that she did not feel good about this. She then spoke to Mr. Demmans. I note that she was never questioned further on this point. She was never questioned on when this conversation occurred or what she meant about changing her pleas. • She denied ever having discussions with Mr. Evanchuk about assaulting J.C. with a cucumber and at no time did Mr.

Evanchuk ever leave the interview room to speak to anyone about an assault against J.C. • Later on in the same cross-examination, she stated that she did not speak to any lawyer about the allegations regarding S.C. • She stated that she heard the assaults on S.S. with various weapons being discussed in court but she did not know how the charges applied to her. She again stated that she only heard pleas being entered to child pornography. • She later stated that she could not hear most of the pleas being entered due to having a sinus infection. • Mr.

Evanchuk never discussed entering guilty pleas to other charges. • Neither lawyer had told her that she had to plead guilty to the charges but she felt pressured to enter pleas. • She knew what the charges were and that she was charged with using items to hurt the complainants but she did not understand how the complainants were alleging she used these items to hurt them.

• She thought that her lawyer understood that she did not admit guilt to all of the charges. • She asked the lawyers if she would be sentenced the day she entered guilty pleas. [ 19 ] Mr. Evanchuk, who is a criminal defence lawyer called to the bar in 2005, advised that he received V.S.’s file from the Legal Aid Commission. He testified as follows: • His first meeting with V.S. occurred downstairs in the court house detention area. • At that time he discussed the file in detail with her and she advised him that she was justified in her actions regarding one of the girls. There was no mention by Mr.

Evanchuk as to which charge the accused was referring. • Mr. Evanchuk at this time did not have the complainants’ video taped statements, search warrants nor the video clip of one of the assaults and he advised V.S. that his advice would depend on what was on the video. • He saw the video clip in September 2013. At that point he satisfied himself that the allegations were corroborated. • He had a subsequent conversation with the accused and based on this conversation he believed he had instructions to try and work pleas out with the Crown. • On the date of the preliminary hearing, he and Mr.

Demmans met with both accused in one room. • The meeting was not rushed and they went through the Crown’s proposal for pleas which was shown to the accused. Both he and Mr. Demmans discussed the pleas with V.S. • V.S. did not wish to plead to an assault on J.C. As a result Mr. Evanchuk left the room to speak to the Crown prosecutor. When he came back, he advised V.S. that the charge would be stayed. He could not now remember the exact nature of this assault. • Mr. Evanchuk knew that the Crown’s plea proposal had some room for negotiation as was evidenced when he spoke to Mr.

Jones about the offence regarding J.C. • One of the accused later asked that sentencing not occur that day. • The lawyers discussed with their clients the ordering of pre-sentence reports and the lawyers did not believe it would be a good idea. • He made sure his client understood “what was involved in each count”. • He explained section 606(1) of the Criminal Code in layman’s terms.

He advised his client that she did not need to enter pleas but if she pled guilty she would need to accept responsibility for the charges to which pleas were entered. • He would not have entered pleas unless his client accepted responsibility and her pleas were voluntary.

• Mr. Evanchuk never discussed the proposed agreed statement of facts with his client as he was dismissed by his client prior to doing so. • Mr. Evanchuk did not refresh his memory from his file and was therefore testifying simply from his memory. [ 20 ] Mr. Demmans was called to the bar in 1992 and he has been a criminal defence lawyer with the Saskatchewan Legal Aid Commission since 2007. He testified as follows: • He first had contact with A.Q. by telephone in August 2013. • At this time he discussed the charges, the disclosure and obtained her memory of the incidents.

In particular, they reviewed evidence in support of each charge. • She advised Mr. Demmans that two of the complainants were difficult to manage and were sexually active with adult males. One of the girls had sexually assaulted A.Q.’s son. She then caught this girl naked and inserting objects into her own vagina while video taping it. As a result, A.Q. started filming the girl as a form of punishment. • Mr. Demmans viewed a short video segment and still photos, which were part of the disclosure.

This disclosure depicted 2 young girls with objects inserted into their vaginas. • On the date of the preliminary hearing, he stated that he did speak to the accused alone in cells and spoke of the Crown’s proposal for pleas which he had received and its position on sentence. The Crown was seeking no more than seven years incarceration and defence could ask for whatever it felt was reasonable. They discussed S.C.’s video taped statement and that S.C. strongly implicated the accused in sexual and physical assaults. They also discussed the video which had been reviewed by Mr.

Demmans. • A.Q. suggested that she and her mother and the two lawyers discuss the plea proposal together. As a result, one of the lawyers asked security for permission to do so. The meeting occurred in a holding cell outside of court room #4. • The lawyers went through the plea proposal prepared by the Crown line by line. Mr. Demmans compared the e-mail with the Informations and referenced each charge. • He did not go through the disclosure as thoroughly as before but Mr. Demmans confirmed that the accused knew to what incident each charge related. • Mr.

Demmans asked them if they wished to go through the disclosure and both accused said no. • Mr. Demmans remembered that V.S. was adamant that she would not plead guilty to one of the charges as suggested by the Crown. Mr. Evanchuk then left the room and returned stating that the Crown would drop the charge. • Mr. Demmans never told the accused that all the events with which they were charged were tied to the video. In fact, there was no discussion on that point. • He played an active role in speaking to his client and that neither lawyer was pushing for this deal.

• Both lawyers were ready to proceed with the preliminary hearing. • Mr. Demmans made it clear to his client that it was her decision as to whether or not she entered guilty pleas. • He was satisfied that his client understood to what charges she was pleading through words and actions. In other words, the accused acknowledged what was happening and to what she was pleading guilty. • He advised both accused of the Crown’s position on sentence if they were found guilty after trial. • He does not believe that he made any recommendation as that is not his practice.

He usually just lays out options and it is his clients’ decisions as to their course of action. • His client seemed calmer when she was with her mother and the meeting with all four individuals was not stressful. • Both accused were adamant that they wanted to plead guilty as per the plea proposal. • The discussion then turned on what the accused wished to do next.

There was discussion regarding seeking a pre-sentence report but he did not believe that it would be beneficial. • As a result of obtaining instructions to enter pleas, he entered guilty pleas on his client’s behalf and asked for the preparation of a psychiatric report. • He spoke to his client a number of times after pleas had been entered. In particular she advised him as to what she had told the psychiatrist during the interview. • The day prior to the sentencing date, he spoke to the accused about the proposed agreed statement of facts and the psychiatric assessment.

His client denied the bulk of the facts and only admitted to the actions seen in the video. As a result Mr. Demmans tried to work out facts with Mr. Jones but no agreement could be reached. He had further discussions with his client and advised that he would have to withdraw. ANALYSIS [ 21 ] In essence, A.Q.’s position is that she instructed her lawyer to enter guilty pleas only to the charges of making child pornography and in using the objects depicted in the video to commit sexual assaults and she still maintains those guilty pleas.

However, as a result of her mental state and the circumstances of rushed plea discussions, there was miscommunication between her and her lawyer which caused pleas to be entered without her knowledge, instructions, or admission of guilt. [ 22 ] V.S.’s position is that Mr. Evanchuk was threatening and aggressive. She did not have an opportunity to personally review the disclosure and take her time in deciding whether to plead guilty. She did not understand the implication of her pleas nor was she told that the Crown’s position on sentence was not binding on the court.

Last, she argues that there was a misunderstanding between her and her lawyer as to what charges she was admitting guilt and thereby willing to enter guilty pleas.

[ 23 ] V.S.’s own testimony does not support the argument that she was rushed and pressured to enter pleas and did not understand the implication of her pleas. V.S. testified that she thought she only pled guilty to making child pornography on October 21, 2014 and she maintains that plea.

She therefore cannot argue that she did not understand the implication of that plea, felt pressured to enter the plea and entered that plea for fear of receiving a greater sentence after a trial or based on the belief that the Crown’s position on sentence was binding on the Court. [ 24 ] The issues to be determined in this case is whether the two accused gave instructions to enter guilty pleas as recorded and whether those pleas were voluntary, unequivocal and informed. [ 25 ] There are significant inconsistencies among the accused and their former lawyers as to whether instructions were given to enter guilty pleas to certain charges.

Therefore, prior to applying the legal principles applicable to the expungement of guilty pleas to this case, a credibility assessment of each witness must be made. [ 26 ] I will deal first with the testimony of Carson Demmans who is an experienced criminal defence counsel and the more senior of the two defence lawyers in this case. Mr. Demmans testified in very great detail and in a straightforward manner. He had made notes to his file and reviewed these notes prior to testifying. His demeanour while testifying was similar to the way he presented in court when representing his client.

He was calm, fairly quiet and he thought before speaking. He was a credible witness. I accept that he discussed the charges and the disclosure with his client two months prior to pleas being entered . I find that on the date of the preliminary hearing prior to the opening of court, Mr. Demmans discussed S.C. ’ s statement, the Crown ’ s proposal for pleas, its position on sentence and he obtained instructions on seeking a psychiatric assessment on the date set for the preliminary hearing. I am also satisfied that later, in the presence of Mr.

Evanchuk and V.S., he discussed the e-mail plea proposal and each individual offence to which a plea was being sought with his client. I accept that he played an active role in discussing the pleas with his client and that he offered to both accused an opportunity to review the disclosure again which they declined. [ 27 ] Mr. Evanchuk’s testimony lacked the detail of Mr. Demmans’ testimony as he had not reviewed his file prior to testifying. As a result, he could not answer all of Ms. Jasper’s questions and many of his answers were very general.

However, his testimony of what was discussed at the meeting of the two lawyers and their clients was confirmed by Mr. Demmans. I do not accept that he disliked V.S. as alleged by her current counsel. [ 28 ] I find that Mr. Evanchuk had a conversation with his client about entering guilty pleas prior to the preliminary hearing date as even V.S. confirmed that prior to the meeting of the four individuals, she believed she was pleading guilty. I accept that Mr. Evanchuk discussed individual charges with his client as evidenced by his discussion with Mr. Jones about the J.C. charge. Mr.

Evanchuk was aware that there was opportunity to negotiate the plea arrangement as evidenced in the wording of Exhibit P-1. [ 29 ] I do not accept all of the evidence presented by A.Q. She did not recollect all of the events which occurred when guilty pleas were entered. She did not believe that there had been a discussion about ordering a psychiatric report prior to pleas being entered. There were many inconsistencies in her testimony relating to what she heard when guilty pleas were entered on her behalf. I do not believe her testimony that Mr. Demmans said nothing during the plea discussions.

This is contrary to all the other testimony, including the testimony of V.S. who stated that Mr. Demmans answered her questions. I also do not accept her testimony that the lawyers did not discuss the Crown’s plea proposal and each individual charge with the accused. Both lawyers recollected that V.S. refused to plead to one charge relating to J.C. and that further discussion was had with the Crown relating to that charge. Contrary to the original plea proposal, a charge of assaulting J.C. was in fact stayed.

I therefore believe the lawyers on this point and the fact that this discussion took place corroborates the lawyers’ testimony that each charge was discussed. Notwithstanding her lack of recollection of events and inconsistencies, I find that A.Q., being a year later, sincerely believes that she did not give instructions to her lawyer to enter certain pleas. [ 30 ] V.S. was not a particularly credible witness and I do not accept most of her evidence. She was evasive when answering questions, especially during her cross-examination. Her testimony was internally inconsistent and very confusing.

At first she stated that Mr. Evanchuk was the only lawyer to speak during the meeting. However, she later stated that she asked Mr. Demmans many questions, which he answered. I believe her on this point. She was inconsistent on the point of discussing charges relating to S.C. She was also inconsistent as to what she heard in Court when pleas were entered. She had difficulty in answering questions and would often interrupt Crown counsel. She denied having any discussion with Mr. Evanchuk regarding the charge of assaulting J.C. She stated she felt

pressured to enter pleas but yet believed she was simply pleading guilty to making child pornography, a plea which she still maintains. I do not believe that she was confused as to the process. Although she stated that she thought she would have a trial after entering pleas, she confirmed that she asked her lawyer if she would be sentenced the day she entered her pleas. I find that she understood the implications of entering a guilty plea. [ 31 ] Based on the evidence which I accept, I am satisfied that both accused were aware of the nature of the charges they were facing.

I am also convinced that they both appreciated the consequences and legal effect of pleading guilty and the nature of the potential penalty they faced. I am also convinced that there was no coercion or duress used by the lawyers. I also do not find that A.Q.’s mental state deprived her of the capacity to make an active or conscious choice on whether to plead guilty. I am also satisfied that both accused intended to plead guilty to the charges for which guilty pleas were recorded and instructed their respective lawyers to enter those pleas.

I therefore find that the pleas were informed and voluntary. [ 32 ] On the issue as to whether the pleas were unequivocal, one of the criteria to be considered is whether the accused acknowledged the essential facts of the offences. In this case, no facts were presented to the court when pleas were entered. Therefore, there were no facts presented in front of the accused in open court.

Six weeks later, A.Q. disputed most of the facts which were presented to her in a proposed agreed statement of facts. [ 33 ] However, two experienced criminal lawyers testified that they ensured their respective clients understood to which incident each charge related and that their clients understood their pleas. Mr. Evanchuk stated that, based on discussions with V.S., he believed that his client accepted responsibility for the charges to which he entered guilty pleas. Both lawyers had discussed the disclosure with their clients and Mr. Evanchuk testified that the disclosure supported an order to stand trial.

As well, Mr. Demmans stated that both accused were adamant they wished to plead guilty and did not wish to review the disclosure again. [ 34 ] Based on the evidence which I accept, I am satisfied that both accused understood the disclosure and the factual allegations made against them. As a result, by communicating their intention to plead guilty, I am satisfied that both accused acknowledged the essential facts of the offences at the time pleas were entered. As a result, I find that the guilty pleas were unequivocal. The guilty pleas entered by both accused will not be expunged. ________________________ M.

Beaton, J