R. v. Tchibaga, 2014 MBPC 36

Editor's note: Appendix omitted to comply with publication ban R. v. Tchibaga Citation No. 2014 MBPC 36 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Respondent ) ) Sarah T. Funk, for the Crown - and – ) ) Aristote Tchibaga ) ) Applicant Accused ) ) Deanna Sahulka, for the Applicant Accused ) ) ) Reasons for Decision Delivered: October 1, 2014 DECISION ON AN APPLICATION TO WITHDRAW A GUILTY PLEA CORRIN, P.J. THE CHARGE [ 1 ] The Applicant accused pled guilty to one count of sexual assault on E.I., contrary to

section 271 of The Criminal Code of Canada on October 22, 2013. Such plea was entered before Lismer, J., a judge of the Provincial Court of Manitoba. Lismer, J. ordered a pre-sentence report after accepting the guilty plea. [ 2 ] On November 4, 2013, Ms. Jacquie Krush, Probation Officer, attended to the Headingley Correctional Centre to interview Mr. Tchibaga for the aforementioned pre-sentence report. At such time, the Applicant accused stated that he was not guilty of the sexual assault in question. Ms. Krush advised Mr. Tchibaga that he should contact his lawyer in such respect.

She also advised the Crown Attorney of Mr. Tchibaga’s wish to change his plea. [ 3 ] On December 9, 2013, Mr. Tchibaga’s counsel, Mr. Saheel Zaman obtained permission to withdraw as counsel for the Applicant accused. [ 4 ] The Applicant accused subsequently obtained new counsel, Ms. Sarah Funk, and filed an application to withdraw the guilty plea. The matter was set for hearing of the Motion on July 18, 2014. [ 5 ] Mr. Tchibaga’s application to withdraw his guilty plea proceeded by way of viva voce evidence on the aforementioned date. At such time evidence was received from the Applicant and the Crown called Mr.

Zaman. EVIDENCE ON APPLICATION [ 6 ] An affidavit sworn on June 4 th , 2014, in support of the accused’s application to withdraw was entered as Exhibit 1 at the hearing proceedings. A transcript of the plea taken by Judge Lismer on October 22, 2013 was entered by agreement as Exhibit 2. An authorization respecting the release of immigration information signed by the accused, dated October 21, 2013, was filed as Exhibit 3 at these proceedings. The final exhibit filed was marked Exhibit 4. It was a handwritten and signed authorization dated October 21st,

2013, instructing Mr. Zaman to enter a guilty plea to one count of sexual assault respecting “my ex-girlfriend E.I.”. [ 7 ] Mr. Tchibaga’s evidence was as follows: • Court was told that he did not know how to read or write English, that the only thing that he can read in English is his name. • That on October 21, 2013, he and Mr. Zaman met personally for the first time. It was the morning of the first day of a scheduled 5 day preliminary inquiry. Prior contact had involved phone calls and the intermediary of one of Mr. Zaman’s associates. Mr.

Zaman told him that if he entered a guilty plea to the charge before the court all his other charges would be stayed and that he would receive a sentence of 15 months time in custody, i.e. the time which he had already served in custody. • The Applicant accused went on to testify that he had been concerned about deportation from Canada if he pled guilty to this charge and received a sentence of time served. The Court was advised that he had discussed this with Mr. Zaman and Mr. Zaman had asked him to sign a Release in order that he could speak to the Immigration authorities respecting the matter.

This Release, Exhibit 3, is appended hereto as Appendix “A” to this decision. • The Applicant went on to testify that on the morning of the following day, October 22, 2013, he once again met with Mr. Zaman and that at such time Mr. Zaman produced another document for his signature, that he identified as Exhibit 4, the Authorization/Instructions to counsel aforementioned. It was Mr. Tchibaga’s evidence that Mr. Zaman wrote the document in his presence at the Remand Centre lock-up facility and then purported to read it to him before he asked him to sign it. It was Mr. Tchibaga’s evidence that Mr.

Zaman did not read certain parts of the document to him at such time. In this regard, he was adamant that Mr. Zaman did not read anything about the Crown asking for 4 to 5 years imprisonment and he also asserted that there was no mention of the preparation of a pre-sentence report being prepared for consideration by the sentencing judge. He further asserted that notwithstanding the wording of the Authorization that Mr. Zaman had not made any reference to the judge having the discretion to make a final decision as to the appropriate sentence. Mr.

Tchibaga acknowledged that he had spent some 4 to 5 minutes discussing this document with Mr. Zaman. Exhibit 4 is appended as Appendix “B” hereto. • Mr. Tchibaga also acknowledged that there was contradictory evidence before the Court, specifically at paragraph 9 and 12 of his Affidavit filed as Exhibit 1 in these proceedings, to the effect that Mr.

Zaman had advised him that “we could ask the judge to sentence me to time that I had already spent in custody, which at that time was approximately fifteen months” (emphasis mine) and that, “I was told that it was a good deal for me and that by entering the pleas we could ask for time in custody and the other charges would be dropped”. The accused testified that Ms. Funk had read his affidavit to him about five times and thoroughly reviewed its contents with him before he deposed this affidavit. Such Affidavit, Exhibit 1, is appended hereto as Appendix “C”. • Mr. Tchibaga also testified that Mr.

Zaman had also told him that he would be asked some questions when entering his plea and that he should answer “yes” to all such questions in order to assure that the judge accepted his guilty plea. It was Mr. Tchibaga’s position that he had simply followed Mr.

Zaman’s instructions with respect to his responses to questioning at the time of the court plea inquiry. • Exhibit 2, the October 22 court transcript, makes clear that the Applicant accused had given up his right to a trial, acknowledged that he was pleading guilty on a voluntary basis and that the sentencing judge could either agree with one of the lawyers or disagree with both and impose whatever sentence he or she felt was appropriate at the time of the sentencing hearing.

The transcript also indicates that defence counsel obtained an acknowledgment that the accused was admitting the essential elements of the charge at such time. No one asked that the facts constituting the essential elements of the charge be directly confirmed by the accused. • To recapitulate, it was the accused’s evidence that he never wanted to enter this guilty plea and only did so because Mr. Zaman assured him that his sentence would be time in custody and he would get out of custody upon entering the plea.

It was his position that he thought the pre-sentence report solely related to probation supervision and not matters to be argued at a subsequent sentencing hearing. • The accused acknowledged that he had been advised that an interpreter was present to assist him with his plea and that he had eschewed same since he felt he did not need such assistance because Mr.

Zaman was going to proceed according to what he believed the plan was, i.e. a sentence of time in custody of 15 months. • It was the accused’s position that he had entered the guilty plea because he wanted to get out of jail and see his family. • The accused related that he had come to Canada from the Congo in 2008, when he was eighteen years of age. He also testified that he had never spoken English before coming to Canada and had taken a 3 month English language course shortly after his arrival in Winnipeg. THE EVIDENCE OF MR. ZAMAN [ 8 ] Mr. Zaman’s evidence was as follows: • Mr.

Zaman testified that he had personally had between one and three telephone conversations per month with the accused prior to October 21, 2013. These calls were described as ranging from 4 to 15 minutes in length. He acknowledged that the accused had English language “issues” but stated that they could nevertheless communicate effectively with each other. • Mr.

Zaman told court that on the morning of October 21, 2013, the first of the 5 days scheduled for the preliminary inquiry, he and the assigned Crown had spoken about the resolution of the matter and the Crown had offered to stay four charges if the accused entered a single guilty plea to the E.I. matter. Mr. Zaman testified that he fully related the Crown’s position to the accused that they would ask for 4 to 5 years incarceration on such charge and that Mr. Tchibaga expressed concern that because he was a landed immigrant, that he might be deported from Canada. Mr.

Zaman testified that he had told the accused that deportation was almost certain

if the Crown succeeded in convincing the judge that their 4 to 5 year sentencing recommendation should be adhered to. • Mr. Zaman related that he had then obtained Exhibit 2, the Release document, so that he could contact Immigration Servicesand that after having done so, he returned to the lockup, later that day, at approximately 1:30 p.m. Mr. Zaman told court that they hadfurther discussed the likely immigration consequences, deportation and the accused agreed to enter the plea notwithstanding suchconsequences. That he then hand wrote Exhibit 4, the Authorization, and personally read it to the accused.

It was Mr. Zaman’sevidence that the accused was able to read some English but had found his hand writing difficult to read necessitating his reading of thedocument to him. Mr. Zaman went on to tell the court that he had read it word for word and line for line as it was very important thatMr. Tchibaga understand it fully prior to signing the document. He went on to tell the court that he had decided to take writteninstructions as a precautionary step because of the exceptionally long sentence that the Crown was seeking.

He stated that he was alsoconcerned because he had previously been given, what he described as “contrary” instructions respecting the accused’s position withrespect to the proceedings, i.e. that the accused had previously maintained his innocence with respect to all of the allegations againsthim. Mr. Zaman also told the court that he wanted the accused to acknowledge the strong likelihood of deportation associated with hisguilty plea. Mr. Zaman maintained that the accused knew that a sentence of over 6 months in length might trigger deportationproceedings. • Mr.

Zaman said that they had spoken three times for a total of 45 minutes on October 21st and that that accused wanted toplead not guilty originally but after discussion the accused had instructed him that he wished to enter the single guilty plea. • Mr. Zaman told court that on the following day, October 22, 2013, that he had never told the accused that he had to respondin any particular way with respect to his plea inquiry and that he had never told him to say “yes” in response to all his questions in such regard.

He also noted, as the October 22nd transcript confirms, that he had conscientiously invited the accused to use the services of theSwahili interpreter he had arranged to appear that morning and that the accused had declined to do so. • Page two of the transcript of proceedings discloses that Mr. Zaman had, at the outset of the proceedings, said the followingto the accused respecting the services of an interpreter: “Mr. Tchibaga, there is an interpreter as well that speaks Swahili in court, so if at any point you don’t understand, just let us know.

Do you feel comfortable enough proceeding with our discussions today?” • Although the transcript does not record a response to the question, Mr. Zaman testified that there had been an affirmativeresponse to his question. This is corroborated at line 14 on page 2 of the transcript where Mr. Zaman is noted to say” “Okay. Thank you, and you are a little bit soft spoken, so you will have to speak up a little bit more okay?” In my opinion, this comment certainly suggests that the accused must have replied affirmatively to Mr. Zaman’s question. The accuseddid not testify to the contrary. • Mr.

Zaman further testified that he never would have proceeded with the guilty plea if the accused was reluctant or hesitantin such regard. As previously mentioned he recollected that he had spoken with the accused for approximately 45 minutes in reference tothe guilty plea on October 21st and that he specifically advised the accused that a 15 month time in custody sentence was an unlikelyresult for this kind of offence as it was inconsistent with the general jurisprudence, that he could not specify an appropriate sentence untilthe pre-sentence report was prepared and reviewed.

He emphasized that he had warned the accused that anything more than 6 months incustody would also trigger a deportation hearing and that notwithstanding this the accused told him that he wanted to proceed with aguilty plea and try and obtain a 15 month time in custody sentence, a sentence that Mr. Zaman perceived as being at the extreme low endof the range. THE LAW RESPECTING WITHDRAWAL OF A GUILTY PLEA [9] The Applicant bears the burden of showing that his guilty plea was not voluntary. The leading case on the law in Canadarelating to this subject is Adgey v.

The Queen (1973), 23 CRNS 29, a decision of the Supreme Court of Canada. Laskin J. (as he thenwas), dissent said the following about a guilty plea at page 308: “A plea of guilty carries an admission that the accused so pleading has committed the crime charged and a consent to a conviction beingentered without any trial. The accused by such a plea relieves the Crown of the burden to prove guilt beyond a reasonable doubt,abandons his non-compellability as a witness and his right to remain silent and surrenders his right to offer full answer and defence to acharge.

It is important therefore, that the plea be made voluntarily and upon a full understanding of the nature of the chargeand its consequences, and that it be unequivocal.” (Emphasis added) [10] In R. v. T.(R), (1992), (ON CA), 17 C.R. (4th) 247, a decision of the Ontario Court of Appeal at page 251,Doherty, J.A., set out the requirements of a valid guilty plea as follows: “to constitute a valid guilty plea, the plea must be voluntary and unequivocal.

The plea must also be informed, that is the accused mustbe aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea...” Doherty then stated at page 253 that a voluntary guilty plea requires: “the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate.” [11] In R. v. Moser, (ON SC), 2002 CarswellONT 487, 163 C.C.C. (3d) 286 at paragraphs 29-43, Hill, J. of theOntario Superior Court of Justice states the following in reference to the entry of a guilty plea:

“The trial judge has a broad discretion to make inquiries in determining whether or not to accept a guilty plea. The entry of a guilty pleais a monumental event in the trial of a criminal charge. The effect of the plea is to waive and remove basic and essential rights given toprotect the innocent from conviction. The purpose of making such inquiries is to assist in protecting the innocent by ensuring guiltypleas are:

a) Unequivocal;

b) Voluntary; and,

c) Informed. [12] Hill, J. in discussing the burden of proof, goes on to state at paragraph 43 “...that where a trial judge has a real doubt as to thepleas validity, the court should strike the plea and send the case to trial”. [13] This court agrees with the reasoning and dicta of Swail, J. in R. v. Ignacio

(2005) CanLII 20676 (MBPC) respecting the onus onthe applicant in relation to this motion. After a comprehensive discussion of the authorities Swail, J. concluded that such burden ofpersuasion should be on a balance of probabilities, i.e. that the accused must prove his version of events is probably true, not only that itmay be true. In such regard I also concur with Garson, J.’s observation in R. v. Olson (1980) (MB PC), 1 W.W.R.279 that there is a common law presumption that a competent member of the bar would not do anything that would be inimical to hisclient’s interests or rights.

REVIEW AND ANALYSIS OF THE EVIDENCE [14] The accused’s affidavit is contradictory of his testimony. The affidavit specifically deposes that Mr. Zaman only told theaccused that “we could ask” the judge to sentence me to time that he had already spent in custody (15 months at such time). It makes nomention of any assurances or guarantees. This suggests to me that the accused’s contradictory viva voce testimony on this point shouldbe regarded as untrustworthy. [15] It was clear from his July 18th testimony that Mr. Tchibaga was relatively capable of conversing in English.

Indeed, althoughan interpreter was present to do verbatim translation, he often responded to questions without benefit of Swahili

interpretation. As such, Iam inclined to believe that the accused has purposely exaggerated his English language deficits to enhance his position with respect tothis application. [16] Judge Lismer`s post plea inquiry regarding whether the accused had any questions was answered in the negative. One wouldexpect, given the concerns that were related in the accused`s evidence, that this would have been an opportune time to confirm his fifteenmonth time in custody sentence. But no questions were asked about this or any other matters. This, in my view, suggests a complacency which contradicts the accused`s evidence.

After all, if his July 18th testimony is to be believed, he was expecting the judge to releasehim from custody that very day. If such were the case, then why wouldn`t he seek such an assurance from Judge Lismer when invited toask questions? [17] The accused’s version of events suggested serious professional misconduct by Mr. Zaman. As such it makes no sense insofar asMr. Zaman could not conceivably have benefitted from such actions. As Mr. Zaman pointed out, he would be paid more if the matterswere put to trial. And there was certainly no suggestion that Mr. Zaman bore any personal animus against the accused.

If anything, theevidence in this case completely belies this. The Authorization/Instructions that Mr. Zaman had the accused sign were fully reflective ofthe accused’s jeopardy should he plead guilty. And the in-court plea inquiry was comprehensive covering all the mandated legalrequirements necessary to satisfy the court of its voluntariness and validity. The plea inquiry was accepted by Judge Lismer as beingvoluntary and informed. The accused’s responses to Mr. Zaman’s questions in such regard had been straight forward and unequivocal. He had even declined to utilize the services of the interpreter that Mr.

Zaman had taken pains to provide. [18] I also had difficulty with the accused’s explanation for his acquiescence and passivity when appearing before Judge Lismer;that Mr. Zaman had instructed him to say “yes” to all his questions, even the one respecting the sentencing judge having the final say asto the length of sentence. One would have thought that the accused would have found the question rather odd given his alleged beliefthat Mr. Zaman had worked out a 15 month plea bargain arrangement.

At this point one would have expected the accused to haveminimally expressed some concern or query about his sentence length. [19] There is no question that situations can arise where there are legitimate and understandable misunderstandings between counseland client respecting the nature of a plea. However, in this case, for this very reason counsel certainly appears to have taken deliberatesteps to avoid such a consequence. Mr. Zaman’s evidence on this point was corroborated by signed documentation and appropriateresponses to his plea inquiry questions in court. As a consequence Mr.

Zaman’s testimony certainly seemed internally consistent withhis professional obligations to the accused. Put simply, there is evidence that he knew the rules and was conscientiously undertaking toabide by same, that he did his ethical and legal due diligence in relation to Mr. Tchibaga’s plea. And, as the Crown observed, theaccused’s allegations do not reflect mere incompetence or negligence on Mr. Zaman’s part, they suggest total dereliction of professionalduty as well as dishonesty unbecoming a member of the bar. If the accused is to be believed, Mr.

Zaman would have to be a verymisanthropic if not sociopathic person, a very perverse individual who took pleasure in exposing his misguided clients to serious riskwith respect to their sentencing outcomes. Given my familiarity with Mr. Zaman’s usual thoroughness and preparation, consistent withhis seniority at the criminal defence bar, such a possibility seems most unlikely. [20] I therefore conclude that Mr. Tchibaga’s guilty plea in this matter was both voluntary, legally informed and unequivocal.

Ibelieve that he was well aware of the allegations against him, the effect of his plea and the possible sentencing consequences of his plea. I do not believe that the accused entered a false guilty plea because of improper inducements respecting the length of his sentence. It ismy opinion that the accused, to quote from paragraphs 34 and 35 of the Adgey decision, “plead guilty for reasons which he regards asappropriate”. Put simply, I believe he wanted the four charges dropped in order to reduce his exposure to lengthy incarceration.

[ 21 ] In R. v. R.M ., [2002] M.J. No. 354 , Madam Justice Beard, then of the Manitoba Court of Queen’s Bench, reviews the relevant law as follows: -The grounds for setting aside a guilty plea include the following: (

i) the plea was not voluntary and unequivocal; (ii) the plea was not informed, in that the accused was not aware of the nature of the allegations made against him or her, the effect of the plea and the consequences of the plea; or (iii) other circumstances make it justified, in the interests of justice, to permit a withdrawal of the plea; -there is evidence of a viable defence. In this case such grounds are completely missing and there is no evidence of a viable defence. [ 22 ] I am, moreover, of the firm view that a withdrawal of the guilty plea is not justified in the over-all, broader interests of justice.

This is primarily because I firmly believe that Mr. Tchibaga is deliberately and falsely discrediting his former counsel, Mr. Zaman, in order to manipulate the system and delay matters further in an opportunistic effort to start the process anew. To put it bluntly I find Mr. Tchibaga’s evidence in this matter to be both suspect as well as lacking in both credibility and reliability. [ 23 ] I therefore reject Mr. Tchibaga’s application and order that this matter proceed as expeditiously as possible to sentencing. “ORIGINAL SIGNED BY:” CORRIN, P.J. APPENDIX “A” APPENDIX “B” APPENDIX “C”