R. v. Whynot, 2023 BCPC 99

Citation: R. v. Whynot 2023 BCPC 99 Date: 20230502 File Nos: 34456-2-C, 34456-3-A, 34456-4-A, 34456-5-A, 35167-1, 35170-1, 35170-3-A, 74567-1-A Registries: Dawson Creek, Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. NATHAN COLIN WHYNOT RULING ON APPLICATION TO SET ASIDE GUILTY PLEAS OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: K. Blocka Appearing on his own behalf: N. Whynot Appearing for the Accused: C. Elden ( Amicus Curiae ) Place of Hearing: Dawson Creek , B.C. Date of Hearing: May 1, 2023 Date of Judgment: May 2, 2023 INTRODUCTION [ 1 ] Mr.

Whynot applies to set aside guilty pleas entered on February 2, 2021, and March 17, 2021. The application proceeded by

way of hearing during which the following occurred; related transcripts were filed, submissions were received from Mr. Whynot, theCrown and the Amicus. Mr. Whynot elected not to call any evidence. [2] Below, I discuss the relevant law, thereafter, I describe what occurred when the pleas were entered, and in doing so, I willsummarize the relevant portions of the transcripts. Thereafter, I will provide an analysis and give my conclusion. THE LAW [3] A trial judge has the discretion to permit an accused person to set aside a guilty plea: R. v.

Lam, 2020 BCCA 276 at para. 81.The person challenging the guilty plea bears the onus of showing there are valid grounds for setting it aside: R. v. Zaworski, 2022 BCCA144 at para. 4. [4] The principles of a valid guilty plea and considerations relevant to setting aside a guilty plea are summarized in R. v. Alec, 2016BCCA 282, at paras. 70-84: [70] A valid guilty plea is informed, voluntary, and unequivocal: T.(R.) at para. 14. [71] A plea will be informed where the accused is aware of the nature of the allegations, the effect of his or her plea, and theconsequences of entering it.

Where an accused is represented by counsel at the time of the plea, the court will, absent evidence to thecontrary, presume that counsel took necessary steps to ensure that the nature and consequences of the plea were understood: R. v.Eizenga, 2011 ONCA 113 at paras. 4, 51. [72] A voluntary plea is the product of an accused’s conscious, volitional decision to plead guilty for reasons which he or she regardsas appropriate. A guilty plea entered in open court will be presumed to be voluntary unless the contrary is shown: T.(R.) at paras. 10-16; R. v.

J.G.T., 2003 BCCA 1 at para. 17. [73] A guilty plea must be unequivocal: Eizenga at para. 42. Where an accused personally enters a guilty plea, it tends todemonstrate its unequivocal nature: Eizenga at para. 51. A plea that is qualified, modified, uncertain or conditional may be an equivocalone: T.(R.) at para. 23. [74] A trial judge has the discretion to accept or refuse a guilty plea. Until sentence is imposed, a trial judge also has the discretionto permit an accused person to withdraw a guilty plea.

Provided the trial judge exercises his or her discretion judicially, an appellatecourt will not lightly interfere: Adgey at 430. [75] An accused who is convicted following the entry of a guilty plea may appeal his or her conviction and assert that the plea wasnot valid and the underlying conviction the product of a miscarriage of justice.

An appellate court will only permit the withdrawal of aguilty plea and quash a conviction where “valid grounds” for doing so have been shown: Adgey at 431. [76] There is no complete catalogue of the circumstances that may be found to constitute “valid grounds” for permitting an accusedto withdraw a plea of guilty. The circumstances in which an appellate court will be justified in allowing an appeal from conviction wherean accused has pleaded guilty are varied.

The inquiry is case-specific and sufficiently flexible to take account of the almost infinite rangeof circumstances that might be said to have contributed to a miscarriage of justice: R. v. Meers (1991), (BC CA), 64C.C.C. (3d) 221 (B.C.C.A.). [77] From the authorities referred to herein, it is clear that certain inquiries will feature prominently in cases of this kind.

Forexample: • Was the accused represented at the time of the plea? • Does the accused have a meritorious claim that he was incompetently represented during the trial or at the time of the plea, andhas such a claim been advanced in connection with the appeal? • Was an inquiry of the sort contemplated by s. 606(1.1) of the Code undertaken at the time of the plea? • Was the plea entered by the accused personally? • Is there any evidence that the accused’s plea was involuntary? • Does the record reflect equivocation about the plea?

For example, did the accused seek to qualify the guilty plea in some way? • Does the record, or any additional evidence sought to be tendered on appeal, establish that the accused did not fully appreciatethe nature of the charge in respect of which the plea was entered? • Does the record, or any additional evidence sought to be tendered on appeal, establish that the accused was uncertain about theconsequences of the plea? • Does the record, or any additional evidence sought to be tendered on appeal, establish that the accused did not intend to admit afact which is an essential ingredient of the offence in respect of which the plea has been entered? • Do the facts read into the record following the plea support a conviction? • Has the accused tendered an affidavit on appeal explaining why the plea is invalid and why the underlying conviction should beset aside as a miscarriage of justice? • 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 in challenging the validity of the plea? [78] As noted in R. v. Moore, 2004 BCPC 560 at para. 22, “to permit accused persons to vacillate between claims of innocence, guiltand renewed claims of innocence would cause great mischief.” There are strong policy reasons for dismissing an accused’s application towithdraw a guilty plea when the appropriate time for making such a request has clearly passed and there has been no demonstration thatthe plea is invalid.

When a guilty plea has been entered, the Crown stops devoting resources to the prosecution and the evidence may nolonger be fresh. The inquiry must take account of prejudice to the public’s interest in certainty, finality and the expeditious resolution ofcriminal matters: R. v. Duong, 2006 BCCA 325 at para. 10; R. v. T.W.B. (1998), (BC CA), 107 B.C.A.C. 39 atparas. 11, 13; Eizenga at paras. 70-71. [79] A miscarriage of justice will not be countenanced because of delay.

But delay in advancing the assertion that a plea of guilty isinvalid may be a measure of the strength of the claim, and a factor to be considered in determining whether to permit the withdrawal ofthe plea. [80] Where the validity of the guilty plea is raised for the first time on appeal, the appellant bears the onus of showing on a balanceof probabilities that the plea was invalid. That onus is not easily discharged. [81] Discharging this onus engages an evidentiary threshold.

Where the invalidity of the plea is not clearly established on the record,this will almost inevitably involve the tendering of affidavit evidence on appeal in support of the claim: J.G.T. at para. 17; R. v.Wiebe, 2012 BCCA 519 at para. 22. [82] An appellate court will examine the trial record and receive additional material tendered by the parties which, in the interests ofjustice, should be considered in assessing the validity of the plea. The strictures of the test governing the admission of fresh evidence onappeal as set out in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759, particularly the due diligence criterion, is relaxedwhen the proposed evidence is directed at the fairness or integrity of the proceedings. The remaining criteria (relevance, credibility andwhether the evidence could be expected to have affected the result) apply with appropriate modification: R. v. Singh, 2014 BCCA 373 atpara. 17. The rules of evidence are not, however, dispensed with on applications to adduce fresh evidence directed at the fairness orintegrity of the proceedings. The proposed evidence must be relevant and admissible: R. v.

O’Brien, (SCC), [1978] 1S.C.R. 591 at 601-602; Wiebe at para. 22. [83] The availability of a defence may be an important factor to be weighed on an application to set aside the plea or on an appealfrom conviction where a guilty plea has been entered. In some circumstances, it may be a prerequisite to the granting of such relief: R. v.Read (1994), 1994 BCCA 1 , 47 B.C.A.C. 28 at para. 43; Singh at para. 51.

Evidence of a viable defence – in other words, adefence that might conceivably have succeeded had the matter gone to verdict – is not, however, a stand-alone justification for settingaside the plea or allowing an appeal from a conviction registered following the entry of a guilty plea: R. v. Fontaine, 2003 SKPC 143,242 Sask. R. 92.

Adoption of such a standard would unjustifiably lower the threshold for judicial intervention and obscure the essentialquestion governing the inquiry: “was the plea informed, voluntary and unequivocal”? [84] In my view, the mere existence of a possible defence, without more, will generally be of little assistance to an accused orappellant seeking to set aside a guilty plea.

This will be particularly so in a case where an accused or appellant: (1) was represented bycounsel; (2) was aware of the defence but chose not to pursue it by pleading guilty; and (3) derived a benefit from the plea such as anacquittal on the full offence charged. FEBRUARY 2, 2021 – INFORMATIONS 34456-3-A, 34456-5-A, 35170-3-A, 74567-1-A, 34456-4-A Introduction [5] On February 2, 2021, Mr. Whynot appeared before the court with counsel and guilty pleas were entered to informations 34456-3-A, 34456-5-A, 35170-3-A, and 74567-1-A. Mr.

Whynot challenges the legitimacy of these pleas arguing he never stated “guilty”, “notguilty” or “no contest”. As such, he argues the guilty pleas were not legitimately recorded. He also asserts the transcript demonstrates anintention to plead guilty to a single allegation of breach. Review of the transcript [6] The process of entering the pleas commenced with Mr. Whynot’s counsel alerting the court that Mr. Whynot intended to enterguilty pleas to a subset of informations following which they would ask the court to order various reports.

Counsel then proceeded toadvise all of the informations involved breaches and that he had canvassed s. 606 (1.1) with Mr. Whynot. Counsel then informed thecourt that Mr. Whynot understood the nature and consequence of entering the pleas. [7] Counsel next proceeded to describe the informations individually. In this regard, he stated what the breach was and the offencedate. For example, when dealing with information 35170-3-A, counsel informed the court that the allegation involved a breach of arelease order and he provided the date.

He then indicated he was instructed that there would be guilty pleas to informations; 34456-3-A,34456-5-A, 35170-3-A, and 74567-1-A. [8] After the above, the judge advised Mr. Whynot that they wanted to make sure they understood Mr. Whynot’s instructions, thathis pleas were voluntary, and that he knew he had a right to a trial. Thereafter, the following occurred on page 3 of the transcript: THE COURT: You do understand that you have a right to a trial, but you have suggested to your lawyer you wish to plead guilty? THE ACCUSED: Yes, [indiscernible/videoconference] just to the breach, right?

THE COURT: That’s right, I have four files here, that’s right. [9] The judge went through the informations individually. In doing so, the judge carefully introduced each allegation by providing

the date of the offence coupled with a brief description of the offending behavior. Prior to moving on to the next information, the judge asked Mr. Whynot if he intended to plead guilty and each time Mr. Whynot stated, “yes”. This process was followed for all of the informations. Analysis [ 10 ] The transcript satisfies me that Mr. Whynot’s guilty pleas were informed, voluntary and unequivocal. In reaching my decision, I observe Mr. Whynot was virtually present, he was represented by counsel, his counsel canvassed s. 606 (1.1) of the Criminal Code with him and Mr.

Whynot never corrected counsel when counsel informed the court that his instructions were that there would be multiple guilty pleas to various informations. [ 11 ] As for Mr. Whynot’s assertion that he intended to plead guilty to a single breach, Mr. Whynot relies on his exchange with the judge wherein the judge confirmed with him that he suggested to his lawyer he wished to plead guilty and Mr. Whynot responded, “Yes, just to the breach, right?” (emphasis added). In my view, the assertion that Mr. Whynot intended to plead guilty to a single breach is at odds with the entirety of the transcript.

My conclusion is based on three key things. First, Mr. Whynot’s counsel made it clear to the court, in Mr. Whynot’s presence, that Mr. Whynot’s instructions were that he wished to plead guilty to multiple breaches and thereafter counsel went so far as to identify the breache s . [ 12 ] Second, Mr. Whynot’s exchange with the judge, immediately after Mr. Whynot uttered the words “just to the breach”. In this regard, the following occurred: THE COURT: That’s right, I have four files here, that’s right. THE ACCUSED: Yes, okay, all right. Yes. Yes. [ 13 ] Again, showing Mr.

Whynot was aware that the guilty pleas related to multiple files. [ 14 ] Third, the judge explained part of the process and in doing so the judge referenced guilty pleas, plural. Thereafter, the judge reviewed the four allegations and after reviewing each one Mr. Whynot indicated he was intending on pleading guilty to the specific allegation reviewed. Simply, and based on the transcripts, I have no doubt that Mr. Whynot knew he was pleading guilty to four separate allegations. [ 15 ] Mr. Whynot asserts the guilty pleas should be set aside because he did not actually utter the word guilty.

In my view, such an utterance is not required. Rather, an accused’s plea can be entered in a number of ways. What is required is that the accused’s plea is informed, voluntary and unequivocal. An accused’s plea and the attendant requirements can be satisfied via statements of counsel, statements of the accused, and via questions posed by the court or any combination thereof. Importantly, there is no precise formula. Simply, the record must establish that the accused’s plea was voluntary, informed and unequivocal. [ 16 ] In this case, the record clearly demonstrates Mr.

Whynot instructed his counsel that he wanted to plead guilty to a number of breaches, that the breaches were reviewed with him and that he indicated he intended to plead guilty to each one. There is no evidence that his pleas were not informed, involuntary or equivocal. Conclusion [ 17 ] Based on the above, I conclude there is no evidence justifying setting aside the guilty pleas entered by Mr. Whynot on February 2, 2021, and his application is dismissed. MARCH 17, 2021 – INFORMATIONS 34456-2-C, 35170-1 Introduction [ 18 ] On March 17, 2021, Mr.

Whynot entered guilty pleas to information 34456-2-C; a two-count information alleging robbery and theft. He also pled guilty to information 35170-1 which alleges arson. Mr. Whynot challenges the legitimacy of these pleas arguing he never stated in court “guilty”, “not guilty” or “no contest”. He also argues the judge confirmed a guilty plea involving theft of merchandise and not theft under. As such, he argues the guilty pleas were not legitimately recorded and he applies to set them aside. Review of the transcript [ 19 ] On March 17, 2021, counsel appeared via teleconference and Mr.

Whynot appeared virtually from the pre-trail centre. The proceedings commenced with counsel advising the court they had canvassed s. 606 (1.1) with Mr. Whynot and they were satisfied that Mr. Whynot understood the nature and consequences of entering pleas. Counsel then invited the court to canvass s. 606 with Mr. Whynot. [ 20 ] After the above, counsel informed the court that Mr. Whynot was waiving a formal reading of information 34456-2-C and maintaining a plea of not guilty to count 1 (robbery) but pursuant to s. 606 of the Criminal Code entering a plea of guilty to the lesser offence of assault.

As for count 2, counsel informed the court that Mr. Whynot would enter a guilty plea to theft under. [ 21 ] The judge then canvassed Mr. Whynot’s guilty plea for the offence of assault and when the judge asked if he was pleading guilty to that allegation Mr. Whynot responded, “I guess, yes.” The judge explained to Mr. Whynot that a “yes” or “no” was required and informed him that he would get Mr. Whynot to confirm this in a moment. Unfortunately, Mr. Whynot’s plea to the lesser offence of assault was never confirmed. [ 22 ] As for the theft count, the judge asked Mr.

Whynot if he wished to plead guilty to theft of merchandise from Esso and Mr. Whynot stated, “yes”.

[ 23 ] The judge then addressed information 35170-1 and advised Mr. Whynot that they had been informed that Mr. Whynot wished to plead guilty to the offence of arson and when the judge asked if he wanted to plead guilty to that offence Mr. Whynot stated, “yes”. [ 24 ] After the above, the judge canvassed whether Mr. Whynot was certain he wished to plead guilty and he indicated, “yeah”. The judge then confirmed that Mr. Whynot was admitting the essential elements of the offences and that he understood there would be consequences for his offences. He then invited Mr. Whynot to ask any questions and Mr.

Whynot indicated he did not have any. Analysis [ 25 ] Turning to information 34456-2-C, I am unable to conclude that Mr. Whynot’s guilty plea to count 1 was unequivocal. In this regard, when Mr. Whynot was asked if he was pleading guilty to the offence of assault, he stated, “I guess, yes.” This response obviously concerned the judge who informed Mr. Whynot that he had to state “yes” or “no” and that he would confirm Mr. Whynot’s plea in a moment. The judge’s comments strongly indicate a perception that Mr. Whynot’s plea was equivocal. The Crown fairly concedes Mr.

Whynot’s plea to the assault was not clearly unequivocal. [ 26 ] As for the theft count, Mr. Whynot asserts that his counsel using the term theft under and the judge referencing theft of merchandise compromised his plea. I do not agree. In my view, Mr. Whynot, who was represented by counsel, was fully informed as to the allegation. Specifically, the judge set out the date, the location and the name of the business where the theft occurred. There is nothing in the transcript indicating any misunderstanding or lack of information on Mr. Whynot’s part.

Simply, counsel citing the offence and the judge citing the specifics of the offence did not undermine Mr. Whynot’s information regarding the allegation. [ 27 ] In terms of the arson, the transcript reveals Mr. Whynot’s plea was informed, voluntary and unequivocal. Specifically, Mr. Whynot’s counsel canvassed s. 606 (1.1) with him and was satisfied that Mr. Whynot understood the nature and consequences of entering a plea. The judge also canvassed Mr. Whynot’s understanding and awareness as to the consequences of entering a plea. Lastly, when the judge asked Mr. Whynot if he wished to plead guilty to arson, Mr.

Whynot stated, “yes.” [ 28 ] Finally, and as indicated in my analysis in relation to the February 2, 2021 proceeding, the fact that Mr. Whynot did not state “guilty” does not undermine the validity of his pleas. Conclusion [ 29 ] I conclude Mr. Whynot’s comments when the plea was entered in relation to count 1 on information 34456-2-C, are suggestive of some ambiguity and therefore I am not satisfied that his plea was unequivocal. Accordingly, Mr. Whynot’s application to set aside his guilty plea to count 1 is granted. [ 30 ] As for count 2, the theft, and information 35170-1, the arson, I am satisfied that Mr.

Whynot’s pleas were informed, voluntary and unequivocal. Accordingly, his application with respect to those matters is dismissed. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia