Her Majesty the Queen - v. -, 2011 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 051 Date: March 31, 2011 Information: 34236745, 40380704, 24365863, 24423789, 30562756, 31111767 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darren Wade Dieter Appearing: Mr. A. Breker For the Crown Mr. J. Deagle For the Accused DECISION ON APPLICATION TO EXPUNGE GUILTY PLEAS M.J. HINDS , J Introduction [ 1 ] The accused appeared before me in docket court during the morning of September 8, 2010, respecting several criminal charges he was facing.

During this court appearance the accused represented himself. Mr. Jerome Tholl appeared for the Crown. The accused expressed a desire to enter guilty pleas to all of the charges before the Court. I declined to accept his guilty pleas as the Crown indicated there was an issue as to whether the accused was prepared to admit certain facts in support of the charges before the Court. On September 8, 2010, I inquired whether Mr. Dieter had talked to the Crown about its position on sentencing. Mr. Tholl advised me that

on August 25, 2010, another prosecutor had indicated to Mr. Dieter that the Crown would not be asking for jail in this matter. He added that the Court should consider imposing a conditional sentence in this matter. The accused’s charges were adjourned to the next day, September 9, 2010 at 2:00 p.m., for case management. [ 2 ] On September 9, 2010, the accused and Mr. Adam Breker for the Crown appeared before me for case management. Six informations containing a total of thirteen charges were before the Court. At the onset of the case management, Mr.

Dieter advised me that he once again wished to enter a guilty plea to all of the charges. Prior to going through each information with Mr. Dieter, I asked the Crown what its position would be on sentencing assuming I accepted guilty pleas to all of Mr. Dieter’s charges. The Crown again stated it would not be seeking actual custody. I inquired as to whether the Crown’s position on sentencing was motivating him to enter guilty pleas today. Mr. Dieter replied “Yes”. [ 3 ] During case management, the Crown set out the facts pertaining to each charge.

I conducted a plea inquiry pursuant to section 606 (1.1) of the Criminal Code on each charge with Mr. Dieter. The informations were dealt with as follows: Information 40380704 The Court accepted Mr. Dieter’s guilty pleas to two charges arising from July 5, 2009, that he did commit

(1) Mischief by wilfully destroying windows the property of Zachary Wasacase, not exceeding five thousand dollars, contrary to section 430(4) of the Criminal Code and

(2) Assault using a weapon, a hammer on Allen Mozylinski, contrary to

section 267 (

a) of the Criminal Code . Information 34236745 The Court accepted Mr. Dieter’s guilty plea to a charge from July 5, 2009, that he did fail without lawful excuse to comply with a term of his undertaking that he was not to have contact or communicate, directly or indirectly, with Zachary Wasacase and Allen Mozylinski except through a member of the Law Society of Saskatchewan, contrary to section 145(3) of the Criminal Code . Information 24365863 The Court accepted Mr.

Dieter’s guilty plea to a charge from July 25, 2009, that he did commit mischief by wilfully damaging, without legal justification or colour of right the property of Linda Ileen Kater, the value of which did not exceed five thousand dollars, contrary to section 430(4) of the Criminal Code . Information 24423789 The Court accepted Mr.

Dieter’s guilty plea to a charge from April 22, 2010, that he did having appeared before a Court to wit Fort Qu’Appelle Provincial Court on October 29, 2009, did unlawfully fail to attend Court on April 22, 2010, at Fort Qu’Appelle as required by the said Court, contrary to section 145(2) (

b) of the Criminal Code . Information 30562756 The Court accepted Mr. Dieter’s guilty pleas to two charges from February 24, 2010, that he did

(1) Commit an assault on Andrea Acoose, contrary to

section 266 of the Criminal Code and

(3) Fail without lawful excuse to comply with a condition of his undertaking that he keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code . The Crown entered a stay of proceedings to count number two (2), being a charge from February 24, 2010, that he did commit mischief by wilfully damaging a door the property of Andrea Acoose of a value not exceeding five thousand dollars, contrary to section 430(4) of the Criminal Code . Information 31111767 The Court accepted Mr. Dieter’s guilty pleas to two charges from May 18, 2010, that he did

(1) Commit an assault on Jessica April Lavallee, contrary to

section 266 of the Criminal Code and

(2) Fail without lawful excuse to comply with a condition of his undertaking that he keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code . The Crown entered a stay of proceedings to count number three (3) and four (4) being charges from May 18 and 19, 2010 respectively, that he did fail without lawful excuse to comply with a condition of his undertaking that he keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code . [ 4 ] After the pleas were entered, the Crown took the position that the Court should consider sentencing Mr.

Dieter to a lengthy conditional sentence to include electronic monitoring, no contact conditions respecting victims, restitution, programming and discretionary weapons and DNA orders. At the conclusion of the case management I ordered that a pre-sentence report be prepared. The report was to address a number of matters including the appropriateness of a conditional sentence order including a condition that Mr. Dieter be subject to electronic monitoring for a period of time and the suitability of a no contact clause between the accused and his wife, Jessica April Lavallee. Mr.

Dieter’s matters were adjourned to October 22, 2010. [ 5 ] On or about October 14, 2010, I received a letter from Probation Officer, Corey Berenyi which addressed the pre-sentence report respecting Mr. Dieter. The letter of October 14, 2010, reads as follows: Your Honour

This letter is written in response to your request for a Pre-Sentence Report regarding the subject, due for sentencing before you on October 22, 2010. Unfortunately, the Report will not be available as the subject wants to expunge his guilty plea and states that he is not guilty of some of his charges. Mr. Dieter has attended all of his scheduled appointment ( sic ) and claims he is complying with the conditions of his undertaking. The subject stated to this writer that he is not guilty of some of the offence ( sic ) to which he is being charged with and would like the opportunity to prove his innocence.

The subject informed this writer that he has now obtained private counsel at the expense of helping his family with rent and food as he does not want to plead guilty to some of his charges. Due to the above information, Community Corrections respectfully requests that Mr. Dieter be referred back to the courts. Respectfully submitted Corey Berenyi Probation Officer [ 6 ] Mr. Dieter appeared before me again on October 22, 2010, with legal counsel, Mr. Deagle. An expungement hearing took place before me on January 7, 2010. Mr. Dieter was the sole witness. Mr. Deagle advised the Court that Mr.

Dieter was maintaining his guilty pleas to the following five charges: Information 40380704 July 5, 2009

(1) Mischief by wilfully destroying windows the property of Zachary Wasacase, not exceeding five thousand dollars, contrary to section 430(4) of the Criminal Code . Information 24365863 July 25, 2009 Commit mischief by wilfully damaging, without legal justification or colour of right the property of Linda Ileen Kater, the value of which did not exceed five thousand dollars, contrary to section 430(4) of the Criminal Code . Information 24423789 April 22, 2010 Unlawfully fail to attend Court on April 22, 2010, at Fort Qu’Appelle as required by the said Court, contrary to section 145(2) (

b) of the Criminal Code . Information 31111767 May 18, 2010

(1) Commit an assault on Jessica April Lavallee, contrary to

section 266 of the Criminal Code and

(2) Fail without lawful excuse to comply with a condition of his undertaking that he keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code . [ 7 ] Mr. Deagle advised the Court that Mr. Dieter is applying to expunge his guilty pleas on the following four charges: Information 40380704 July 5, 2009

(2) Assault using a weapon, a hammer, on Allen Mozylinski, contrary to

section 267 (

a) of the Criminal Code . Information 34236745 July 5, 2009 Fail without lawful excuse to comply with a term of his undertaking that he was not to have contact or communicate, directly or indirectly, with Zachary Wasacase and Allen Mozylinski except through a member of the Law Society of Saskatchewan, contrary to section 145(3) of the Criminal Code . Information 30562756 February 24, 2010

(1) Commit an assault on Andrea Acoose, contrary to

section 266 of the Criminal Code and

(3) Fail without lawful excuse to comply with a condition of his undertaking that he keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code . [ 8 ] The issue before the Court is whether Mr. Dieter’s guilty pleas to the four charges should be expunged. For the reasons that follow, the application to expunge the four guilty pleas is dismissed. The Law

[9] An expungement hearing should be conducted before the judge who accepted the guilty plea. In R. v. Moise, [2011] S.J.No. 58, Mills J. stated as follows at paragraphs 7 - 8: 7. I was the judge that took the guilty pleas on October 8, 2008. The process involving the Crown's application for dangerous offenderstatus for Mr. Moise was conducted before me as was the expungement hearing. The hearing should be conducted before the judge whoaccepted the guilty plea. In R. v. Savoie (1994), (NB CA), 145 N.B.R. (2d) 131, [1994] N.B.J.

No. 78 (QL), indealing with the issue of whether another judge of the same court should hear the expungement application, the Court of Appeal stated: 12. In my view, subject to s. 669.2, the judge who accepted the guilty plea is the judge who ought to have considered Mr. Savoie'smotion to change his plea. Otherwise, the procedure would amount to another judge of the same court reviewing the adjudication of acolleague. This approach is consistent with the notion that a judge who hears evidence in a Criminal Code matter becomes seized with the matter.In R. v. Cataract (1994), 1994 SKCA 4616 , 125 Sask.

R. 196, 35 C.R. (4th) 186, our Court of Appeal dealt with this in thecontext of s. 669 and came to the conclusion that the judge who accepted the guilty plea, which in essence is a confession and thereforeevidence, was found to have made an adjudication, acquired jurisdiction and became seized with the matter. 8. From a practical perspective, it also is appropriate for the judge receiving the guilty plea to conduct the expungement hearing.

Thatjudge will obviously be familiar with the actual entry of the guilty plea, will be aware of nuances, if any, that are not properly reflected inthe transcript and depending on the outcome of the application, will either proceed to sentencing or refer the matter for a new trial. [10] The Saskatchewan Court of Appeal in R. v. Leonard, 2007 SKCA 128, 307 Sask. R. 140, set out the factors to be consideredon an expungement hearing as follows at paragraphs 17 and 18: [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 acknowledgment 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 O.A.C. 81; 17 C.R. (4th) 247 (C.A.); Adgey v. R., (SCC), [1975] 2 S.C.R. 426; 13 C.C.C. (2d) 177;R. v. Moser (G.A.), [2002] O.T.C. 119; (ON SC), 163 C.C.C. (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. [11] The onus is upon Mr. Dieter to satisfy the Court that his pleas "had not been entered voluntarily, or [was] equivocal, or [was]uninformed" (see R. v. Lundberg, 2008 SKCA 45, 310 Sask. R. 87). The standard of proof is a balance of probabilities (see Adgey v. R., (SCC), [1975] 2 S.C.R. 426). [12] In R. v. Moser, (ON SC), [2002] O.J. No. 552 (Ont.

S.C.J.), Hill J. explained the meaning of the termsunequivocal, voluntary and informed in the context of guilty pleas as follows at paragraphs 32 - 34: [32] To be valid, the plea must be unequivocal -- the circumstances should not be such that the plea was unintended or confusing,qualified, modified, or uncertain in terms of the accused's acknowledgment of the essential legal elements of the crime charged: The

accused's personal entry of the plea is a factor tending to demonstrate the unequivocal character of the plea: [citation omitted] [33] A plea of guilty must be voluntary in the sense that the plea is a conscious volitional decision of the accused to plead guilty for those reasons which he or she regards as appropriate: Ordinarily a plea of guilty involves certain inherent and external pressures: Plea negotiations in which the prosecution pursues a plea of guilt in exchange for forgoing legal avenues open to it, or agrees not to pursue certain charges, do not render the subsequent plea involuntary: What is unacceptable is coercive or oppressive conduct of others or any circumstance personal to the individual which unfairly deprives the accused of free choice in the decision not to go to trial: There is, of course, no closed list of circumstances calling into question the voluntariness of a guilty plea: pressure from the court; incompetence of defence counsel; cognitive impairment or emotional disintegration of the accused; effect of illicit drugs or prescribed medications: [citations omitted] [34] Finally, a guilty plea's validity depends on the plea being informed.

It is essential that the accused understand the nature of the charges faced, the legal effect of a guilty plea, and the consequences of such a plea. Where an accused understands the factual basis for the allegations, counsel is able to give advice and take instructions respecting existence of the essential ingredients of the crimes charged. As stated, the legal effect of a guilty plea is to surrender the presumption of innocence and alleviate the prosecution's burden of establishing guilt beyond a reasonable doubt. The accused must generally know the jeopardy faced by way of possible punishment .

Often the seriousness of the offences is self-evident and therefore so too is the exposure to a stiff custodial disposition. However, incorrect legal advice as to sentencing options may call into question whether the plea was truly informed: [citations omitted, emphasis added] [ 13 ] In this case counsel for Mr. Dieter conceded that Mr. Dieter’s guilty pleas were voluntary and unequivocal. Counsel for Mr. Dieter took the position that some of Mr. Dieter’s guilty pleas were uninformed. ANALYSIS [ 14 ] Mr. Dieter is thirty nine years old and has a grade seven education. He is of Metis ancestry.

He testified that he has Hyperactive Attention Deficit Disorder. He also testified that he can read, but has some difficulties retaining the material he has read. Prior to September 9, 2010, Mr. Dieter received and reviewed the Crown disclosure respecting all of the charges before the Court that day. Mr. Dieter testified that he skimmed through the disclosure and that he did not understand it, as it was a lot of “legal mumbo jumbo”. He claims he put the disclosure down and became frustrated and depressed.

He also claims he was stressed on September 9, 2010 and wanted his legal matters to be “over with” that day. [ 15 ] Mr. Dieter also testified that he wanted Mr. Deagle to act as his lawyer on September 8, 2010, but was unable to contact him. My review of my notes and the transcript of his September 9, 2010 court appearance does not reveal that Mr. Dieter made any mention of his desire to have Mr. Deagle act as legal counsel for him. [ 16 ] Mr. Dieter testified that he talked to four Crown prosecutors prior to September 9, 2010, regarding his charges. Mr.

Dieter clearly understood he was facing an assault charge respecting his former girlfriend, Andrea Acoose and a charge of assault with a weapon, hammer respecting Allen Mozylinski. He testified he was unsuccessful in convincing any of the four prosecutors to “drop” (stay or withdraw) the charges against him involving assaults on Allen Mozylinski and Andrea Acoose. [ 17 ] On cross-examination, Mr.

Dieter made the following admissions respecting his September 9, 2010 court appearance: 1) he entered his guilty pleas voluntarily, 2) he heard the facts as read in by the Crown respecting the charges, 3) he accepted responsibility for the charges before the Court, and 4) he knew that the Crown would be seeking a conditional sentence to be served in the community. [ 18 ] I am of the view that on September 9, 2010, during the course of a plea inquiry, Mr. Dieter admitted the essential elements of all the charges to which he entered a guilty plea. In particular I note that Mr.

Dieter admitted the essential elements of the following charges which he applies to expunge his guilty pleas:

a) Information 40380704 July 5, 2009

(2) Assault using a weapon, a hammer, on Allen Mozylinski, contrary to

section 267 (

a) of the Criminal Code . On September 9, 2010, Mr. Dieter denied that he swung a hammer at Mr. Mozylinski and missed him. Rather, Mr. Dieter admitted that he had a hammer in his hand and threatened to hit Mr. Mozylinski with it.

b) Information 34236745 July 5, 2009 Fail without lawful excuse to comply with a term of his undertaking that he was not to have contact or communicate, directly or indirectly, with Zachary Wasacase and Allen Mozylinski except through a member of the Law Society of Saskatchewan, contrary to section 145(3) of the Criminal Code . On September 9, 2010, Mr. Dieter acknowledged that after being released from police cells on the assault with a weapon charge, he called Andrea Acoose and asked her to get a message to Mr. Mozylinski. The message was to tell Mr. Mozylinski that he was going to find him with his friends and make sure he would never testify.

c) Information 30562756 February 24, 2010

(1) Commit an assault on Andrea Acoose, contrary to

section 266 of the Criminal Code and

(3) Fail without lawful excuse to comply with a condition of his undertaking that he keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code . On September 9, 2010, Mr. Dieter acknowledged that after leaving Ms. Acoose’s residence he threw his tool belt against the rear door causing about a five inch diameter hole in the door of the house. He agreed that he subsequently re-entered Ms. Acoose’s house and pushed her into a wall, without her consent. [ 19 ] I am of the view that on September 9, 2010, when he entered his guilty pleas, Mr.

Dieter knew the Crown’s general position on sentencing. In particular he knew the Crown was going to seek a conditional sentence, which meant he was going to be placed on conditions to be served in the community. It appears that prior to September 9, 2010, the Crown did not advise Mr. Dieter of the specific conditions it would be seeking on a conditional sentence or any other orders being sought from the Court. It also appears Mr. Dieter did not ask the Crown what conditions it would be seeking on a conditional sentence or if the Crown would be seeking any other orders from the Court.

While it may have been preferable for the Crown to provide this information to Mr. Dieter prior to entering his pleas, I am of the view that Mr. Dieter generally knew the jeopardy he faced by way of possible punishment. I am satisfied that on September 9, 2010, Mr. Dieter knew a conditional sentence involved being permitted to serve his sentence in the community on certain conditions, which if violated could result in serving the remainder of his sentence in jail. I find that Mr. Dieter’s guilty pleas were voluntary, unequivocal and informed.

As a result I dismiss the application before me to expunge the four guilty pleas. Other Matters [ 20 ] On September 9, 2010, I ordered that a pre-sentence report be prepared respecting Mr. Dieter. Such a report has not been prepared. I expect that when a pre-sentence report is prepared, it will be of assistance to the Court in determining the appropriate sentence for Mr. Dieter.

In my experience pre-sentence reports provide a good deal of information about an individual and often address a full range of sentencing options. [ 21 ] In this case I requested that the pre-sentence report specifically address the appropriateness of a conditional sentence order including a condition that Mr. Dieter be subject to electronic monitoring for a period of time and the suitability of a no contact clause between the accused and his wife, Jessica April Lavallee. [ 22 ] During the course of Mr. Dieter’s testimony at the expungement hearing, it became apparent that Mr.

Dieter is under the mistaken understanding that if for some reason an electronic monitor unit is not available to him or is not recommended for him, that he will be going to jail. This understanding is incorrect and appears to have played a role in Mr. Dieter making the application to expunge the guilty pleas. An electronic monitoring condition is one of several conditions that may be imposed on Mr. Dieter. Electronic monitoring may or may not be a suitable or necessary condition. I will await the outcome of the pre-sentence report and any submissions which Mr.

Dieter or his counsel wish to make regarding electronic monitoring of Mr. Dieter. [ 23 ] During the course of Mr. Dieter’s testimony at the expungement hearing it also became apparent that Mr. Dieter is under the mistaken understanding as a result of his guilty plea to the charge of assaulting Mr. Mozylinski with a weapon [

section 267 (a)] that the Court is required to make an order that he will be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things. This understanding is incorrect and appears to have played a role in Mr. Dieter making the application to expunge the guilty pleas. The Crown elected to proceed by

means of

summary conviction on the assault with weapon charge against Mr. Dieter. Hence, the Court is not mandated to make a prohibition order under

section 109 of the Criminal Code . In this case the Court may make such an order under

section 110 of the Criminal Code . Mr. Dieter testified at the expungement hearing that he is of Metis ancestry and that he hunts and fishes to put food on the table for his family. I will take this information into account along with any other information which Mr. Dieter or his legal counsel wishes to provide me prior to making a decision on a prohibition order. M.J. Hinds, J