Her Majesty the Queen - v. -, 2014 SKPC 159

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 159 Date: July 25, 2014 Information: 24504038 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kyla Rae Therres Appearing: M. Owens ( ex parte ) For the Accused FIAT Q.D. AGNEW , J [ 1 ] Mr. Owens has requested leave to appear by telephone on the trial date of this matter, for the purpose of applying to withdraw as counsel.

He anticipates that, following his withdrawal, his then ex-client will change her plea to guilty on one of the counts set for trial, and that she will speak to sentence on her own behalf. This follows Mr. Owens’ application to appear by telephone to plead her guilty and speak to sentence on her behalf, which application was rejected. That application was in the context of an agreement, entered into between Mr. Owens and the Crown, on the guilty plea and a joint submission on sentence. [ 2 ] In deciding whether or not to allow Mr.

Owens’ application, I have considered the possibility that his client will change her

mind, and choose to maintain her not-guilty pleas, as would be entirely within her rights. In such circumstances, the Court might well require the trial to proceed, with the accused then presumably having to act on her own behalf; alternatively, the accused might request an adjournment to seek other counsel. Both of these outcomes would be factors militating against granting leave to withdraw, and thus would require Mr. Owens’ presence. [ 3 ] I have also considered that if the accused chose not to change her plea, then Mr.

Owens would likely be in a position where he would, ethically, have to apply for leave to withdraw on the basis that the solicitor-client relationship had broken down, not to mention that Mr. Owens’ position with the Crown (having given a commitment which he could not then live up to) would be so compromised that he might well have to withdraw for that reason as well. Those reasons might well result in the Court granting leave to withdraw. [ 4 ] Accordingly, I have decided to grant leave for Mr.

Owens to appear by telephone for the purpose of asking for leave to withdraw, leaving his client to apply to change her plea (if she so chooses) and speak to sentence on her own behalf (if applicable). I do so only on one condition, however, outlined as follows: 1. as indicated above, apparently it was previously proposed that a joint submission would be put before the Court at the sentencing stage. A joint submission carries considerable weight, not to be departed from unless clearly outside the appropriate range of sentence.

In the event that the Court is considering doing so, counsel are typically entitled to an opportunity to defend the joint submission before the Court makes a final decision on sentence; 2. in my view, a mutual sentencing position put forward by the Crown and a self-represented accused does not attract the same degree of deference from the Court. The self-represented accused will typically not be in the same position as counsel with respect to knowledge of the law, sentencing options, sentencing ranges set out in caselaw, and other relevant matters.

These typically inform defence counsel’s negotiations with the Crown, and thus the joint submission. Counsel’s expertise in these matters is a factor in the deference the Court pays to joint submissions.

I have not been able to locate any cases which specifically address whether or not a joint submission can be made by the Crown and a self-represented accused; I have, however, found a large number of cases which emphasize the reliance, in accepting joint submissions, which the courts place on the presence of skilled and knowledgeable defence counsel in the process; 3. while presumably counsel has been involved in the negotiation of the sentence submission expected to be offered in the present matter, the caselaw also indicates that counsel have a very important role in defending a joint submission if the sentencing judge is unpersuaded.

The deference given to a joint submission relies in part on the opportunity the parties have to defend a joint submission if the Court is disinclined to accept it. Such a defence might well involve (

a) knowledge of the applicable legal principles, (

b) knowledge of solicitor-client privilege, (

c) tactical decisions about how much to disclose and what might be better left quiet. A self-represented accused is unlikely to be able to properly defend a joint submission in the manner it may require; 4. an accused lacking in knowledge, as most of them are likely to be, could end up in a joint submission which, while not outside the appropriate range, is not the most fit sentence. An accused in such a situation, therefore, is to a certain extent at the mercy of the Crown. I do not suggest that individual Crowns would take advantage of such accused.

However, there might be a perception that this has occurred, in some cases. Additionally, while the Crown is to strive for justice, our system is none the less an adversarial one: the Crown should advance its position with vigour. Having it do so, but at the same time try to make up for an accused person’s lack of knowledge, puts a significant tension on the Crown. In such situations, the ability of the Court to oversee the proposed sentence without the hamstringing effect of a joint submission protects the integrity of the justice system, and ensures that justice is not only done, but is seen to be done.

Indeed, treating such a sentencing proposal on the same basis as a counsel-based joint submission would, in my opinion, carry a significant risk of bringing the administration of justice into disrepute; 5. accordingly, Mr. Owens can bring his application, but only on the basis that he explicitly informs his client that the Court will not be bound by the proposed sentence to the same extent as if it was a joint submission made by counsel. I make this decision in part on the basis that Mr.

Owens may well have discussed with his client the expectation that the Court will follow the sentencing recommendation, being a joint submission; his client must be disabused of any such notion. The Court will consider carefully the position put forward by the Crown, and whatever comments the accused wishes to make, and will then sentence her accordingly, without any additional deference given to the proposed sentence. I will not, of course, inquire into discussions between Mr.

Owens and his (still-current) client: he is an officer of the Court, and if he proceeds with his application to withdraw, I will assume that he has complied with this direction.

[ 5 ] If Mr. Owens is so inclined, he may instead use his telephone appearance to request an adjournment to the following day, when I understand he will be in Humboldt on another matter, and his client’s matter could be spoken to at that time. The choice is his. ______________________ Q.D. Agnew, J