ANGELA MCCARTHY APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT, 2016 NLCA 33

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : R. v. McCarthy , 2016 NLCA 3 3 Date : 20160630 Docket : 201501H0021 BETWEEN: ANGELA MCCARTHY APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Harrington and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Corner Brook Appeal Heard: June 20, 2016 Judgment Rendered: June 30, 2016 Reasons for Judgment by Welsh J.A. Concurred in by Harrington and Hoegg JJ.A. Counsel for the Appellant: Keir O’Flaherty Counsel for the Respondent: Vikas Khaladkar Counsel for the Intervenor: Randy J. Piercey Q.C.

Welsh J.A.: [ 1 ] Angela McCarthy pleaded guilty to and was convicted of a charge of obstruction of justice contrary to section 139(2) of the Criminal Code . She was sentenced to nine months imprisonment. Ms. McCarthy initially filed an application for leave to appeal the sentence. However, having engaged new counsel, she now seeks to appeal her conviction on the basis that the guilty plea should be set aside for the reason, among other things, of ineffective assistance of counsel. BACKGROUND [ 2 ] Ms.

McCarthy was employed in a civilian clerical position with the Corner Brook detachment of the Royal Newfoundland Constabulary (the “RNC”) for approximately six years. On April 7, 2014, she was called into an interview room at the detachment by her supervisor, Sergeant Buckle. The interview was conducted in the presence of Constable Sharpe and was videotaped. The transcript of the interview clearly indicates that Ms. McCarthy was advised that the interview was about a criminal investigation in relation to the release of information regarding an on-going police investigation.

She was advised of the basic facts alleged against her. Sergeant Buckle told her:

Let me explain what your jeopardy is. Jeopardy is you could potentially be charged with obstruction of justice and breach of trust. This statement was immediately followed, before Ms. McCarthy had an opportunity to say anything, with her Charter rights andcautions; that is, the right to remain silent and to contact a lawyer, which she indicated she understood. She was advised about theavailability of legal aid and how to apply. [3] Ms. McCarthy agreed to proceed with the interview, choosing not to contact a lawyer.

She was advised that she could changeher mind at any time in order to exercise her right to seek the assistance of counsel. During the interview, she admitted that she had toldher cousin that his photograph had been posted on a wall in the drug

section of the detachment and that he should “watch it”. On cross-examination on her affidavit in this Court, Ms. McCarthy admitted that she was giving her cousin a warning about a police investigation. [4] After the interview, Ms. McCarthy’s employment was suspended and she was escorted from the building.

On April 10, 2014,she was served with a summons to appear in court respecting a charge that she “did wilfully attempt to obstruct, or pervert or defeat thecourse of justice in a judicial proceeding by knowingly releas[ing] information pertaining to [the] identify of targets in a druginvestigation, contrary to section 139(2) of the Criminal Code.” An information to that effect was sworn on the same day. On April 15,2014, a new information removing a phrase that did not apply and changing the venue was sworn respecting the same charge (seebelow). [5] Ms.

McCarthy sought legal advice and ultimately instructed her counsel to enter a guilty plea. In court on March 4, 2015, thefacts were read into the record, the guilty plea was accepted, and Ms. McCarthy was sentenced to nine months imprisonment. [6] Given Ms. McCarthy’s allegations, her counsel in the court below was granted intervenor status and was independentlyrepresented for purposes of addressing the issue of ineffective assistance of counsel.

ANALYSIS [7] Obstruction of justice is an indictable offence under section 139(2) of the Criminal Code: Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the courseof justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Sections 139(1) and (3) deal, respectively, with offences in respect of sureties and bribes, and refer to obstructing justice “in a judicialproceeding”, a phrase not found in subsection (2).

Amending and Laying a New Information [8] The information sworn on April 10, 2014 mirrored the language of section 139(2) of the Code, except that it included thephrase “in a judicial proceeding”. That phrase was deleted as inapplicable in the April 15, 2014 information (see paragraph 7, above). In addition, Benoit’s Cove, being the place of the offence, was substituted for Corner Brook. The matter proceeded on the newinformation. Subsequently, an amendment was also made to the dates set out in the information. [9] Ms.

McCarthy submits that her consent, which was neither sought nor given, was required to amend or lay a new information. That position is inconsistent with

section 601 of the Criminal Code which provides broad authority to amend an information orindictment (R. v. Côté, (SCC), [1996] 3 S.C.R. 139, at paragraph 90). In Côté, Lamer C.J.C., for the majority,explained: [91] In considering whether to amend a defective information or indictment, a court must concern itself with the impact of theproposed amendment upon the accused. The applicable standard under s. 601 of the Code is whether the accused would suffer“irreparable prejudice” as a result of the amended charge: … [10] The same authority applies where the Crown lays a new information.

That issue is discussed in R. v. McNeil, 2013 NLCA 42,340 Nfld. & P.E.I.R. 42, where the Court concluded: [14] … The filing of a new information had the same effect as amending the original. The application of the endorsements from theoriginal to the new information, including the not-guilty plea, facilitated this result. Mr. McNeil was not prejudiced in his ability toanswer the charge against him. Accordingly, the appeal on this basis must be dismissed. For a discussion of amending the date in an information, see R. v.

Hillier, 2016 NLCA 21, at paragraph 17. [11] In this case, there is no basis on which to conclude that amending or laying the new information caused prejudice to Ms.McCarthy’s ability to answer the charge, including her decision to plead guilty. Jurisdiction of the Royal Newfoundland Constabulary [12] Ms. McCarthy submits that a member of the Royal Newfoundland Constabulary did not have territorial jurisdiction to serve herwith the summons. There is no basis for this submission.

Section 8 of the Royal Newfoundland Constabulary Act, 1992, SNL 1992, c.R-17, provides: A police officer has authority to act throughout the province. “Police officer” is defined to mean an officer of the RNC (section 2(

l) of the Act). [13] It is clear that an RNC officer had jurisdiction to serve the summons on Ms. McCarthy in Benoit’s Cove.

Effect of Designation of Counsel [ 14 ] Section 606(1.1) of the Criminal Code enumerates conditions to be satisfied in order for a judge to accept a guilty plea: 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. [ 15 ]

Section 650.01 of the Criminal Code authorizes the designation of counsel such that, with specific exceptions, the accused who is being represented by counsel is not required to appear in court:

(1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court. …

(3) If a designation is filed, … (

b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and (

c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise. [ 16 ] I begin by noting that a designation of counsel, dated November 7, 2014, was signed by Ms. McCarthy and her solicitor. A review of the document leads to the conclusion that Ms. McCarthy must have understood that she was authorizing her counsel to act on her behalf.

She indicated that she wanted to avoid court appearances as much as possible in order to avoid media coverage. [ 17 ] The document clearly sets out: the nature of the charge; that, if she enters a guilty plea, the Crown will be requesting “a jail sentence of 6-9 months”, 18 months probation, and a victim fine surcharge which she will be required to pay; that the sentencing judge will not be bound by counsel’s submissions regarding an appropriate sentence; that the judge may impose the maximum sentence of ten years imprisonment; that “by pleading guilty I am admitting that I did commit the offence alleged” and that “I have been advised that my counsel will not be party to entering of a guilty plea if I did not commit the offence alleged”; that “I am entering a plea of guilty voluntarily, I understand the plea and that by pleading guilty I admit the essential elements of the offence” (the charge is repeated); and “I understand that in accordance with section 606(1.1) of the Criminal Code the Court may only accept my plea of guilty if it is satisfied that I am making the plea voluntarily, I understand the plea and admit the essential elements of the offence, I understand the nature and consequences of the plea and that the Court is not bound by any agreement made between my counsel, myself and the prosecutor.” [ 18 ] Ms.

McCarthy’s submission that the designation of counsel was not effective throughout the proceedings is without basis. No limitation is set out in the document, and there is nothing from which to draw such an inference. Ms. McCarthy was, of course, free to revoke the designation, but that would require her specific instructions. [ 19 ] Ms. McCarthy further submits that she was not present in the court as required by

section 650.01(3)(

c) to enter her guilty plea. This is incorrect, given the manner in which the court dealt with the charge. Several facts are clear from the transcript of March 4, 2015 when the court dealt with her charge. [ 20 ] Ms. McCarthy was present in court on that day. The judge asked Ms. McCarthy’s counsel whether Ms. McCarthy was “contesting that she had the intent necessary to attempt to obstruct the course of justice?” There followed some discussion of case law, with Ms.

McCarthy’s counsel indicating, “I’ve looked at that issue very carefully prior to accepting her instructions with respect to the guilty plea.” After discussing case authority regarding the mens rea of the offence, counsel told the judge: And, … if my understanding of the law upon that review is correct, then she can safely enter a plea of guilty to the matter because her intention was to disclose; I’ve canvassed with her that it was not a spontaneous utterance, that it was not something that she simply let slip, but that she did deliberately intend to disclose the existence of the photographs in question and that the implication from that, obviously, would be that there was a police investigation and that disclosure of a police investigation could reasonably be expected or could tend to obstruct justice. [ 21 ] Counsel went on to say: So, that is the understanding upon which I am content that she may enter a guilty plea to this, but I have to tell Your Honour that it was not an easy consideration and that if the court feels that that is not appropriate then I certainly could not take issue with that, but I have canvassed the law thoroughly and I am satisfied that she did intend to make the statement and that the statement can reasonably be expected to tend to obstruct justice. [ 22 ] The judge responded:

Alright, the normal distinction between motive and mens rea . Alright, is the Crown agreeable to the – or, content to maintain and accept the guilty plea? Crown counsel responded in the affirmative. [ 23 ] The judge then, “based on those assurances”, proceeded to have Crown counsel provide a

summary of the circumstances by reading from Sergeant Buckle’s report. The judge then asked Ms. McCarthy’s counsel: … [D]oes Ms. McCarthy accept the Crown’s summation as an accurate

summary of her offence? [ 24 ] Counsel responded in the affirmative, but also asked “to add to the picture” by reading in portions of Ms. McCarthy’s statement to the police: … When asked by the police what she had said, she advised that it was in a driveway with Mr. [Terry] Gallant and another lady in a vehicle and what she said was, “All I said is your picture is on the wall so watch out.” And she said, “I said you guys, you know you’re being watched. Like I said, I seen your picture, I didn’t see anybody else’s picture.

The only person I knew there, actually that’s a lie, I knew Wes Gallant’s picture because Wes is my cousin, right. And then all I said was your picture is on the wall. I need you to stop. I need you to just – you didn’t want this for your family.” … [ 25 ] Crown counsel agreed that that information could be added to the statement of facts. The judge concluded: Alright, very good. Thank you. I’m satisfied based on that that the elements under

section 139 are established. The judge then proceeded to hear submissions on sentence. [ 26 ] It is clear from the above that Ms. McCarthy was present in court when her guilty plea was accepted. This is in compliance with

section 650.01(3) (

c) of the Criminal Code . Ineffective Assistance of Counsel [ 27 ] For purposes of assessing Ms. McCarthy’s allegation of ineffective assistance of counsel, the Court permitted Ms. McCarthy and her counsel each to file an affidavit, and to be cross-examined on the affidavit. (See: R. v. Freake , 2012 NLCA 10 , 318 Nfld. & P.E.I.R. 305, at paragraphs 10 to 14 ; R. v. Sutton , 2012 NLCA 35 , 323 Nfld. & P.E.I.R. 214, at paragraphs 13 and 14 .) [ 28 ] In this case, the allegation of ineffective assistance of counsel applies not to the conduct of a trial, but to whether there is a basis for setting aside Ms.

McCarthy’s guilty plea. The appropriate analytical approach is set out in R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520. Major J., for the Court, explained: [26] The approach to an ineffectiveness claim is explained in Strickland v. Washington , 466 U.S. 668 (1984), per O’Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard.

The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness.

In others, the reliability of the trial’s result may have been compromised. [ 29 ] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow ( Strickland , supra , at p. 697). [29] Ms.

McCarthy submits that there will be a miscarriage of justice if her guilty plea is not set aside. First, she submits that the statement she gave in her interview with the police would not have been admissible in a trial. That submission is not persuasive. The evidence is clear that the statement was voluntary and that she received the appropriate Charter rights, cautions and information, which she indicated she understood. [ 30 ] While Ms.

McCarthy may not have realized the consequences that may flow from her decision to give a statement, she was aware that she was in jeopardy of being charged with the criminal offence of obstruction of justice. Had she exercised her right to contact counsel, she may have decided not to give a statement. However, having given a statement that satisfies the threshold for admissibility, Ms. McCarthy cannot establish a miscarriage of justice on this basis. [ 31 ] Ms. McCarthy concedes that she decided to plead guilty to the charge, and that she gave that instruction to her counsel.

However, she contends that she had a defence, and that she made her decision to plead guilty for financial reasons based, in particular, on the potential costs associated with pursuing information that her counsel advised her may have been used to proffer, at best, a weak and novel defence. Ms. McCarthy was provided with the information necessary to make her decision. It was, then, her choice. The facts on which the judge accepted her plea were sufficient to establish the offence.

There was no obvious defence and she chose not to pursue the question of a defence any further. [ 32 ] I would contrast this with the circumstances in R. v. Turnbull , 2016 NLCA 25 , in which the trial judge refused to accept Mr. Turnbull’s guilty plea because he told the judge that he had acted in self-defence which, if established on the facts, would provide a clear

defence to the charge of unlawfully killing a polar bear. [ 33 ] Ms. McCarthy also submits that she did not realize that, if she pleaded guilty, the judge may sentence her to a term of imprisonment. I reject Ms. McCarthy’s statement in her affidavit that her counsel almost guaranteed her that she would not go to jail but would receive a conditional sentence. Rather, I accept her counsel’s denial and his explanation for stating that he would not have said this to Ms. McCarthy.

The designation of counsel document clearly sets out the Crown’s position that a term of six to nine months imprisonment would be requested. In correspondence from Crown counsel, which was provided to Ms. McCarthy, the Crown maintained this position regardless of whether Ms. McCarthy decided to plead guilty. [ 34 ] Further, Ms. McCarthy submits that her counsel was in a conflict of interest based on his representation of Sean Kelly. Counsel states in his affidavit that he did not know that the cases were connected and that Ms. McCarthy did not mention Mr. Kelly.

In any event, there is no evidence that a miscarriage of justice occurred, even assuming the presence of a conflict of interest. [ 35 ] Ms. McCarthy also submits that her counsel did not give her full disclosure of the case against her. This submission is not persuasive. It is clear from the detailed contents of counsel’s affidavit that Ms. McCarthy was properly informed throughout in accordance with the standard expected of counsel in a solicitor/client relationship. There is no basis on which to conclude that there was a miscarriage of justice.

Further, the evidence is that her counsel was forthright and professional in the manner in which he dealt with both Ms. McCarthy and the court.

SUMMARY AND DISPOSITION [ 36 ] In

summary, there is no basis on which to find that Ms. McCarthy’s guilty plea resulted in a miscarriage of justice. Nor is there any basis on which to find that any prejudice occurred to Ms. McCarthy related to her counsel’s handling of her case. Indeed, while the Court in R. v.

G.D.B. , supra , cautioned against considering the performance of counsel component of the analysis unless necessary, I would add, based on the comprehensive affidavit provided by counsel, that his conduct of the case fell well within the range of competent professional assistance. [ 37 ] Accordingly, I would deny the request to set aside the guilty plea, and would dismiss the appeal against conviction, with leave to proceed with the appeal as to sentence. ____________________________________ B. G. Welsh J.A. I concur: _________________________ M. F. Harrington J.A. I concur: _________________________ L. R.

Hoegg J.A.