HIS MAJESTY THE KING RESPONDENT - v. -, 2022 SKKB 282

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 282 Date: 20 22 12 05 Docket: CRM-RG-00360-2018 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING RESPONDENT - and - MOHAMMAD MAHDI ZABIHULLAH APPLICANT PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Counsel: Arjun Shankar for the Crown Barry P. Nychuk for the applicant ORAL JUDGMENT ON EXPUNGEMENT APPLICATION MITCHELL J.

December 5, 2022 I. OVERVIEW [ 1 ] Mr. Mohammad Mahdi Zabihullah [Mr. Zabihullah] applies to expunge a guilty plea to one count of sexual assault which he entered on October 15, 2021. [ 2 ] Initially, Mr. Zabihullah faced an indictment which alleged one count of aggravated assault against the complainant contrary to s. 273 of the Criminal Code , RSC 1985, c C-46 , and one count of assault against the complainant contrary to s. 266 of the Criminal Code . [ 3 ] The trial on this indictment commenced on June 28, 2021.

After the first day of evidence, the trial was adjourned to October 15, 2021 to permit defence counsel to bring an application seeking further disclosure of the complainant’s medical records.

[ 4 ] However, when the trial recommenced, Crown counsel advised that he and Mr. Roch Dupont, then counsel for Mr. Zabihullah, had agreed to amend the original indictment to reduce the charge of aggravated sexual assault to sexual assault contrary to s. 271 of the Criminal Code . Mr. Zabihullah would enter a guilty plea to this count, and the common assault charge would then be stayed. A joint sentencing submission would follow. [ 5 ] As the trial judge, I permitted the indictment to be amended as requested, and Mr. Zabihullah was arraigned on the sexual assault charge. Mr.

Dupont entered a guilty plea to this charge on his client’s behalf. At that time, I did not embark upon the inquiry mandated by s. 606.1 of the Criminal Code prior to accepting Mr. Zabihullah’s guilty plea. Both Crown and defence counsel requested I refrain from conducting such an inquiry until a pre-sentence report had been prepared. It was agreed that the s. 606 inquiry would be conducted at the commencement of the sentencing hearing. [ 6 ] At the conclusion of this proceeding, the sentencing hearing was adjourned to January 24, 2022. [ 7 ] In the interim, a pre-sentence report was prepared.

A copy of the pre-sentence report [PSR] was entered into evidence at the expungement hearing as Exhibit D-4, Tab 2. It is immediately apparent from this report that Mr. Zabihullah consistently maintained that all sexual relations with the complainant were consensual. For example, at page 8 of the PSR, the assessor wrote: Mohammad feels he was always in control of his actions and reiterated on numerous occasions his sexual interactions with the victim were consensual.

He identified the victim accurately, however, his remorse was for the damage cause during consensual sexual interactions and not for a sexual assault. Despite his verbalized concerns for the victim, he also noted concerns for himself including the stigma surrounding sex offenders, desire for the community to not judge him and noted his family would be devastated if they were aware of his current legal matters.

He stated he feels “embarrassed” for being involved in “such a thing” and feels remorse towards the victim from “what he caused her” however, it was during a consensual sexual activity. [ 8 ] And at page 10 of the PSR, the assessor concludes: Mohammad is a 33-year-old man with no prior criminal code convictions. Mohammad admits that his sexual involvement with victim may have caused her injury, however, vehemently minimizes and denies his sexual offence.

He was unable to identify areas of risk and was unable to arrive at realistic intervention strategies for high-risk situations, thoughts, or feelings relating specifically to his sexual offending behaviour. [Emphasis added] [ 9 ] Consequently, when court resumed on January 24, 2022, Crown counsel agreed that the sentencing hearing could not proceed in the face of Mr. Zabihullah’s vehement denial of guilt. By this time, Mr. Zabihullah had also parted company with Mr. Dupont as his lawyer. I granted Mr. Dupont leave to withdraw as Mr.

Zabihullah’s counsel of record. [ 10 ] Subsequently, after retaining new legal representation, Mr. Zabihullah commenced this application to expunge his plea of guilty to the charge of sexual assault on September 12, 2022. II. ISSUE [ 11 ] The sole issue to be decided on this application is: has Mr. Zabihullah established on a balance of probabilities that his guilty plea to the charge of sexual assault is invalid and should be expunged? III. EVIDENCE AT HEARING [ 12 ] Two witnesses testified at the hearing: Mr. Zabihullah, the applicant, and his former counsel Mr. Dupont.

I do not propose to rehearse the entirety of their testimony, only those aspects which are pertinent to the issue I must decide. 1. Mr. Zabihullah’s Evidence [ 13 ] Mr. Zabihullah who is currently 33 years of age is originally from Afghanistan. His first language is Farsi, and he only began to speak English when he was 18 years old. After arriving in Canada in 2007, he eventually obtained his high school matriculation, and, subsequently, graduated with an engineering degree from the University of Regina in 2017. [ 14 ] Mr.

Zabihullah testified that he first met the complainant when they were both employed at Clifton Associates, an engineering firm in Regina. They began dating in 2016, and it turned into a romantic relationship shortly after that. [ 15 ] Following the laying of the initial charges, Mr. Zabihullah first retained a lawyer who was not Mr. Dupont. He was not satisfied with the legal representation he received from this lawyer, and so in 2019 he retained Mr. Dupont. He stated that he had several discussions with Mr. Dupont which included e-mails; telephone conversations, and face-to-face meetings.

They spoke before each court appearance but Mr. Zabihullah did not understand all the legal terminology. He stated that he would ask Mr. Dupont to explain it to him which he did, but Mr. Zabihullah did not always understand his explanations. [ 16 ] Mr. Zabihullah testified that he was present at the preliminary inquiry on the original charges and heard the testimony that the complainant gave at that proceeding. Yet, on cross-examination, he stated that her testimony did not play a role in his initial decision to plead guilty to the lesser offence of sexual assault. Mr.

Dupont advised him that the law respecting sentencing for sexual assault had recently changed, and the minimum sentence upon conviction for aggravated sexual assault is now between five to seven years. However, if the charge were to be reduced to sexual assault, the minimum sentence would be in the range of two years and maybe less. [ 17 ] Mr. Zabihullah testified that he never told Mr. Dupont that he had non-consensual sex with the complainant, and always maintained the sexual episode was consensual.

[18] Prior to the hearing when the guilty plea was entered, Mr. Zabihullah did not know that an agreed statement offacts had been discussed between Crown counsel and Mr. Dupont. Mr. Zabihullah testified that he pled guilty to the lesser charge,despite not wanting to enter such a plea. He stated that he could not bring himself to say the word “guilty” because deep down he knowshe is innocent of these criminal allegations. This is why Mr. Dupont entered the plea on his behalf. [19] Mr.

Zabihullah testified that prior to his interview with the probation officer assigned to prepare the PSR, he hada brief conversation with Mr. Dupont. Mr. Dupont advised him to be truthful in his answers. Indeed, as already noted, it is the content ofthe information which Mr. Zabihullah provided to the probation officer which forms the genesis of his application to expunge his guiltyplea. 2. Mr. Dupont’s Evidence [20] Mr. Dupont was called as the court’s witness and was cross-examined by both Crown and defence counsel. [21] Mr. Dupont described Mr. Zabihullah as an honest person with whom he got along.

He stated that he found Mr.Zabihullah to be an articulate, intelligent and inquisitive individual. After he took over Mr. Zabihullah’s representation, Mr. Dupontstated that his client called him quite regularly about the status of the criminal matter. [22] Mr. Dupont confirmed that Mr. Zabihullah never admitted to him that he had sexually assaulted thecomplainant. He insisted that all sexual activity between them was always consensual. [23] Mr. Dupont testified that following the first day of trial, Mr. Zabihullah returned with him to Mr. Dupont’soffice. Mr.

Dupont told him that the outcome of the trial would turn on credibility. Earlier, Mr. Dupont said he had talked to Mr.Zabihullah about how to testify at trial. He also advised Mr. Zabihullah about length of sentence, and advised him if he received a twoyear prison sentence, and behaved well in prison he could be out after four to six months. [24] Mr. Zabihullah was clearly worried that he could be convicted of the original charges, and instructed Mr.Dupont to contact Crown to see if a plea deal could be arrived at. Mr. Dupont stated that Mr.

Zabihullah agreed to the guilty plea solelyto avoid a lengthy jail sentence upon conviction of aggravated sexual assault. Yet, when Mr. Zabihullah was asked in open court how hepleaded to sexual assault, he could not bring himself to utter the word “guilty”. Mr. Dupont had to enter the plea for him. IV. ANALYSIS [25] The law is clear that a guilty plea to be valid must be “voluntary, unequivocal and informed”: R v Wong, 2018SCC 25 at para 43, [2018] 1 SCR 696 [Wong].

In Saskatchewan, the principal authorities on this question include R v Leonard, 2007SKCA 128 at paras 17-18, 307 Sask R 140 [Leonard]; R v Kim, 2011 SKCA 74 at para 33, [2011] 11 WWR 84; R v Urquhart, 2017SKCA 88 at paras 8-10, and R v Aisaican, 2019 SKCA 58 at para 24, [2020] 1 WWR 108 [Aisaican]. [26] There is no closed list of valid grounds for withdrawing a guilty plea.

See, for example: R v Gibbs, 2022 ONCA816 at para 4, and R v C.K., 2021 ONCA 826 at para 66, 410 CCC (3d) 428 [C.K.] [27] The onus is on the accused person seeking to rescind a previously entered guilty plea to demonstrate on abalance of probabilities that it was not a valid plea. See: R v Henneberry, 2017 NSCA 71 at para 19, 351 CCC (3d) 365, and R vLundberg, 2008 SKCA 45 at para 3, 310 Sask R 87. [28] Finally, it is important to note that no arguments respecting ineffective assistance of counsel were raised on thisapplication. A.

Failure to Conduct a s. 606 Inquiry [29] As noted, an inquiry in accordance with ss. 606(1.1) of the Criminal Code was not conducted at the time theguilty plea was entered by Mr. Dupont on behalf of Mr. Zabihullah. It was agreed by both the Crown and defence that it would bepreferable to have a PSR prepared so the court would be fully apprised of Mr. Zabihullah’s background and current situation. The formals. 606 inquiry would be undertaken at the commencement of the sentencing hearing proper. [30] Mr. Dupont testified at the hearing that he had explained the s. 606 inquiry to Mr.

Zabihullah twice before theplea hearing. He stated that his client appeared to understand this process and his advice. [31] In any event, ss. 606(1.2) explicitly states that the “failure of the court to fully inquire whether the conditions setout in subsection (1.1) are met does not affect the validity of the plea”. Accordingly, the failure to embark upon a s. 606 inquiry prior toaccepting the guilty plea entered in this case does not render the plea invalid. B.

Was the Guilty Plea Voluntary? [32] A voluntary plea represents “the conscious volitional decision of the accused to plead guilty for reasons whichhe or she regards as appropriate”: C.K., at para 67. See also: Leonard at para 17 citing R v T.(R.) (1992), (ON CA), 17CR (4th) 247 (Ont CA). [33] There is a presumption a guilty plea entered in open court while the accused is represented by a lawyer isvoluntary unless the accused establishes otherwise. See: Aisaican, at para 34.

This presumption is rebuttable “by evidence of anaccused’s limited cognitive capacity, a mental disorder or condition or cognitive or emotional issues such as anxiety, depression, chronicpain, anger management problems, and difficulty in communication”: R v Cherrington, 2018 ONCA 653 at para 21 [Cherrington].However, an accused who claims involuntariness must demonstrate they lacked the capacity to make an active or conscious choice whenpleading guilty. See: Aisaican at para 33 quoting Cherrington at para 21.

[ 34 ] In his helpful written brief of law, Barry Nychuk, counsel for Mr. Zabihullah argued that his client’s plea was not voluntary because he was misinformed. However, at the hearing of this application, he conceded that that voluntariness of the guilty plea was not in issue. [ 35 ] I agree. I find that Mr. Zabihullah voluntarily pled guilty to the reduced charge of sexual assault. He gave instructions to his then lawyer that he wished to plead guilty to this charge.

He did so because he had been advised that a custodial sentence for sexual assault would be significantly less than one for aggravated sexual assault. Mr. Zabihullah testified that he had been told that a sentence on a guilty plea for sexual assault would be in the range of two years rather than the range of between five to seven years upon conviction for aggravated sexual assault.

He testified that he was not happy about going to jail; however, he was advised by his defence counsel that this was the best result he could obtain from the Crown. [ 36 ] I am satisfied on the basis of the evidence before the court that Mr. Zabihullah did not suffer from any cognitive impairment or other mental illness which would demonstrate that his guilty plea was not a conscious volitional decision on his part.

In my view, arguments respecting misinformation or insufficient knowledge respecting mandatory ancillary orders which follow upon a plea of guilty are more relevant to other aspects of the plea validity analysis. [ 37 ] Accordingly, for these reasons I find on a balance of probabilities Mr. Zabihullah’s guilty plea to have been voluntarily given. C. Was the Guilty Plea Uninformed? [ 38 ] In Wong at para 43 , Moldaver J. for the majority, stated that an informed plea means that an “accused must understand the nature of the allegations, the effect of the plea and the consequences of the plea”.

He went on to explain that an uninformed plea may be withdrawn “if the accused shows (1) that he or she was not aware of a legally relevant collateral consequence and (2) that there is reasonable possibility he or she would have proceeded differently if properly informed of that consequence”: Wong at para 44 . [ 39 ] In Leonard at para 17 , Richards J.A. (as he then was) described a guilty plea as informed “if the accused understands the nature of the charges, the legal effect of the plea and the consequences of the plea”. [ 40 ] Mr. Nychuk submits that in this case, Mr.

Zabihullah was not properly informed of the nature of the charges or the consequences of the plea. He highlights the following as examples of why Mr. Zabihullah’s plea was not informed. [ 41 ] First, Mr. Zabihullah had no prior experience with the criminal justice system. This distinguishes his circumstances from those in Leonard , for example, where the Court of Appeal in overturning a decision to expunge a guilty plea stated that “Mr. Leonard had significant experience with the criminal justice system and court procedures”: Leonard at para 24 .

See further: R v Arcand , 2000 SKCA 60 at para 5 , 199 Sask R 4 . [ 42 ] Second, Mr. Zabihullah was not informed of the mandatory ancillary orders which follow upon a conviction for sexual assault, such as a DNA order, or the effect and duration of a SOIRA order. He testified that he was told that a conviction would make it difficult for him to travel to the United States, however. He decided to plead guilty to a lesser charge based on representations made to him by defence counsel that a sentence for sexual assault would be significantly less than a sentence for aggravated sexual assault.

He was unaware, however, of the long-term implications of a DNA order and the SOIRA order. [ 43 ] Third, Mr. Zabihullah was either not properly advised or did not understand the essential elements of the offences of aggravated sexual assault and sexual assault or the strength of the Crown’s case. He could not, therefore have given informed instructions to his defence counsel to enter a guilty plea on his behalf. (I pause here to reiterate that no argument respecting ineffectiveness of counsel was advanced by the defence.) [ 44 ] At the hearing, Mr.

Zabihullah testified that his first language is Farsi, and he began learning English at the age of 18. He testified that now he has no difficulty in communicating in English. Indeed, to his great credit he managed to obtain an engineering degree from the University of Regina in 2017. I am unable to find that any misunderstanding or lack of appreciation of the offences or the consequences flowing from a guilty plea were based on a lack of communication skills in English. [ 45 ] I accept that Mr.

Zabihullah may have not been fully informed of the essential elements of the two offenses; the strength of the prosecution’s case, or that defence counsel had decided to abandon the third-party records application respecting the complainant’s medical records. Nor, it seems, did he fully appreciate the long-term consequences of the mandatory ancillary orders which follow upon a conviction of sexual assault.

This conclusion, however, only satisfies the first prong of the Wong test respecting whether a guilty plea was informed. [ 46 ] The second prong of the Wong test asks whether an accused who is fully apprised of the consequences of a guilty plea would have entered the plea in any event. See also: Aisaican at para 58 . On this prong, I am satisfied that the evidence demonstrates Mr.

Zabihullah would have agreed to plead guilty to sexual assault in any event. [ 47 ] The evidence is clear that he pled guilty for the sole reason that a custodial sentence for sexual assault would be significantly less than one for aggravated sexual assault (assuming a conviction would be entered following the trial). To be sure, this was Mr. Zabihullah’s one and only preoccupation. I can find nothing in the evidence presented at the hearing which would persuade me that had Mr.

Zabihullah been fully and completely apprised of the collateral consequences flowing from a conviction for sexual assault, he would not have directed his defence counsel to enter the guilty plea he now seeks to expunge. [ 48 ] Accordingly, for these reasons, I find on a balance of probabilities that Mr. Zabihullah’s guilty plea to the charge of sexual assault was an informed plea. [ 49 ] Respectfully, in my view, this application turns on the question of whether the guilty plea was unequivocal in

these circumstances. D. Was the Guilty Plea Unequivocal? [50] The final aspect of the plea inquiry asks whether the guilty plea was unequivocal. To qualify as an unequivocalplea, the surrounding circumstances must demonstrate that the plea was not “unintended or confusing, qualified, modified, or uncertainin terms of the accused’s acknowledgement of the essential legal elements of the crime charged”: R v Moser (2002), (ON SC), 163 CCC (3d) 286 (Ont Sup Ct) at para 32 [Moser].

As the court in Moser further stated at para. 32 “[t]he accused’s personalentry of the plea is a factor tending to demonstrate the unequivocal character of the plea”. [51] In Leonard, the court stated at para. 17 that a guilty plea will be unequivocal if it is unqualified and certain withrespect to the acknowledgement of the essential elements of the crime charged.

Yet, the court further stated at para. 28 that if Mr.Leonard – who was no stranger to the criminal justice system – “had actually maintained his innocence throughout, then his guilty pleashould have been expunged”. [52] A further line of inquiry under the “unequivocal” criterion was identified in R v McIlvride-Lister, 2019 ONSC1869, 373 CCC (3d) 490 [McIlvride-Lister]. In that case, there was evidence that the accused equivocated about certain factual assertionsread into the record which in itself could form a sufficient basis for striking the plea.

However, Pomerance J. also considered a secondquestion, “namely, whether the plea resulted in a miscarriage of justice”: McIlvride-Lister at para 50. [53] Pomerance J. elaborated at length regarding the phenomenon of false guilty pleas as follows at paras. 58-61 and71-72: [58] There has been increasing recognition of the problem false guilty pleas, stemming from a broader consciousness of, andconcern about, wrongful convictions. People who are factually innocent may be motivated or induced to plead guilty for reasonsunrelated to culpability.

An erroneous plea may flow from incompetent advice, inappropriate pressure, or failure of the court to make thenecessary inquiries of the accused person. The accused may have her own reasons for pleading guilty, independent of any negligence orwrongdoing. [59] Some commentators have expressed concern over deep discount plea bargaining. A deal offered by the prosecution may createan unhealthy and coercive disparity between the sentence on a plea and the likely sentence after trial. Likewise, a guilty plea maypromise release from custody, a tempting prospect for a detained person waiting several months for a trial.

Guilty pleas may beprompted by other factors, such as a desire to protect the family unit, financial limitations, a lack of understanding of the process, orpersonal vulnerabilities.

It has been observed that false guilty pleas may be more prevalent among those who are “marginalized by race,ethnicity, socioeconomic status, intellectual disability or some combination thereof”: see Amanda Carling, “A Way to ReduceIndigenous Overrepresentation: Prevent False Guilty Plea Wrongful Convictions” (2017) 64 CLQ 415, at p. 419. [60] The point is that a person who is factually innocent may perceive a plea of guilt to be the lesser of the two evils – a choicebetween a proverbial rock and a harder place.

The cost of maintaining innocence – be it financial, emotional, familial, custodial or other– may be seen as too high. As Christopher Sherrin put it in his

article “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev LegalSoc Issues 1, at 34: False guilty pleas are an unfortunate reality of our criminal justice system. It is impossible to know how often they occur but there isgood reason to believe they are fairly common. A number of false guilty pleas have been proven, many more have been alleged, and theinnocent have a wide variety of understandable reasons for declining to dispute a charge.

Perhaps highest on that list of reasons is thedesire to avoid the higher penalty that will come with a conviction that seems likely to follow trial. [61] Some might say that courts should respect the deliberate choice of an innocent person to plead guilty. Some might go so far asto say that the person who pleaded guilty to a crime they did not commit is the author of their own misfortune. However, the matter isnot so simple. The decision of an innocent person to plead guilty may flow from impossible dilemmas posed by coercive circumstances.

Moreover, to blithely accept false pleas would be to undermine the integrity of our justice system. A guilty plea offered by an innocentperson is a wrongful conviction. That, in turn, is an intolerable prospect. “[I]t can never be in a defendant’s interest to be wronglyconvicted”: see R. v. Pietrangelo, 2008 ONCA 449, 233 C.C.C. (3d) 338, at para. 6. . . . [71] Therefore, the question is not whether the person who offered the plea is actually innocent, or can prove innocence.

Thequestion is whether the person who offered the plea believed that she was innocent and pleaded guilty despite that belief. [72] A belief in factual innocence cannot co-exist with a plea of guilt. Where a person, who believes herself to be innocent,pleads guilty for reasons unrelated to culpability, the result is a miscarriage of justice. The system can only convict and sentencepersons who have genuinely admitted guilt, or have been proven guilty by the prosecution.

A person who adheres to a belief thatthey are innocent is entitled to have a trial. [Emphasis added] See also: R v Cerna, 2020 MBCA 18, [2020] 5 WWR 54. [54] Here the evidence is clear that is exactly what transpired in this case. Mr. Zabihullah had continuously andconsistently asserted his innocence of the sexual offences with which he is charged to his defence counsel, and to the author of the PSR.He has insisted that the incidents of sexual intercourse with the complainant which form the basis of the charge to which he entered aguilty plea were consensual.

So convinced of his innocence is he that he could not bring himself to utter the word “guilty” at the pleahearing. His counsel had to enter the plea on his behalf.

[ 55 ] Respectfully, in my view, this is the kind of situation about which Pomerance J. spoke so eloquently in McIlvride-Lister . Mr. Zabihullah had entered a guilty plea to a charge of which he sincerely believes he is innocent. This is not an unequivocal plea. As he strongly adheres to the belief he is truly innocent of this charge, Mr.

Zabihullah is entitled to a trial in order to determine his culpability in accordance with the law. [ 56 ] Accordingly for this reason I am persuaded that the guilty plea he entered to the charge of sexual assault is equivocal, and, consequently, must be expunged. [ 57 ] I am aware of the costs to the justice system occasioned by my decision in this case. A long period of time has elapsed since the offences allegedly occurred, and the impact on the complainant, the accused and others cannot be underestimated. However, the proper administration of justice requires that Mr.

Zabihullah’s guilty plea be vacated even though the charge he may face going forward is one of aggravated sexual assault. J . G.G. MITCHELL