R. v. Castel, 2014 MBCA 31

Citation: R. v. Castel, 2014 MBCA 31 Date: 20140314 Docket: AR 13-30-07988 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN : ) R. T. Amy HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. P. Steen ) for the Respondent - and - ) ) ) Appeal heard: VICTOR PAUL CASTEL ) February 11, 2014 ) (Accused) Appellant ) Judgment delivered: ) March 14, 2014 BURNETT J.A. Introduction [ 1 ] The accused was charged with aggravated assault.

On February 29, 2012, two days after the commencement of his trial, he pled guilty as a party to assault causing bodily harm. The accused subsequently retained new counsel and made a motion to withdraw his guilty plea.

Following a contested hearing at which the accused and his first lawyer testified and were cross-examined, the motion was denied. [ 2 ] The accused raises two grounds of appeal: 1. the trial judge erred in refusing to allow him to withdraw his guilty plea; and 2. the trial judge erred in not giving him enhanced credit for time in custody prior to sentencing. [ 3 ] The accused seeks an order permitting him to withdraw his guilty plea and to have a trial on the merits. In the alternative, he seeks additional credit for pre-sentence custody.

Fresh Evidence Motion [ 4 ] At the hearing to withdraw his plea, the accused was cross-examined in relation to a complaint which he made to The Law Society of Manitoba (the Law Society). Unbeknownst to the Crown, defence counsel and the accused, the copy of the complaint produced at the hearing was incomplete. [ 5 ] The trial judge provided written reasons for her decision to deny the accused’s motion to withdraw his plea.

The trial judge did not find the accused to be credible, and it is apparent from her reasons that she considered the content of the complaint as a factor when assessing the accused’s credibility. At one point the trial judge observed that there was no mention in the complaint of “his being innocent” (at para. 21) and later she says that the complaint “particularly undermines his credibility” (at para. 31). [ 6 ] At the commencement of the appeal, the accused applied to adduce the full text of the complaint as fresh evidence.

Counsel for the accused argued that if the trial judge had had the benefit of the entire complaint, she may have come to another conclusion regarding his credibility.

[7] In Palmer et al. v. The Queen, (SCC), [1980] 1 S.C.R. 759, the Supreme Court of Canada described thefour principles which govern the admission of fresh evidence on appeal (at p. 760): Parliament has given the Court of Appeal a broad discretion in s. 610(1)(d). The overriding consideration must be in the words of theenactment “the interests of justice” and it would not serve the interests of justice to permit any witness by simply repudiating or changinghis trial evidence to reopen trials at will to the general detriment of the administration of justice.

Applications of this nature have beenfrequent and courts of appeal in various provinces have pronounced upon them. The following principles have emerged:

(1) Theevidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principlewill not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon adecisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. The approach thus taken follows that of this Court in McMartin v. The Queen, (SCC), [1964] S.C.R. 484. [8] With respect to the “overriding consideration”, Cameron J.A. observed in R. v. Richard (D.R.) et al., 2013 MBCA 105,299 Man.R. (2d) 1 (at para. 199): The admission of fresh evidence is governed by s. 683 of the Code. While that

section provides this court with a wide discretion, theoverriding concern is that the admission would serve “the interests of justice.” In Truscott [2007 ONCA 575, 226 O.A.C. 200], thecourt noted that the phrase “interests of justice” “signals a broad discretion to admit evidence following a context-sensitive inquiry intothe totality of the circumstances” (at para. 81). [9] While opposing the motion, the Crown agreed that the panel could read the proposed fresh evidence (i.e., the entirecomplaint). Following submissions, a decision on the fresh evidence motion was reserved, and the appeal was fully argued.

Withdrawal of the Guilty Plea [10] In R. v. Jawbone (J.J.) (1998), (MB CA), 126 Man.R. (2d) 295 (C.A.), this court held that (at para.6): In Manitoba the leading authority case on withdrawal of guilty pleas is R. v. Santos (1985), (MB CA), 34 Man.R.(2d) 9 (C.A.), which stands for the proposition that while the trial judge has a discretion to determine whether or not an accused, havingentered a guilty plea, should be permitted to withdraw that plea (which will not lightly be interfered with), the discretion is subject tojudicial review.

The circumstances justifying the exercise of such a discretion are not confined to circumstances where there is asuggestion of impropriety or error in the formal plea itself, rather “valid grounds” (see R. v. Bamsey, (SCC), [1960]S.C.R. 294, at p. 298; 32 C.R. 218; 30 W.W.R. (N.S.) 552; 125 C.C.C. 329) for the accused being permitted to withdraw his plea shouldnot be too narrowly defined or rigidly applied.

The essential question to be determined in each case is whether it is justified in theinterests of justice. [11] At the hearing of the motion, the accused took the position that his guilty plea was not made voluntarily, that he feltpressured to act quickly and was intimidated, and that he was unable to stand up for himself as a result of abuse suffered while attendinga residential school. [12] Although the accused says that his decision to plead guilty was rushed and that he felt pressured, when the guilty pleawas entered his counsel advised the court that he and the accused had “spent a great deal of time discussing the matter this morning.” Inher carefully considered reasons, the trial judge found that defence counsel was forthright in his testimony, that there was no pressure orcoercion, and that the accused was an active participant in the negotiations leading to the plea.

The trial judge was not persuaded that theaccused’s residential school experience impacted his decision to plead guilty.

She also observed that the accused has had “extensiveexperience with court processes resulting from a criminal record consisting of approximately 47 convictions (entered on 26 separate courtappearances), and having entered guilty pleas many times in the past” (at para. 23). [13] Turning to the proposed fresh evidence, the Crown agreed that the first three criteria in Palmer were satisfied, butsubmitted that the new evidence would not have affected the trial judge’s decision to deny the motion and should not be admitted.

Iagree. [14] The accused asserts that the missing portions of the complaint make it clear that he did not agree with the factsunderlying his guilty plea, and, in particular, that he did not accept the evidence of his co-accused.

However, the plea was entered afterthe co-accused had completed most of his direct testimony, and when the plea was entered counsel for the accused advised the court: [Defence Counsel]: But I can assure the court that, based on our discussions, he is admitting to the essential elements of the charge ofassault causing bodily harm based on the – the – the facts and the circumstances that we have before us at this point. Not only what

you’ve heard, but also in the other statements and evidence that we have available to us. [emphasis added] [15] It is also apparent from a contextual reading of the entire document that the accused’s complaint was about his sentence,not his guilt. In fact, at one point he candidly admits that: ….

If [the Crown] maintains to his deal with me for 6 ½ yrs no probation, through my lawyer which took place on Wed, Feb 29/12 infront of a Queen’s Bench judge, I have no complaint. [16] More importantly, while the missing portions of the complaint are relevant to the credibility finding made by the trialjudge, the complaint was only one reason among many which led the trial judge to completely reject the accused’s evidence at themotion to withdraw his guilty plea. [17] In my view, the proposed new evidence does not contradict any findings relied upon by the trial judge, and it cannot besaid that the missing portions of the complaint could reasonably have been expected to affect the final result. [18] Having regard to the whole of the evidence, I am not persuaded that it would be in the interests of justice to admit thefresh evidence, nor would it be in the interests of justice to permit the accused to withdraw his guilty plea.

Pre-Sentence Custody [19] The sole issue before the trial judge, and this court, in relation to sentencing was the amount of pre-sentence credit to begiven to the accused from the date he entered his plea (February 29, 2012) to the date of sentencing (June 4, 2013). This ground ofappeal does not engage the amendments to the Criminal Code which limited the amount of credit that can be given because the accusedwas charged prior to February 22, 2010.

Although the accused received 2:1 credit for the time spent in custody prior to February 29,2012, the trial judge awarded slightly less than 1:1 credit thereafter. [20] The applicable standard of review was described by Chartier J.A. (as he then was) in R. v. Farrah (D.), 2011 MBCA 49,268 Man.R. (2d) 112 (at para. 8): The judge’s determination as to the amount of pre-sentence custody credit to be awarded under s. 719(3) of the Criminal Code (theCode) is an exercise in discretion and is therefore subject to deference (see R. v.

Wust (L.W.), 2000 SCC 18 , [2000] 1 S.C.R.455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, at para. 45, and R. v. Traverse (L.) et al. (2008), 2008 MBCA110 , 231 Man.R. (2d) 123; 437 W.A.C. 123; 2008 MBCA 110, at para. 82). Assuming no reversible errors of fact or law andbarring a decision so clearly wrong as to amount to an injustice, this court will not interfere (see R. v.

Regan (G.A.), 2002 SCC 12, [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R. (2d) 63; 629 A.P.R. 63; 2002 SCC 12, at para. 117, and Towers Ltd. v.Quinton’s Cleaners Ltd. et al. (2009), 2009 MBCA 81 , 245 Man.R. (2d) 70; 466 W.A.C. 70; 2009 MBCA 81, whereFreedman, J.A., provides astute comments on the standard of review analysis on questions involving the exercise of discretion at paras.24-28. [21] The accused argues that he was penalized for the delay in bringing his motion to withdraw the guilty plea and for thedelay of approximately three months in obtaining a Gladue report (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688).

He alsosays that the trial judge limited the credit for pre-sentence custody so as to impose the sentence contemplated by the jointrecommendation presented to her on February 29, 2012. [22] In my view, the accused was neither penalized nor rewarded for the delay between the time he said he wanted towithdraw his guilty plea (March 2013) and the hearing of the motion (December 21, 2013). The trial judge provided extensive andcogent reasons for the amount of credit given for pre-sentence custody and for the sentence which she imposed.

In arriving at herdecision, the trial judge noted that the accused had a lengthy criminal record including many convictions for violent offences, he wasdenied early release by the Parole Board of Canada in 2006 and 2007, he posed a high risk to reoffend in 2007 and 2008, the accused’sprospects for early release were low, he had served his pre-sentence custody in more moderate circumstances, and programming wasavailable to him within the institutions. These were all factors that the trial judge was entitled to consider (see R. v. Vermette (I.M.),2001 MBCA 64 at para. 66, 156 Man.R. (2d) 120).

The trial judge also considered a lengthy and detailed Gladue report. [23] While it would be wrong to penalize an accused person for any systemic delay in obtaining a Gladue report, that did nothappen here. Nor can it be said that the trial judge limited the credit for pre-sentence custody on the basis of the original jointsubmission. [24] In

summary, the trial judge took all appropriate considerations into account, she explained her reasons for the reducedcredit between February 29, 2012 and June 4, 2013, she exercised her discretion reasonably, and she arrived at a fit and just sentence.

There are no reversible errors of fact or law, and the decision is not so clearly wrong as to amount to an injustice. I would, therefore, defer to the trial judge’s determination as to the amount of pre-sentence custody credit to be awarded to the accused. Conclusion [ 25 ] I would dismiss the application to adduce fresh evidence and the conviction appeal, grant leave to appeal sentence and dismiss the sentence appeal. J.A. I agree: J.A. I agree: J.A.