R v Desrochers, 2018 MBCA 55

Citation: R v Desrochers, 2018 MBCA 55 Date: 20180514 Docket: AR17-30-08980 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) M. B. Cheater HER MAJESTY THE QUEEN ) for the Applicant ) Respondent ) R. N. Malaviya ) for the Respondent - and - ) ) Chambers motion heard: MARCEL ROBERT DESROCHERS ) April 19, 2018 ) (Accused) Applicant ) Decision pronounced: ) May 14, 2018 HAMILTON JA [ 1 ] The accused pled guilty to possession of property obtained by crime over $5,000 (the conviction) on May 3, 2017, the same day that his bail review request was denied. He was released from custody that day.

He seeks an extension of time to file a notice of appeal of the conviction on the grounds that his guilty plea was not voluntary and it ought to be set aside as it was made under circumstances that led to a miscarriage of justice. [ 2 ] The Crown opposes the application on the basis that the accused has not established that the grounds of appeal are arguable. [ 3 ] In support of his application, the accused affirmed and filed two affidavits, the affidavit of Grant Clay, his counsel at the time of the guilty plea, and the affidavit of an assistant from the office of Mr.

Cheater, the accused’s current counsel. [ 4 ] In response, the Crown filed the affidavit of Deidre Badcock, the Crown attorney who had conduct of the file pertaining to the conviction and other charges against the accused. The affidavit details the history of the court proceedings from September 4, 2013. The Applicable Test [ 5 ] An order to extend the time to file a notice of appeal is discretionary. The overriding objective is that justice be done in the circumstances.

The three criteria that are normally considered by a judge when exercising this discretion are: 1. whether the applicant had a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2. whether the applicant has a reasonable explanation for the delay in filing a notice of appeal; and 3. whether the applicant has an arguable ground of appeal. See R v DBR , 2005 MBCA 21 at para 6 . [ 6 ] To demonstrate an arguable ground of appeal is a low threshold. An arguable ground is one that is not frivolous. Background [ 7 ] The accused is a farmer.

He is currently 72 years of age. He has a lengthy criminal record. [ 8 ] At the time of his guilty plea, he was pending on two charges of possession of property obtained by crime over $5,000 (the charges) and two charges of failing to comply with his recognizance. The stolen property was canola that the accused

delivered to a grain elevator. [ 9 ] For its case, the Crown relied on an expert’s report that compared samples of canola from bins from which the canola was taken to samples delivered to the grain elevator. The accused asserts that the expert’s report is flawed and that he has always wanted to challenge it. He has not obtained an expert’s report or retained an expert. [ 10 ] The accused was granted judicial interim release on the charges on July 7, 2016 on strict conditions that included a $40,000 surety. He did not meet the surety requirement and remained in custody.

He applied unsuccessfully to have the conditions varied on December 22, 2016. [ 11 ] The accused’s trial before a jury was scheduled for November 20 to December 1, 2017. [ 12 ] On May 3, 2017, the accused made another application to vary the bail conditions. It was denied. That same day, the accused pled guilty to one count of possession of stolen property over $5,000. The Crown entered a stay on the other three charges. By way of joint recommendation, the accused received a sentence of four and one-half months of time served, being a portion of his time in pre-sentence custody.

He also was ordered to pay restitution in the amount of $5,295.38. He was released from custody that day, without conditions. [ 13 ] Mr. Clay represented him on May 3, 2017 at the unsuccessful bail review and subsequent guilty plea. Has the Accused Demonstrated a Continuous Intention to Appeal and a Reasonable Explanation for the Delay? [ 14 ] I am satisfied that the accused has satisfied these two criteria. [ 15 ] The accused’s evidence is that he had an intention to appeal his conviction immediately after his guilty plea, but Mr.

Clay could no longer represent him and he could not find a lawyer to represent him. He affirms that Mr. Clay’s office helped him fill out a Legal Aid application, which he signed on August 24, 2017. [ 16 ] Legal Aid granted a certificate on September 20, 2017 appointing Mr. Cheater. However, because the certificate was issued for withdrawing a guilty plea and not appealing it, Legal Aid cancelled the certificate on October 6, 2017. After some delay in obtaining the file from Mr. Clay’s office, Mr. Cheater’s office submitted the accused’s second application to Legal Aid for an appeal of the guilty plea.

Legal Aid granted the certificate on December 6, 2017. [ 17 ] The assistant’s affidavit sets out the efforts made by Mr. Cheater’s office to obtain the file from Mr. Clay’s office and to communicate with Legal Aid. [ 18 ] The notice of application to extend the time to file a notice of appeal was filed on December 22, 2017.

The supporting affidavits and motion brief were filed in January 2018. [ 19 ] The Crown acknowledges that this evidence is sufficient to demonstrate that the accused has had a continuous intention to appeal from a time within the appeal period and that his explanation for the delay is reasonable. Are the Grounds of Appeal Arguable? The Accused’s Position [ 20 ] The accused’s position is that he has demonstrated that his grounds of appeal are not frivolous.

The key issue raised by these grounds is whether his guilty plea was voluntary. [ 21 ] In support of his position, he points to the following evidence in his affidavits: • “My guilty plea and sentencing allowed me to be released from custody immediately”. • “I have been advised by my counsel . . . that I would not have received a sentence greater than my pre-sentence custody, even if I were convicted of these offences after trial”. • “I maintain that I am innocent of the charges . . .

I only entered a guilty plea because I was unable to meet my surety, and had already amassed a significant amount of pre-sentence credit”. • “I would have remained in custody until my trial date . . . I verily believe I would have ultimately lost my farm, and therefore my livelihood”. • “I was unable to meet the $40,000 surety . . . because my son would not sign my surety” because “the conditions of my release order were not workable, and that I was unable to comply with them and continue my employment with my farm business”. [ 22 ] He also points to an unsigned document entitled “WRITTEN INSTRUCTIONS”.

This document, which was drafted by Mr. Clay in April 2016, is attached to an affidavit of the accused and the affidavit of Mr. Clay. He argues that it is consistent with his position that he has always maintained his innocence, but chose to plead guilty to get out of jail. [ 23 ] In his affidavit, Mr. Clay confirms that: the information provided by Mr.

Cheater to Legal Aid is accurate; he drafted the “Written Instructions”, which “are an accurate reflection of the [accused’s] position at the time they were written”; the accused maintained his innocence of these charges during the time he acted for him; and “I believe that the [accused] instructed me to proceed to disposition by way of guilty plea so that he could be released from custody.” The Crown’s Position

[24] The Crown’s position is that the accused has not demonstrated an arguable ground of appeal. More particularly, itargues that the accused’s guilty plea was accepted after a proper plea enquiry at which time he was represented by counsel, that there isno evidence that the plea was not voluntary or that there is a viable defence.

Rather, the Crown says that the accused’s decision to pleadguilty was informed and calculated. [25] In support, it points to the extensive detail in Ms Badcock’s affidavit about the history of the accused’s courtproceedings from the date he was first charged on November 9, 2011, including his numerous adjournment requests, the difficultiessetting trial dates, his failure to appear in court to set a trial date and his subsequent arrest, the conversion of his three-day trial (inSeptember and October 2015) into a preliminary inquiry after he elected a jury trial and discussions about the resolution of the twocharges for which he was committed to stand trial.

Analysis [26] I am satisfied that the accused has met the low threshold necessary to demonstrate that his grounds of appeal arearguable. Given that this matter will proceed to appeal, my reasons are intentionally brief. [27] A valid guilty plea is voluntary, unequivocal and informed (see R v T(R), (ON CA), 1992CarswellOnt 117 at para 14 (CA)). [28] The accused does not argue that his plea was equivocal or that it was not informed.

He will argue on appeal that hisguilty plea was not voluntary because he pled guilty only to get out of jail rather than remain in custody for another six months, whileawaiting his trial. [29] A voluntary plea is the “conscious volitional decision of the accused to plead guilty for reasons which he or she regardsas appropriate” (T(

R) at para 16). A guilty plea in open court is presumed to be voluntary. Therefore, on an appeal seeking to set aside aguilty plea, the onus is on the accused to demonstrate that there is a valid reason to set aside the guilty plea in the interests of justice. The enquiry is fact-based. [30] As stated in R v Moser (2002), (ON SC), 163 CCC (3d) 286, “There is, of course, no closed list ofcircumstances calling into question the voluntariness of a guilty plea” (at para 33) (Ont Sup Ct J).

Counsel for the Crown appropriatelydescribed the concept of voluntariness as nebulous. [31] Factors that the courts consider in such an appeal include: • whether the accused had a prior record that demonstrates that he had participated in plea proceedings before. • whether the accused was represented by counsel and whether there is a challenge to the adequacy of that representation. • any medical issues of the accused at the time of the guilty plea. • any pressure from the accused’s own counsel, the prosecution or anyone else. • the viability of any defence. [32] Courts have set aside guilty pleas where the accused pled guilty to get out of jail.

The circumstances in these casesvary. For example, some of the accuseds did not have legal representation and others were not familiar with the justice system (see R vCesari, 1986 CarswellQue 6 (CA); R v Desmond, 2001 CarswellNB 67 (QB); and R v KD, 2015 ONSC 104). [33] Other cases have stated that the prospect of release from prison is not the type of inducement that vitiates a plea (see R vPivonka, 2007 ONCA 572; and R v King, 2004 CarswellOnt 787 (CA)). [34] An appeal of a guilty plea is an unusual appeal because it is not an appeal to review for error on the record.

Rather, it isan enquiry by the court into the factual circumstances surrounding the guilty plea (see R v Thomas, 2017 MBCA 23; and R v Sunshine,2016 SKCA 104). It calls for the court to make findings of fact. This is done by reviewing the record as well as “any additional materialproffered by the parties which, in the interests of justice, should be considered” (T(

R) at para 12). [35] The additional material, which will likely be the material that was filed on this application, will be the subject of a freshevidence motion (see Palmer v The Queen, (SCC), [1980] 1 SCR 759). As explained by both counsel at the hearing ofthe application, cross-examinations on this material are anticipated. [36] Before me, the accused’s evidence was not challenged by way of cross-examination.

In my view, it is sufficient todemonstrate that the grounds of appeal are not frivolous. [37] The legitimate arguments raised by the Crown challenging the accused’s claim that his guilty plea was not voluntaryare for the appeal panel to address and not me in my role as a chambers judge. Decision [38] The application for an extension of time to file the notice of appeal is granted. The notice of appeal is to be filed nolater than May 29, 2018.

JA