R v Desrochers, 2019 MBCA 120

Citation: R v Desrochers, 2019 MBCA 120 Date: 20191127 Docket: AR17-30-08980 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) M. B. Cheater ) for the Appellant Respondent ) ) A. C.

Bergen- and - ) for the Respondent ) MARCEL ROBERT DESROCHERS ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) November 27, 2019 STEEL JA (for the Court): [1] The accused pled guilty to possession of property obtained by crime over $5,000 on May 3, 2017, the same day thathis bail review request was denied. [2] He now appeals the conviction on the grounds that his guilty plea was not voluntary and it ought to be set aside as itwas made under circumstances that led to a miscarriage of justice.

FURTHER EVIDENCE [3] Both the accused and the Crown have filed motions for the introduction of further evidence. The accused filed fouraffidavits, two of his own, an affidavit of his former counsel at the time of the guilty plea and an affidavit by an assistant from the officeof his current counsel. Both the accused and his former counsel were cross-examined on their affidavits and those transcripts were filedby the Crown. The Crown also filed an affidavit by the Crown attorney who had conduct of the file pertaining to this conviction andother charges against the accused.

The affidavit details the history of the court proceedings from the accused’s arrest onNovember 9, 2011. [4] Both the accused and the Crown indicated that the Court could review the further evidence in advance of the appeal(which we have done), however, the Crown questioned its admissibility on this appeal. [5] Section 683(1) of the Criminal Code permits an appellate court to admit further evidence “where it considers it in theinterests of justice”.

Of course, the further evidence must be otherwise admissible, credible in the sense that it is reasonably capable ofbelief and relevant to the remedy being sought. [6] Where unfairness in the trial process is alleged to have resulted in a miscarriage of justice, as is the case here, thecriteria in Palmer v The Queen, (SCC), [1980] 1 SCR 759 are not applicable. As stated by Cameron JA in R v Richard(DR) et al, 2013 MBCA 105 (at para 204): When considering evidence directed at the fairness of the trial process, the Palmer criteria do not apply.

Rather, in determining whetherthe “interests of justice” are engaged, the court must conduct “an examination of the grounds of appeal raised, the material tendered andthe remedy sought” which may include “material extraneous to the trial record” so long as it is relevant to the issue, R. v. Widdifield(1995), (ON CA), 25 O.R. (3d) 161 (at pp. 169-70)(C.A.).

See also R v Aulakh, 2012 BCCA 340 at para 64. [7] An appeal of a guilty plea is not an appeal to review for error on the record. There is no standard of review that theappellate court must observe. Rather, it is an inquiry by the court into the factual circumstances surrounding the guilty plea (see R vThomas, 2017 MBCA 23; and R v Sunshine, 2016 SKCA 104). The inquiry is fact-based.

This is done by reviewing the record as wellas “any additional material proffered by the parties which, in the interests of justice, should be considered” (R v T(R), (ON CA), 1992 CarswellOnt 117 at para 12 (CA)). [8] Even though an accused’s plea of guilty appears to be valid, the court retains a discretion, to be exercised in theinterests of justice, to receive further evidence to explain the circumstances that led to the guilty plea and that demonstrate a miscarriageof justice occurred (see R v Hanemaayer, 2008 ONCA 580; and R v Kumar, 2011 ONCA 120 at para 34). [9] In this case, the additional evidence proffered explains the history of the matter as well as the conduct of the partiesinvolved.

For these reasons, we found that it would be in the interests of justice to allow all the further evidence presented by both theaccused and the Crown to be admitted. FACTS [10] The accused is a 73-year-old farmer. At the time of his guilty plea, he was pending on two charges of possession ofproperty obtained by crime over $5,000 and two charges of failing to comply with his recognizance.

The stolen property was canola thatthe accused delivered to a grain elevator. [11] For its case, the Crown relied in part, on an expert’s report that compared samples of canola from bins from whichcanola was stolen to samples delivered by the accused to the grain elevator. The accused asserts that the expert’s report is flawed andthat he has always wanted to challenge it. He has not obtained his own expert’s report or retained an expert to support that challenge. [12] The accused was immediately released following his arrest on these charges.

Without reviewing in detail his extensivehistory, court records show that he was rearrested and released on several occasions after that. Some of those arrests related tosubsequent criminal charges and others related to allegations of breaching the terms of his release. [13] In July 2016, the accused was granted judicial interim release on these charges 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 conditionsvaried on December 22, 2016.

His trial before a jury was scheduled for November 20 to December 1, 2017. [14] On May 3, 2017, the accused made another application to vary the bail conditions. It was denied. That same day, theaccused pled guilty to one count of possession of stolen property over $5,000. The Crown entered a stay to the other three charges. Byway of joint recommendation, the accused received a sentence of four months of time served, being a portion of his time in pre-sentencecustody. He also was ordered to pay restitution in the amount of $5,295.38. He was released from custody that day, without conditions.

DECISION [15] This matter has been ongoing for a very lengthy period of time. The accused was first charged in November 2011. Wenote that there is no defence argued here of unreasonable delay or ineffective assistance of counsel. Given the history of the matter, it isunderstandable that that is the case. The accused made numerous adjournment requests, failed to appear in court to set trial dates andhad eight bail reviews. The only ground of appeal is with respect to the guilty plea. [16] A valid guilty plea is voluntary, unequivocal and informed (see T(

R) at para 14). [17] The accused does not argue that his guilty plea was equivocal or that it was not informed. Rather, he argues 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. [18] 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. [19] As stated in R v Moser (2002), (ON SC), 163 CCC (3d) 286 (Ont Sup Ct J), “There is, of course, noclosed list of circumstances calling into question the voluntariness of a guilty plea” (at para 33). Rather, courts have regard to the totalityof the factual circumstances.

Factors that the courts consider in such an appeal include: 1. whether the accused had experience with the criminal justice system; 2. whether the accused was represented by counsel and whether there is a challenge to the adequacy of that representation; 3. any medical issues of the accused at the time of the guilty plea; 4. any pressure, duress or coercion from the accused’s own counsel, the prosecution or anyone else; 5. whether the court conducted a thorough and careful plea inquiry; and 6. the viability of any defence.

[ 20 ] Courts have set aside guilty pleas where the accused pled guilty to get out of jail.

In these cases, the accused did not have legal representation or was not familiar with the language, was not familiar with the criminal justice system or the fresh evidence presented a viable defence (see R v Cesari , 1986 CarswellQue 6 (CA) ; R v Desmond , 2001 CarswellNB 67 (QB) ; R v KD , 2015 ONSC 104 ; and Kumar ). [ 21 ] Other cases have stated that the prospect of release from prison is not the type of inducement that vitiates a plea (see R v Meadus , 2014 ONCA 445 ; R v Pivonka , 2007 ONCA 572 ; and R v King , 2004 CarswellOnt 787 (CA) ).

The Court in KD stated that, “As a general rule, an in-custody accused who, in succumbing to these ordinary pressures and stresses, pleads guilty though having a viable defence, cannot be subsequently heard to complain about the validity of his or her plea” (at para 114). [ 22 ] Having reviewed all of the evidence, including the further evidence filed by both parties, we find that it is clear the accused’s guilty plea was voluntary. [ 23 ] He was represented by senior counsel. There was a proper and comprehensive plea inquiry. The accused was not pressured or offered an inducement by anyone.

He was not under the effect of any drug. There is no evidence of any mental disorder which could have impaired his decision-making process. He was not a person of limited intelligence. [ 24 ] To the contrary, he was intimately involved in the plea agreement to the extent that he insisted the reference to canola in the indictment be replaced with reference to grain instead. Moreover, his guilty plea came only after the Crown agreed to a joint recommendation that saw the three other charges stayed. He has lengthy experience in the criminal justice system, unlike the accused in Cesari and Desmond .

His record includes primarily crimes of dishonesty. He has pled guilty previously to other offences and is familiar with the procedure. [ 25 ] We accept that the accused may well have been induced by the prospect of release from prison that day rather than possibly waiting in jail for his trial date. However, that type of inducement alone does not vitiate a plea (see Pivonka at para 18 ). [ 26 ] Not only did the accused fail to establish the invalidity of the guilty plea, the total record left us with no doubt that the plea was valid in every relevant sense.

The onus is on the accused and he presented no evidence of a viable defence. He challenges the expert evidence but offers no other expert or, at the very least, any evidence that he was in the business of buying grain from a variety of different growers. His cross-examination was simply to the effect that he did not remember where he bought the grain. [ 27 ] The proceedings were not lacking in fairness or the appearance of fairness, so that they could be said to have constituted a miscarriage of justice. He was given innumerable adjournments. He discharged several lawyers.

The evidence indicates that, given the accused’s sophistication and experience with the criminal justice system, he knew precisely what he was doing when he entered his guilty plea. His eyes were wide open. He chose to plead guilty specifically because he wanted the consequences of his plea and the associated staying of the three other charges and the joint recommendation that would see him released, without any conditions. [ 28 ] The appeal is dismissed. JA JA JA