R v Robinson, 2020 MBCA 12

Citation: R v Robinson, 2020 MBCA 12 Date: 20200131 Docket: AR17-30-08986 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Janice L. leMaistre Madam Justice Lori T. Spivak BETWEEN: ) Z. M. JonesHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. M. Cutler ) for the Respondent- and - ) ) Appeal heard:KEVIN BRADLEY ROBINSON ) September 10, 2019 ) (Accused) Appellant ) Judgment delivered: ) January 31, 2020 LEMAISTRE JA [1] The accused pled guilty to fraud over $5,000.

Prior to his sentencing hearing, he discharged his lawyer and broughtapplications to have a lawyer appointed pursuant to R v Rowbotham (1988), (ON CA), 41 CCC (3d) 1 (Ont CA) (theRowbotham application), and to withdraw his guilty plea.

The sentencing judge dismissed the accused’s applications, imposed a three-month conditional sentence followed by one year of probation and ordered restitution in the amount of $12,700. [2] The accused appeals his conviction and seeks to admit further evidence on the appeal. [3] The accused argues that his guilty plea was entered in circumstances which resulted in a miscarriage of justice. Heasserts that the sentencing judge erred when he dismissed the Rowbotham application and the accused’s application to withdraw hisguilty plea.

He contends that the sentencing judge provided insufficient assistance to a self-represented accused, erred in applying thelaw, and failed to consider relevant information and evidence. [4] For the reasons that follow, I would dismiss the accused’s motion to admit further evidence. I would also dismiss theappeal. Background The Guilty Plea [5] While working as a marketing manager, the accused received vouchers from his employer redeemable for food itemsthat he was to give away for free.

He sold these vouchers to Football Manitoba for $12,700. [6] While he was represented by experienced defence counsel (counsel), the accused pled guilty to fraud over $5,000. During a comprehensive plea inquiry, he acknowledged the facts of the offence and confirmed that he was pleading guilty voluntarily. [7] After the sentencing judge accepted the guilty plea, the Crown stayed four additional charges.

The Rowbotham Application [8] Almost one year later, the accused appeared before the sentencing judge without a lawyer for a hearing to determinewhether the accused’s right to a fair trial required an order appointing a lawyer to assist him with the application to withdraw his guiltyplea (the first hearing). [9] When it became apparent that the accused had not filed the necessary financial information and after the accused spokewith a representative from Legal Aid Manitoba, the first hearing was adjourned for the accused to apply for legal aid. [10] When the matter proceeded (the second hearing), despite appearing without a lawyer, the accused confirmed that he wasready to proceed and that he had provided the Court with the evidence he intended to rely on for the Rowbotham application.

Afterbeing cross-examined by the Crown on his affidavit, the accused requested a further adjournment of the hearing to obtain his corporatetax return. The sentencing judge denied this request based on the accused’s representation at the first hearing that he had the financialinformation he needed to provide and because “the business assets [were] not the only issue”. [11] The sentencing judge dismissed the Rowbotham application. In doing so, he stated that he was not satisfied that the accusedhad “demonstrated a financial need, or exhausted [his] application for Legal Aid”.

The Application to Withdraw the Guilty Plea [12] A subsequent hearing was held on the accused’s application to withdraw his guilty plea. The sentencing judge summarisedthe accused’s argument as follows: The thrust of [the accused’s] argument is essentially three-fold. First, [counsel] pressured him into pleading guilty and at the very least,gave him little if any time to consider the change in plea. . . . Secondly, [the accused] suffers from anxiety . . .. He argued his stress and anxiety prevented him from asserting himself and heanswered the plea inquiry essentially as he was told to by [counsel].

Finally, [the accused] argued he was not properly informed at the time of his guilty plea, specifically, he felt that at the time of the guiltyplea, he did not possess sufficient disclosure from the Crown’s office, nor had his counsel reviewed all of the evidence with him inadvance of the guilty plea. . . . All of these factors, [the accused] argued, made him do something he regrets. . . . [13] The sentencing judge reviewed the transcript and listened to a recording of the plea inquiry in order to assess “the toneand tenor of the questions and answers.” He concluded as follows: . . .

The questions were asked in a straight forward manner, it was at a reasonable pace with no sense of urgency. While I cannot sayhow [the accused] was feeling from listening to a recording, I did not note any apprehension in his voice, although his answers weresuccinct. [14] After considering the accused’s testimony, the exhibits filed and the submissions of the parties, the sentencing judgedismissed the accused’s application to withdraw his guilty plea. In doing so, he concluded: . . . By his own argument, [the accused] made a decision to plead guilty that he regrets.

I am satisfied that his plea was voluntary andinformed. He had sufficient information and basis for the plea. He accepted the facts. He knew the consequences of making the plea,and he did so voluntarily. . . . Motion for Further Evidence [15] The accused filed a motion to admit his own affidavit as further evidence on the appeal. The affidavit reviews thehistory of the proceedings and his communication with counsel. It also includes the accused’s position on the charges, as well as hispersonal circumstances prior to entering the plea.

The exhibits attached to the affidavit include correspondence and a document waivingsolicitor/client privilege. [16] The accused concedes that “the gist” of the information in the affidavit was before the sentencing judge but argues that“[s]ome of the information in the affidavit has not previously been [provided] and most of it was not clearly or fully explained”.

He saysthat the information is relevant to the appeal because it provides information about his intentions, state of mind and circumstances at thetime the guilty plea was entered, and demonstrates that the process was unfair. [17] The Crown opposes the admission of further evidence. It asserts that the accused’s affidavit contains nothing new andthat the accused admitted this when he was cross-examined on his affidavit. It submits that the essence of the further evidence wasbefore the sentencing judge. [18]

Section 683 of the Criminal Code (the Code) permits an appellate court to admit further evidence “where it considers itin the interests of justice” (at section 683(1)). Where unfairness in the process is alleged to have resulted in a miscarriage of justice, thecriteria in Palmer v The Queen, (SCC), [1980] 1 SCR 759, do not apply. 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.). [19] As I will explain, in my view, the sentencing process did not result in a miscarriage of justice.

Despite the accused’sassertion that the further evidence amplifies the information that was before the sentencing judge, I am not persuaded that it addsanything material to the record. Accordingly, in my view, it is not in the interests of justice to admit the further evidence and I woulddismiss the accused’s motion. Analysis Ground 1—Did the Sentencing Judge Provide Insufficient Assistance? [20] The accused argues that the sentencing judge provided him with insufficient assistance on the Rowbotham application.

Specifically, he says that the sentencing judge did not explain: 1) what kind of documents the Court would be relying on to assess hisfinancial circumstances; 2) that he needed to exhaust the legal aid process; or 3) the risks and benefits of failing to waive solicitor/clientprivilege. [21] When an accused is unrepresented, the judge has a duty to provide reasonable assistance and guidance to ensure theproceedings are fair without crossing the line into acting as advocate for the accused. The amount of assistance that a judge shouldprovide a self-represented litigant is discretionary.

On appellate review, it is the cumulative effect of any errors made by the judge thatwill determine whether there was a miscarriage of justice rendering the proceedings unfair (see R v Tran (2001), (ONCA), 156 CCC (3d) 1 at para 31 (Ont CA); R v Olenick, 2010 MBCA 107 at paras 6-8; and R v Owens, 2018 MBCA 94 at para 23). [22] As explained by Huband JA in R v Drury and Hazard, 2000 MBCA 100 at paras 23-36, the factors to be considered ona Rowbotham application include factors relating to the nature of the case, such as the complexity of the proceedings and the accused’sability to understand and conduct his or her own defence, as well as factors relating to the financial means of the accused. (See also R vDew (EJ), 2009 MBCA 101 at paras 25-31.) [23] The key issue the sentencing judge had to determine on the Rowbotham application was whether the accused had themoney to retain a lawyer. [24] In my view, the assistance provided by the sentencing judge regarding the financial information required to support theRowbotham application was more than adequate in the circumstances. [25] A review of the record demonstrates that the sentencing judge provided the following assistance to the accused.

At thefirst hearing, the sentencing judge explained that the accused “needed to provide a clear picture of [his] financial situation” and that thematerial he had filed did not include the financial information required for the Rowbotham application. The accused assured thesentencing judge that he had documentation with him that demonstrated his “financial capability.” In response to an inquiry by thesentencing judge, the accused explained that he had tax returns and documents that were “much more in depth” than bank statements.

The sentencing judge also took a recess in order to allow the accused to speak to a representative from Legal Aid Manitoba and thenadjourned the hearing to allow him to apply for legal aid. [26] In addition to the assistance provided by the sentencing judge, the Crown provided case law in advance, including R vAustria, 2012 MBQB 298, that explains the nature of the information required in order to satisfy the financial eligibility criterion on aRowbotham application.

The accused confirmed that he had read the cases provided. [27] At the second hearing, the accused told the Court that he was ready to proceed and that he did not intend to provide anyadditional evidence. It was only during cross-examination by the Crown that it became clear that he had not fully disclosed his financialcircumstances.

In my view, despite the assistance provided by the sentencing judge, the accused was less than forthcoming about hisfinancial circumstances. [28] Regarding the accused’s argument that the sentencing judge did not explain that the accused had to exhaust the legal aidprocess, I am not persuaded that this rendered the proceedings unfair. [29] The accused filed a letter from Legal Aid Manitoba which informed him that his application had been rejected and thathe could appeal the decision rejecting his legal aid application. This was not the accused’s first experience with Legal Aid Manitoba.

He had previously been represented by counsel from Legal Aid Manitoba and spoke with a representative from Legal Aid Manitobaabout obtaining legal aid for the Rowbotham application. In any event, this was not the only reason the sentencing judge dismissed theRowbotham application. [30] The accused also argues that the sentencing judge did not explain the risks and benefits of waiving solicitor/clientprivilege for the purposes of the application to withdraw his guilty plea. [31] In my view, the sentencing judge was careful to ensure that the accused’s right to solicitor/client privilege wasrespected.

The accused admitted that he knew counsel could not be called as a witness for the Crown unless he waived solicitor/clientprivilege and he told the sentencing judge that he did not believe counsel’s testimony would be favourable to his case. In thesecircumstances, it should not have come as a surprise to the accused that the sentencing judge inferred that counsel’s evidence wouldlikely have been unfavourable. [32] In my view, the assistance provided by the sentencing judge was more than adequate to ensure that the proceedingswere fair and I am not persuaded that there was any injustice to the accused.

I would dismiss this ground of appeal.

Ground 2—Did the Sentencing Judge Err in His Application of the Law? [33] The accused alleges that the sentencing judge erred when he dismissed the application to withdraw his guilty plea. Heargues that the guilty plea is invalid and ought to be set aside because it was not voluntary and was made in circumstances that led to amiscarriage of justice. [34] The accused also argues that the sentencing judge erred in law by “stating repeatedly that potential defences were notrelevant or that it was improper to consider them” and later concluding that the accused did not proffer a valid defence.

He asserts thatthe presence of a viable defence is a valid reason for withdrawal of a guilty plea and relevant to whether the plea was informed andvoluntary. [35] A valid guilty plea is voluntary, unequivocal and informed (see R v Desrochers, 2018 MBCA 55 at para 27; see also R vT (R), (ON CA), 1992 CarswellOnt 117 at para 14 (CA); R v Wong, 2018 SCC 25 at para 3; and section 606(1.1) ofthe Code). A voluntary plea is the “conscious volitional decision of the accused to plead guilty for reasons which he or she regards asappropriate” (T (

R) at para 16). [36] A judge has the discretion to permit an accused to withdraw his or her guilty plea and this exercise of discretion will notbe lightly interfered with on appeal provided it has been exercised judicially (see Adgey v The Queen, (SCC), [1975]2 SCR 426 at 430; see also R v Thomas, 2017 MBCA 23 at para 17, quoting R v Sunshine, 2016 SKCA 104 at paras 12-14). [37] At the hearing of the accused’s application to withdraw his guilty plea, the accused asserted that he had a defence to thecharge. He proffered evidence that he provided advertising services on billboards and signs on vehicles.

He said that the $12,700 wasgiven to him by Football Manitoba for advertising services he provided. He denied that the money was given to him for the vouchersfrom his employer.

He asserted that his original invoices for the advertising services (which he was unable to produce) had beentampered with and that there were credibility issues with the Crown’s witnesses. [38] The accused also argued that he did not have all of the disclosure supporting his defence, including the originalinvoices, and, therefore, his plea was uninformed. [39] In dismissing the accused’s application to withdraw his guilty plea, the sentencing judge concluded that the “pleainquiry was comprehensive”, that counsel’s questions on the plea inquiry “were not assertive or aggressive,” and that the accused’s“answers were clear and unequivocal.” He also concluded that, at the time he entered his plea, the accused “had a full appreciation forwhat had transpired, for the facts and what the evidence against him was likely to be” and that he did not have a valid defence to thecharge. [40] The sentencing judge found that the requirement to be “informed does not mean every stone has been unturned or that[the accused] ought to be in possession of every scintilla of information.” He concluded that “a potential defence is not determinative, asit may be counsel’s assessment if it is likely to be successful or not.” [41] In my view, there is no merit to the accused’s assertion that the sentencing judge erred in his application of the law. [42] In his reasons, the sentencing judge correctly articulated the law regarding the validity of the plea, including therequirements of section 606(1.1) of the Code.

In determining whether he had “real doubt as to the plea’s validity,” he reviewed thegoverning principles as explained by Beard J (as she then was) in R v Manimtim, 2002 MBQB 235 (at para 9): The following principles underlie an application to set aside a guilty plea before sentence: - a guilty plea entered in open court is presumed to have been voluntary and valid, especially where the accused wasrepresented by counsel; - the accused has the burden of proof to establish that the guilty plea should be set aside and a plea of not guilty entered; - there is no requirement that the facts be read to the accused and that there be an express admission of the elements of theoffence before the accused enters a guilty plea, especially where the accused has legal counsel; - the grounds for setting aside a guilty plea include the following: (

i) the plea was not voluntary and unequivocal; (ii) the plea was not informed, in that the accused was not aware of the nature of the allegations made against him or her, theeffect of the plea and the consequences of the plea; or (iii) other circumstances make it justified, in the interests of justice, to permit a withdrawal of the plea; - there is evidence of a viable defence. [43] The accused argues that the sentencing judge refused to consider whether he had a defence to the charge. I disagree.

Inmy view, the record demonstrates that the sentencing judge considered the defence raised but concluded that it was not viable. [44] The sentencing judge explained that the accused did not have to prove anything and that the hearing was not about themerits of his case (whether the accused was guilty or not guilty) but, rather, whether his plea should be withdrawn. [45] When the accused raised his defence, the sentencing judge stated, “Your point is . . . that you have some evidence toshow that there was some monies that you would have had owing to you from Football Manitoba, and that you’ve had this all along?” The accused confirmed that this was the point he was trying to make.

[46] I am not convinced that the sentencing judge erred when he concluded the accused’s defence was not valid. While theaccused alleged that there were issues with the Crown’s case, he produced no evidence to contradict the facts of the offence or supporthis assertion that he was entitled to the money, and he acknowledged that Football Manitoba did not support his assertion. [47] Nor am I convinced that the plea was uninformed. I agree with the sentencing judge that the accused “had sufficientinformation” and “knew the consequences of making the plea” and that he understood the effect of his plea (see T (

R) at para 14). [48] Ordinarily, pleading guilty involves certain inherent and external pressures but it is coercive or oppressive conduct orany personal circumstance that deprives the accused of free choice in the decision to plead guilty that renders a plea involuntary (see R vMoser (2002), (ON SC), 163 CCC (3d) 286 at para 33 (Ont Sup Ct J)). [49] The sentencing judge concluded that the evidence did not support the accused’s assertions that the plea was involuntarydue to pressure from counsel or that he was medically incapable of making a decision as a result of stress or anxiety.

I am not persuadedthat he erred in doing so on the evidence or that the pressure experienced by the accused in this case deprived him of free choicerendering the plea invalid. [50] The accused was represented by experienced counsel; a comprehensive plea inquiry was conducted; the accused wasable to assert himself in court during the hearings subsequent to the plea inquiry, even when under pressure; and the accused has notraised a viable defence. [51] In my view, the accused has not established that the sentencing judge erred in his application of the law or in hisconclusion that the plea was voluntary and valid.

The fact that the accused now has regrets did not warrant withdrawal of the guilty pleaand provides no basis to justify appellate intervention. I would dismiss this ground of appeal. Ground 3—Did the Sentencing Judge Fail to Consider Relevant Evidence and Information? [52] Regarding the final ground of appeal, the accused argues that the sentencing judge failed to consider emails whichsupported his assertion that he never intended to plead guilty and only did so due to counsel’s influence.

He also argues that thesentencing judge erred in law by failing to conduct a subjective analysis when assessing the validity of the guilty plea as required byWong (released after the accused was sentenced). [53] In my view, there is no merit to this ground of appeal. First, a judge is not required to refer to all of the evidence in hisor her reasons. The emails were filed as exhibits and referred to by the accused during his testimony.

The issue of counsel’s influenceon the accused when he entered his guilty plea was a key issue on the application to withdraw his guilty plea and was squarely before thesentencing judge. [54] Second, Wong did not change the law regarding the nature of the inquiry on an application to withdraw a guilty plea. Itis an inquiry by the Court into the factual circumstances surrounding the guilty plea (see T (

R) at para 12; and Thomas at para 17). Thesentencing judge very clearly considered the factual circumstances, including the accused’s personal circumstances, when determiningwhether the plea was voluntary. Ultimately, he was not satisfied that these circumstances rose to the level required to affect theaccused’s ability to freely choose whether to plead guilty. [55] I would dismiss this ground of appeal. Conclusion [56] I have not been persuaded that the sentencing judge erred or that the proceedings were unfair and resulted in amiscarriage of justice. Accordingly, I would dismiss the appeal. JA I agree: JA I agree: JA