R v Thomas, 2021 MBCA 66

Citation: R v Thomas, 2021 MBCA 66 Date: 20210629 Docket: AR12-30-07903 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen BETWEEN : ) S. R. Segal ) for the Appellant ) (via teleconference) ) ) R. N. Malaviya her majesty the queen ) for the Respondent ) (via videoconference) Respondent ) ) P. E. C.

Kingsley, Q.C. - and - ) on a watching brief for ) Legal Aid Manitoba mary ellen thomas ) (via videoconference) ) (Accused) Appellant ) Appeal heard and ) Decision pronounced: ) June 17, 2021 ) ) Written reasons: ) June 29, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference/teleconference. mainella JA (for the Court) : [ 1 ] The accused’s appeal of her conviction for second degree murder has been before this Court for almost nine years.

A myriad of reasons explains this delay which are not necessary to discuss at length. What is important is that all parties agree that the interests of justice require closure of this appeal as quickly as reasonably possible. After hearing from the parties, we granted relief directed to the fair, expeditious and orderly conclusion of this appeal with reasons to follow. These are those reasons. [ 2 ] During the appeal process, six different lawyers have been counsel of record for the accused, Mr. Segal being the most recent. [ 3 ] On December 10, 2020, Mr.

Segal was appointed pursuant to section 684(1) of the Criminal Code (the Code ) to act for the accused on her appeal. He became the third lawyer appointed pursuant to

section 684 (see 2020 MBCA 84 at para 13 ; and 2020 MBCA 107 ) (the previous three counsel had been appointed by Legal Aid). Mr. Segal now seeks leave to withdraw as counsel due to a breakdown of the solicitor/client relationship. We are prepared to grant his motion. [ 4 ] The accused originally framed her appeal as one of “ineffective assistance from counsel” at her sentencing ( 2017 MBCA 23 at para 16 ). Later, her position changed to one of being that fresh evidence would demonstrate that her guilty plea was involuntary (see 2020 MBCA 84 at para 14 ).

The accused confirmed to us that she is not intending to make an allegation of ineffective assistance against her counsel at the sentencing; rather, she says she will demonstrate that her guilty plea was involuntary based on fresh evidence as to her mental state at the time of entering a guilty plea to second degree murder on December 6, 2011. [ 5 ] As was noted previously, the “reoccurring problem” with this appeal being heard on its merits is that, “while repeatedly promised, no motion for fresh evidence is ever filed” ( 2020 MBCA 107 at para 4 ).

While we are not privy to what has transpired between the accused and her various counsel, it would appear that no counsel is prepared to argue the appeal based on the affidavit the accused intends to file.

[6] The position of the Crown is that this appeal should be summarily determined pursuant to

section 685 of the Code anddismissed because, based on the materials filed, the appeal is “wholly devoid of merit” (see Lochner v Ontario (Attorney General), 2019ONCA 730 at para 21). It highlights that the accused was represented by experienced counsel at her sentencing and there is nothing inthe transcript of the sentencing to suggest anything but that the guilty plea was voluntary (see R v Bicknell, 2009 MBCA 34 at para 4). Itfurther underscores that prior appellate counsel have conceded in this Court that there is no merit to the appeal without fresh evidence.

The Crown submits that, if fresh evidence has not yet been “discovered” after almost a decade of litigation, it is safe to say it does notexist. [7] This Court has previously expressed its concern as to the “overall delay” in this matter (2020 MBCA 84 at para 30). This is a serious matter.

The accused, the community and the victim’s family require finality. [8] The appeal is perfected for hearing save for an affidavit from the accused with her fresh evidence as to her mentalstate on December 6, 2011 when she pleaded guilty and was sentenced. [9] Previously, the accused’s psychiatrist, with the accused’s consent, provided this Court with background information,including an update as to the accused’s mental health at that time. The psychiatrist described the accused as a “vulnerable person” whohad made “a lot of progress” over the last two years.

She is in need of some assistance in the conduct of her appeal. The accusedadvised us that she comes from a background of significant intergenerational trauma, which she, too, has experienced personally. She isan articulate person who, in several appearances before this Court, has been able to engage in an intelligent discussion of her case. [10] In R v Bernardo (1997), (ON CA), 121 CCC (3d) 123 (Ont CA), it was explained that decisionswhether to appoint counsel under section 684(1) are not static. Ultimately, the Court must be guided by the interests of justice.

DohertyJA explained the meaning of that expression this way (at para 16): The phrase “the interests of justice” is used throughout the Criminal Code. It takes its meaning from the context in which it is used andsignals the existence of a judicial discretion to be exercised on a case-by-case basis.

The interests of justice encompass broad basedsocietal concerns and the more specific interests of a particular accused. [11] In Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43, the Supreme Court of Canada confirmed theinherent jurisdiction of a superior court to appoint amici curiae “where this is necessary to permit a particular proceeding to besuccessfully and justly adjudicated” (at para 44). [12] Legal Aid advised us that it would be prepared to facilitate locating amicus counsel to argue the point of what the legalrequirements of a voluntary guilty plea are. [13] We explained to the accused that, in order to fairly adjudicate her appeal, we require evidence from her as to why herguilty plea to second degree murder was not voluntary even though she told the sentencing judge that her plea was being made freely andvoluntarily and without coercion.

The accused was advised that, normally, such information would be under oath in the form of anaffidavit. She advised she understood this procedure. [14] In our view, the circumstances here are exceptional. The accused wishes the aid of counsel to assist her, but the courseshe wishes to take in advancing her appeal appears to be frustrating the ability of counsel to act for her, even under an appointmentpursuant to section 684(1). We say that not as a criticism, but as a statement of reality. Ultimately, the accused has the right to controlthe overall conduct of her case, but there must also be finality.

At this time, it is not in the interests of justice to continue the section684(1) order appointing counsel. [15] Based on the proceedings to date, we are satisfied that the accused is capable of providing to this Court an affidavit withthe relevant facts as to her state of mind at the time she pleaded guilty.

Whether her state of mind at that time constitutes a valid reason inlaw to withdraw her guilty plea is a matter this Court will be able to determine with the assistance of the submissions of the Crown andamicus counsel. [16] In our view, the just course, in the circumstances, to fairly resolve the issue of the accused’s representation in order forthe appeal to proceed in a timely and orderly fashion is as follows: 1. Mr. Segal is granted leave to withdraw as counsel. 2. The order appointing counsel pursuant to section 684(1) is set aside. 3.

The appeal will proceed with the accused acting in person (subject to her finding counsel on her own or her making a successfulapplication pursuant to section 684(1) to a judge of this Court in chambers), but with amicus counsel to argue the question of what thelegal requirements of a voluntary guilty plea are. 4. The amicus counsel is to review the materials filed in the appeal and make written and oral submissions on the legalrequirements of a voluntary guilty plea. 5. The fees and disbursements of amicus counsel are to be paid by the Attorney General in accordance with the rates of the LegalAid program. 6.

The written submission of the amicus counsel shall not exceed 10 pages. Any written reply by the accused or the Crown shallbe limited to five pages. All materials shall be filed in accordance with the deadlines set by the registrar. 7. The accused will have until the close of business on August 31, 2021 to file her affidavit setting out the fresh evidence as to herstate of mind at the time of her guilty plea on December 6, 2011.

8. As the accused is in custody and about to be transferred to another facility in another province, she is excused from serving a copy of her affidavit on the Crown. The registrar is directed to provide a copy of her affidavit to the Crown once filed. 9. The appeal will be heard by videoconference at such time in the fall term of 2021 as set by the registrar. [ 17 ] The accused was informed, and advised she understood, that the amicus counsel will not take instructions from her and will not assist her in the preparation of her affidavit detailing her fresh evidence relevant to her guilty plea.

She was also informed, and advised she understood, that she may at any time retain her own counsel on this appeal. If that occurs, the parties should contact the registry for new counsel to go on record and to obtain directions. The accused was further informed, and advised she understood, that she may at any time prior to the date of her appeal make an application to a judge of this Court in chambers pursuant to

section 684 of the Code for the appointment of counsel. The accused is familiar with that procedure having successfully obtained three such orders previously in this appeal. [ 18 ] The Crown’s motion pursuant to

section 685 of the Code is adjourned to a date in the fall term to be set by the registrar. [ 19 ] We remain seized of the hearing of the appeal and the Crown’s

section 685 motion. JA JA JA