R v Thomas, 2022 MBCA 19

Citation: R v Thomas, 2022 MBCA 19 Date: 20220211 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 : ) M. E. Thomas her majesty the queen ) on her own behalf ) (via videoconference) ) ) R. N. Malaviya Respondent ) for the Respondent ) (via videoconference) ) - and - ) E. G.

Murphy ) as amicus curiae mary ellen thomas ) (via videoconference) ) ) Appeal heard: ) November 30, 2021 (Accused) Appellant ) ) Judgment delivered: ) February 11, 2022 simonsen JA [ 1 ] The accused appeals her conviction for second degree murder of Michael Allan (the victim) on the basis that her guilty plea resulted in a miscarriage of justice because it was not voluntary.

She asserts that she made her plea for reasons unrelated to an admission of guilt for murder, those reasons being that her ability to think clearly was compromised by her severe mental illness and that she was motivated by a desire to change her custodial circumstances.

She contends that the available evidence is not capable of establishing that she had the requisite intent for murder, and that she did not have that intent due to her mental illness and level of intoxication at the time of the killing, as well as provocation by the victim. [ 2 ] In support of her appeal, the accused applies to tender fresh evidence regarding the circumstances under which the plea was entered. [ 3 ] For the reasons below, I would admit the fresh evidence and dismiss the appeal.

The Background [ 4 ] The following facts are not in dispute. [ 5 ] The victim, a 62-year-old man, who was highly intoxicated, died in his home (the residence) from a severe beating by the accused. [ 6 ] At about midnight on July 30, 2010, the victim’s next-door neighbour was in front of his own house when he heard the accused calling for him. The neighbour described her as “wobbly” and “pretty drunk.” The accused told him that she had “knocked a guy out”, referring to a person inside the residence, because he would not take her to the bank. The telephone rang at the residence and the accused went back inside.

When the neighbour returned to his house a few minutes later, he heard, coming from the residence, loud noises, banging and a female voice yelling. He called the police at about 1:00 a.m.

[ 7 ] Approximately one hour after the police were contacted, an altercation occurred at a nearby 7-Eleven convenience store, which resulted in a woman being stabbed by the accused. [ 8 ] When the police arrived at the residence a few hours later, at about 6:00 a.m., in what an attending officer described as a well-being check in response to the neighbour’s call, they crawled through a window after seeing blood and disarray inside and not receiving a response to a request that someone come to the door. Once inside, they observed the accused lying on the couch.

She said that she had been bear sprayed and, in defending herself, had “stabbed some girl at the 7-Eleven.” The officers were aware of that incident and arrested the accused for aggravated assault. They did not smell any alcohol on her and observed no signs of intoxication.

The police then further investigated the residence and found blood in the kitchen, and the victim lying in a pool of blood at the bottom of the basement stairwell. [ 9 ] The autopsy report described extensive injuries, including multiple bruises and abrasions, numerous sharp-force injuries to many areas of the victim’s body, and fractured ribs. The cause of death was determined to be a fracture of the cervical spine. [ 10 ] After being transported to the police station, the accused spoke with counsel and then provided a video-recorded statement (her statement), which constituted a full confession.

The officers who dealt with her found her to be cooperative and, again, noted no smell of alcohol or any evidence of intoxication. [ 11 ] In her statement, the accused explained what had occurred. Her explanation was detailed and consistent with the forensic evidence. She said that she had gone to the residence that day for a business purpose involving the exchange of some type of companionship or sex for money. When the accused said that she wanted to be paid for her services, the victim began looking for his wallet. He could not locate it, and accused her of stealing it.

He became upset and was throwing objects about as he looked for his wallet. At some point, the accused went to the kitchen where an altercation occurred. In her statement, the accused went on to tell the police that, after she got the victim to the ground, she kicked him about 10 times, then “lost it” and “went crazy” and was unable to stop herself. She beat him with a lamp and pushed him down the stairs into the basement. Then, in an attempt to wake him up, she cut him repeatedly with a knife and poured cleaning solution on him.

When she was unable to rouse him, she left him in the basement and attempted to barricade the basement door to prevent it from being opened. The accused left the residence and got into an altercation at a nearby 7-Eleven, which resulted in her stabbing a woman. She then returned to the residence, had a shower and went to sleep on the couch. [ 12 ] In March 2011, the accused was examined by Dr. Stanley Yaren (Dr. Yaren), a forensic psychiatrist, to determine if she was fit to stand trial and/or whether she might be not criminally responsible for the offences. In his report, Dr.

Yaren described the accused as having a “longstanding history of interventions for mental disorder dating back to at least 1998,” at which time she was admitted to hospital with a psychotic disorder, which was tentatively diagnosed as bipolar mood disorder. Dr. Yaren further indicated that, over the years since, other diagnoses had been considered based on various symptoms presented, including substance-induced psychosis and schizophrenia. He stated that the accused had apparently received no mental health care after January 2009. [ 13 ] In the accused’s discussions with Dr.

Yaren, he found her thought processes to be “coherent, logical and organized”, and there was no indication that she was responding to hallucinations, which she said she was experiencing. However, because she had been undergoing treatment with antipsychotic medication for several months by the time she met with him, he turned his attention to her presentation at the time of her statement.

His assessment with respect to her statement, which he had viewed, was that the accused was relating to the interviewers in a “calm, cooperative and coherent manner”, and that she did not appear to be under the influence of self- reported psychotic symptoms. He found that she “exhibit[ed] relatively lucid and clear cognition considering that she would have been somewhat deprived of sleep and had been indulging in crack cocaine and alcohol several hours earlier.” [ 14 ] Dr.

Yaren noted that, near the end of her statement, the accused reported experiencing severe auditory hallucinations, but that she “[did] not connect this with the offending behaviour.” He opined that, notwithstanding her “longstanding history of a severe and pervasive mental disorder” and “history of severe polysubstance abuse”, she was fit to stand trial and did not meet the criteria required to be found not criminally responsible. [ 15 ] Dr. Yaren referred the accused for a further assessment by Dr. G. Robertson (Dr. Robertson), a psychologist. Dr.

Robertson found that the results of psychological testing indicated “a ‘style’ of extreme exaggeration”.

He also observed that, when the accused provided him with a description of the assault on the victim, she “gave a completely coherent, organized account” and that her behaviour with respect to the offences “appear[ed] to have had a nonpsychotic motive.” He, too, was of the opinion that consideration of a not criminally responsible finding “would not appear to apply in her situation.” [ 16 ] In June 2011, a preliminary hearing was conducted, and two experienced lawyers for the accused argued strenuously for committal on the charge of manslaughter and not murder, on the basis that there was a lack of evidence as to the intent required for murder.

The preliminary hearing judge concluded that there was evidence which, if accepted by the trier of fact, could support an inference that the accused had the requisite intent for murder, and the accused was committed to stand trial on that charge. [ 17 ] When the accused entered her guilty plea to murder and was sentenced on December 6, 2011, she was represented by one of her counsel from the preliminary hearing and a plea inquiry was conducted. The sentencing judge accepted her plea as well as counsel’s joint recommendation for sentence, which had resulted from a genuine plea bargain.

Counsel jointly recommended that, despite the accused’s lengthy criminal record and the violence involved in the killing, the period of parole ineligibility should not be increased from 10 years. In addition, as part of the plea bargain, the Crown agreed to stay the aggravated assault charge relating to the 7- Eleven stabbing. [ 18 ] In 2017, a judge of this Court granted the accused an extension of time to appeal her conviction, on the basis of a claim of ineffective assistance of counsel (see 2017 MBCA 23 at paras 16 , 20 ( Thomas #1 )).

Since then, the appeal has, without objection, also proceeded on the basis of broader arguments about the voluntariness of the guilty plea. In fact, the accused has now abandoned the position that she received ineffective assistance from her counsel and is proceeding only with arguments concerning voluntariness (see 2021 MBCA 66 at para 4 ( Thomas #2 )).

[19] This appeal has a lengthy procedural history (see 2020 MBCA 84; 2020 MBCA 107; and Thomas #2). Although theaccused was self-represented when she sought the extension of time to appeal, an order was subsequently made for the appointment ofcounsel under section 684(1) of the Criminal Code (the Code). She was then represented by a number of counsel, each of whomultimately sought and were granted leave to withdraw from the record.

As a consequence, this Court set aside the order made undersection 684(1) and, recognizing that the accused would be self-represented, made an order for the appointment of amicus curiae to arguethe applicable law in relation to a valid guilty plea. The Law [20] The law makes clear that a valid guilty plea is voluntary, unequivocal and informed (see R v T (R), (ON CA), 1992 CarswellOnt 117 at para 14 (CA); and R v Desrochers, 2019 MBCA 120 at para 16). Where a plea is entered in opencourt, particularly by an accused who is represented by counsel, it is presumed to be valid.

The onus is on the accused to showotherwise (see R v Moser (2002), (ON SC), 163 CCC (3d) 286 at paras 37, 40 (Ont Sup Ct J); and Desrochers atpara 18). A guilty plea should only be vacated in exceptional circumstances (see R v Hoang, 2003 ABCA 251 at para 25; and Thomas#1 at para 19) because “[w]e must have finality to proceedings unless the demands of justice dictate otherwise” (Moser at para 42). [21] A voluntary plea refers to the conscious volitional decision of an accused to plead guilty for reasons which he or sheregards as “appropriate” (T (

R) at para 16; R v MAW, 2008 ONCA 555 at para 24; and Desrochers at para 18). The standard to beapplied when determining whether an accused’s mental disorder invalidates a guilty plea because of involuntariness is the same standardthat is used to determine an accused’s fitness to stand trial (see MAW at paras 25-27; see also R v Henneberry, 2017 NSCA 71 at paras21-26; R v Aisaican, 2019 SKCA 58 at para 33; and R v Tallio, 2021 BCCA 314 at para 72). [22] There is no standard of review that this Court must observe because an appeal of a guilty plea is not an appeal to reviewfor error.

It is a fact-based inquiry about the circumstances in which the plea was entered (see Desrochers at para 7). [23] Even where an accused’s plea of guilty appears to be valid, the court retains a discretion, to be exercised in the interestsof justice, to receive further evidence to explain the circumstances that led to the plea (see Desrochers at para 8).

Where unfairness inthe trial process is said to have resulted in a miscarriage of justice, as is the case here, the applicable test for the admission of freshevidence was set out 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 [Palmer v The Queen, (SCC), [1980] 1SCR 759] criteria do not apply.

Rather, in determining whether the “interests of justice” are engaged, the court must conduct “anexamination of the grounds of appeal raised, the material tendered and the remedy sought” which may include “material extraneous tothe 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.). The Positions of the Parties [24] As I have stated, the accused asserts that her guilty plea was not made voluntarily.

Rather, she says that she wasoverwhelmed by her poor state of mental health at the time and was motivated by her desire to move from provincial remand custody to afederal institution, where she believed the conditions would be more favourable. She relies on R v Cesari, 1986 CarswellQue 6 (CA), inwhich an accused was permitted to withdraw his guilty plea that had been entered in order to avoid remaining in custody. [25] The amicus curiae submits that, based on his review of the authorities, the accused’s state of mental health alone wouldnot be sufficient to vitiate her guilty plea.

However, he indicates that her mental status could have played a

part in her deciding to enterthe plea. He also refers to cases in which an accused was permitted to withdraw a guilty plea in circumstances where the plea had beenentered in order to be released from custody, as opposed to due to an acknowledgement of guilt (see, for example, R v Bawkovy, 2009ABCA 213; see also R v Beahm, 2012 SKQB 507).

While acknowledging that the accused did not plead guilty in order to be releasedfrom custody but, instead, to allow a move to a federal institution, the amicus curiae nonetheless says that the same reasoning couldapply. [26] The Crown takes the position that the fresh evidence should not be admitted, and that the appeal is without merit andshould be summarily dismissed under its pending motion pursuant to section 685(1) of the Code. The Fresh Evidence Motion [27] The accused seeks to tender as fresh evidence her affidavit describing her state of mind and motivations when the guiltyplea was entered.

That affidavit indicates that she had severe mental health problems, was haunted by thoughts of a miscarriage and wassuicidal. She says that she was not on proper medications for her mental illness at the time, based on the medications subsequentlyprescribed by Dr. Michelle Roy (Dr. Roy), a psychiatrist who treated her at a psychiatric facility where she was serving her sentence. The affidavit also notes that the accused was abused in day school and that her parents suffered in residential school—and that she hassuffered due to their suffering.

In oral submissions at the appeal hearing, the accused indicated that, while in remand custody, she wasmissing her five children, all of whom were then in foster care. [28] In her affidavit, the accused also describes the very difficult conditions she faced in segregation while in remandcustody.

She says that, given her living conditions, she wanted to get out of the situation she was in and thought that her best opportunityfor doing so was to plead guilty. [29] The accused further says that, although her mental health has improved, she continues to have suicidal thoughts, andthat corrections staff have to monitor her and intervene with her self-harming behaviours. [30] While the Crown agrees that the applicable test for admission of the fresh evidence in this case is set out in Richard, it

contends that any analysis with respect to the interests of justice must, to some extent, pay heed to the criteria set out in Palmer v TheQueen, (SCC), [1980] 1 SCR 759. The Crown argues that, when that is done, the fresh evidence should not be admitted.

According to the Crown, there is nothing in the proffered evidence that the accused was not aware of, and could not have provided, atthe time the plea was entered; much of it is not credible in the absence of corroborative evidence; and its admission could not reasonablybe expected to affect the outcome of the appeal. [31] Although I share some of the Crown’s concerns (as will be outlined later), I am nonetheless satisfied that, applying thetest in Richard, it is in the interests of justice to admit the fresh evidence.

It contains the accused’s recollection of her circumstances andstate of mind at the time she entered the plea, which is relevant to the issue before the Court. Analysis and Decision [32] In conducting my analysis and deciding this appeal, I have carefully reviewed and considered: (1) the transcript of the proceedings at which the guilty plea was entered; (2) the documents and reports before the sentencing judge, specifically: (

a) the criminal record of the accused; (

b) the victim impact statements; (

c) photographs of the scene; (

d) the autopsy report; (

e) the psychiatric report of Dr. Yaren dated March 16, 2011; and (

f) the psychological report of Dr. Robertson dated March 18, 2011. (3) the sentencing judge’s reasons for sentence; (4) communications received by this Court, during the course of the appeal, from Dr. Roy; (5) the fresh evidence; and (6) the written and oral submissions of the amicus curiae, the accused and the Crown. [33] When deciding whether a guilty plea ought to be set aside, a court is to consider the totality of the circumstances.

Asoutlined by this Court in Desrochers (at para 19): As stated in R v Moser (2002), (ON SC), 163 CCC (3d) 286 (Ont Sup Ct J), “There is, of course, no closed list ofcircumstances calling into question the voluntariness of a guilty plea” (at para 33). Rather, courts have regard to the totality of thefactual 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. [34] Importantly, at the time of her plea, the accused was represented by experienced counsel and there is no challenge tothe adequacy of that representation.

[35] While the record establishes that the accused has long-standing severe mental illness and that, when she entered herplea, she was having difficulty with her custodial conditions in remand custody and wanted to move to what she thought would be abetter situation, all of this was known to her counsel. Her counsel submitted to the sentencing judge that the accused had been havingmental health issues while in jail, and that it had “been a very difficult process for her”.

Her counsel also advised the sentencing judgethat the accused was motivated to get assistance for life in the parole system, which she felt she needed given her long-standing seriousmental health issues and resulting risk of reinvolvement. Her counsel stated that the accused worried that if she got “out on parolenormally or finish[ed] [her] time”, she would not be supervised.

At that hearing, the accused also mentioned her need to get help for hermental health issues and “[her] violence”. [36] As for the accused’s reliance on Cesari in support of her argument about the significance of her wanting to change hercustodial situation, that case involved a very different set of circumstances. In Cesari, the appellant pled guilty to a charge of illegallykeeping a gaming house, and was fined $250.

He had entered his plea in order to be released from detention, where he would haveremained for a week awaiting trial because of an earlier failure to appear (although he had presented himself to court before the warrantwas executed). As a consequence of that failure, he was “in a worse situation while awaiting trial, when he was presumed to beinnocent, than he would have faced if he had been guilty” (at para 11), while his superior, who had pleaded guilty, was fined $500 andreleased.

This was a result that the Court found to be “bizarre and unacceptable” (ibid). [37] There are other relevant considerations here that are indicative of a voluntary plea. The accused had been found fit tostand trial. Furthermore, when her plea was entered, she was familiar with the criminal justice system as a result of her priorinvolvement, and was being treated for her mental health issues. She had heard the Crown’s case against her at the preliminary hearing. There is no evidence of pressure or coercion, and a careful and thorough plea inquiry was conducted.

In the course of that inquiry, thesentencing judge asked the accused if she was aware that she “could go to jail for life for this”, and she indicated that she was. Sheacknowledged that she was not coerced into pleading guilty. [38] The accused also argues that her lack of the requisite intent for the offence of murder is apparent from the record, whichshows her compromised mental status and intoxication at the time of the killing, as well as provocation by the victim who accused her ofstealing his wallet after he was unable to locate it when she asked for payment for her services.

I disagree. [39] Again, at the time of the plea, the accused was represented by experienced counsel who clearly had explored with herthe strength of the Crown’s case—and there is no allegation of ineffective assistance. [40] Furthermore, in my view (like the conclusion of the preliminary hearing judge), the available evidence could establishthat the accused had the requisite state of mind for murder. The evidence of intoxication is limited and the evidence of provocation atlaw is essentially non-existent. The killing involved extreme violence and brutality inflicted on an older, frail victim.

In her statement,the accused, in great detail, admitted to kicking the victim multiple times, striking him with a lamp, pushing him into the basement andleaving him there. The autopsy report describes numerous sharp-force injuries to the victim’s head, torso and extremities as well as afracture to his cervical spine, multiple rib fractures, and extensive lacerations and bruising, all consistent with the accused’s descriptionof her assault on the victim. The psychiatric and psychological assessments of Dr. Yaren and Dr.

Robertson make no connectionbetween her mental health issues and her offending, nor do they suggest that those issues would have precluded her from forming therequisite intent for murder. [41] At the hearing before the sentencing judge, both the accused and her counsel advised that she was taking responsibilityfor her actions. In addressing the Court, the accused expressed remorse for what she had done and stated: . . . . . .

I don’t want to take the manslaughter charge because I know how hard it is for the family and stuff like that, [the victim’s] family,and I know how hard it is for my family and I think it should just be fair that I should just take responsibility for my actions, I’ll take 10to life, and it’s going to be up [to] my actions while I’m in jail if I get that parole. . . . . . . [42] When asked about this comment at the appeal hearing, the accused attempted to explain it by stating (as she had in heraffidavit filed as fresh evidence) that she had pleaded guilty to murder because she was “afraid” that if she “kept on fighting” formanslaughter, she would be charged with first degree murder.

She referred the Court to Regina v Hansen (1977), (MB CA), 37 CCC (2d) 371 (Man CA). However, I found this explanation to be unconvincing as there is no indication that the accusedhas ever been, or would be, charged with first degree murder. The only plea deal here was in relation to the Crown agreeing to limit theperiod of parole ineligibility for murder to 10 years and it staying the aggravated assault charge. [43] In

summary, although the accused has undoubtedly had severe mental health problems for years, and sought theprospect of a change from her custodial situation and the availability of long-term psychiatric care when she decided to plead guilty,these considerations alone do not vitiate her guilty plea to murder. Rather, when considering all of the circumstances, she has notestablished that her guilty plea was not voluntary and, thus, resulted in a miscarriage of justice. She has not met her onus of establishingthat her guilty plea should be set aside. [44] Therefore, I would dismiss the appeal.

JA I agree: JA I agree: JA