R. v. J.W., 2011 NSCA 76

NOVA SCOTIA COURT OF APPEAL Citation: R. v. J.W. , 2011 NSCA 76 Date: 20110902 Docket: CAC 339020 Registry: Halifax Between: J.W. Appellant v. Her Majesty the Queen Respondent Judge: Fichaud, J.A. Application Heard: July 14, 2011, in Halifax, Nova Scotia, in Chambers Held: Application under s. 684 of Criminal Code dismissed. Counsel: The applicant J.W., in person Mark Scott for Her Majesty the Queen Peter Mancini for Nova Scotia Legal Aid Duane Eddy for Department of Justice Reasons for judgment : [ 1 ] The appellant Mr. J.W. applies for the appointment of state funded counsel under s. 684 of the Criminal Code .

Background [ 2 ] On September 26, 2008 J.W. was charged with sexual exploitation under s. 153(1) (

a) of the Criminal Code , sexual touching under s. 151 , sexual touching of a young person under s. 153(1)(

a) and breach of recognizance under s. 145(3) . The victim was the 14 year old daughter of J.W. ’ s common law spouse. On February 11, 2009 he pleaded not guilty to all counts.

[ 3 ] On June 19, 2009 J.W., with counsel, appeared in Provincial Court before Judge Jamie Campbell. J.W. ’ s counsel Mr. Sarson, the judge, J.W. and the Crown ’ s counsel Ms. MacKay had the following exchange: MR. SARSON : ... Your Honour, I’m appearing with Mr. [J.W.] this morning. There is a four-count Information before the Court. THE COURT : Yes. MR. SARSON : I can advise the Court that I’ve had discussion with him. He has instructed me to advise the Court he wishes to change his plea to guilty in relation to the third count on the Information. That is the charge essentially of the sexual exploitation, but it’s under 153(

a) of the Criminal Code . He is entering that plea voluntarily. He realizes he is giving up his right to a trial and he realizes that he is admitting all the elements of the offence that the Crown would have to prove and he also is aware that the Court is not bound by any joint recommendation made for by the Crown and Defence. THE COURT : Thank you. Is that correct, sir? MR. [J.W.] : Yes. THE COURT : A guilty plea then we’ll enter with regard to the third count. MS. MACKAY : In relation to the other three counts, the Crown is offering no evidence. THE COURT : Remaining counts entered.

Dismissed for Want of Prosecution. [ 4 ] On June 18, 2010 J.W., representing himself, applied to Judge Campbell for leave to withdraw his guilty plea. He testified that his reason for pleading guilty was that, if he had not done so, his bail would be revoked, he would be remanded into custody until his trial and he would be unable to work to earn a living for his pregnant spouse and family. He said: I just basically pled guilty to get on the streets again so I could still work and essentially provide for my family. ...

My initial plan was to plead guilty to get onto the streets and then change my guilty plea to not guilty. [ 5 ] On June 18, 2010, by an oral decision, the judge denied J.W. ’ s request to withdraw his guilty plea. The judge ’ s reasons included: Essentially, the issue that I have to consider here is whether the plea was entered voluntarily. That’s not a question of whether it was entered reluctantly, because as Mr. Sarson quite properly said, no one’s ever happy entering a guilty plea especially if it’s a guilty plea that’s going to lead them to jail.

The issue is whether it was voluntary in the sense that the person understood what it meant to plead guilty, understood what the consequences of pleading guilty would be, and was entering that plea with proper information. ... It is very significant here that the plea is sought to be withdrawn when it was entered on the day of the trial and an agreement had been reached with the Crown about charges that were not going then proceed. ... Mr. [J.W.] is clearly able to speak for himself. He clearly understands the process.

He was able to object to things that he found to be objectionable and he was able to articulate an argument in a logical, sensible and forceful way. ... It is telling that Mr. [J.W.] said that he was prepared to plead guilty, then his plan specifically was when the plea was entered to switch it

later. ... It amounts to getting a deal from the Crown, taking the deal, getting out of jail and then trying to back out of a deal and he wants the Court to help him do that. ... Mr. [J.W.], when the plea was entered was under pressure. Absolutely he was under pressure. Who wouldn’t be under pressure? He admitted to having sexual relations with a girl who was then 14-years old. She was there. She was ready to testify. She was the daughter of his common-law wife. ... The Crown case included his own statement. It included the statement of the victim. It included the statement of his common-law wife.

It was a very scary situation because it was a very scary situation for him. Mr. Sarson gave evidence indicating that he explained to Mr. [J.W.] that the forces arrayed against him were substantial and that he likely faced conviction on the charge. Everyone who enters a guilty plea enters a guilty plea under pressure. ... Mr. [J.W.] made a calculated, logical choice to enter a guilty plea, get the deal, get out of jail on bail, and back out of it. ... Significantly, very significantly, he was represented by legal counsel ... Mr. [J.W.] was asked in court specifically if he admitted the charge.

He understood the implication of the plea. On the date in court it was asked, specifically asked, if he understood that by pleading guilty he was admitting the essential elements of the case. He stood before the Court, before me, in this court and said, yes. And now he wants to say, yes, but not really. He’s essentially saying that when he spoke to me on June 19 th last year the whole thing was a fraud and a sham and a scam. ... Mr. Sarson, quite properly said, very carefully said that his client was reluctant but voluntary. He said ... Mr.

Sarson explained that he would not have entered a plea on behalf of Mr. [J.W.] had he, for one moment, thought that Mr. [J.W.] was trying to pull off this kind of scam. I accept Mr. Sarson’s evidence in its entirety and without any hesitation whatsoever. Mr. [J.W.]’s version of events is a self-serving fabrication by a man who admitted that he came into court ready to play the court and the judge for fools ... Mr. [J.W.] was not only adequately advised but well and expertly advised by experienced counsel. ... Mr. [J.W.] entered a plea while well informed.

He made a logical decision knowing that serious consequences would flow from it. ... The application is then dismissed. [ 6 ] On September 27, 2010 the judge heard sentencing submissions, for which J.W. was represented by new counsel. On October 25, 2010, the judge sentenced J.W. to two years incarceration. [ 7 ] On November 4, 2010, J.W. filed a notice of appeal to the Court of Appeal.

He asks that his plea be changed to not guilty and that a trial be ordered. [ 8 ] On May 11, 2011, in a chambers teleconference with the Chief Justice, the court was informed that J.W. ’ s request for legal aid was denied by Nova Scotia Legal Aid. J.W. appealed the denial. On August 22, 2011, the Court was informed that the Appeal Committee of Nova Scotia Legal Aid dismissed J.W. ’ s appeal. Issue

[9] J.W. applies for an order that I assign counsel for his appeal under s. 684 of the Criminal Code. The issue is whether theprerequisites of s. 684 are met.

Section 684 of Criminal Code [10] Section 684(1) says: A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or toproceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests ofjustice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain thatassistance. [11] Under s. 684(1), literally I have two inquiries - (1) whether it is desirable in the interests of justice that J.W. have legalassistance, and (2) whether J.W. has sufficient means to obtain that assistance.

R. v. Assoun, 2002 NSCA 50, paras 41-44. In R. v.Innocente, [1999] N.S.J. No. 302, paras 10-12, Justice Freeman agreed with the statement of Justice Doherty in R. v. Bernardo (1997), (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), para 22, that, in addition, the chambers judge should be satisfied that theappellant has an arguable appeal. [12] On the first prerequisite, the interests of justice, in Assoun Justice Cromwell said: 42. The first inquiry, therefore, is whether it appears to be in the interests of the administration of justice that Mr.

Assoun have legalassistance for the purpose of preparing and presenting his appeal. This involves consideration of numerous factors including the merit ofthe appeal, its complexity, the ability of the appellant to effectively present his or her appeal without the assistance of a lawyer and thecapacity of the court to properly decide the appeal without the assistance of counsel. [13] Still on the interests of justice prerequisite, in R. v. Grenkow, 1994 NSCA 46 , [1994] N.S.J.

No. 26 (C.A.), at para 31,Justice Hallett said that, before assigning counsel under s. 684, the chambers judge would have to be satisfied that “the appellant, due tothe complexity of the appeal issues or the inability of the appellant to articulate the grounds, requires the assistance of counsel, in otherwords the appellant could not have a fair hearing of the appeal without the assistance of counsel”.

In Innocente, Justice Freeman (para9) referred to Justice Hallett’s passage from Grenkow, then (para 13) adopted the following from the decision of Justice Doherty inBernardo, para 24: Having decided that the appeal raises arguable issues, the question becomes - can the appellant effectively advance his grounds of appealwithout the assistance of counsel? This inquiry looks to the complexities of the arguments to be advanced and the appellant’s ability tomake an oral argument in support of the grounds of appeal.

The complexity of the argument is a product of the grounds of appeal, thelength and content of the record on appeal, the legal principles engaged, and the application of those principles to the facts of the case.

An appellant’s ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including theappellant’s ability to understand the written word, comprehend the applicable legal principles, relate those principles to the facts of thecase, and articulate the end product of that process before the court. [14] These factors must be assessed from the perspective of the issues that will be presented on the appeal. The appeal will turnprimarily on whether the judge erred by denying J.W.’s request to withdraw his guilty plea. R.E.

Salhany, Canadian Criminal Procedure, 6th ed., looseleaf (Aurora Ont: Canada Law Book, 2011), in paras 6.1880-1890, says: Where an accused person wishes to withdraw a plea of guilty, the proper practice is for the trial judge to conduct an inquiry into whetherthe plea was voluntarily made. The extent of the inquiry will generally vary with the seriousness of the charge. In conducting hisinquiry into the voluntariness of the plea, the judge may take into consideration any evidence including any confession made by theaccused.

Since the right of an accused to withdraw his plea is a matter of discretion for the judge, the court of appeal is generally loath to disturb that decision unless it can be established that the judge improperly exercised his discretion. [ 15 ] The judge found that J.W. ’ s plea was voluntary, for the reasons I have quoted earlier. [ 16 ] J.W. ’ s affidavit for this motion says: I require the assistance of a lawyer because I feel that if I had the chance, some information that my council [ sic ] would have had could have helped me.

During my court hearing for the plea change I had to represent myself and I feel key points were misunderstood and new information ignored because of the way I may have misspoke. [ 17 ] In my view this will not be a complex appeal. It will depend on whether the Court of Appeal is persuaded that the judge erred in his assessment of the voluntariness of J.W. ’ s guilty plea. This will turn largely on J.W. ’ s reasons for both the guilty plea and his decision to withdraw that plea. These are not recondite legal issues on which J.W. is disabled without counsel.

Nor are they matters of complex evidence to be extracted from lengthy appeal books. They are basic facts - What was in J.W ’ s mind? The absence of counsel does not handicap his access to that evidence or his expression of it to the court.

Judge Campbell said that J.W. was capable of expressing his position effectively, a view which I share from J.W. ’ s presentation on the s. 684 motion. [ 18 ] I have considered the interests of justice from the perspective of the factors stated in Assoun , Grenkow , Innocente and Bernardo - the merits of the appeal, its degree of complexity, the ability of J.W. to present his position without the assistance of counsel and the capacity of the Court to properly decide the appeal without the assistance of counsel. The result of that assessment does not satisfy the standard for the first prerequisite under s. 684(1).

Conclusion [ 19 ] I dismiss J.W. ’ s motion for the assignment of counsel under s. 684 . Fichaud, J.A.