Docket: CACR2057 Kyle J. Short Appellant - v. -, 2012 SKCA 85

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 85 Date: 2012-09-20 Between: Docket: CACR2057 Kyle J. Short Appellant - and - Her Majesty the Queen Respondent Coram: Lane, Ottenbreit and Caldwell JJ.A. Counsel: Peter A. Abrametz for the appellant Wade McBride for the respondent Appeal:

From: Provincial Court Heard: September 20, 2012 Disposition: Dismissed Written Reasons: September 21, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit Caldwell J.A. [1] The appellant, Kyle Short, appeals from his conviction on two counts of trafficking marihuana and one count of possession of theproceeds of an indictable offence. At trial, he entered a plea of guilty to each count. He now seeks to expunge his pleas.

He has, however,served his sentence and, therefore, his appeal from sentence was not pursued before the Court. [2] Mr. Short contends that his trial counsel was incompetent. Mr. Short alleges, for a number of reasons, that his counsel did notprovide effective assistance and, as a consequence, his guilty pleas were not fully-informed. He says, as a result, that a miscarriage ofjustice has occurred in that trial counsel’s incompetence has undermined the reliability of the verdict. [3] A guilty plea is valid if it is voluntary, informed and unequivocal: (R. v. T.(R.) (1992), (ON CA), 10 O.R. (3d)514 (C.A.).

A guilty plea made in open court is presumed valid, and an appellate court is not empowered to set it aside, unless theaccused can prove it was not voluntary, informed or unequivocal. An accused who applies to expunge a plea for the first time on anappeal bears the onus of proving the plea is invalid but must obtain leave of this Court to do so (Criminal Code, s. 675(1)(a)(iii), and R.v. Kim, 2011 SKCA 74, 272 C.C.C. (3d) 15).

If leave is granted and the plea is proven invalid, the appellate court may properly set asidethe plea where the appellant establishes that there has been a miscarriage of justice (Criminal Code, s. 686(1)(a)(iii); R. v. G.D.B., 2000SCC 22, [2000] 1 S.C.R. 520; and R. v. Kim). [4] A miscarriage of justice will occur where a verdict is rendered unreliable due to incompetent representation by trial counsel if theappellant also demonstrates that, had trial counsel performed competently, there is a reasonable possibility that the verdict could havebeen different. (R. v. G.D.B.; R. v.

Archer (2005), (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. Joanisse (2005), (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.); and R. v. Kim) We, therefore, grant Mr. Short’s application for leave toappeal pursuant to s. 675(1)(a)(iii). [5] Turning to the appeal proper, the jurisprudence indicates a claim of miscarriage of justice by reason of the incompetence of trialcounsel has three elements, each of which must be established by the appellant on a balance of probabilities. First, the appellant mustestablish the facts, including the acts or omissions of trial counsel, upon which the claim of incompetence is based.

Second, the appellantmust establish that the representation provided by trial counsel was incompetent. Third, the appellant must establish that the incompetentrepresentation resulted in a miscarriage of justice. (See, among others: R. v. Kim, at para. 36) [6] Where an allegation of incompetent counsel arises, appellate courts take a cautious approach in their after-the-fact assessment oftrial counsel’s performance.

The assessment starts with a strong presumption in favour of competence, which the appellant will onlydisplace by proving, on a balance of probabilities, that trial counsel’s acts or omissions fell outside the range of reasonable professionalassistance in the circumstances.

Competence is measured against a reasonableness standard, which necessarily admits a wide range ofreasonable professional assistance because no two counsel will defend an accused in the same way; which is to say: different counselmay reasonably use very different strategies and tactics to address the same set of legal, factual and procedural circumstances. Because ofthis, it has been said, the wisdom of hindsight has no place in an appellate court’s assessment of trial counsel’s competence. (See: R. v.White (1997), (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 247; R. v. G.D.B. at p. 298; R. v.

Archer; and R. v.Kim, at para 36) [7] With respect to proof of the elements of Mr. Short’s claim of a miscarriage of justice by reason of incompetent representation,we have before us fresh evidence proffered by way of affidavits by Mr. Short, his mother and, in rebuttal, Mr. Short’s trial counsel. Wehave also received Crown disclosure materials through an appendix to Mr. Short’s factum. We have carefully reviewed all of thismaterial, as well as the court record, which includes the transcript of court proceedings where Mr. Short pled guilty and received hissentence. We note, for the record, that each of Mr.

Short, the Crown and Mr. Short’s trial counsel has elected not to cross-examine theaffiants on the contents of their respective affidavits. [8] As noted, it is incumbent upon Mr. Short to establish that a miscarriage of justice has occurred in his case. In this respect, we arenot satisfied, on the basis of all of the materials before the Court, that a different verdict would have followed on a trial of this matter.Mr. Short’s argument as to entrapment cannot give rise to a different verdict as the issue of entrapment arises only after a conviction hasbeen entered.

We further find that his arguments as to the defence of “agent for the purchaser” (See: R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825) are weak, at best, and do not give rise to a reasonable possibility of a different verdict. In light of this, thepresent verdict would stand in any event and carry with it the mandatory firearms prohibition under s. 109 of the Criminal Code. [9] As Mr. Short has failed to meet the onus on him to establish a miscarriage of justice, we need not further consider the issue of theincompetence of Mr.

Short’s trial counsel; but, we are prepared to say, not every failure by trial counsel to advise of a mandatory

firearms prohibition under s. 109 of the Criminal Code will result in a miscarriage of justice (See: R. v. Riley , 2011 NSCA 52 , 274 C.C.C. (3d) 209). We note further that s. 113 of the Criminal Code allows for the lifting of a firearms prohibition and it is open for Mr. Short to avail himself of that section. [ 10 ] In sum, the appellant bears the evidentiary and persuasive burden in proceedings of this nature. Considering the whole of the proffered evidence, we conclude that the evidence simply does not support Mr. Short’s contention that a miscarriage of justice has occurred in his case.

In such circumstances, we are not empowered to expunge his guilty pleas. [ 11 ] We must, therefore, dismiss the appeal.