R v Smith, 2017 SKCA 81

Court of Appeal for Saskatchewan Docket: CACR2934 Citation: R v Smith , 2017 SKCA 81 Date: 2017-09-28 Between: Justin Murray Smith Applicant And Her Majesty the Queen Respondent Before: Jackson J.A. (in Chambers) Disposition: Applications denied On Application From: CRM 114 and 107 of 2016, Saskatoon Application Heard: August 22, 2017 Counsel: Nathan Whitling for the Applicant Wade McBride for the Respondent Jackson J.A. I. Introduction [ 1 ] There are two applications before me. The first is an application for an order granting Justin Smith an extension of time to appeal his conviction for nine offences.

He pled guilty to these offences and received a sentence of 18 years of incarceration with no possibility of parole until he serves one-half of his time. He appealed his sentence within the applicable appeal period. When he appealed his sentence, he did not appeal the convictions arising from his guilty pleas. He now seeks leave to do so. [ 2 ] In the second application, Mr.

Smith applies for an order under s. 679 of the Criminal Code , RSC 1985, c C-46, releasing him from custody pending the determination of his appeal from conviction, if leave to extend the time is granted, and if not, he nonetheless seeks an order releasing him pending the hearing of his sentence appeal. [ 3 ] I have decided that Mr. Smith should not be permitted an extension of time to appeal his convictions, and that he should not be granted bail pending appeal. II. Background [ 4 ] Mr. Smith pled guilty to nine offences over a period of nine days on two separate indictments, CRM 114/16 and CRM 107/16.

Pursuant to CRM 114/16, Mr. Smith pled guilty to conspiracy to traffic in cocaine (count 1), the unlawful transfer of a firearm (count 2), possession of a handgun (count 3), trafficking in fentanyl (count 7), trafficking in heroin (count 8), trafficking in cocaine (count 9), and possession of proceeds of crime (count 10). Pursuant to CRM 107/16, Mr.

Smith pled guilty to participating in the affairs of a criminal organization, to wit: the Fallen Saints Motorcycle Club (count 1), and recruiting persons to join the same criminal organization (count 16). [ 5 ] He pled guilty after his trial on indictment numbered CRM 114/16 had already begun. A transcript of that partial trial proceeding, including the taking of the guilty pleas, sentencing submissions and the judge’s sentencing decision is available and I have reviewed it. [ 6 ] According to the transcript, at the opening of his trial on February 27, 2017, Mr.

Smith was arraigned with respect to counts 2 through 10 shown on indictment CRM 114/16 and then pled not guilty to those charges. Indictment CRM 114/16 charges alleged that Mr. Smith committed the following offences: 1. On or between the 21 st day of March, 2014, and the 27 th day of March, 2014, at or near Saskatoon, Saskatchewan and elsewhere in Canada, did unlawfully conspire together … to commit the indictable offence of trafficking in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act , thereby committing an offence contrary to section 465(1) (

c) of the Criminal Code . 2. On or about the 10 th day of April, 2014, at or near Saskatoon, Saskatchewan, did transfer a firearm, to wit: a handgun, knowing that he was not authorized to do so, contrary to

section 99 of the Criminal Code . 3. On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did unlawfully possess a firearm, to wit: a handgun, for the purpose of transferring it, knowing that he was not authorized to do so, contrary to

section 100 of the Criminal Code . 4. On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did unlawfully possess a firearm, to wit: a handgun, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code contrary to

section 117.01(1) of the Criminal Code .

5. On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did unlawfully possess a prohibited firearm, to wit: a handgun, knowing that he was not the holder of a licence under which he may possess it or the holder of a registration certificate for the prohibited firearm, contrary to section 92(1) of the Criminal Code . 6.

On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did without lawful excuse transport a firearm, to wit: a handgun, thereby contravening s. 12 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , contrary to section 86(2) of the Criminal Code ; 7. On or between the 20 th day of November, 2014 and the 11 th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: fentanyl, contrary to section 5(1) of the Controlled Drugs and Substances Act . 8.

On or between the 20 th day of November, 2014 and the 11 th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act . 9. On or about the 2 nd day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . 10.

On or between the 20 th day of November, 2014 and the 11 th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully have in his possession property or proceeds of property having a value exceeding five thousand dollars, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly from the commission in Canada, of an indictable offence, to wit, trafficking in a controlled substance, contrary to section 5(1) of the Controlled Drugs and Substances Act , thereby committing an offence contrary to sections 354(1) and

section 355 (

a) of the Criminal Code . [ 7 ] Crown counsel then made opening remarks for the purposes of explaining Exhibit P-1, which is an “Admission of Facts”. The Admission of Facts represents an agreement with respect to the private communications that had been intercepted between the police agent and a second party, alleged to be Mr. Smith. [ 8 ] Pursuant to the Admission of Facts, Mr. Smith agreed that all of the private communications (

a) were lawfully intercepted, and (

b) took place on the date and time indicated. The authenticity of all text messages and the oral communications was admitted. The content of the text messages was acknowledged to be verbatim and a transcript of the intercepted oral communications was acknowledged to be accurate. [ 9 ] Mr. Smith agreed that on October 21, 2014, two parties met outside his residence and engaged in a conversation that was intercepted. The full transcript of that conversation is included as Tab 7 to the Admission of Facts. The Crown alleged that the participants were the police agent and Mr.

Smith. [ 10 ] Representative exchanges from Tab 7 are as follows: [police agent]: … he’s charging me like 18 bucks a pill, but he sent me the [bunk] one, the second grade. Like I would be willing to pay 20 bucks for the good ones. [2nd speaker]: Yeah. [police agent]: Yeah, like last time [your] buddy [sent you bunk ones too]. [2nd speaker]: [I can get the 2nd grade for $13.00]. [police agent]: Yeah. [2nd speaker]: So … [police agent]: And you make something on it too. I want to make sure you’re [making some] thing.

Pay the club. [2nd speaker]: [unintelligible] when it’s done, pay the club. [police agent]: Yeah. [2nd speaker]: [unintelligible] with my lawyer [unintelligible] [police agent]: Fuck, yeah. So I’m doing … like you’re getting a tremendous deal. If you’re making two bucks on that, if not [unintelligible] I’m going to [unintelligible] you 15.

Ah … but if so ah … yeah, like with the [unintelligible] shipment … … [police agent]: Okay. ‘Cause ah … I don’t know how it would work if they send it to you and then you were paying [unintelligible] ‘cause I’ve been paying … what’s the tag on a … a unit right now? [2nd speaker]: [HH is 59 to 64 grand] [police agent]: Yeah. [That is what I need], my HH is 69 right now. [2nd speaker]: That’s not too bad. [police agent]: Yeah. HMH is worth 65 … 64.

[2nd speaker]: How would you [unintelligible]. [police agent]: Yeah. That would be fuckin’ … just ask me where the fuckin’ [unintelligible]. [2nd speaker]: Yeah. [police agent]: That would be more. [2nd speaker]: [I miss the days when everything was one price] [police agent]: Or at least one quality. [2nd speaker]: Yeah. [ 11 ] Mr. Smith also agreed that on November 4, 2014, two persons met at his residence and engaged in a conversation that was intercepted. The Crown alleged that the conversation participants were the police agent and Mr. Smith.

A representative part of that exchange from Tab 9 of the Admission of Facts is as follows: [2nd speaker]: The greens are definite for sure. [I’ll] get them out here as fast as possible. [police agent]: And then a unit, what’s the possibility on that? [2nd speaker]: Ah … I will … I will know tomorrow by probably [unintelligible]. … [police agent]: Well we’ll do these. We’ll show ‘em that we can make it happen. [2nd speaker]: Yeah.

Well and … [police agent]: Get him his cash. [2nd speaker]: … with … with those two, it’s like after the first two [they’ll start sending 2000]. [police agent]: Oh yeah. [2nd speaker]: So [unintelligible], right?

Like one … [unintelligible] for the green is ah … [we have a week to pay]. [police agent]: Well, I’ll have the money right there. [2nd speaker]: Okay. [police agent]: So … [2nd speaker]: Well it should be good if I … [just give it to you and] … [police agent]: A day later. [2nd speaker]: … in your account or whatever after that. [ 12 ] There were 12 such conversations appended to the Admission of Facts. [ 13 ] To be clear, Mr. Smith did not admit that he was a party to any of the text messages, intercepted oral communications or intercepted oral telephone communications.

Where it was alleged in the Admission of Facts that Mr. Smith was the speaker, it was for the purposes of reference only and it was not an admission that he was a participant. Nonetheless, he agreed that one of the mobile devices was registered to him and the second was registered to a company associated with him. [ 14 ] After Crown counsel gave an opening address, which reviewed the structure of the Admission of Facts, she called the police agent as the first witness. Crown counsel proceeded to take the police agent through the Admission of Facts. [ 15 ] The police agent positively identified the voice of Mr.

Smith on all of the oral communications, saying he had known Mr. Smith since they had been in high school. They had had previous dealings together in 2003. He also stated that Mr. Smith had a “distinctive voice”. With respect to each of the many exhibits attached to the Admission of Facts, the police agent explained the code they were following, which could be taken as further identifying Mr. Smith as the person to whom the agent was speaking. [ 16 ] The police agent testified for the balance of February 27, 2017, and then again until noon on February 28, 2017.

When Court resumed after the noon break on February 28, 2017, Mr. Smith’s counsel advised that they were now prepared to change certain pleas. The plan was to change the pleas on counts 7, 8, 9 and 10, and to return to finish the remainder of the trial on counts 2 through 6 from CRM 114/16. At that time, defence counsel indicated that he had “reviewed in detail 606(1) with [his] client”, but he asked the Court to ensure that Mr. Smith understood the

section as well. [ 17 ] The Court then addressed Mr. Smith as follows: THE COURT: Yeah. Mr. Smith, no need to stand, no need to stand. I just want to tell you the charges I’m going to be addressing. … [The judge then read each of counts 7 through 10 from the indictment.]

So you know what I’m talking about when I read those charges? THE ACCUSED: Yes, sir. Plea THE COURT: Okay. And your counsel has indicated that you’d like to change your plea from not guilty to guilty, and I take it you do plead guilty to those four counts? THE ACCUSED: Yes, sir. THE COURT: Okay. Before I accept your plea, and actually you can -- you can sit for this, Mr. Smith, really.

Before I accept the plea, one of the things that I have to be sure of is that you’re making the plea voluntarily , some gang member hasn’t threatened you with death, the police haven’t threatened you with death, you’ve talked about the business with your counsel and decided this is a good idea? THE ACCUSED: Yes, sir. THE COURT: Okay. And do you understand that a plea of guilty is an admission of the essential elements , essentially, hey, I was trafficking in drugs and I received money for it. That’s what you’re admitting to? THE ACCUSED: (INDISCERNIBLE).

THE COURT: And the nature and consequences of the plea, you understand that people can go to jail for this? THE ACCUSED: (INDISCERNIBLE). THE COURT: Now, I don’t know if Mr. McDougall [trial counsel] and Ms. Hintz [Crown counsel] have reached any kind of agreement. It doesn’t matter to me. I’m not bound. In Canada, the judge is never part of any agreement between counsel. If they have an agreement, I mean, the rules are I should listen, but I’m not, in the end result, it’s on me and me alone. Do you understand that? THE ACCUSED: Yes, sir. THE COURT: Very good. Thank you. So Mr. Smith and Mr.

McDougall, the record will note that I accept Mr. Smith’s plea, and that is a not guilty plea to counts 7 to 10 inclusive are reversed and changed to guilty. I understand that there will be more discussions between defence counsel and Crown, and that you’d prefer to adjourn until 10:00 tomorrow morning for that purpose? MS. HINTZ: Yes, My Lord. (Emphasis added) [ 18 ] Shortly thereafter, the Court adjourned. When the Court resumed the next day, defence counsel advised that there had been some further discussions with the Crown in regard to the remaining charges and that Mr.

Smith “has determined that he’s prepared to plead guilty to counts 2 and 3”, on the understanding that the Crown would then stay counts 4, 5 and 6. [ 19 ] Defence counsel then asked the Court to “go through the process of accepting those guilty pleas”. The Court asked defence counsel whether he had again canvassed s. 606 of the Criminal Code with his client.

After receiving an affirmative answer, the trial judge indicated that he would “also go over a 606 caution” but would only do so briefly because they had already been through the matter recently. [ 20 ] The following exchange then took place: THE COURT: All right. Thank you. Remain seated, Mr. Smith, and we’ll go through you -- go with you through counts 2 and 3, as I did with counts 7 to 10. [The judge then read counts 2 and 3 from the indictment.] So just as we did yesterday, and as your counsel has already gone through, there’s the caution under

section 606 . I want to be sure you’ve discussed it with Mr. McDougall [trial counsel]. You are making this agreement to plead guilty to these two counts voluntarily? THE ACCUSED: Yes. THE COURT: And you understand that by pleading guilty, you are admitting the essential elements of the offence, namely, the unlawful handling of a firearm to wit: a handgun. And you know the consequences of pleading guilty to these offences. People can go to jail for these offences. ` I don’t know if Mr. McDougall and the good friends of ours in the Crown will strike an agreement.

They may or they may not, but that’s fine, the Court is always interested in any joint submission the Crown and defence have, but you must understand I’m not part of that agreement process. And you understand that in the end it is me, and me alone, that makes the call in the sense. THE ACCUSED: (INDISCERNIBLE). THE COURT: All right. So I will accept the change of plea, Madam clerk, on counts 2 and 3 from not guilty to guilty, having gone through the 606 caution . We’ll just let counts 4, 5 and 6 remain extant for the moment, and you’re suggesting we adjourn to 10 AM? Mr. McDougall: 10 AM.

Discussion MS. HINTZ [Crown counsel]: My Lord, just for clarity sake, with respect to count 2, I just want to make it clear for the record that we are dealing there with the offer to traffic the Glock handgun that we heard on the intercept of April 10th, 2014. Count 3, we are dealing with the Exhibit P-6, I believe. THE COURT: That’s the .25 calibre revolver. MS. HINTZ: .25 calibre handgun that was found in Mr. Smith’s vehicle on July 26, 2014, with the intention to then transfer it to [the police agent]. THE COURT: And again, that is reflective of your understanding, as well, Mr. McDougall? MR.

MCDOUGALL [trial counsel]: Well, yeah. It’s what’s written in the -- in the indictment is my understanding. So if my friend wishes to add to that, then I think that can be appropriate. But there’s nothing in here that says Glock or .22 [ sic ] calibre. THE COURT: No. MR. MCDOUGALL: I don’t know that that makes a difference. He’s pled guilty to exactly what’s here. THE COURT: All right. MR. MCDOUGALL: So -- and that was what was asked of us. THE COURT: Right.

Again, this is somehow -- I mean, I’m not sure, if in terms of fashioning a sentence, that I would be pivoting off, oh, well, that’s a Glock as opposed to a .25 calibre semi-automatic. MS. HINTZ: My only point was that there are -- we are dealing with two separate handguns here -- THE COURT: Oh, yeah -- MS. HINTZ: -- and I wanted that to be clear. THE COURT: -- and we have two separate offences, yes. MS. HINTZ: Yes. And that’s the only submission, My Lord. MR. MCDOUGALL: And that’s reflected in those indictments. THE COURT: All right.

All right. (Emphasis added) [ 21 ] When Court resumed on March 6, 2017, defence counsel asked for a few days to prepare for sentencing. Crown counsel made no objection, but submitted that Mr. Smith should be taken into custody. After hearing submissions from defence counsel, the Court granted the adjournment until March 9, 2017, and allowed Mr. Smith to continue to be on judicial interim release. [ 22 ] Importantly, when Court resumed on March 9, 2017, Crown counsel indicated that Mr.

Smith was now prepared to plead guilty to the remaining count on indictment CRM 114/16 plus counts 1 and 16 from a second indictment, CRM 107/16, which had not been before the Court. The remaining count from CRM 114/16 (the conspiracy count), and all of the counts on CRM 107/16, had been scheduled to be tried by a jury at a trial fixed for December of 2017. [ 23 ] CRM 107/16 alleged the following offences: 1.

THAT you, the said … JUSTIN MURRAY SMITH … on or about the 30 th day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, did participate in the activities of the criminal organization, to wit: the beating of, or assault of, Travis Miles, contrary to

Section 467.11(1) of the Criminal Code ; 2. THAT you … JUSTIN MURRAY SMITH … on or about the 30 th day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: the assault of Travis Miles, for the benefit of or in association with a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to

Section 266 and

Section 467.12(1) of the Criminal Code ; 3. [Count 3 does not relate to Mr. Smith] … 4. THAT you … JUSTIN MURRAY SMITH, on or about the 25 th day of February, 2014, at or near Saskatoon, in the Province of Saskatchewan, did for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, did participate in the activities of the Fallen Saints Motorcycle Club, to wit: the beating of Steven New, contrary to

Section 467.11(1) of the Criminal Code ;

5. THAT you … JUSTIN MURRAY SMITH, on or about the 25 th day of February, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: the assault of Steven New, for the benefit of or in association with a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to

Section 266 and

Section 467.12(1) of the Criminal Code ; 6. THAT you … JUSTIN MURRAY SMITH, on or about the 25 th day of February, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an assault on Steven New, contrary to

Section 266 of the Criminal Code ; 7. [Count 7 does not relate to Mr. Smith] … 8. [Count 8 does not relate to Mr. Smith] … 9. THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: trafficking in controlled substances for the benefit of or in association with a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to Section 5(1) of the Controlled Drugs and Substances Act and

Section 467.12(1) of the Criminal Code ; 10. THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did unlawfully conspire, the one with the other or others of them and with a person or persons unknown or unnamed, to commit the indictable offence of trafficking in controlled substances, to wit: cocaine and fentanyl, contrary to Section 5(1) of the Controlled Drugs and Substances Act , and did thereby commit an offence contrary to Section 465(1) (

c) of the Criminal Code ; 11. THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did traffic in controlled substances, to wit: fentanyl, contrary to Section 5(1) of the Controlled Drugs and Substances Act ; 12.

THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did unlawfully have in his possession controlled substances, to wit: fentanyl, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act ; 13.

THAT you … JUSTIN MURRAY SMITH … on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: possessing property or proceeds from property, to wit: Canadian currency of a value not exceeding $5,000.00, knowing that the property or those proceeds were obtained or derived from the commission in Canada of an indictable offence, for the benefit of a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to

Section 354 and

Section 467.12(1) of the Criminal Code ; 14. THAT you … JUSTIN MURRAY SMITH … on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did unlawfully conspire, the one with the other or others of them and with a person or persons unknown or unnamed, to commit the indictable offence of possessing property or proceeds from property, to wit: Canadian currency of a value not exceeding $5,000.00, knowing that the property or those proceeds were obtained or derived from the commission in Canada of an indictable offence, and did thereby commit an offence contrary to

Section 354 and Section 465(1) (

c) of the Criminal Code ; 15. [Count 15 does not concern Mr. Smith] … 16. THAT you … JUSTIN MURRAY SMITH, on and between the 5 th day of November, 2014 and the 15 th day of January, 2015, at or near Saskatoon and Prince Albert, in the Province of Saskatchewan, did for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, recruit, solicit, encourage, coerce or invite a person or persons to join the Fallen Saints Motorcycle Club, contrary to

Section 467.111 of the Criminal Code . [ 24 ] With respect to this new indictment, and the conspiracy count from CRM 114/16, Mr. Smith was required to re-elect to be tried by a judge alone, as he had previously elected a jury trial. Mr. Smith re-elected and then pled guilty to the three counts. [ 25 ] The trial judge then proceeded to discuss s. 606 of the Criminal Code with Mr. Smith in relation to these new charges in this exchange: THE COURT: Thank you. Please be seated, Mr. Smith. It’s appropriately -- it’s appropriate that I engage in the 606 caution. You and I have now become quite practiced in that, Mr. Smith.

Section 606 requires me to satisfy myself that you are entering these guilty pleas to these three charges voluntarily. You confirm that is the case? THE ACCUSED: Yes. THE COURT: And you have discussed this with your counsel, Mr. McDougall [trial counsel]? THE ACCUSED: (NO AUDIBLE RESPONSE). THE COURT: And you have -- you have acknowledged that by entering a guilty plea, you are acknowledging the elements of the offence, that is, you were working with the Fallen Saints, working together to assault that individual, and traffic in drugs. Do you

acknowledge that? THE ACCUSED: Yes. THE COURT: And you acknowledge that by pleading guilty you will be subject to punishment, specifically will be sent to jail. Do you understand that? THE ACCUSED: Yes. THE COURT: That’s sufficient? MR. CURLISS [Crown counsel]: I guess from my perspective, My Lord. THE COURT: And so I -- the record will note I accept, after the 606 caution, the guilty plea of Mr.

Smith to three counts. (Emphasis added) [ 26 ] Once guilty pleas were entered with respect to the above charges, the Crown stayed the following counts from CRM 114/16: [count 4] On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did unlawfully possess a firearm, to wit: a handgun, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code contrary to

section 117.01(1) of the Criminal Code . [count 5] On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did unlawfully possess a prohibited firearm, to wit: a handgun, knowing that he was not the holder of a licence under which he may possess it or the holder of a registration certificate for the prohibited firearm, contrary to section 92(1) of the Criminal Code . [count 6] On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did without lawful excuse transport a firearm, to wit: a handgun, thereby contravening s. 12 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , contrary to section 86(2) of the Criminal Code [.] [ 27 ] The Crown then stayed the following counts from CRM 107/16: [count 2] THAT you … JUSTIN MURRAY SMITH … on or about the 30 th day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: the assault of Travis Miles, for the benefit of or in association with a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to

Section 266 and

Section 467.12(1) of the Criminal Code ; [count 4] THAT you … JUSTIN MURRAY SMITH, on or about the 25 th day of February, 2014, at or near Saskatoon, in the Province of Saskatchewan, did for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, did participate in the activities of the Fallen Saints Motorcycle Club, to wit: the beating of Steven New, contrary to

Section 467.11(1) of the Criminal Code ; [count 5] THAT you … JUSTIN MURRAY SMITH, on or about the 25 th day of February, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: the assault of Steven New, for the benefit of or in association with a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to

Section 266 and

Section 467.12(1) of the Criminal Code ; [count 6] THAT you … JUSTIN MURRAY SMITH, on or about the 25 th day of February, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an assault on Steven New, contrary to

Section 266 of the Criminal Code ; [count 9] THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: trafficking in controlled substances for the benefit of or in association with a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to Section 5(1) of the Controlled Drugs and Substances Act and

Section 467.12(1) of the Criminal Code ; [count 10] THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did unlawfully conspire, the one with the other or others of them and with a person or persons unknown or unnamed, to commit the indictable offence of trafficking in controlled substances, to wit: cocaine and fentanyl, contrary to Section 5(1) of the Controlled Drugs and Substances Act , and did thereby commit an offence contrary to Section 465(1) (

c) of the Criminal Code ; [count 11] THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did traffic in controlled substances, to wit: fentanyl, contrary to Section 5(1) of the Controlled Drugs and Substances Act ; [count 12] THAT you … JUSTIN MURRAY SMITH, on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did unlawfully have in his possession controlled substances, to wit: fentanyl, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act ;

[count 13] THAT you … JUSTIN MURRAY SMITH … on and between the 3 rd day of November, 2014 and the 3 rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did commit an indictable offence, to wit: possessing property or proceeds from property, to wit: Canadian currency of a value not exceeding $5,000.00, knowing that the property or those proceeds were obtained or derived from the commission in Canada of an indictable offence, for the benefit of a criminal organization, to wit: the Fallen Saints Motorcycle Club, contrary to

Section 354 and

Section 467.12(1) of the Criminal Code ; [count 14] THAT you … JUSTIN MURRAY SMITH … on and between the 3rd day of November, 2014 and the 3rd day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, did unlawfully conspire, the one with the other or others of them and with a person or persons unknown or unnamed, to commit the indictable offence of possessing property or proceeds from property, to wit: Canadian currency of a value not exceeding $5,000.00, knowing that the property or those proceeds were obtained or derived from the commission in Canada of an indictable offence, and did thereby commit an offence contrary to

Section 354 and Section 465(1) (

c) of the Criminal Code … . [ 28 ] For ease of reference, the following is a

summary of the charges to which Mr. Smith pled guilty: (

a) the drug offences from indictment CRM 114/16 [ The Drug Offences ]: [count 7] On or between the 20 th day of November, 2014 and the 11 th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: fentanyl, contrary to section 5(1) of the Controlled Drugs and Substances Act . [count 8] On or between the 20 th day of November, 2014 and the 11 th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act . [count 9] On or about the 2 nd day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . [count 10] On or between the 20 th day of November, 2014 and the 11 th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully have in his possession property or proceeds of property having a value exceeding five thousand dollars, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly from the commission in Canada, of an indictable offence, to wit, trafficking in a controlled substance, contrary to section 5(1) of the Controlled Drugs and Substances Act , thereby committing an offence contrary to sections 354(1) and

section 355 (

a) of the Criminal Code . (

b) the gun offences from CRM 114/16 [ The Gun Offences ]: [count 2] On or about the 10 th day of April, 2014, at or near Saskatoon, Saskatchewan, did transfer a firearm, to wit: a handgun, knowing that he was not authorized to do so, contrary to

section 99 of the Criminal Code . [count 3] On or between the 10 th day of April, 2014 and the 26 th day of July, 2014, at or near Saskatoon, Saskatchewan, did unlawfully possess a firearm, to wit: a handgun, for the purpose of transferring it, knowing that he was not authorized to do so, contrary to

section 100 of the Criminal Code . (

c) the cocaine offence from CRM 114/16 [ The Cocaine Offence ]: [count 1] On or between the 21 st day of March, 2014, and the 27 th day of March, 2014, at or near Saskatoon, Saskatchewan and elsewhere in Canada, did unlawfully conspire together … to commit the indictable offence of trafficking in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act , thereby committing an offence contrary to section 465(1) (

c) of the Criminal Code . (

d) the criminal organization offences from CRM 107/16 [ The Criminal Organization Offences ]: [count 1] THAT you, the said … JUSTIN MURRAY SMITH … on or about the 30 th day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, did participate in the activities of the criminal organization, to wit: the beating of, or assault of, Travis Miles, contrary to

Section 467.11(1) of the Criminal Code … [count 16] THAT you … JUSTIN MURRAY SMITH, on and between the 5 th day of November, 2014 and the 15 th day of January, 2015, at or near Saskatoon and Prince Albert, in the Province of Saskatchewan, did for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, recruit, solicit, encourage, coerce or invite a person or persons to join the Fallen Saints Motorcycle Club, contrary to

Section 467.111 of the Criminal Code . [ 29 ] On March 10, 2017, after having heard sentencing submissions, the sentencing judge imposed a sentence of 18 years of incarceration on Mr. Smith with no possibility of parole until one-half of his time had been served. Mr. Smith filed a notice of appeal against his sentence on April 9, 2017.

[30] Mr. Smith’s former counsel withdrew on June 15, 2017. On June 22, 2017, he met with his new counsel and instructedcounsel to apply immediately for leave to extend the time to appeal from the convictions arising from his guilty pleas. His new counselfiled this application on July 5, 2017 – approximately 11 weeks after the time to appeal had expired. III. Proposed Grounds of Appeal from Conviction IfExtension Is Granted [31] The proposed grounds of appeal from conviction are as follows: CONVICTION APPEAL 1.

The Appellant’s guilty pleas were not sufficiently informed in that he was not aware of the nature of the allegations made againsthim, the effect of his plea, and the consequence of his plea; 2. With respect to the Appellant’s guilty pleas to Count 1 and Count 16 of CRM 114 of 2016, the facts presented to the Court did notsatisfy the essential elements of the definition of “criminal organization” for the purposes of s. 467.1 of the Criminal Code; 3.

The Appellant received ineffective assistance from his defence counsel such that a miscarriage of justice has occurred and it is inthe interests of justice to set aside the Appellant’s guilty verdicts; and 4. Such further and other grounds as counsel may advise and this Honourable Court may permit. IV. Evidence: Application to Extend the Time to Appeal [32] In addition to the above-mentioned transcript, both Mr. Smith and the Crown filed affidavits. [33] In support of his application to extend the time to appeal, Mr. Smith swore an affidavit attesting to the following matters: (

a) He believed that his trial counsel was hoping to obtain acquittals on all the charges: 5. The main Crown witness against me was … a police agent. [The police agent] had accepted benefits from the authorities,including benefits in dealing with his own charges, in exchange for his assistance and testimony against me and various other peopleallegedly involved with the Fallen Saints. I understood that [the police agent’s] credibility as a witness was the key issue in the trial.Prior to my trial, Mr.

McDougall [trial counsel] had indicated to me that he intended to challenge [the police agent’s] credibility throughcross-examination, and that he hoped that we could obtain acquittals on all the charges. I understood that [the police agent] had beenfound to be not a credible witness in other trials. (

b) Based on trial counsel’s advice, Mr. Smith believed the Crown would seek a sentence of six years for The Drug Offencesand his counsel would ask for four years. He therefore would receive a sentence between four and six years. (

c) He believed that this ceiling was still applicable when he pled guilty to The Gun Offences. (

d) With respect to The Criminal Organization Offences, he attested as follows: 14. Sometime after March 6, 2017, I do not recall exactly when, I met with Mr. McDougall [trial counsel] and we discussed thecharges in the 114 prosecution which included the criminal organization offences. I understood from this conversation that Mr. Curliss[Crown counsel] was not in agreement with the prior proposal from Ms. Hintz [Crown counsel] pursuant to which the Crown would askfor 6 years. Mr.

McDougall told me that there was no winning the trial on the criminal organization charges, and that everyone elsecharged in that case would plead guilty, and I would get a worse sentence if I did not plead guilty. I believe Kaylee was present at thatmeeting. 15. At that meeting, Mr. McDougall told me that 4 to 6 years was no longer realistic and that I could get as much as 20 years if I didnot agree to plead guilty to the criminal organization charges. He said that he would be willing to ask for 9 years if I were to agree toplead guilty to the criminal organization charges.

I wanted him to ask for 6 or 7 years, but he told me that the 4 to 6 year range we hadpreviously discussed was no longer realistic. … 17. When I agreed to plead guilty to the charges, I did not know that the Crown would be seeking a sentence in the range of 20 yearsfor all my charges. I had agreed to plead guilty on the understanding that as a result of doing so, the Crown would not seek such a highsentence. [34] Crown counsel filed an affidavit from Mr. Smith’s trial counsel, who contradicts Mr. Smith with respect to each of the abovematters.

Since neither counsel requested the cross-examination of the other side’s affiant, I did not follow the procedure in R v Klassen(1994), (SK CA), 125 Sask R 56 (CA). While I have reviewed trial counsel’s affidavit and note the contradictions, Ido not rest my decision on trial counsel’s affidavit other than one aspect, which is uncontroverted and to which I will refer later in thesereasons. [35] Crown counsel on appeal submitted that I should consider Exhibit P-1 filed at the trial, being the Admission of Facts. On thehearing of this application, Mr.

Smith’s appeal counsel was given the opportunity to make submissions in relation to the effect of the

Admission of Facts on Mr. Smith’s application to extend the time to appeal. He declined to do so. V. Analysis: Extending the Time to Appeal from Conviction A. Legal frameworks in play [ 36 ] Mr. Smith applies to extend the time to appeal his convictions derived from his guilty pleas. In order to be successful with respect to expunging his guilty pleas, Mr. Smith asserts a claim of ineffective representation of counsel, which would depend upon his persuading a panel of this Court to admit his affidavit as fresh evidence.

There are thus three legal frameworks in play, each invoking its own distinct test and standard of appellate review: i.e., the framework for extending the time to appeal a conviction; the framework for expunging a guilty plea; and the framework for assessing a claim based on ineffective representation of counsel. The last framework turns on the admissibility of what would be Mr. Smith’s fresh evidence in the form of the affidavit evidence he has put forward. 1.

Extending the time to appeal from conviction [ 37 ] The framework for extending the time to appeal from conviction is established by the jurisprudence interpreting and applying s. 678(2) of the Criminal Code and Rule 7(2) of The Court of Appeal Criminal Appeal Rules (Saskatchewan) . Subsection 678(2) of the Criminal Code reads as follows: Extension of time 678

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.

Rule 7(2) provides as follows: Relief against strict compliance 7(2) The court or a judge may enlarge or abridge the time periods fixed by these rules or by order on such terms as the case may require, and the order enlarging or abridging the time may be made before or after the fixed period has expired. [ 38 ] The most recent decision from this jurisdiction canvassing the factors guiding the exercise of a judge’s discretion under these two provisions is R v Dunsford , 2012 SKCA 79 , 399 Sask R 165 [ Dunsford ], where Ottenbreit J.A., referring to R v Morin , 2005 SKCA 37 , 195 CCC (3d) 190, states that the Court’s authority to grant an extension of time should only be exercised in “special circumstances” (at para 2).

Justice Ottenbreit reviewed the non-exhaustive list of what are often called the Morin factors, which are considered on such applications: (a) “Did the applicant have a bona fide intention to appeal before the time for appeal expired?” (b) “Has the applicant satisfactorily explained why he did not exercise his right of appeal within the prescribed time?” (c) “Would the respondent be unduly prejudiced by an extension of time?” (d) “Is there merit in the proposed appeal, which is to say does it raise a reasonably arguable issue?” (e) “Do the interests of justice weigh in favour of extending the time for appeal?” [ 39 ] As Richards J.A. (as he then was) observed in R v Woods , 2006 SKCA 123 at para 12 , 285 Sask R 314, the Morin factors should not be applied as if they were mandatory preconditions, but rather they are more in the nature of a framework for deliberation.

The failure of an applicant to satisfy one or more of the considerations is not necessarily fatal to an application to extend the time to appeal. 2. The test for expunging a guilty plea [ 40 ] The right of appeal against conviction by a person convicted of an indictable offence is set out in s. 675(1) (

a) of the Criminal Code : Right of appeal of person convicted 675

(1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal (

a) against his conviction (

i) on any ground of appeal that involves a question of law alone, (ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof ... (iii) on any ground of appeal not mentioned in subparagraph (

i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal … . [ 41 ] Subsection 686(1) of the Criminal Code lists the powers of an appellate court on an appeal from conviction:

Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice … . [42] In this case, of course, Mr. Smith’s convictions are based on his guilty pleas. It is those convictions that he seeks to appeal. [43] Before Parliament passed the Criminal Law Amendment Act, 2001, SC 2002, c 13, the jurisprudential basis to expunge aguilty plea was developed through a series of cases.

See, for example, R v Adgey, (SCC), [1975] 2 SCR 426 [Adgey]; R vT.(R.) (1992), (ON CA), 10 OR (3d) 514 (WL) (CA) [T.(R.)]; and R v Arcand, 2000 SKCA 60, 199 Sask R 4. [44] In Adgey, Dickson J., for the majority, recognized a court may permit a plea of guilty to be withdrawn when it is appropriateto do so. In that decision, the majority stated that circumstances may arise that might justify the rejection of a guilty plea.

Dickson J.made it clear that, by articulating this one basis upon which a guilty plea may be rejected or expunged, he was not excluding thepossibility of other bases upon which a plea of guilty could be found to be invalid: This Court in The Queen v. Bamsey (SCC), [1960] SCR 294.], at p. 298, held that an accused may change his plea if hecan satisfy the Appeal Court “that there are valid grounds for his being permitted to do so.” It would be unwise to attempt to define allthat which might be embraced within the phrase “valid grounds”.

I have indicated above some of the circumstances which might justifythe Court in permitting a change of plea. The examples given are not intended to be exhaustive. [at 431] (Emphasis added) [45] Laskin J., in dissent as to the result in Adgey, referred to the need for trial judges to ensure that a guilty plea is voluntary andunequivocal as well as informed.

In T.(R.), Doherty J.A. for the Court referred to this latter list, while making it clear that no “finite listof all ‘valid grounds’” could be provided (at para 10). [46] In 2002, the Governor General in Council proclaimed the Criminal Law Amendment Act, 2001, adding s. 606(1.1), andthereby establishing a statutory framework for plea comprehension (effective September 23, 2002 (SI/2002-102)).

Subsection 606(1.1)codifies the requirement that every guilty plea must be voluntary, unequivocal and informed, as first mentioned by Laskin J. in Adgey.The subsection also imposes an additional requirement on trial judges to ensure that the accused understands the court is not bound byany agreement made with the prosecutor : Conditions for accepting guilty plea 606(1.1) A court may accept a plea of guilty only if it is satisfied that the accused (

a) is making the plea voluntarily; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. Validity of plea

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of theplea. [47] After the enactment of s. 606(1.1), when a person who has pled guilty seeks leave of an appellate court to expunge a guiltyplea, the analysis proceeds on the basis of whether and to what extent the trial judge has complied with that section: R v Lewis, 2012SKCA 81 at paras 18 and 19, 399 Sask R 180; R v Levin, 2014 SKCA 66 at para 7; R v Sunshine, 2016 SKCA 104 at para 9, 484 Sask R259.

An appellate court must also keep in mind s. 606(1.2), which provides that the failure of the trial court to inquire “fully” intowhether the conditions set out in s. 606(1.1) have been met does not affect the validity of the plea. [48] While s. 606(1.1) codifies the need to ensure that guilty pleas are voluntary, unequivocal and informed, there is no reason tobelieve that the caution expressed by Dickson J. in Adgey, about attempting to create a finite list of what might constitute “valid grounds”to justify expunging a guilty plea, is any less valid. 3.

The test for fresh evidence [49] It is common ground that if I grant leave, Mr. Smith’s first step would be to apply to this Court to adduce fresh evidence. Atthis time, the proffered fresh evidence is that of Mr. Smith. The leading authority with respect to what must be proven in a case such asthis, where an accused seeks to expunge his guilty plea on the basis of having received ineffective or incompetent representation at trial,is R v Kim, 2011 SKCA 74, 272 CCC (3d) 15 [Kim].

[50] In Kim, on behalf of the Court, Smith J.A. explained what is required when an appellant seeks to set aside a guilty plea as aresult of incompetent representation: [36] An accused represented by counsel is entitled to receive effective legal assistance pursuant to ss. 7 and 11(

d) of the Charter. Anappellant may therefore challenge a conviction on the basis that ineffective assistance of counsel occasioned a miscarriage of justice. Theappellant must establish the facts on which the claim of incompetence is based, that the representation provided was incompetent, andthat the incompetent representation resulted in a miscarriage of justice. Incompetence is determined by a reasonableness standard.However, the wisdom of hindsight has no place in this assessment and counsel's actions must be assessed against the circumstances thatexisted at the time. See R. v.

Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.). Moreover, allegations ofincompetence or ineffectiveness of trial counsel must meet a strong presumption of competence. See R. v. B. (G.D.), 2000 SCC 22,[2000] 1 S.C.R. 520. In R. v. Qiu, 2010 ONCA 736, 268 O.A.C. 352, Lang J.A. aptly commented: [15] I assess the appellant’s evidence cognizant of her motive to conceive or reconstruct a scenario in her mind that would enable her tosecure a retrial and mindful not to employ hindsight in assessing the discussion between counsel and client and any decision taken at thetime of trial.

I approach trial counsel’s evidence with the presumption that he appreciated the basic principle that an accused has the rightto testify and that the decision whether to do so must be made by the accused and not by counsel. Where unfairness is said to result from the incompetence of counsel, the appellant must show there was a reasonable probability that theresult might have been otherwise had he received competent legal representation (Joanisse).

Finally, an appellate court is generally notrequired to embark upon an assessment of counsel’s competence unless it is satisfied that the conduct in issue resulted in a miscarriage ofjustice. [37] The normal test for the admission of fresh evidence on an appeal was established in R. v.

Palmer, (SCC), [1980] 1S.C.R. 759 at p. 775 as follows: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [38] However, where, as here, the ground of appeal is that the appellant was led to plead guilty as a result of incompetent representation,this test is not strictly applicable.

In R. v. T.(R.), supra, Doherty J.A. remarked that where the validity of a guilty plea is raised on appeal,the appellate court will examine the trial record and any additional material proffered by the parties which, in the interests of justice,should be received and considered in assessing the validity of the plea. In this Court’s decision in R. v.

T.(S.G.), 2011 SKCA 4, 265C.C.C. (3d) 550, Wilkinson J.A. commented that where an appellant contends that he did not receive a fair trial because of ineffectivelegal representation the criteria established in Palmer governing the admission of fresh evidence on the appeal give way to case-sensitiveconsiderations.

She commented: [36] … The test for admission of fresh evidence where an issue of solicitor incompetence is raised is more broadly concerned with issuesof trial fairness, the regularity of the trial process and avoiding miscarriages of justice. … [39] The evidential standard for admission where issues of trial fairness are concerned is that the evidence must be relevant to theremedy sought before the court of appeal, credible and convincing, and sufficient, if uncontradicted, to justify the appellate court makingthe order sought. [citations omitted.] See also R. v.

Moore, 2002 SKCA 30, 163 C.C.C. (3d) 343 and R. v. Smith, 2007 SKCA 71, 223 C.C.C. (3d) 114, two decisions of thisCourt in which fresh evidence was admitted to establish ineffectiveness of counsel at trial. (Emphasis added) [51] For the purposes of this Chambers application, I do not need to add to this. Later in these reasons, I will summarize therequirements referred to in Kim at paragraph 36, above. B. Applying the legal frameworks to determine whether leave should begranted to extend the time for appeal [52] Mr.

Smith does not contend that his pleas were not voluntary or that his pleas were not an admission of the essential elementsof the offences (apart from The Criminal Organization Offences, which I will consider separately). Rather, he contends in his draft noticeof appeal that his pleas were invalid because (

a) he was not “sufficiently informed in that he was not aware of the nature of theallegations made against him, the effect of his plea, and the consequence of his plea”, and (

b) he “received ineffective assistance from hisdefence counsel such that a miscarriage of justice has occurred”. He also argues that his pleas in relation to count 1 and count 16 ofCRM 107/16 were invalid and the verdicts should be expunged because “the facts presented to the Court did not satisfy the essentialelements of the definition of ‘criminal organization’ for the purposes of s. 467.1 of the Criminal Code”. [53] It is to these grounds that the Morin factors are to be applied. Applying the Morin factors, I am not concerned about the firsttwo criteria: bona fide intention to appeal before expiry and explanation for delay. It is quite clear from Mr. Smith’s affidavit that he did

not have an intention to appeal before the expiry of the appeal period. He only acquired that intention after having consulted his present counsel and gained an understanding that it was possible to appeal from his convictions notwithstanding the fact he had entered guilty pleas. Once he was informed of this right, he immediately applied to extend the time to appeal from conviction. These facts diminish the concern one might have with respect to due diligence.

It is difficult to take away a right when an individual does not know of its existence, particularly in the criminal context. [ 54 ] There is clearly some prejudice to the Crown, particularly as it pertains to the guilty pleas to the charges listed on indictment numbered CRM 114/16. When Court opened on February 27, 2017, the Crown was prepared to proceed with a two-week trial in relation to CRM 114/16. That this trial work and the preparation for trial, as well as the trial dates, have been thrown away without completion must be a factor that weighs to some extent against granting an extension of time.

Further, there is always a risk to the Crown’s case when a new trial is ordered. Witnesses, particularly police agents who are prepared to testify at a first trial, may not be prepared to do so at a second trial a year or so later. [ 55 ] Where Mr. Smith’s application to extend the time for leave to appeal truly fails, however, is with respect to the reasonable arguability of his grounds of appeal. I obviously do not have to be satisfied that Mr. Smith would be successful, but at least one ground of appeal must be reasonably arguable. [ 56 ] I will address the arguability of each of Mr.

Smith’s grounds of appeal, beginning with his claim that he received ineffective representation from his trial counsel. 1. The arguability of the ground of appeal based on the ineffective representation of trial counsel [ 57 ] Mr. Smith’s primary argument hinges on his claim that the credibility of the police agent was vulnerable. He says his trial counsel should not have entered guilty pleas and he negligently failed to cross-examine the police agent. In essence, he asserts that his trial counsel conceded the credibility of the Crown’s key witness too quickly.

If he had not done so, and if the trial had played out in the normal course, he claims the trial judge would have had a reasonable doubt about the strength of the Crown’s case. [ 58 ] Mr. Smith bolsters this argument by relying on R v McLaughlin , 2017 SKPC 54 [ McLaughlin ], a case decided after the present prosecution.

In McLaughlin , Metivier P.C.J. found the police agent’s evidence incredible, and acquitted another alleged member of the Fallen Saints, stating as follows: [51] I have serious concerns about the credibility or reliability of all three witnesses. [The police agent] is a self-described “master manipulator.” He was a large scale drug dealer with a back-up plan to work with police and avoid prosecution in the event he got caught. His story in this case about the weapons belonging to the accused is essentially “ground zero” for striking a deal with the police.

He is a person with little conscience who brought highly addictive and dangerous drugs into this province for personal financial gain, while at the same time claiming that he was “totally against” using drugs for most of his life. He attempted to excuse his behaviour by saying that he was forced back into the drug business because CRA froze his bank accounts to collect on income tax arrears. He clearly believed that the accused tipped off the police and had a motive to get even. [ 59 ] Mr.

Smith argues further that his trial counsel advised him that if he were to plead guilty to The Drug Offences , the Crown would seek six years of imprisonment and his trial counsel would seek four years of imprisonment. It was on the basis of that advice that he agreed to plead guilty to those charges. After the guilty pleas of February 28, 2017, to The Drug Offences , other offences, including The Gun Offences , remained. [ 60 ] Prior to the recommencement of the trial on March 1, 2017, Mr.

Smith again met with his trial counsel, who advised him that he could not succeed with respect to The Gun Offences and that he should plead guilty to them in order to obtain a lower sentence. According to Mr. Smith, he understood that the Crown would be seeking six years of incarceration and the defence four years on all of the charges that were part of the trial and, on the basis of this advice, he pled guilty to The Gun Offences on March 1, 2017. [ 61 ] After his guilty pleas on March 1, 2017, Mr.

Smith says he met with his trial counsel who told him that the four to six year range that they had discussed prior to Mr. Smith’s earlier guilty pleas was no longer realistic. At this time, his trial counsel advised Mr. Smith that there was no winning the remaining charge on CRM 114/16, or the charges stemming from CRM 107/116, and that if he did not plead guilty he could get 20 years for those charges. The trial counsel stated that if Mr. Smith agreed to plead guilty, he would ask for nine years, but that the earlier range of four to six years was no longer realistic. On the basis of that advice, Mr.

Smith says he pled guilty to The Criminal Organization Offences plus The Cocaine Offence shown on CRM 107/16 on March 9, 2017. [ 62 ] Thus, Mr. Smith’s arguments reduce to the following: (

a) his former counsel negligently advised him that he had no viable defence in that the police agent’s credibility could not be shaken; and (

b) he did not fully understand the consequence of pleading guilty as his former counsel negligently advised him that the Crown would not be seeking “such a high sentence”. [ 63 ] I will deal with each of these in turn. i. Negligent advice: The police agent’s credibility [ 64 ] As I have indicated, Kim is the leading authority in this jurisdiction with respect to what must be proven when an accused

seeks to expunge his guilty plea on the basis of having received ineffective or incompetent representation at trial. The following principles from paragraph 36 of Kim are important to my assessment of the arguability of Mr. Smith’s assertion that his guilty pleas should be set aside on the basis he received ineffective or incompetent trial advice: (

a) an appellant seeking to displace a verdict of guilty must establish the facts on which the claim of incompetence is based, that the representation provided was incompetent, and that the incompetent representation resulted in a miscarriage of justice; (

b) incompetence is determined by a reasonableness standard; (

c) the wisdom of hindsight has no place in the assessment of the claim to incompetence; (

d) trial counsel’s actions must be assessed against the circumstances that existed at the time; (

e) allegations of incompetence or ineffectiveness of trial counsel must meet a strong presumption of competence; (

f) the appellant must show there was a reasonable probability that the result might have been otherwise had he received competent legal representation; and (

g) an appellate court is generally not required to embark upon an assessment of counsel’s competence unless it is satisfied that the conduct in issue resulted in a miscarriage of justice. [ 65 ] As the above criteria indicate, it is generally understood that a claim of ineffective counsel begins with a determination of whether the impugned conduct resulted in a miscarriage of justice. In order to arrive at such a conclusion, Mr. Smith must persuade me that it is reasonably arguable that the result he received might have been otherwise if he had received competent legal representation.

I am not so persuaded. [ 66 ] I say this primarily because Mr. Smith does not put forward a viable basis upon which I could arrive at such a conclusion. Mr. Smith’s submissions amount to a claim that, if he had had different or better trial counsel, the credibility of the police agent might have been so diminished he would have been able to raise a reasonable doubt. He wants another trial with different counsel in the mere hope of being found not guilty.

In my view, this does not rise to the level necessary for me to conclude that it is reasonably arguable that the result might have been otherwise with competent legal representation. [ 67 ] The Court is not confronted with a guilty plea to one count taken after a short lapse of time between arrest and plea. What happened in this case is the complete antithesis of such circumstances. Mr. Smith was facing 22 charges. Between arrest and trial, some 30 months passed. Mr.

Smith appeared 37 times in Provincial Court and 16 times in the Court of Queen’s Bench. [ 68 ] The disclosure was extensive, amounting to nine flash drives. Mr. Smith pled guilty after hearing over a day of testimony. The evidence was not just what the police agent said; it was composed of numerous auditory and written exhibits. The admissions left only one real issue to be determined: Who was the person on the other end of the telephone, the text message or the audio surveillance?

The police agent’s testimony, coupled with the exhibits, was put forward to provide an answer to that question. [ 69 ] Following the receipt of that evidence, Mr. Smith did not plead guilty to the charges all at once.

He pled guilty to nine charges over successive days with breaks between each set of guilty pleas and the Crown stayed thirteen other charges. [ 70 ] In these circumstances, applying the formula to determine whether to grant leave to appeal late I am not satisfied that it is “reasonably arguable” that there was a “reasonable probability” that the result might have been otherwise had he received what he believes would have been competent legal representation. ii. Negligent advice: Mr.

Smith’s belief that he was entitled to a lesser sentence [ 71 ] In Kim , the Court stated the following: [35] It is well established that subsequent dissatisfaction with the sentence received is not in itself a sufficient reason to expunge a guilty plea. R. v. Lyons, supra . On the other hand, in R. v. Armstrong , [1997] O.J.

No. 45 , the Ontario Court of Appeal set aside a guilty plea and quashed a conviction where an accused pled guilty to two charges of uttering a forged document on the mistaken belief, caused by the erroneous advice of trial counsel, that she would be eligible for a conditional discharge and could avoid a criminal record. This was not in fact a legally available sentence for the charge in question.

The Appellate Court was satisfied that this significantly influenced the appellant’s decision to plead guilty, and set aside the plea. [ 72 ] Seeking to set aside a guilty plea when one erroneously believed that one is entitled to a conditional discharge falls into a different category than pleading guilty while erroneously believing the Crown will seek a lesser custodial sentence. The two cannot be compared. Whether a conditional discharge is available is a question of decided law for which there can be only one answer.

On the evidence before the Court at this time, it was understood that a custodial sentence of significant length would be imposed, and there was no agreement between the Crown and the defence limiting the judge’s exercise of discretion in imposing that sentence. [ 73 ] Furthermore, the process under s. 606(1.1) makes it clear to an accused that if there had been any arrangement between the

Crown and defence, the judge would not have been bound by it. Here, Mr. Smith submits that his counsel induced him to plead guilty on the negligently mistaken belief that the Crown would seek a lesser sentence, but the evidence does not support his belief. [ 74 ] While it is not possible for me to assess the credibility of either Mr. Smith or his trial counsel on the basis of the affidavit evidence alone, I can rely on one aspect of the affidavit from trial counsel in weighing what a panel of this Court would conclude if it heard Mr. Smith’s testimony. In his affidavit, Mr.

Smith’s trial counsel refers to a letter dated December 16, 2016, from Crown counsel offering a nine-year sentence. This offer covers the CRM 114/16 indictment only: If convicted of all the charges as set out in the Direct Indictment, Smith is potentially facing a 23 year penitentiary sentence . That number could be reduced for totality depending on various factors. Should your client want to resolve these charges prior to trial, the Crown would require guilty pleas to counts 2, 3, 7 (amended to include heroin) and count 10.

The Crown would jointly submit for 9 years incarceration: 6 years for the fentanyl trafficking, 3 years for the firearms trafficking (consecutive) and 1 year for the proceeds (concurrent) and a fine in lieu with consecutive default time. The Crown will not ask for a half time parole order pursuant to s. 743.6 of the Criminal Code . The Crown will stay counts 1, 4, 5, 6, 8 and 9 at the conclusion of sentencing. With respect to any charges stayed or withdrawn by the Crown, we will read in all alleged facts pursuant to s. 725 (l)(

c) of the Criminal Code . The joint submission includes the forfeiture of all items seized, the mandatory s. 109 Firearms Prohibition Order for life and a DNA order. Alternatively if your client is not prepared to agree to the sentence we would be prepared to take pleas to the same counts with all facts read in but limit our submissions to 14 years and your client would be free to ask for whatever number he felt appropriate.

Let us know at your earliest convenience but in any event, this offer is open until 5:00pm Friday, January 6, 2017. (Emphasis added) [ 75 ] This letter indicates that the Crown was seeking a sentence of nine years if guilty pleas were offered before January 6, 2017. This is apart from any consideration of the second indictment – or The Cocaine Offence . The letter makes it very clear that, apart from the principle of totality, Mr. Smith was potentially facing a sentence of 23 years for the offences reflected on the one indictment only – if Mr.

Smith were to plead guilty seven weeks before the start of the trial. [ 76 ] Again, according to Mr. Smith’s trial counsel, he contacted his client by telephone and subsequently met with him on the same day to inform him as to the specifics of the Crown’s proposal. Mr. Smith informed him that he was not interested in the Crown’s offer. The contents of this letter, and what was done in relation to it, are not contradicted by Mr. Smith on this application. [ 77 ] I also note that sentencing submissions took over one-half of a day.

The Crown asked for a sentence of between 35 and 40 years, before the application of the principle of totality, which the Crown argued should not result in a sentence less than 20 years. Further, the Crown was seeking a parole ineligibility clause at one-half of whatever sentence would be imposed. When Mr. Smith’s trial counsel addressed the Court, he argued for a sentence of no more than nine years. [ 78 ] After having heard Crown counsel’s submissions and Mr. Smith’s counsel’s response, the sentencing judge asked Mr. Smith if he had anything to say.

He said nothing about his belief that he was going to receive a sentence of something less than nine years or that the Crown’s submissions had not been anticipated. Instead, he admitted the offences: THE ACCUSED: I’d just like to say that I am remorseful for the things I did. I made mistakes. They didn’t impact the community as harshly as they could have, as the drugs never made it to the street. They could have been a lot worse. Now, I’m paying for my mistakes by having to walk my son into school for the last time this morning, him knowing he’s not going to see me for some years.

My fiancé, my aunt, seeing me for the last time for who knows how long. This is -- this is all a big wakeup call for me. Sentencing was then adjourned until the following morning at 11 a.m. [ 79 ] Mr. Smith is not unfamiliar with the criminal justice system. He has a record. While he did not offend from 2006 until these charges, he has an earlier record dating from 2004 and composed of 23 prior offences. [ 80 ] Clearly, Mr. Smith has received a significant sentence, but that sentence is under appeal and, of course, open to amendment in the usual way.

If there remains something to his assertion (apart from his allegation of ineffective representation of counsel) that there was an understanding with Crown counsel that something less than a 35-year sentence would be sought, this argument is still available to the Court – assuming an appropriate foundation can be established for it. [ 81 ] Thus, I am not persuaded that it is reasonably arguable that his guilty pleas would be expunged on the basis that he had been ineffectively or incompetently represented as to what he would receive by way of sentence if he were to plead guilty to the nine charges. 2.

Expunging the guilty pleas on the basis of a lack of awareness – apart from any consideration of ineffective representation of counsel [ 82 ] Having found that leave should not be granted on the basis of a ground of appeal asserting ineffective trial counsel, little remains of Mr. Smith’s ground of appeal based on a claim that his guilty pleas “were not sufficiently informed in that he was not aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea”.

With respect to each set of guilty pleas, the sentencing judge asked trial counsel whether he had reviewed s. 606(1.1) of the Criminal Code with his client and then proceeded to fulfil his own obligations under that section. This was not done just once, but on three separate occasions over a nine-day

period in relation to nine charges. Guilty pleas were taken to the first six counts after the trial had already begun and evidence had been heard. [ 83 ] In these circumstances, there is no basis upon which I can conclude that it is reasonably arguable that a court of appeal would expunge the guilty pleas on the basis of an allegation that Mr. Smith was not aware of the charges against him or the consequences of his pleas. 3. Expunging the guilty pleas in relation to The Criminal Organization Offences [ 84 ] For ease of reference, these are The Criminal Organization Offences appearing on CRM 107/16 to which Mr.

Smith pled guilty: [count 1] THAT you, the said … JUSTIN MURRAY SMITH … on or about the 30 th day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, did participate in the activities of the criminal organization, to wit: the beating of, or assault of, Travis Miles, contrary to

Section 467.11(1) of the Criminal Code [.] [count 16] THAT you … JUSTIN MURRAY SMITH, on and between the 5 th day of November, 2014 and the 15 th day of January, 2015, at or near Saskatoon and Prince Albert, in the Province of Saskatchewan, did for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, recruit, solicit, encourage, coerce or invite a person or persons to join the Fallen Saints Motorcycle Club, contrary to

Section 467.111 of the Criminal Code . [ 85 ] The proposed ground of appeal that pertains uniquely to these convictions are as follows: CONVICTION APPEAL 2.

With respect to the Appellant’s guilty pleas to Count 1 and Count 16 of CRM 114 [ sic ] of 2016, the facts presented to the Court did not satisfy the essential elements of the definition of “criminal organization” for the purposes of s. 467.1 of the Criminal Code [.] [ 86 ] Applying the framework with respect to extending the time to appeal and the test for expunging a guilty plea, as articulated above, in my view there is no basis upon which leave should be granted in relation to this ground of appeal either. [ 87 ] Mr.

Smith submits his guilty pleas to count 1 and count 16 of CRM 107/16 do not satisfy the essential elements of the definition of “criminal organization” for the purposes of s. 467.1 of the Criminal Code , which reads as follows:

Definitions 467.1

(1) The following

definitions apply in this Act. criminal organization means a group, however organized, that (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence.

It does not include a group of persons that forms randomly for the immediate commission of a single offence. serious offence means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation. Facilitation

(2) For the purposes of this section,

section 467.11 and 467.111 , facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed. Commission of offence

(3) In this

section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it. [ 88 ] Mr.

Smith’s appellate counsel could not point to any particular aspect of what transpired during the hearing before the sentencing judge that could reasonably lead someone to conclude that an essential element of what constitutes a criminal organization was missing other than to comment that the definition of criminal organization and its application have been found to be complex. [ 89 ] It is true that the sentencing judge appears to have resisted an explanation of the underlying facts as part of the plea comprehension process but, as part of the sentencing process, Crown counsel referred multiple times to the status of the Fallen Saints as a “criminal organization”.

The Court also engaged Crown counsel directly on the extent of the submissions that he needed to make with respect to whether or not the Fallen Saints was a “criminal organization”, leaving the door open to Mr. Smith’s counsel to contest the issue: MR. CURLISS [Crown counsel]: Thank you, My Lord. I’ve got a couple of other things that I want to give to the Court, given the new guilty pleas from this morning. THE COURT: Yes, understood.

MR. CURLISS: There’s not a lot, but I can pass those up to the clerk please. A couple of cases, My Lord. One is the case from the Supreme Court of Canada called Venneri which is just the Supreme Court going through what is a criminal organization and what’s an association with a criminal organization. I’ve highlighted some of the part, and I’ve given a copy to my friend. THE COURT: Although, that’s not in debate here. I mean he’s pled to the -- MR. CURLISS: Exactly, My Lord. I think it is useful in the sense that this is the Supreme Court saying what they think -- THE COURT: Yes. MR.

CURLISS: -- a criminal organization is all about. … … MR. CURLISS: Correct. So then we get to the criminal organization offences, which Mr. Smith pled guilty to this morning. So there’s two aspects of that, and I’ll just kind of, for clarity sake, remind the Court, so in order for the -- THE COURT: You are -- you are at number one on the new i

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