R v Urquhart, 2017 SKCA 88

Court of Appeal for Saskatchewan Docket: CACR2923 Citation: R v Urquhart , 2017 SKCA 88 Date: 2017-10-18 Between: Douglas Stanley Urquhart Appellant And Her Majesty the Queen Respondent Before: Jackson, Herauf and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Herauf The Honourable Madam Justice Ryan-Froslie On Appeal From: Provincial Court, Saskatoon Appeal Heard: October 17, 2017 Counsel: Douglas Stanley Urquhart on his own behalf Andrew Stuart Davis for the Respondent Jackson J.A. [ 1 ] Douglas Urquhart pled guilty to one count of possessing child pornography, contrary to s. 163.1(4) of the Criminal Code , RSC 1985, c C-46, and one count of making available child pornography, contrary to s. 163.1(3) of the Criminal Code . He was sentenced to 16 months of incarceration plus three years of probation concurrent on both counts. [ 2 ] Mr.

Urquhart pled guilty mid-trial after a voir dire had been conducted for the purposes of determining whether a search of his basement suite breached his right to be secure against unreasonable search or seizure under s. 8 of the Charter and his right not to be arbitrarily detained or imprisoned under s. 9. [ 3 ] The trial judge accepted Mr. Urquhart’s argument that the search warrant was deficient on its face and was invalid in part because it did not sufficiently describe the location to which the warrant applied – that is, whether it applied to the whole residence or the basement suite.

The trial judge concluded that the search of Mr. Urquhart’s basement suite was a warrantless search that breached s. 8 and s. 9 of the Charter , but the evidence should, nonetheless, not be excluded under s. 24(2). [ 4 ] Mr. Urquhart’s sole ground of appeal is that the trial judge “erred by failing to exclude evidence pursuant to s. 24(2) of the Charter after finding that [the] Appellant’s s. 8 rights were breached”. [ 5 ] After the trial judge read her decision into the record refusing to exclude the evidence, Mr.

Urquhart’s counsel advised the court that, “given the procedure that the Crown and I had agreed upon before this”, the next step would be “entering some pleas”. He asked for a short adjournment to confer with his client. [ 6 ] Following the adjournment, Mr. Urquhart’s counsel advised the Court as follows: At this time, Your Honour, and given the decision of the Court on the voir dire and the evidence that would ultimately be admitted, my instructions from Mr. Urquhart are to change -- or to give a change of plea.

And my instructions are to enter guilty pleas on counts 1 and 2 of Information ending 448, Your Honour. The Crown then advised that it was their intention to stay a third count under s. 163.1 (4.1) of the Criminal Code , which is a charge of accessing child pornography. [ 7 ] After discussing a date for sentencing, Mr. Urquhart’s counsel said, “Just for the record and before the Court’s close, I can confirm that

section 606 was complied with”. [ 8 ] In 2002, the Governor General in Council proclaimed the Criminal Law Amendment Act, 2001 , SC 2002, c 13, s 49, in force, adding s. 606, and thereby establishing a statutory framework for plea comprehension (effective September 23, 2002 (SI/2002-106)).

Section 606 reads as follows: 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. [9] Subsection 606(1.1) codifies the requirement that every guilty plea must be voluntary, unequivocal and informed, as firstmentioned by Laskin J. in his dissenting opinion in R v Adgey, (SCC), [1975] 2 SCR 426.

The subsection also imposesan additional requirement on trial judges to ensure that the accused understands the court is not bound by any agreement made with theprosecutor. [10] Recently, in R v Smith, 2017 SKCA 81, I noted the following: [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 guilty plea, theanalysis proceeds on the basis of whether and to what extent the trial judge has complied with that section: R v Lewis, 2012 SKCA 81 atparas 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 R 259.

Anappellate court must also keep in mind s. 606(1.2), which provides that the failure of the trial court to inquire “fully” into whether theconditions 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 to believethat the caution expressed by Dickson J. in Adgey, about attempting to create a finite list of what might constitute “valid grounds” tojustify expunging a guilty plea, is any less valid. (Emphasis added) [11] Mr.

Urquhart does not submit that his guilty pleas were not voluntary, not unequivocal and not informed, but rather he assertshe pled guilty believing he would have the right to challenge the trial judge’s s. 24(2) analysis by appealing his convictions. At least inthe circumstances of this case, I am not certain that this argument is available to Mr. Urquhart. [12] It is apparent from the record that at the end of the voir dire all that remained of the Crown’s case was the evidence ofprecisely what had been discovered on the accused’s computer. The accused had a choice to make.

At that point, he was facing threecharges, with the balance of the Crown’s case to come. It would have been open to Mr. Urquhart to have elected to allow the trial tocontinue and, if convicted, appealed from the resulting verdict. He did not do that. [13] Instead, he pled guilty to two of the three criminal charges and the Crown stayed the third charge. A sentencing hearingfollowed, during which the Crown called evidence regarding some of the images on Mr. Urquhart’s computer. Mr.

Urquhart then spokeextensively about what led him to commit the offences to which he had pled guilty. [14] In these circumstances, I conclude that s. 606(1.1) is the framework within which to assess Mr. Urquhart’s appeal from theconvictions arising from his guilty pleas. With respect to that framework, it would have been preferable for the trial judge to havereviewed s. 606(1.1) with Mr. Urquhart, so as to remove any possible doubt about the matter. But the lack of a review does not affect theoutcome of this appeal for three reasons. First, Mr. Urquhart was represented by counsel.

Second, the guilty plea was entered mid-trial,after substantially the whole of the Crown’s case had been revealed to Mr. Urquhart. Third, Mr. Urquhart’s counsel himself asserted thatthe

section had been complied with. In any event, s. 606(1.2) provides specifically that the failure of the court to fully inquire whetherthe conditions set out in s. 606(1.1) have been met does not affect the validity of the plea. [15] I also note that there is no basis upon which to challenge the trial judge’s decision to admit the evidence under s. 24(2) of theCharter. The trial judge reviewed the Grant factors and exercised her discretion appropriately. I might add that the Crown on appealargues that the trial judge erred with respect to her finding that s. 8 had been breached at all.

This, of course, is not something we need todecide in order to reach a conclusion in relation to the appeal before us. [16] Having regard for all of the circumstances, and in conclusion, Mr. Urquhart’s appeal must be dismissed. [17] Mr. Urquhart has been on judicial interim release. He is directed to present himself to the Saskatoon Correctional Centre onor before 12:00 p.m. (noon) on Monday, October 23, 2017. “Jackson J.A.” Jackson J.A.I concur. “Herauf J.A.” Herauf J.A.I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.