R v Aisaican, 2019 SKCA 58

Court of Appeal for Saskatchewan Docket: CACR2977 Citation: R v Aisaican , 2019 SKCA 58 Date: 2019-06-24 Between: Edward John Aisaican Appellant And Her Majesty the Queen Respondent Before: Jackson, Schwann and Barrington-Foote JJ.A. Disposition: Applications denied; appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Schwann On Appeal From: 2017 SKQB 131 , Yorkton Appeal Heard: December 7, 2018 Counsel: Edward John Aisaican on his own behalf Wade McBride, Q.C., for the Respondent Barrington-Foote J.A.

I. Introduction [ 1 ] On May 26, 2015, the appellant, Edward John Aisaican, pleaded guilty to possessing cannabis resin for the purpose of trafficking pursuant to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], and possessing firearms without a licence pursuant to s. 91(1) of the Criminal Code [charges]. Prior to the date set for sentencing, he retained new counsel [application counsel] and applied to expunge his guilty pleas. That application was denied in R v Aisaican , 2017 SKQB 131 [ Expungement Decision ]. [ 2 ] Mr.

Aisaican has appealed his convictions, alleging there were errors by the judge who made the Expungement Decision [sentencing judge]. He has applied to adduce fresh evidence relating to that aspect of the appeal. For the reasons that follow, I would deny the application to adduce fresh evidence and find there is no merit in the grounds of appeal relating to the Expungement Decision . [ 3 ] Mr. Aisaican’s grounds of appeal also include allegations of ineffective representation by the lawyer who represented him for part of the expungement application.

That aspect of the appeal relates to the fairness of the expungement hearing, rather than alleged errors in the Expungement Decision , and is accordingly addressed separately in this decision. I would also deny the application to adduce fresh evidence in support of this aspect of the appeal, and find this ground of appeal, too, is without merit. [ 4 ] In the result, and for the reasons that follow, I would dismiss the appeal. II. Background [ 5 ] Mr. Aisaican is a member of the Cowessess First Nation [Cowessess] and a former member of the Cowessess Band Council.

The charges to which he pleaded guilty resulted from an investigation that culminated in a search of his residence on Cowessess reserve land. That search, which was authorized by a search warrant, led to the discovery of a large quantity of cannabis resin, other items associated with trafficking and production of cannabis resin, and six firearms. [ 6 ] Mr. Aisaican retained Chris McLeod, an experienced criminal defence lawyer, before charges were laid. He elected to be tried by a Queen’s Bench judge sitting alone. After the July 2, 2013, preliminary inquiry, which resulted in Mr.

Aisaican’s committal, and shortly before the scheduled trial date, the Crown and Mr. McLeod reached an agreement to resolve the charges [plea bargain], including as to a joint submission on sentence. On May 26, 2015, the 14-count indictment then before the court was stayed and a 3-count indictment was filed. Mr. Aisaican pleaded guilty to the possession and firearms charges. The remaining charge, trafficking in cannabis resin, was stayed. Sentencing was adjourned to May 5, 2016. [ 7 ] Shortly before the scheduled sentencing date, Mr. Aisaican discharged Mr.

McLeod and retained application counsel to represent him to apply to expunge his guilty pleas. The expungement hearing began October 4, 2016. Mr. Aisaican was the first witness. His evidence in chief, which was led by application counsel, occupied the morning and his cross-examination was commenced, but not concluded, in the afternoon. The hearing was adjourned to October 21. [ 8 ] The sentencing judge described what occurred on the October 21 return date in the Expungement Decision : [14] The accused began this expungement hearing represented by counsel.

Following the first day of evidence, an adjournment was required to the next available court date to allow for the evidence to be completed. On that return date, counsel for the accused appeared by telephone and sought leave to withdraw. The reason given for the withdrawal was that the accused no longer wished to have this lawyer represent him. Leave to withdraw was granted and the matter was set over to another date to permit the accused an opportunity to both retain counsel and to prepare for the continuation of the hearing.

The court indicated, at that time, the hearing would proceed on the next adjourned date.

[9] When the matter returned to court on February 27, 2017, Mr. Aisaican advised that he would represent himself. The Crownconcluded its cross-examination of Mr. Aisaican. Mr. Aisaican then called Mr. McLeod as his only other witness. When his evidence wasconcluded, the hearing was adjourned to March 27, 2017. On that return date, Mr. Aisaican indicated he would not call further evidence.The Crown did not call witnesses.

The parties made their closing submissions, and the decision was reserved to May 11, 2017, when thesentencing judge delivered the Expungement Decision. [10] In the Expungement Decision, the sentencing judge described Mr. Aisaican’s grounds for the expungement application asfollows: [13] … He seeks to be allowed to withdraw his guilty pleas for the following reasons: 1. His counsel did not provide him with the disclosure to allow him to review and consider his options; 2. His counsel did not properly advise him on the essential elements of the offence and he should not have pled guilty as a result; 3.

His counsel failed to properly prepare for the upcoming trial; 4. He did not realize the consequences of his pleas of guilty; 5. He was not in his correct operating mind due to stresses and other influences at the time he entered his guilty pleas; and 6. He had defences to all of the charges and his counsel neglected to both consider those defences and advance those defences at a trial. [11] The Expungement Decision dealt with each of these grounds.

In the result, the sentencing judge concluded that “the guiltypleas were entered voluntarily, unequivocally and on an informed basis” (at para 69) and dismissed the application. [12] Mr. Aisaican was sentenced June 8, 2017, to a 12-month conditional sentence order, as recommended by the Crown. That wasthe sentence negotiated by the Crown and Mr. McLeod as part of the plea bargain. The sentencing judge also imposed a 10-year firearmsprohibition pursuant to s. 109 of the Criminal Code. Mr.

Aisaican requested that the guns seized at his residence be given to a familymember who had the appropriate licence and could hunt for the family. The Crown submitted forfeiture was mandatory pursuant to s. 490of the Criminal Code. The court ordered forfeiture. III. Ineffective Assistance of Application Counsel andFresh Evidence Application [13] I will first address Mr. Aisaican’s allegation of ineffective assistance by application counsel. As I understand it, Mr. Aisaicansays that ineffective assistance resulted in a miscarriage of justice.

That aspect of the appeal does not turn on an alleged error by thesentencing judge. Although he did not cast the matter in these terms, it amounts to a request that the expungement application be sent backto be reheard. [14] Mr. Aisaican has filed two notices of motion to adduce fresh evidence, dated April 19, 2018, and May 18, 2018. Mr. Aisaican’sApril 20, 2018, affidavit, which was filed in support of the April 19th application, lists and appends 26 documents. The May 18th motionappends 8 documents. There is no other evidence in either affidavit.

Some of the documents, such as correspondence to and fromapplication counsel, were generated after the expungement hearing. [15] When an appellant seeks to adduce fresh evidence to attack a finding of fact or law made at trial, admissibility is governed bythe criteria specified in R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer] (at 775): [T]he following principles have emerged:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial … .

(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. [16] However, the Palmer criteria do not apply in the same way where the evidence is proffered to support an allegation thehearing or trial was unfair because of ineffective legal counsel. In R v Kim, 2011 SKCA 74, 272 CCC (3d) 15 [Kim], Smith J.A.summarized the correct approach in those circumstances: [38] … In this Court’s decision in R. v.

T.(S.G.), 2011 SKCA, 265 C.C.C. (3d) 550, Wilkinson J.A. commented that where an appellantcontends that he did not receive a fair trial because of ineffective legal representation the criteria established in Palmer governing theadmission of fresh evidence on the appeal give way to case-sensitive considerations. 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 the remedysought before the court of appeal, credible and convincing, and sufficient, if uncontradicted, to justify the appellate court making the ordersought [citations omitted]. [17] Mr. Aisaican’s complaints about application counsel cast a broad net.

He alleges application counsel failed to properly preparefor the expungement hearing; failed to protect him during cross-examination; colluded with the Crown; failed to pursue available defences,including defences based on alleged infringements of the Charter and on Mr. Aisaican’s Aboriginal and Treaty rights; and exceeded herinstructions by disclosing his entire medical file to the Crown. Many of the documents contained in both applications to adduce freshevidence are relevant to these allegations.

In deciding the ineffective representation issue, I have considered all of the proposed freshevidence, some of which had been presented to the sentencing judge. [18] Mr. Aisaican represented himself after the first day of his expungement hearing. An accused who chooses to represent himselfor herself at trial foregoes the right to the effective assistance of counsel: R v Romanowicz (1999), (ON CA), 178 DLR(4th) 466 (Ont CA) at paras 28–29, and R v Gordon, (Ont CA) at para 1. That principle will often preclude a claim byan accused who received legal advice prior to trial but was self-represented at trial.

Indeed, in R v West, 2010 NSCA 16, 252 CCC (3d) 23,the court, in rejecting such a claim, commented that it was “not aware of any case which suggests that the conduct of counsel who was nottrial counsel, can support a claim of ineffective assistance” (at para 266). [19] There are, in my view, circumstances where an accused could demonstrate ineffective representation even if counsel’s retainerended prior to or in the course of the hearing or trial. The decision as to whether he or she had met the applicable standard of proof wouldturn on the facts.

That approach is consistent with the purpose of the right to effective assistance, which is to prevent unfairness in the trialprocess as a result of the incompetence of counsel: see, for example, R v Godron, 2008 NSCA 109, 272 NSR (2d) 152, where the courtconsidered the actions of counsel both before and during that portion of the trial for which he was retained. [20] However, I am not persuaded the acts or omissions of application counsel could have compromised the fairness of theexpungement hearing in this case. Before she withdrew, application counsel led evidence from Mr.

Aisaican that was relevant to the issuesat play in the expungement hearing, including the following: (

a) Mr. Aisaican’s access to disclosure, including the videotaped statements of two witnesses, photographs of the drugs and gunsand the search warrant; (

b) Mr. Aisaican’s emotional and mental state when the plea bargains were negotiated and when he pleaded guilty, including theimpact of medications, the loss of his house due to fire, and stress arising from being a member of Band Council; (

c) Mr. Aisaican’s concerns relating to infringement of his Charter and treaty rights and the lack of advice from Mr. McLeodrelating to these issues; (

d) Mr. Aisaican’s assertion he did not understand the impact of pleading guilty on his ability to be a leader of his First Nationand on the exercise of his treaty rights, including his right to use guns to hunt for food; and (

e) Mr. Aisaican’s dealings with Mr. McLeod relating to the plea bargain, including Mr. McLeod’s advice that he did not thinkMr. Aisaican could win. Application counsel also produced Mr. McLeod’s file relating to her retainer by Mr. Aisaican and Mr. Aisaican’s medical file. [21] In these circumstances, Mr. Aisaican has no basis to seek relief based on ineffective representation by application counsel.Mr. Aisaican chose to terminate application counsel in the course of the hearing. The sentencing judge questioned the wisdom of thatdecision. Mr.

Aisaican was given ample time to retain other counsel before the next return date and, regardless of whether he did so, tobuild on the foundation created by the evidence elicited on the first day of the expungement hearing. The acts and omissions of applicationcounsel did not prejudice his ability to lead further evidence or to make submissions in relation to the issues he wished to pursue. There isnothing in the record or in the fresh evidence Mr. Aisaican seeks to adduce that undermines these conclusions. [22] In the result, I am not satisfied Mr.

Aisaican was prejudiced by anything application counsel did or failed to do. There was noprocedural unfairness and the reliability of the expungement hearing was not compromised: R v Cherrington, 2018 ONCA 653 at para 27[Cherrington]. As such, I need not inquire further into application counsel’s performance to determine whether she met the standard ofcompetent counsel.

Justice Binnie addressed this issue in R v G.D.B., 2000 SCC 22, [2000] 1 SCR 520: [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider theperformance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professionalconduct. The latter is left to the profession’s self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on the groundof no prejudice having occurred, that is the course to follow (Strickland, [466 U.S. 668 (1984)], at p. 697). (See also Cherrington at para 27, and Kim at para 36.) [23] In the result, the application based on the allegation of ineffective counsel by application counsel and the application to adducefresh evidence in support of that application are denied. IV. Application to Expunge

A. Expungement: Legal Test and Issues [24] This appeal is also based on alleged errors by the sentencing judge in the Expungement Decision. The legal test the sentencingjudge was obliged to apply in making that decision was described by Smith J.A. in Kim: [33] … A valid guilty plea must be voluntary, informed and unequivocal. The plea must be informed in the sense that the accused must beaware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea. See R. v. T. (R.) (1992), (ON CA), 10 O.R. (3d) 514 (Ont. C.A.), citing R. v. Lyons, (SCC), [1987] 2 S.C.R. 309.

Doherty J.A.,added this at p. 524 [R v T.(R.) (1922), 58 OAC 81 (CA)]: By an understanding of the consequences of his pleas, I mean the realization that convictions would flow from his pleas, as well as anappreciation of the nature of the potential penalty he faced. These principles are reflected in s. 606 of the Criminal Code: R v Leonard, 2007 SKCA 128 at paras 17–18, 307 Sask R 140, and R vUrquhart, 2017 SKCA 88 at paras 8–10. [25] The issue on this appeal is not whether Mr. Aisaican had a good or arguable defence to the charges. Nor is it whether his guiltypleas were voluntary, unequivocal and informed.

It is whether the sentencing judge erred in concluding his guilty pleas met that standardand that, as a result, there was a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code. I have, in decidingwhether there was such an error, considered both the record and the fresh evidence Mr. Aisaican has applied to adduce in relation to thisaspect of the appeal. [26] Mr. Aisaican made a wide variety of allegations in his notice of appeal and submissions.

Many of those allegations relatedirectly or indirectly to the merits of various potential defences to the charges that he says were not properly developed or of which he wasnot advised by Mr. McLeod. Others relate to Mr. Aisaican’s capacity to give instructions to Mr. McLeod at the relevant time and hisknowledge of the consequences of the guilty pleas. The issues raised by those allegations are as follows: (

i) Did the sentencing judge err in concluding Mr. Aisaican pleaded guilty to the charge of possession for the purpose oftrafficking pursuant to s. 5(2) of the CDSA? (ii) Did the sentencing judge err in finding that the pleas were voluntary? (iii) Did the sentencing judge err in finding that the pleas were informed? [27] I will now turn to those issues. 1. Did the sentencing judge err in concluding that Mr. Aisaican had entered a guilty plea to thecharge of possession for the purpose of trafficking pursuant to s. 5(2) of the CDSA? [28] The issue as to the validity of the plea arose at the expungement hearing.

A transcript of the arraignment proceedings indicatedMr. Aisaican entered a plea of not guilty to the s. 5(2) CDSA charge. Prior to the expungement hearing, Mr. Aisaican did not suggest hepleaded not guilty to that charge. For that reason, the Crown submits that Mr.

Aisaican should not be permitted to raise this issue for thefirst time on this appeal. [29] However, this issue was treated as a live issue at the expungement hearing and addressed in the Expungement Decision wherethe sentencing judge found as follows: [11] The transcript of the proceedings whereby the pleas were entered shows a “not guilty” plea being entered on the s. 5(2) CDSA charge(transcript T11, line 15). Crown counsel submitted this recording was in error and the accused had entered guilty pleas. The accused didnot take issue with the fact he had entered a guilty plea to this charge.

It appears the plea was transcribed incorrectly. Further, the evidentiary record relating to this issue is complete. The Crown will not be prejudiced if this ground is considered. I wouldaccordingly grant leave for Mr. Aisaican to raise it on this appeal. [30] There is, however, no basis to find that the sentencing judge erred. The audio recording of the proceedings sounds likeMr. Aisaican said, “I’m guilty”. That

interpretation is consistent with his actions after the pleas were entered, which demonstrate that heproceeded on the basis that he had pleaded guilty. In my opinion, the sentencing judge’s conclusion is not only supported by the evidence,but correct. 2. Did the sentencing judge err in finding that the pleas were voluntary? [31] Mr. Aisaican’s claim the guilty pleas were not voluntary is based on two related themes. First, Mr. Aisaican gave evidence atthe expungement hearing that his ability to think clearly and make decisions were compromised when the pleas were negotiated andentered.

He says that was so as a result of ill health, the effect of medications, stress resulting from the loss of his house to a fire and thedemands of his office as a member of Band Council. [32] Second, Mr. Aisaican submits Mr. McLeod persistently pressed him to accept a plea bargain and told him he was unlikely towin if the charges went to trial. He characterizes Mr. McLeod’s actions as constituting undue pressure. [33] Mr. Aisaican submits, based on these factors, that the guilty pleas were not voluntary.

The meaning of “voluntary” in thecontext of an expungement application, and its relationship to cognitive or mental health issues, was summarized in Cherrington: [21] A plea of guilty is voluntary if it represents the conscious volitional decision of an accused for reasons that the accused regards as

appropriate. Pleas of guilty entered in open court in the presence of counsel are presumed to be voluntary. The presumption is rebuttable,as for example, by evidence of an accused’s limited cognitive capacity, a mental disorder or condition, or cognitive or emotional issuessuch as anxiety, depression, chronic pain, anger management problems and difficulty in communication. However, an accused who claimsinvoluntariness must demonstrate that he or she lacked the capacity to make an active or conscious choice whether to plead guilty: R. v. T.(R.) (1992), (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v.

M.A.W, 2008 ONCA 555 , 237 C.C.C. (3d)560, at paras. 23–37. To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea,communicate with counsel, and make an active or conscious choice. Whether the choice to plead guilty is wise, rational or in the accused’sbest interest is not part of the inquiry: M.A.W., at para. 35; R. v.

Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47. (Italic emphasis in original) [34] There is a presumption a guilty plea entered in open court while the accused is represented by counsel is voluntary unless theaccused establishes otherwise: R v Sunshine, 2016 SKCA 104, 484 Sask R 259. [35] The sentencing judge, having reviewed the evidence relating to cognitive and emotional issues, concluded as follows(Expungement Decision): [63] In all of the circumstances, there is no evidence to establish at the time, the accused was incapable of making decisions.

Indeed, theopposite impression is created from a review of the whole of the material. The accused was interested in having the matter delayed as longas possible. The principal reason for this to occur was to allow him to serve out his term as a councillor with his First Nation. He got whathe wanted through the plea negotiations. He took active steps in this regard and he actually responded to the resolution positions to puthim in the best possible position with his First Nation duties. [36] These conclusions are findings of fact. They are not unreasonable, unsupported by the evidence or clearly wrong.

This Courtis, accordingly, not entitled to intervene. [37] As to Mr. Aisaican’s allegation he faced undue pressure, he testified that Mr. McLeod “strongly suggested that he didn’t thinkhe could win this case”. He said that when he was given that advice, he had already paid Mr. McLeod, did not think he would get hismoney back and had no money to hire another lawyer. In the same vein, he said that Mr. McLeod gave him only one option, as he toldhim he could not win and that if the matter proceeded to trial, the Crown would “throw the book” at him. [38] The trial judge summarized Mr.

McLeod’s evidence as to his advice to Mr. Aisaican – which the trial judge accepted – asfollows: [35] Counsel for the accused testified that at the time the guilty pleas were entered he thoroughly reviewed the case and its details with theaccused on a number of occasions. He testified he did not pressure the accused to enter guilty pleas and he was ready, always, to have thematter proceed to trial if that was the accused’s instructions. He advised the accused on the risks of trial and the problems he saw with theposition the accused was in.

In the end, he testified, the decision to proceed with guilty pleas was that of the accused. … [43] In light of the evidence concerning discussions between Mr. McLeod and the accused, and the correspondence provided byMr. McLeod, I conclude the accused was well aware of the Crown’s case. I further conclude he was provided with all of the necessaryinformation to permit him to properly consider and evaluate his options prior to entering his pleas. [39] It was open to the sentencing judge to accept Mr. McLeod’s evidence. Indeed, it was open to him, even if he believedMr.

Aisaican’s evidence, to conclude the guilty pleas were voluntary. The fact Mr. Aisaican decided to settle – based in part on hiscounsel’s pessimistic assessment of the strength of the case, financial considerations and the benefits of a plea bargain – as compared tothe risks of a trial would not render the plea involuntary. An accused is entitled to plead guilty for reasons he or she considers to beappropriate. Considerations of the kind identified by Mr. Aisaican are commonly at play. Further, the sentencing judge’s conclusion,quoted above, that Mr.

Aisaican was able to make decisions and “got what he wanted through the plea negotiations” (at para 63) isrelevant to the allegation of undue influence. [40] In the result, there was no reversible error in the sentencing judge’s conclusion that the guilty pleas were voluntary. 3.

Did the sentencing judge err in finding that the pleas were informed? [41] In R v Wong, 2018 SCC 25 at paras 3–4, [2018] 1 SCR 696 [Wong], the majority confirmed that “the framework for striking anuninformed guilty plea involves two discrete steps: (1) the accused being misinformed about sufficiently serious information; and (2) thatlack of information resulting in prejudice” (italic emphasis in original, at para 33). At the first step, the question is whether the accused isaware of the nature of the allegations against them, the effect of the plea and the consequences of the plea.

Consequences include bothcriminal consequences and legally relevant collateral consequences, and a “legally relevant collateral consequence is one which bears onsufficiently serious legal interests of the accused” (at para 4). [42] As to the second step, the majority held that an accused must establish they suffered subjective prejudice as a result of beinguninformed, stating as follows: [6] In our view, the accused should be required to establish subjective prejudice.

Meaning, accused persons who seek to withdraw theirguilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing areasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with differentconditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is thereforesubjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.

[43] Mr. Aisaican’s submission that his pleas were uninformed is intimately linked to his allegations of ineffective representationby Mr. McLeod. The relationship between an allegation of ineffective representation of counsel and an application to expunge a guilty pleawas also addressed in Wong. On this point, the majority and minority agreed: [24] … the ineffective assistance of counsel framework has no relevance to this case (Wagner J.’s [dissenting] reasons, at para. 60[below]).

That framework focuses on the source of the misinformation (or incomplete information) rather than the misinformation itself.Assessing whether prejudice arises from misinformation does not depend upon its source. As Saunders J.A. explained at the Court ofAppeal, the particular miscarriage of justice engaged in this case arises from the invalidity of Mr. Wong’s plea (2016 BCCA 416, 342C.C.C. (3d) 435, at para. 24). (Italic emphasis in original) [44] That does not mean proof that an accused received ineffective assistance from counsel is never relevant.

An accused may, onthe facts, demonstrate that a plea was not voluntary or informed because they received ineffective assistance from counsel (Cherrington atpara 25). Kim dealt with allegations of that kind. The appellant there alleged his trial lawyer failed to review the file, interview materialwitnesses and obtain adequate disclosure, with the result that the appellant received ineffective and misleading advice in relation to hisguilty plea.

This Court found that he had not been so misled. [45] In R v Yarlasky, (2005) (ON CA), 195 OAC 188 (CA) [Yarlasky], the court found that the plea was notfully informed because counsel did not identify and investigate a defence for which there was a credible evidentiary basis.

The analysis isnot and – as Wong says – need not be based on the test for ineffective assistance of counsel, as the issue is whether the actions of counselhave rendered the plea involuntary or uninformed: R v Lamoureux (1984), (QC CA), 13 CCC 3d 101 (Que CA); R vRajaeefard (1996), (ON CA), 104 CCC (3d) 225 (Ont CA); R v Mitchell (1997), (ON CA), 97 OAC69 (CA); R v Henry, 2011 ONCA 289, 277 CCC (3d) 293; and R v Ahmad, 2012 BCCA 479, 330 BCAC 158, are other examples ofdecisions where pleas have been found to be involuntary or uninformed due to the acts or omissions of defence counsel. [46] Mr.

Aisaican’s claim that he was uninformed is based primarily on allegations similar to those made in Yaralsky and Kim. Hesubmits Mr. McLeod failed to recognize, develop and provide advice about various defences on the facts and based on the Charter and hisAboriginal and Treaty rights. In his submissions at the expungement hearing, Mr. Aisaican referred to the s. 12 Charter right not to besubjected to cruel and unusual punishment. He suggested that the infringement of unspecified Aboriginal and Treaty rights constituted abreach of his equality rights pursuant to s. 15 of the Charter.

He noted the recognition and protection of Aboriginal rights in s. 25 of theCharter and of Aboriginal and Treaty rights in s. 35 of the Constitution Act, 1982, and appeared to submit those rights meant a justice ofthe peace does not have the jurisdiction to authorize a search warrant for a search on reserve land. [47] The sentencing judge summarized and disposed of Mr. Aisaican’s arguments as follows: [64] The nature of the defences which the accused suggests he had to the charges which were laid is less than clear.

The accused argues asfollows: • He had Charter defences and he cited in argument many sections from the Charter; • He had First Nation “rights” to be safe and secure on “Sovereign First Nation land”; • He had concerns because the wrong middle name was set forth in the undertaking which released him from custody; • He had concerns with the veracity of the lay witnesses who were not called to give evidence at the preliminary inquiry; • He had concerns the RCMP had acted in concert with one of the lay witnesses; and • He had concerns about the Crown’s ability to establish he would have been convicted. [65] It is fair to say the entirety of the suggested areas of potential defences were extremely inchoate.

The accused referred to a number ofsections of the Charter and referred to Treaty 4. But, he did not indicate in any concrete way how any of that might provide him with adefence to that which he was charged. … [66] The evidence of his former counsel was that a s. 8 Charter challenge to the search warrant was considered. In the end, counseldetermined not to proceed with that challenge. While the exact reason for the decision not to proceed with such an argument was notprovided by counsel, it may be presumed this was due to the successful plea negotiations.

It might also have been presumed counseldetermined such a challenge had little prospect for success. [67] The balance of the concerns or complaints, which the accused raises, are completely and utterly unfocussed. The court is not tospeculate on what potential defences might be available without focus and assistance from the accused. The court, here, is being asked toaccept, develop and determine cogency of legal arguments.

Further, the court is being asked to just assume there might be something,someplace to a defence for the accused. [68] That approach is not, of course, acceptable. [48] I see no error in this reasoning. It is readily apparent why the sentencing judge described Mr. Aisaican’s submissions relatingto defences based on the Charter and Aboriginal and Treaty rights as inchoate. Read in context, I conclude that he used that term to mean

not only that the potential defences identified by Mr. Aisaican were not fully formed, but that they were so poorly developed and describedthat the sentencing judge did not understand what they were and, as a result, saw no potentially meritorious defences that should have beenbrought to Mr. Aisaican’s attention. Based on the evidence and submissions that was a reasonable conclusion, with one caveat, which Iaddress in paragraph [52] below. [49] It appears Mr.

Aisaican’s central point in relation to the Charter and his Aboriginal and Treaty rights arguments may havebeen that the Criminal Code and the CDSA do not apply on lands reserved for Cowessess in accordance with Treaty 4 and, in particular, tohim as what he referred to as a “Crown Indian”. With the greatest respect, that is not the law. Federal criminal laws apply on reserve land.Warrants may be issued to search a residence on a reserve, if the applicable legal requirements are met. Those requirements do not includepermission from a Band council. [50] Mr. Aisaican’s complaints relating to Mr.

McLeod’s legal services must be assessed in light of what was at issue on theexpungement application and what is at issue on this appeal. As noted above, the issue on the expungement application was not whetherthere may have been an arguable defence to the charges. The issue was whether the plea was voluntary, unequivocal and informed.

Whenan accused claims that a plea was uninformed or involuntary as a result of ineffective representation, the assessment of counsel’sperformance “proceeds from a strong presumption of competence, is tested against a standard of reasonableness, and accords no place tohindsight” (Cherrington at para 26; see also Kim at para 36). [51] In this case, the sentencing judge reached several conclusions about Mr. McLeod’s advice to Mr. Aisaican. He found thatMr. McLeod “had considered the file issues extensively both before and after the preliminary inquiry” (Expungement Decision at para 42).He accepted Mr.

McLeod’s evidence that he understood the Crown’s case and was ready and able to proceed to trial. He acceptedMr. McLeod’s testimony that he made Mr. Aisaican aware of “the complete detail of the file” (at para 41) prior to the preliminary inquiry,that there were extensive discussions between Mr. McLeod and Mr. Aisaican, and that Mr. Aisaican was well aware of the Crown’s case.The sentencing judge found Mr. Aisaican “was provided with all of the necessary information to permit him to properly consider andevaluate his options prior to entering his pleas” (at para 43). None of these conclusions are unreasonable.

They demonstrate that thesentencing judge, having weighed the evidence, rejected Mr. Aisaican’s assertion that he was uninformed as a result of the advice andrepresentation provided by Mr. McLeod. [52] As noted above, the one minor caveat in all of this relates to the firearms charge. Although Mr.

Aisaican did not press the issuein his submissions at the expungement hearing, he gave evidence that explicitly identified a potential claim that, as a Crown Indian (a termhe preferred), he had a right to hunt for food that would, he believed, provide a defence to the charge of possessing firearms without alicence pursuant to s. 91(1) of the Criminal Code. [53] There is case law that is relevant to this issue.

In R v Nayanookeesic (2004), 116 CRR (2d) 294 (Ont Ct J) [Nayanookeesic],the court found that a $60 licence fee imposed by regulations under the Firearms Act, SC 1995, c 39, infringed the “full and free privilegeto hunt” (at para 27) of the accused under the Robinson Superior Treaty of 1850. On that basis, it found the regulations were of no forceand effect to the extent of that inconsistency. On an appeal of the costs award, that declaration of invalidity was found to be beyond thejurisdiction of the Ontario Court of Justice.

However, the appeal court did not consider the trial judge’s reasoning in relation to validity:see R v Nayanookeesic (2005), (ON SC), 197 CCC (3d) 212 (Ont Sup Ct J). [54] In R v Many Fingers, 2011 ABQB 137, 50 Alta LR (5th) 146, the accused – a member of a Treaty 7 First Nation – wascharged with several offences, including possession of an unlicensed firearm pursuant to s. 91(1) of the Criminal Code. The court rejectedthe accused’s argument that his conviction and sentence infringed his Aboriginal and Treaty rights to hunt for food, as he was notexercising a right to hunt at the time of the offence.

However, the judge noted that if the accused had been exercising his right to hunt, hewould have reached the same conclusion as the trial judge in Nayanookeesic. [55] In Bellegarde v Canada (Attorney General), 2002 FCT 1131, [2003] 1 CNLR 320, the applicants claimed that the requirementthat every treaty Indian in Saskatchewan obtain a licence for their firearms violated their treaty rights.

The Federal Court found that thelicencing requirement constituted a prima facie infringement in the context of an application for an injunction. [56] On the other hand, in R v Sjolund, 2012 BCPC 393, [2013] 1 CNLR 327 [Sjolund], the court found that the Aboriginal Peoplesof Canada Adaptations Regulations (Firearms), SOR/98-205 [Firearm Regulations] – the regulations that apply to Mr. Aisaican – did notinfringe the accused’s right to hunt.

The courts that decided Nayanookeesic, Many Fingers and Bellegarde did not and were not required toundertake the analysis called for by the three-part test relating to an infringement of treaty rights specified in R v Sparrow, (SCC), [1990] 1 SCR 1075 [Sparrow]. In Sjolund, the court undertook that analysis. It found the licencing requirements were areasonable limitation aimed at ensuring public safety. It found the Firearm Regulations, which contain provisions to accommodateAboriginal hunters, did not impose undue hardship.

Finally, it held that the Firearm Regulations did not deny the accused, or Haida rightsholders generally, their preferred means of exercising hunting rights. [57] These decisions reflect the fact that although it is not clear whether Mr. Aisaican could have successfully defended theweapons charge on the basis that the Firearm Regulations infringed his right to hunt pursuant to Treaty 4, as modified by the NaturalResources Transfer Agreement, SS 1930, c 87, he may have had an arguable defence. Mr. Aisaican testified that he received no advicefrom Mr. McLeod about that potential defence, despite having advised Mr.

McLeod that he was a treaty Indian. There was no evidence tothe contrary. He also said he did not understand his rights at the time he negotiated the plea bargain and pleaded guilty. [58] It does not follow, however, that the plea should have been expunged as uninformed. To reiterate, Wong describes a test withtwo discrete steps. Assuming, without deciding, that Mr.

Aisaican cleared the first step, the second step required that he provide evidenceestablishing a reasonable possibility that if he had known of the potential treaty hunting rights defence, he would have opted for a trial andpleaded not guilty, or pleaded guilty, but with different conditions. There was no such affidavit evidence and Mr. Aisaican did not testify tothat effect at the expungement hearing. His evidence focused on the substance of the defence and the lack of advice, not what he wouldhave done if he had been better informed. [59] Further, the evidence supports the conclusion Mr.

Aisaican would have agreed to the plea bargain even if he had been advisedthat there was an arguable case that he had a treaty rights defence to the weapons charge. That potential defence was by no means a clear

winner. There is no binding authority on point and no evidence to suggest the Crown would have conceded the point or changed its stancein the plea bargain. R v Badger, (SCC), [1996] 1 SCR 771, demonstrates that reasonable regulations aimed at ensuringsafety do not infringe Aboriginal or Treaty rights to hunt for food, which is the right asserted by Mr. Aisaican. As Sjolund demonstrates, atrial court would have been required to undertake a Sparrow analysis. Mr. McLeod’s advice relating to the drug charges would haveremained unchanged. The other factors Mr.

Aisaican claims were the reasons he pleaded guilty – his state of mind and the financial andother pressures that he says left him no option but to plead guilty – would have remained substantially unchanged. [60] For these reasons, I find no reversible error in the sentencing judge’s conclusion that the pleas were voluntary, despite the factMr. Aisaican was not advised of this potential defence to the weapons charge. [61] Mr. Aisaican also complained about a lack of disclosure, effectively raising the prospect of a s. 7 Charter argument.

Inparticular, he said he did not have the chance to view the videotape of two witness statements that contained material that might have beenuseful for his defence. The sentencing judge found that the accused – who heard the evidence of these witnesses at the preliminary inquiry– “knew what these two witnesses were saying about his involvement” (at para 40). He also found transcripts of the witness interviewswere available for Mr. Aisaican to review when he went to Mr. McLeod’s office and that he had the opportunity to review all of thedisclosure. [62] There was evidence to support these findings of fact.

In any event, it is not necessary for an accused to personally review allCrown disclosure before pleading guilty for the plea to be informed. Whether a particular accused knows enough to be informed turns onthe facts. Here, the sentencing judge found that Mr. Aisaican had the benefit of repeated discussions with and thorough advice fromexperienced counsel who knew the file. [63] Finally, I find no error in the sentencing judge’s conclusion that there was no reasonable basis for the allegation of collusionbetween the RCMP and certain witnesses.

As to the allegations raised for the first time in this Court – that Mr. McLeod was conflicted andthat there was collusion between the RCMP, legal aid and Mr. McLeod, which resulted in missing disclosure – I would not be prepared togrant leave to appeal on these grounds. I see no potential merit in those arguments. The proposed fresh evidence touching those issues,even if believed, could not be expected to have affected the result. V. Conclusion [64] For these reasons, Mr.

Aisaican’s applications to adduce fresh evidence are denied and his conviction appeal is dismissed. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Jackson J.A.” Jackson J.A.I concur. “Schwann J.A.” Schwann J.A.