R v Hodgson, 2019 SKCA 79

Court of Appeal for Saskatchewan Docket: CACR3063 Citation: R v Hodgson , 2019 SKCA 79 Date: 2019-08-21 Between: Ronald Hodgson Appellant And Her Majesty the Queen Respondent Before: Ryan-Froslie, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr. Justice Leurer On Appeal From: Provincial Court, Regina Appeal Heard: March 21, 2019 Counsel: Christopher Funt for the Appellant Robin Neufeld for the Respondent Schwann J.A. I. Introduction [ 1 ] Ronald Hodgson entered a guilty plea to each of the following offences in the Provincial Court: (

a) production of marijuana contrary to s. 7(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 (Information 24521478); (

b) possession of a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act (Information 46739968); (

c) unlawfully trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act (Information 46739999); and (

d) participation in a criminal organization for the purpose of enhancing the ability of the said organization to commit the indictable offence of robbery with violence, extortion, drug trafficking and kidnapping, contrary to s. 467.11 of the Criminal Code (Information 35756270). [ 2 ] Mr. Hodgson’s pleas were accompanied by a joint submission on sentence that was part and parcel of a global resolution to 16 separate charges stemming from 4 informations on charges brought by the federal and provincial Crowns.

In exchange for a guilty plea on four of the charges, the federal and provincial Crowns stayed the remaining 12 charges and entered a stay of proceedings on a host of other unrelated matters. Mr. Hodgson’s willingness to plead guilty was also predicated on the federal Crown entering a stay of proceedings against his common law spouse on drug-related charges. [ 3 ] Mr. Hodgson’s guilty pleas and the joint submission on sentence followed numerous court appearances before the same trial judge. Mr.

Hodgson was self-represented during all of these proceedings, including at the moment when he entered his guilty pleas. [ 4 ] On appeal to this Court, Mr. Hodgson seeks to expunge his guilty pleas and set aside all of the convictions on the above- noted charges except for the possession of a controlled substance charge set out in information 46739968, which proceeded summarily. Mr. Hodgson argues the pleas were invalid because he was not informed that a guilty plea precluded an appeal from an earlier ruling denying him court-appointed counsel. [ 5 ] For the reasons that follow, I would dismiss Mr.

Hodgson’s appeal. II. Proceedings in the Provincial Court [ 6 ] Mr. Hodgson was charged with 16 counts of drugs, weapons, criminal organization, and conspiracy to traffic and commit robbery offences pursuant to four separate informations. In addition to the charges set out in the four informations, at the time of his guilty plea, Mr. Hodgson was facing a further drug-related charge pursuant to another information [Swift Current charge]. The oldest of the various charges dated back to 2013.

[ 7 ] Prior to pleading guilty, Mr. Hodgson had been dealing with his charges for several years with limited assistance from legal counsel. He initially retained private counsel in 2013, but those services came to an end at an undisclosed point in time. Mr. Hodgson was next represented by Legal Aid; however, for reasons that were not fully explained in the trial transcript, that relationship ended in January of 2016. When additional charges were laid in May of 2016, Mr. Hodgson again sought representation from Legal Aid. On this occasion, Legal Aid declined to act for him because of a conflict of interest.

In September of 2016, Mr. Hodgson once again retained private counsel to pursue bail and work towards a global resolution for all of his charges. His counsel was granted leave to withdraw before a global resolution could be finalized. Thus, as things stood in May of 2017, Mr. Hodgson was self-represented on all of the charges that had been laid against him. [ 8 ] A series of five court appearances occurred in the latter part of 2017, beginning with Mr. Hodgson’s application for court- appointed counsel. All of the proceedings took place before the same trial judge. What follows is a

summary of the purpose and result of each court appearance. [ 9 ] The first appearance, scheduled for August 23, 2017, was in response to Mr. Hodgson’s application for court-appointed counsel. Mr. Hodgson was present in court. Also present were counsel for the federal and provincial Crowns, along with counsel representing both levels of government in response to Mr. Hodgson’s application to have the government pay for his legal counsel. During the course of this court appearance, Mr. Hodgson informed the court that he had had the benefit of legal advice from an experienced criminal lawyer who, on Mr.

Hodgson’s direction, worked with the Crown from November 2016 until April 2017 on a global resolution to all of his charges. Unfortunately, the Crowns’ offer had not been made by the time that counsel had ceased to act for Mr. Hodgson. Importantly, Mr. Hodgson went on to say the following: Now, at first Lyndon Heidinger was -- was hired to do a bail review and then he didn’t think the bail review was worth going ahead, so he tried to get a global resolution.

Now, I believe he applied in the end of November and beginning of December for a global resolution and I believe the offer from the Crown never came in on the global resolution until April of 2017. By that time I had [incurred] some more charges in March of 2017. Them other charges from that joined in, I believe, two weeks after that, in April, and -- I’ve never actually said no to the global resolution, as I have stated as -- I’ve never received any bit of any disclosure on any of my charges. [ 10 ] In the course of Mr.

Hodgson’s submissions, he made it clear to the trial judge that he was not conversant with the facts of the case against him. With Mr. Hodgson’s consent, the trial judge adjourned his application for six weeks to ensure that he received disclosure from the Crowns. [ 11 ] Proceedings resumed on October 6, 2017. At that time, Mr. Hodgson expressed concern with his inability to access the disclosure that had been provided by the Crowns subsequent to the previous court appearance. The trial judge once again set over Mr. Hodgson’s application for court-appointed counsel.

In the course of discussion amongst the parties, the trial judge clarified where things stood: “So I am getting to the final point, the bottom line. I am prepared to adjourn it again for a brief period of time provided the Crowns keep their offers open to you. I’m sure they would, for you to get the rest of the disclosure that you don’t have, review it and decide if you want to resolve it or continue with your court-appointed court application”. [ 12 ] When the parties returned to court on October 23, 2017, Mr.

Hodgson again informed the trial judge of the difficulty he had experienced accessing the Crowns’ disclosure because it had been provided in flash drive format. As such, and as he explained to the trial judge, he had been unable to review the disclosure prior to this court appearance. Mr. Hodgson also indicated to the trial judge that he had had plea discussions with the provincial Crown and inquired if the Crowns’ existing offer was “final”.

The following exchange then took place with the trial judge: THE COURT: Am I hearing you right when you’re saying that if you had the disclosure and you were able to go through it, that you might consider the Crowns’ offer? THE ACCUSED: I would consider negotiating on it maybe. THE COURT: Yeah. Mr. Hodgson’s application for court-appointed counsel was adjourned a further two weeks. [ 13 ] The application for court-appointed counsel finally proceeded on November 6, 2017. The trial judge rendered an oral decision on November 10, 2017, denying Mr. Hodgson court-appointed counsel [court-appointed counsel decision].

Mr. Hodgson’s charges were set over for case management two weeks hence. [ 14 ] Case management ensued on November 28, 2017. It became apparent at the start of these proceedings that the Swift Current charge was the sticking point to an overall joint resolution of the charges against Mr. Hodgson. For this charge, the federal Crown (a different counsel from the one who had appeared before the trial judge) sought a substantial sentence consecutive to the sentence being sought in relation to the other four informations. Nonetheless, in the course of this discussion, Mr.

Hodgson made clear to the trial judge that he was hopeful he could “work out the matters with [both federal Crown counsel] today” along with his provincial charges. [ 15 ] In the midst of the case management discussion, Mr. Hodgson switched gears to indicate that he had heard about the possibility of appealing the court-appointed counsel decision, stating as follows: “I heard that there’s a process. Maybe I could appeal for court-appointed, then I heard there’s another process, I wouldn’t stand a chance on it. I’m overwhelmed. I don’t even know what to say”. [ 16 ] The trial judge initially sidestepped Mr.

Hodgson’s inquiry and then, in some considerable detail, proceeded to explain the case management process: its purpose, Mr. Hodgson’s role in it, and the requirements of s. 606 of the Criminal Code with respect to guilty pleas. The trial judge continued with an explanation about joint submissions on sentence and the re-election process under s. 536 of the Criminal Code . Towards the end of his explanation, the trial judge returned to Mr. Hodgson’s inquiry about the possibility of an appeal from the court-appointed counsel decision. The trial judge informed Mr.

Hodgson he had the right to appeal that decision within 30 days. The trial judge also said there was “another avenue” open to Mr. Hodgson, which was to send the charges to the Court of Queen’s Bench where Mr. Hodgson could re-apply for court-appointed counsel. Finally, the trial judge made it clear to Mr. Hodgson that

his charges would not be adjourned further and that if no resolution were forthcoming, dates would be set for a preliminary inquiry and any Charter applications. [ 17 ] The case management discussion then returned to the possible resolution of all of the charges and how the Swift Current charge in particular might be resolved. After a wide-ranging discussion, the trial judge laid out the following options that were open to Mr. Hodgson: THE COURT: You -- I think you understand what your options are. On Friday morning, you know, we’ll meet again.

You tell me what you want to do, but it will not be, sort of, a two hour -- sort of the thing like today. I’m just going to ask you very pointedly, “What” -- “What is your decision?” Now, if you decide to plead guilty to some or -- or the complete deal, you cannot then say -- and if you agree on the sentence, the 32 months and six years and 8 months, you cannot then say to me, “I’m not guilty of that one” -- THE ACCUSED: Oh, I understand that. THE COURT: -- “and I” -- “I want less time”, right? The -- a deal’s a deal. You’re in or out -- THE ACCUSED: Yeah.

THE COURT: -- or else we -- okay, on the 32 months or the six years 8 -- 8 months or you set them for trial or you set them for preliminary inquiry with -- electing QB judge alone or QB judge with a jury or you can waive your preliminary inquiries, I’ll send them over to Queen’s Bench for December the 22nd, okay, because I’ve heard that date already, except all of them would not go over there, because the absolute jurisdiction offences would stay here, right? Proceedings were adjourned to December 7, 2017. [ 18 ] At the commencement of court on December 7, 2017, the trial judge began proceedings by asking Mr.

Hodgson what he had decided. As reflected by the following exchange, Mr. Hodgson made it clear to the court that he intended to plead out: [THE COURT] … So, Mr. Hodgson, what have you decided you’re going to do today? THE ACCUSED: I just have a couple of questions here, but I plan on proceeding -- pleading out to a few things. THE COURT: Okay. THE ACCUSED: I just wanted to make sure I got them all accurate. Mr. Hodgson then sought clarification on two points, the first of which pertained to sentence: THE ACCUSED: I’ve just got a couple of questions.

THE COURT: Well, as we go through it too, I’m going to be asking both counsel to -- you know, we’re going to go through the strict requirements of the Criminal Code , and ask for counsel to assist me as -- as a judge, and you, so there’s no misunderstandings or miscommunications, if that helps you. Okay? But what were your questions to me, sir? THE ACCUSED: One, Your Honour, was, if I plead out to some charges today, I believe the total for the charges I’d be pleading out to would be 60 months, my remand credit would be about 28 months, which left about 32 months -- [PROVINCIAL CROWN COUNSEL]: Yeah.

That’s -- Your Honour, it’s -- his -- the remand credit has changed somewhat because -- since we started this. So it’s now 28.5 months. THE ACCUSED: Okay. So -- THE COURT: Well, that’s better. THE ACCUSED: Yeah. But I will have the -- THE COURT: Unless you -- unless you want the 32. THE ACCUSED: No. THE COURT: I’d take the 28-and-a-half, but that’s just me. The second question posed by Mr. Hodgson related to his medical information: THE COURT: Any -- sorry, any other questions? THE ACCUSED: Yeah.

Another one was, if I plead out, I’m not arguing the -- the pleas, or I’m not arguing the sentence, or the -- would there -- the time they’re asking for, but I’d like to enter some medical evidence into the files. Not to dispute the time or anything -- THE COURT: Yeah. THE ACCUSED: -- but I was just told that it would help me with my Pen placement. So I was asking if I could have some time to enter the medical evidence, just for my Pen placement. And then --

THE COURT: Oh, no. We’re doing whatever we’re doing today. We’re doing whatever we’re doing today. Okay? There’s no more adjournments, there’s no more time. THE ACCUSED: No. I wasn’t asking for any more time. I (INDISCERNIBLE) -- THE COURT: No. I thought you were suggesting that we adjourn it so that you can file some medical evidence -- is it for sentencing? THE ACCUSED: But I was still willing to plead out today. [ 19 ] As mentioned above, the sticking point to a global resolution of all charges appeared to be the Swift Current charge. Once Mr.

Hodgson agreed to hive off that matter, and have it dealt with separately, he and both Crowns indicated to the court that they were prepared to resolve all of the 16 charges set out in the four informations by way of guilty pleas and a joint submission on sentence. [ 20 ] Before the trial judge undertook a plea comprehension inquiry, both the provincial and federal Crowns confirmed their understating as to which of the 16 charges that guilty pleas would be tendered. Mr. Hodgson then pointedly asked both Crowns if the other 12 charges set out on the four informations would be stayed.

Both the federal and provincial Crowns gave him that assurance. Mr. Hodgson next identified 3 “fail to appear” charges (that were not part of the charges before the court) and asked that they be resolved in his favour. The provincial Crown directed a stay of proceedings in relation to these charges as well. This done, Mr. Hodgson then asked each Crown if a stay of proceedings would be entered in relation to the charges that had been brought against his common law spouse. Mr.

Hodgson was told by the federal Crown that if he pleaded guilty to the 4 charges, the drug-related charges against his spouse would also be stayed. [ 21 ] After all of these assurances were received, the trial judge conducted a plea comprehension inquiry on the charges to which Mr. Hodgson was prepared to plead guilty. Pursuant to his plea resolution with the Crowns, Mr. Hodgson tendered a guilty plea on 4 of the 16 charges and the federal and provincial Crowns formally stayed the remaining 12 charges. The trial judge then read aloud s. 606(1) and s. 606(1.1) of the Criminal Code verbatim to Mr.

Hodgson and specifically asked him to confirm that his guilty pleas on the 4 charges were offered freely and voluntarily and that the essential elements of each offence were admitted. Mr. Hodgson did so. The trial judge informed him that the court was not bound by any agreement with respect to a sentence that may have been struck between the Crowns and Mr. Hodgson. [ 22 ] At the conclusion of the plea comprehension inquiry, the trial judge accepted the guilty pleas as tendered and sentenced Mr. Hodgson in accordance with the joint submission that had been presented to the court. III. Grounds of Appeal [ 23 ] Mr.

Hodgson appeals from conviction on the three indictable charges and seeks to expunge his guilty plea in relation to each. Although Mr. Hodgson had itemized numerous grounds of appeal in the notice he initially filed with this Court, his appeal was subsequently narrowed in his factum to the following, singular ground – that he “entered guilty pleas under the misapprehension that the errors prior to the guilty pleas, particularly, the denial of court-appointed counsel, could be challenged on appeal from a guilty plea”. IV. Fresh Evidence: Mr. Hodgson’s Affidavits [ 24 ] Mr.

Hodgson applied to adduce fresh evidence in the form of an affidavit sworn by him on October 31, 2018 [First Affidavit]. In this affidavit, Mr. Hodgson deposed that he was “overwhelmed at the prospect of defending [himself] at trial” and did not feel he “could grasp the complexities of trial procedure and the law” (at para 6). He thought the decision refusing court-appointed counsel was “unfair” and “could be fixed by an appeal”. As to his understanding of his right to appeal the court-appointed counsel decision, Mr. Hodgson deposed as follows: 7.

The next appearance was also before [the trial judge] on November 28th, 2017. [The trial judge] told me that I could appeal his decision denying me court-appointed counsel. I recall being told this after I was told about the consequences of a guilty plea. 8. I believed, based upon what the judge said during this court appearance, that it would be possible to plead guilty and preserve my right to appeal the conviction based upon an unfair process leading to the guilty plea, including, the denial of court-appointed counsel.

I did not understand prior to the guilty pleas that a guilty plea is, in law, an acknowledgment of guilt and a waiver of all procedural protections including an appeal . (Emphasis in original) [ 25 ] Mr. Hodgson continued: “Had I known my guilty plea would waive my rights to appeal the conviction based upon errors prior to the plea, I would not have plead guilty to any counts on Informations ending 478, 999, or 270” (at para 11). [ 26 ] In the course of the appeal hearing, it became apparent to the panel that he had, in fact, tried to appeal the court-appointed counsel decision. At the appeal hearing, Mr.

Hodgson was given leave to file an additional affidavit to explain what had transpired. In a second affidavit, sworn on February 21, 2019 [Second Affidavit], Mr. Hodgson deposed as follows: 20. On December 6, 2017, I filed a Notice of Appeal to the Court of Queen’s Bench in Regina to appeal [the trial judge’s] decision denying my application for CAC [court-appointed counsel]. … 21. Prior to the December 6, 2017 filing, I spoke to someone at the Queen’s Bench Registry whose name I do not recall and she told me

that she did not think that the Queen’s Bench had the authority to overturn the denial of CAC but she promised to put the Notice ofAppeal on file. I took this to mean that even if I entered a plea of not guilty and elected a trial in Queen’s Bench, I would not necessarilyhave a lawyer there because the Queen’s Bench cannot interfere with [the trial judge’s] decision on CAC. 22. Also at about the same time, I also spoke to [a court official] in the Queen’s Bench Registry who told me that the matter of appealingthe CAC application was a matter for the Court of Appeal. 23.

Also prior to pleading guilty, I called the Court of Appeal registry where I spoke to … [the Registrar] and … [the Deputy Registrar].Both of them explained the same thing to me: the Court of Appeal did not deal with reviewing the denial of an application for a CAC.They told me that the Court of Appeal reviews verdicts and sentences. They told me that the only time that the Court of Appeal woulddeal with a CAC denial is after sentencing. [27] As Mr. Hodgson explained in the Second Affidavit, he had initially filed an appeal of the court-appointed counsel decisionwith the Court of Queen’s Bench on December 6, 2017.

However, based on conversations he subsequently had with various courtofficials, he understood that, in order to appeal the court-appointed counsel decision, he had to be sentenced first. Thus, on December 22,2017, after sentence was imposed and the other charges stayed, Mr. Hodgson filed another appeal in the Court of Queen’s Bench withregard to the court-appointed counsel decision. In a short fiat rendered on January 31, 2018, a judge of that court determined the Court ofQueen’s Bench lacked jurisdiction to deal with Mr. Hodgson’s appeal. [28] Finally, in paragraph 29 of his Second Affidavit, Mr.

Hodgson deposed that, as of February 8, 2018 (the date he was notifiedof the result in the Court of Queen’s Bench), he “still believed that my convictions could be set aside because I had been denied CAC”(emphasis added). [29] The Crown did not oppose the introduction of the fresh evidence on appeal. V. Analysis A. Applicable Legal Principles [30] A guilty plea is a formal admission of guilt to the crime with which an accused stands charged.

It relieves the Crown from theburden of proving guilt beyond a reasonable doubt and amounts to a waiver of procedural safeguards, notably the right to make fullanswer and defence, the right to remain silent, the right against self-incrimination and the presumption of innocence: R v Wong, 2018SCC 25 at para 62, [2018] 1 SCR 696 [Wong], and R v T.(R.) (1992), (ON CA), 58 OAC 81 (CA) [T.(R.)]. [31] For a guilty plea to be valid, it must be “voluntary, unequivocal and informed” (Wong at paras 3 and 63, and R v Aisaican,2019 SKCA 58 at para 50 [Aisaican]).

A person who is convicted on the basis of a guilty plea may appeal from conviction and seek towithdraw and set aside the guilty plea. An appeal of this nature necessarily invokes s. 686(1)(a)(iii) of the Criminal Code – that is, wasthe process procedurally fair? Did it give rise to a miscarriage of justice?

See also R v Eide, 2011 SKCA 81 at para 6, 375 Sask R 34; R vLewis, 2012 SKCA 81, 399 Sask R 180; R v Short, 2012 SKCA 85 at para 3, 399 Sask R 192; and Aisaican at para 25. [32] Section 606(1.1) of the Criminal Code codifies the three qualities a valid guilty plea must possess: it must be voluntary, itmust be unequivocal and it must be informed. The Criminal Code also imposes a duty on trial judges to undertake a plea comprehensioninquiry in order to be satisfied these requirements have been met.

However, as stipulated in s. 606(1.2), failure on the part of the trialjudge to fully inquire as to whether the conditions set out in s. 606(1.1) have been met – one being that the accused understands thenature and consequences of the plea – does not invalidate the plea (R v Urquhart, 2017 SKCA 88 at paras 9–11 [Urquhart]). [33] Turning to the informed component, both the majority and dissenting opinions in Wong agreed that for a guilty plea to beinformed an accused must be aware of the criminal consequences of the plea as well as any legally relevant collateral consequences (atparas 4, 43 and 67). [34] Criminal consequences of a guilty plea have been understood broadly to encompass the effect of the plea and theconsequences of having made the plea, in light of the nature of the allegations made against an accused: Wong at para 43, R v Taillefer /R v Duguay, 2003 SCC 70 at para 85, [2003] 3 SCR 307 [Taillefer], T.(R.) at para 14; and s. 606(1.1) of the Criminal Code.

As aminimum, consequences refers to the realization that convictions would flow from the guilty plea as well as an appreciation for thepotential penalty that would attach (Wong at para 67 and T.(R.) at para 37). [35] Wong endorsed an expansive approach as to what might constitute a legally relevant collateral consequence. In broad terms, itis said to encompass “one which bears on sufficiently serious legal interests of the accused” (at paras 4 and 44).

A legally relevantcollateral consequence will “typically be state-imposed, flow from conviction or sentence, and impact serious interests of the accused”(at para 9). This type of consequence is secondary or collateral to the criminal process and has an impact on the offender. Consequencesof this nature are those that affect the fundamental interests of an accused person and may “have a more significant impact on theaccused than the criminal sanction itself” (at para 72).

Possible collateral consequences are varied – by way of illustration, immigrationmatters, employment barriers and the indefinite suspension of a driver’s licence have each been found to be a sufficiently seriouscollateral consequence to a guilty plea: see, for example, R v Aujla, 2015 ONCA 325, and R v Shiwprashad, 2015 ONCA 577, 328 CCC(3d) 191. [36] Where an accused person enters a guilty plea unaware of a legally relevant consequence, it raises questions about proceduralfairness. But, as Wong makes clear, “not every guilty plea entered in such circumstances will result in prejudice that is serious enough to

constitute a miscarriage of justice” (Wagner J. (as he then was) in dissent (writing for the minority), but not on this point, at para 44; see also s. 686(1)(a)(iii) of the Criminal Code ). An uninformed guilty plea raises the possibility of a breach of procedural fairness, but that alone does not equate to a miscarriage of justice. A court must go on to consider the effect of the alleged lack of information and whether it amounts to a miscarriage of justice. [ 37 ] The framework for striking an uninformed guilty plea involves two discrete steps: (

a) whether the accused was misinformed about sufficiently serious information; and (

b) whether that lack of information resulted in prejudice ( Wong at para 33 ; Aisaican at para 41 ). As to the first part of this test – whether an accused was misinformed – a court must objectively assess “whether the information unknown to the accused falls within the scope of what an accused must know to give an informed plea” ( Wong at para 34 , quoting Taillefer at para 112 ). [ 38 ] At the second stage of the Wong analysis, an accused must establish prejudice, i.e., that being misinformed about a sufficiently serious matter had an impact on his or her plea.

The majority and dissenting opinions in Wong differed on whether prejudice should be assessed on a subjective or objective basis. Since the decision to plead guilty involves considerations that are personal to an accused person, the majority were of the view that prejudice must be approached from a subjective perspective. Accordingly, this part of the assessment examines whether the accused would have taken a meaningfully different course of action in pleading to the charges.

In practical terms, this means that an accused who seeks to withdraw a guilty plea on the basis of being unaware of legally relevant consequences at the time of the plea must file an affidavit “establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions” ( Wong at para 6 ; see also paragraph 19). [ 39 ] While an affidavit can explore an accused’s subjective choice, the inquiry does not end there. As Wong points out, a court is not obliged to automatically accept the assertions of the accused.

Rather, the accused’s claim must be scrutinized and measured against objective circumstances, looking to objective, circumstantial evidence to test its veracity. The majority in Wong explained its reasoning on this point in the following way: [26] That the analysis focusses on the accused’s subjective choice does not mean that a court must automatically accept an accused’s claim. Like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances.

Courts should therefore carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility. Such factors may include the strength of the Crown’s case, any concessions or statements from the Crown regarding its case (including a willingness to pursue a joint submission or reduce the charge to a lesser included offence) and any relevant defence the accused may have.

The court may also assess the strength of connection between the guilty plea and the collateral consequence, that is, whether the trigger for the collateral consequence is the finding of guilt as distinct from a particular length of sentence. More particularly, where the collateral consequence depends on the length of the sentence – keeping in mind that a guilty plea typically mitigates a sentence – the court may have reason to doubt the veracity of the accused’s claim. [ 40 ] Picking up on this point, R.W.

Salhany, Canadian Criminal Procedure , 6th ed (Aurora, Ont: Canada Law Books, 1994), explains as follows: “Although the inquiry is subjective to the accused, it allows for an objective assessment of the credibility of the accused’s subjective claim measured against objective circumstances” (at para 6.1895). [ 41 ] This concept was explored further in R v Girn , 2019 ONCA 202 , 373 CCC (3d) 139 [ Girn ], where Watt J.A. explained as follows: [70] A final point concerns the consequences of focusing the prejudice analysis on the subjective choice of the accused.

It does not follow from this focus that a court must automatically accept an accused’s claim. The credibility of the claim is at large, not a given. The court must measure the accused’s claim about what his subjective and fully informed choice would have been against the objective circumstances as revealed by the evidence.

Relevant factors in this assessment include, but are not limited to: i. the strength of the Crown’s case; ii. any concessions or statements from the Crown about its case (for example, a willingness or refusal to participate in a joint submission or reduce the charge to a lesser included offence); iii. any available defence; and iv. the strength of connection between the plea of guilty and the collateral consequence (where the collateral consequence depends on the length of the sentence, a court may have reason to doubt the veracity of the claim).

See Wong at paras. 26, 28 . [ 42 ] Finally, a “reviewing court is not limited to an examination of the objective circumstances contemporaneous with the original plea, but may also test the veracity of the accused’s assertions in their own right” ( Wong at para 28 ). B. Application to the Facts [ 43 ] Considered in the most favourable light, Mr. Hodgson’s central assertion is that he believed he could plead guilty while maintaining the right to appeal the court-appointed counsel decision.

In my view, it is unnecessary to determine whether the preservation of the right to appeal the court-appointed counsel decision is the type of consequence contemplated by Wong because, in the circumstances of this case, Mr. Hodgson’s appeal can be determined on the miscarriage of justice prong of the Wong test.

[ 44 ] If he had not pleaded guilty, Mr. Hodgson would have had two broad options: either to continue proceedings in Provincial Court, which would have led to a trial, or re-elected to proceed in the Court of Queen’s Bench, which would have also led to a trial. In my view, on the evidence, there is no reasonable possibility that Mr. Hodgson would have pursued either alternative. [ 45 ] I set aside completely the possibility that he would have elected to proceed in the Court of Queen’s Bench. While this would have provided him a forum in which to re-initiate a request for court-appointed counsel, Mr.

Hodgson represented to the trial judge that he was aware that this option was open to him, but he had been told that he “didn’t stand a chance for it”. [ 46 ] This then leaves the possibility that with different information Mr. Hodgson would have continued on to trial in Provincial Court. [ 47 ] As set out above, the second step of the Wong framework asks whether the lack of information resulted in subjective prejudice to the accused. To this end, an accused seeking to withdraw a guilty plea must demonstrate prejudice by filing an affidavit establishing a reasonable possibility that he or she would have either (

a) opted for trial and pleaded not guilty, or (

b) pleaded guilty but with different conditions. [ 48 ] While this inquiry is subjective to Mr. Hodgson, “like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances” ( Wong at para 26 ). Thus, as stated above, a reviewing court may assess the veracity and credibility of an accused’s claim by reference to objective, contemporaneous evidence tested against a standard of reasonable possibility (see paras 79–94). Factors relevant to this analysis include, but are not limited to, the following: (

a) the strength of the Crown’s case; (

b) any concessions or statements from the Crown including a willingness to pursue a joint submission or reduce the charge to a lesser included offence; and (

c) any available defence. The reviewing court may also consider the “strength of the connection between the guilty plea and the collateral consequence” ( Wong at para 26 ; see also Girn at para 70 (iv)). [ 49 ] With this framework in mind, I return to Mr. Hodgson’s First Affidavit and to the record. As to what he would have done differently had he known he could not appeal the court-appointed counsel decision, Mr.

Hodgson’s states the following: “Had I known that my guilty plea would waive my rights to appeal the conviction based upon errors prior to the appeal, I would not have plead guilty to any counts on Informations ending 478, 999, or 270” (at para 11). [ 50 ] Three points can be drawn from this assertion. First, although Mr. Hodgson contends his inability to appeal the court- appointed counsel decision amounts to subjective prejudice, paragraph 11 of the First Affidavit does not quite align with that argument. Mr.

Hodgson deposed that by pleading guilty he was unaware that he waived his right “to appeal the conviction based upon errors prior to the appeal” (emphasis added). That said, I recognize that Mr. Hodgson went on to express concern for what he described as an unfair process leading up to his guilty pleas, including the denial of court-appointed counsel and, as such, he can be understood as saying that the waiver of his right to appeal that decision gave rise to prejudice, which resulted in a miscarriage of justice. [ 51 ] Second, nowhere in either affidavit does Mr.

Hodgson state he would have opted for a trial and pleaded not guilty. Rather, he simply says he would not have pleaded guilty. True, the procedural consequence, if not the implicit understanding of a not guilty plea, is a path leading to trial. That said, Wong places the onus squarely on an accused to establish subjective prejudice by way of affidavit evidence. This hurdle is not a high one, but it is a hurdle nonetheless. [ 52 ] Third, importantly, Mr.

Hodgson does not state that he would have opted for a trial on all 16 charges set out in the informations instead of pleading guilty to the 4 offences for which he was convicted. Mr. Hodgson simply says he would not have pleaded guilty to any of the counts on the informations ending 478, 999 or 270. Admittedly, Wong does not prescribe the content of an affidavit, but, in my view, the pleaded differently requirement established in Wong must be assessed against what an accused actually attested to by way of an affidavit. In my view, Mr.

Hodgson’s omission is material and goes directly to the credibility of his assertion. [ 53 ] Simply stating he would not have pleaded guilty to any count on those informations is a markedly different thing from stating that he was prepared to go to trial on all of the 16 charges contained in the four informations. A trial on all 16 charges would have exposed Mr. Hodgson to risk on two fronts. First, he would have faced the possibility of conviction on all of these charges (compared to the 4 he had pleaded guilty to) and, second, he would not have had the benefit of a joint submission on sentence.

Similar reasoning was applied in Girn : “A trial would have put him at risk of conviction of three times the number of offences to which he had pleaded guilty, deprived him of the mitigating effect of his pleas of guilty on sentence and likely provided sustenance for the Crown’s request that he receive a penitentiary sentence” (at para 81). Mr. Hodgson addressed neither point in his affidavit. [ 54 ] Any concession that may have been made by the Crown is also pertinent to an objective assessment of an accused’s subjective claim. This is a significant consideration in Mr.

Hodgson’s case because, as I have noted, although he pleaded guilty to 4 offences on four informations, he did so on the express understanding that the other 12 charges would be stayed, along with a host of other charges. Moreover, through the plea negotiations, Mr. Hodgson was able to secure the Crown’s agreement to have the drug charge against his common law spouse withdrawn or stayed. This outcome may have been lost – or at the very least put at risk – had he not plead guilty. [ 55 ] Other contextual factors that bear on the credibility of Mr. Hodgson’s assertion include the following: (

a) Both the federal and provincial Crowns are on record as stating their case was strong. While this is by no means dispositive of the issue, there is no evidence on the record to suggest otherwise.

(

b) The trial judge undertook a thorough s. 606(1.1) plea inquiry with Mr. Hodgson and ensured the provincial and federal Crowns provided a

summary of the facts related to the four offences to which he tendered a plea of guilty. As part of that process, Mr. Hodgson specifically confirmed that he understood the consequences of his plea. (

c) The guilty pleas were entered on December 7, 2017, after six separate court appearances before the same judge. (

d) Mr. Hodgson is on record as stating from the start that if he got disclosure, he would entertain a guilty plea. (

e) The record discloses that Mr. Hodgson was actively engaged in plea discussions and had sought a global resolution with the federal and provincial Crowns both during the actual court proceedings and pursuant to separate discussions that had apparently taken place outside of the court process. (

f) The trial judge adjourned proceedings on a number of occasions to ensure Mr. Hodgson had full disclosure. (

g) Each court appearance (save for November 10, when the court-appointed counsel decision was simply read into the record) involved considerable discussion about the possibility of a global resolution to all of the offences. (

h) The record shows Mr. Hodgson to have been not only fully engaged in the discussions that took place during the case management meeting on November 23 and sentencing on December 7, but that he was highly alert to offers put forth by the provincial and federal Crowns and insistent that any resolution had to include the charges laid by both Crowns. (

i) When Mr. Hodgson entered a guilty plea to the 4 charges, he was directive and assertive with regard to all 16 charges, along with a host of other criminal matters. Not only did Mr. Hodgson bargain to have the remaining 12 charges stayed, but he aggressively bargained to have the charges against his common law spouse withdrawn or stayed, for a stay of proceedings on 3 fail to appear charges, a stay on another charge and, finally, persuaded the Crown to “get rid of” several fines that had been imposed for default of payment of various surcharges. (

j) Mr. Hodgson worked with the Crowns to ensure there was a joint submission on sentence accompanying the guilty plea process and to preserve the offer that had been originally put forth at the start of the proceedings. (

k) Mr. Hodgson had the benefit of legal advice from an experienced criminal lawyer who worked with the Crown on a global resolution to all of Mr. Hodgson’s charges from November 2016 until April 2017. (

l) Mr. Hodgson has not identified a defence to any of the charges nor is one obvious from the record. Although an accused need not show there would be a viable defence had the trial proceeded, the majority in Wong said, “any relevant defence the accused may have” (at para 26) is an objective examination that can be used to “test the veracity of the accused’s assertions in their own right” against a standard of “reasonable possibility of prejudice” (at para 28). [ 56 ] Finally, it has not gone unnoticed that the guilty pleas tendered by Mr.

Hodgson were the product of a plea bargain struck with the federal and provincial Crowns. A guilty plea is one aspect of the plea bargaining process. As the Supreme Court observed in R v Anthony–Cook , 2016 SCC 43 , [2016] 2 SCR 204, the plea bargaining system is both commonplace and fundamental to the administration of the criminal justice system in Canada. The disposition of cases by a plea bargain benefits all participants in the criminal justice system, preserves limited resources and introduces certainty into the criminal process (at paras 35–40).

As noted in Wong , the plea resolution process strikes a balance between the stability, integrity, and efficiency of the administration of justice, ensures a procedurally fair trial and safeguards the rights of an accused: “The benefits associated with guilty pleas will be lost and the very functioning of the criminal justice system will be threatened if such pleas are set aside lightly” (at para 65). All of that said, I recognize that the principle of finality must sometimes yield to other factors.

However, I have not been persuaded that this is one of those cases. [ 57 ] The bottom-line issue in this appeal is whether the trial judge’s acceptance of the guilty pleas amounted to a miscarriage of justice on the basis of Mr. Hodgson’s assertion that he was misinformed about the preservation of his right to appeal the court-appointed counsel decision. In light of Mr. Hodgson’s affidavit, the transcript of proceedings and the factors identified above, I am not satisfied that Mr. Hodgson has met the burden on him to prove a miscarriage of justice has occurred. VI.

Conclusion [ 58 ] I would dismiss the appeal. “Schwann J.A.” Schwann J.A. I concur. “Schwann J.A.” for Ryan-Froslie J.A. I concur. “Leurer J.A.” Leurer J.A.