WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.K., 2021 ONCA 826

DATE: 20211119

DOCKET: C68900

Paciocco, Nordheimer, and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C. K.

Appellant

Michael Crystal, for the appellant

Manasvin Goswami, for the respondent

Jonathan Rudin and Sumrana Taher, for
    the intervener Aboriginal Legal Services

Heard: August 30, 2021, by video conference

On appeal from the convictions entered
    by Justice Peter J. Wright of the Ontario Court of Justice on February 1, 2018.

Paciocco J.A.:

OVERVIEW

[1]

The
Gladue
principles place an
    affirmative obligation on a sentencing judge to consider the experiences of an
    Indigenous offender that are relevant in determining their level of
    blameworthiness. Judges are also obliged to consider the offenders Indigenous
    background and needs in identifying alternative dispositions that may be more
    fitting, just, and effective for the offender and their community:
R. v.
    Gladue
, [1999] 1 S.C.R. 688.

[2]

Mr. K seeks to adapt and extend the application
    of the
Gladue

principles to apply whenever an Indigenous person
    moves to withdraw a guilty plea they have entered. He submits that there is an
    affirmative obligation on trial judges who are aware that it is an Indigenous
    person who is moving to withdraw their plea to inquire whether the applicants Indigeneity
    may have contributed adversely to their decision to plead guilty. He argues
    that this affirmative obligation applies even if the Indigenous person does not
    suggest that their experiences as an Indigenous person compromised the
    voluntariness of their plea. Mr. K further contends that the trial judge erred
    in his case by denying his application to strike his guilty pleas without
    making such an inquiry.

[3]

It is not uncommon for Indigenous persons to
    lack confidence in the criminal justice system, and that the associated despair
    that arises can result in resignation, which may materially affect a decision whether
    to plead guilty. There is also a strong basis for concluding that Indigenous
    persons, already vastly overrepresented in Canadas penal institutions, are
    more likely to plead guilty than non-Indigenous offenders. However, for reasons
    that follow, I am not persuaded that there is an invariable obligation on trial
    judges to question whether an offenders experience as an Indigenous person may
    have adversely affected their choice to plead guilty in any case where an
    Indigenous person moves to withdraw their guilty plea.

[4]

To be clear, it follows from settled principles
    that where a trial judge has real reason to believe, at the time a plea is
    being entered, that the voluntariness of the decision to plead guilty may have
    been adversely affected by that persons experiences as an Indigenous person,
    the trial judge must make the necessary inquiry to ensure that the plea is
    voluntary. I accept that this obligation continues and that it applies during
    subsequent applications to strike a guilty plea.

[5]

However, in the specific circumstances of Mr.
    Ks case, no such obligation to inquire arose. Not only was there no evidentiary
    basis for believing that Mr. Ks decision to plead guilty was adversely
    affected by his experiences as an Indigenous man, the indication is to the
    contrary. I would grant leave to admit the
Gladue

report that
    has been tendered as fresh evidence, but I would dismiss Mr. Ks appeal.

MATERIAL FACTS

[6]

Mr. K went to trial on charges arising from a violent
    assault that left the complainant, a visitor to Mr. Ks home, with serious
    injuries. He faced charges of sexual and aggravated assault, unlawful
    confinement, as well as drug and breach of probation charges.

[7]

The trial began on July 10, 2017. A purported eyewitness
    to some of the events testified that day and said that Mr. K admitted to having
    had sexual intercourse with the complainant. The next day, July 11, 2017, Mr. K
    discharged his defence lawyer, leading to the trial being adjourned.

[8]

The trial resumed many months later, on February
    1, 2018, after Mr. K retained a new defence lawyer. On that day, the
    complainant testified, providing disturbing allegations of being abused by Mr.
    K over the course of four days. Her account was consistent with physical evidence,
    including not only her injuries but also a hair clip later found by police on
    the driveway where the complainant said she had been dragged by Mr. K after a
    failed attempt to escape.

[9]

After the court recessed for lunch, the trial
    judge granted an extended break to the parties so that they could continue
    discussions about the management of [the] case. When court resumed, defence counsel
    indicated that Mr. K wanted to change his plea to guilty on several of the
    charges he faced, including a count of assault contrary to s. 266 of the
Criminal
    Code
, R.S.C., 1985, c. C-46; assault causing bodily harm contrary to s.
    267(b); sexual assault contrary to s. 271; and unlawful confinement contrary to
    s. 279(2). Defence counsel indicated that Mr. K would admit the facts the
    complainant had testified to as well as other evidence that had been heard. In
    exchange, the balance of the charges against him would be withdrawn.

[10]

The trial judge conducted a plea comprehension
    inquiry before accepting Mr. Ks pleas of guilty. During that plea
    comprehension inquiry, Mr. K assured the trial judge that his decision was
    voluntary, of his own free will, without pressure from anyone. He expressed
    understanding that by pleading guilty he was giving up his right to further
    trial in relation to the charges. The trial judge explained to Mr. K that in
    deciding whether to accept the plea he would be relying on the evidence heard
    so far as well as any other facts that Mr. K might admit. Mr. K expressed his
    understanding. As well, Mr. K responded yes when asked if he understood that
    if he made those admissions, the trial judge would be in a position to find him
    guilty of those offences based on his guilty plea, and that he would be
    sentenced accordingly.

[11]

The trial judge also explained to Mr. K that he
    would rely very strongly on counsels lengthy discussion about the appropriate
    sentence, but would not be bound by those discussions and would sentence Mr. K
    as he saw fit, regardless of the arrangement. Mr. K communicated that he had
    not previously appreciated this, but said, I do now.

[12]

Mr. K was then rearraigned and pleaded guilty to
    each of the four charges I have itemized above. The Crown confirmed the
    evidence that it was relying on to support the pleas that Mr. K had entered.
    The trial judge asked defence counsel if Mr. K accepted those facts and he
    confirmed that Mr. K did. The trial judge then asked Mr. K, do you agree with
    everything I just heard?, and he said yes.

[13]

The trial judge then found Mr. K guilty and put
    the matter over to the next afternoon for sentencing submissions.

[14]

The next day, the sentencing did not proceed, as
    Mr. K made it known that he wanted to withdraw his guilty pleas. His counsel requested
    to be removed from the record. The matter was adjourned. After further
    administrative appearances, Mr. Ks counsel was removed from the record. A date
    convenient to Mr. Ks new counsel, April 26, 2018, was set to hear Mr. Ks
    application to strike his guilty pleas.

[15]

At the outset of the hearing on April 26, 2018,
    defence counsel explained that Mr. Ks application to withdraw his pleas was based
    on his lack of mental capacity to enter a voluntary plea. He told the trial
    judge that the basis on which he indicates his incapacity was insufficient was
    his prolonged period of time in segregation during his detention on the charges
    before [the] court.  Trial counsel placed no reliance on the impact Mr. Ks
    experiences as an Indigenous man may have had on his mental capacity. Indeed,
    there was no mention of his Indigeneity prior to the hearing or during the
    evidentiary phase of the hearing.

[16]

The only evidence Mr. K led during the hearing was
    related to his segregation. He called a corrections officer who provided
    testimony, supported by documentation, confirming that Mr. K had been in
    custody at the Quinte Detention Centre from September 13, 2016, the day after
    his arrest, until his plea was entered on July 10, 2018, nearly 22 months later.
    Almost that entire time, including consistently from December 8, 2016, Mr. K
    was placed in protective custody, at his own request, as the result of injuries
    he sustained in a serious assault. While segregated, Mr. K was confined to his
    cell for approximately 23 hours a day with limited movement outside of his cell
    for yard time, showering, and visits. During his confinement, Mr. K had access
    to physical and mental health care, as well as telephone and mail privileges,
    and access to reading and writing materials.

[17]

The corrections officer presented evidence that,
    for the first few months of his segregation, Mr. K was housed primarily in his
    own cell in administrative segregation in super protective custody in the maximum-security
    wing. After early January 2017, he was detained either in the institutions segregation
    area, or in an overflow area for segregated individuals in the institutions health
    care unit. At times he was housed alone, but while in the health care unit
    where he spent an appreciable portion of his time, Mr. K was sharing his cell
    with two other protective custody inmates.

[18]

Given that Mr. K was in segregation, reviews of
    his prison placement were regularly held, and, consistent with protocol, his
    thoughts and feelings about being in segregation were sought every thirty
    days. Each written review that Mr. K provided affirmed that he felt safe only
    in segregation. On more than one occasion he expressed gratitude for his
    placement, saying I feel safe in segregation, and thank you for keeping me
    safe.

[19]

The first and only mention of Mr. Ks Indigeneity
    was at the end of the hearing on April 26, 2018, when defence counsel advised
    the trial judge that if his application to strike his plea was unsuccessful,
    Mr. K would be asking for an adjournment to allow for the completion of the
Gladue

report because he is  has status as a native Canadian. No evidence was
    led during the application about Mr. Ks life experience or mental health.

[20]

Defence submissions on the application to strike
    focused entirely on the legal test for striking a guilty plea and on the objective
    evidence Mr. K had led about the conditions in which he had served his pretrial
    custody. Trial counsel asked the trial judge to infer, without evidence from
    Mr. K about the effect that segregation had on him and without medical
    evidence, that the kind of segregation Mr. K was experiencing at the time the
    plea was entered would have deprived him of the limited cognitive capacity he
    needed to enter a voluntary plea of guilty.

[21]

On May 3, 2018, the trial judge released his
    decision denying Mr. Ks application to strike his guilty pleas. The reasoning
    that led the trial judge to find that Mr. K had not established the
    involuntariness of his plea is captured in the penultimate paragraph of his
    reasons:

[T]he evidence that I received in the course
    of these proceedings, in my view, support and fortify a finding that the pleas
    of guilty were voluntary, that the defendant was exercising an operating mind
    that was in conformity with the voluntariness, and that he was in possession of
    significant cognitive capacity at the time he entered these pleas. I need only
    refer back again to the fact that the defendant constantly requested placement
    in segregation where he felt safe and comfortable. His own comments in writing
    delivered to the Quinte Detention Centre officials, on more than one occasion,
    confirmed that without a doubt.  His presentation in court and his ability to
    respond to questions that were asked of him during the course of the plea
    comprehension inquiry confirmed that without a doubt.

[22]

It was not until after Mr. K initiated and then
    abandoned a stay application based on trial delay, and had discharged the
    defence counsel who had argued the application to strike the guilty pleas, that
    the matter proceeded to sentencing with new defence counsel, Mr. Ks fourth defence
    lawyer. At that point, a
Gladue

report was ordered. The trial
    judge, who said he was particularly impressed with the thorough,
    comprehensive, detailed, evidence-based report, admirably summarized its
    material contents in his Reasons for Sentence:

The
Gladue

report, cast in the
    nature of [Mr. Ks] Sacred Story through ancestry with the Algonquin and
    Cherokee, is a terribly sad chronicle of childhood abuse. It is inconceivable
    in this country that children could be so badly abused right from the very
    beginning and continuously. His childhood abounded with abuse: physical,
    mental, sexual, fuelled with drugs and alcohol, poverty, housing insecurity.
    Not only was [Mr. K] abused, but he witnessed abuse and both mother and father
    abusing alcohol. He began at an early age to abuse alcohol, as well as drugs.
    It is not surprising that [Mr. K] suffers from the effects of intergenerational
    abuse, being the victim of sexual assault himself at his grandfathers hands,
    and at the hands of his grandfathers friends. His parents and grandparents
    were also victims of abuse. His maternal grandmother suffered abuse while in a religious
    school.

In this terrible environment, [Mr. K] at least
    was able to grasp some understanding from his maternal grandparents, some
    learning about his [I]ndigenous identity. He participated in the Shabot
    Obaadjiwan national gathering, the sweat lodge ceremonies, the sunrise and sunset
    ceremonies. He tried to connect with his heritage, while his life had been
    nothing but a turmoil of abuse, neglect, and criminal intervention on a
    constant basis.

[23]

The
Gladue

report contained
    passages that would have been relevant had it been available and filed in support
    of his application to strike his guilty pleas. For instance, the
Gladue

report records comments attributed to Mr. K about the effects that segregation
    had on his decision-making capabilities:

Being in segregation
    this long, I have developed a disability in my decision-making capabilities
. From having all my decisions made for me. My mind set isnt the
    same as it was when I started. It has made me short-thinking and short-sighted.
    Not being able to see the long-term effects of my choices.

What Ive noticed[d] is that I really cant
    make a solid decision anymore. When I do, Im so two-sided wanting to please
    everybody else that I will compromise myself and making [sic] involuntary
    decisions, not in my best interest. [Emphasis added.]

[24]

The
Gladue

report also describes
    Mr. Ks problem-solving skills as a personal strength, using his own words:

When theres a situation, where no one knows
    what to do, my family calls me.
Im the person that can
    handle myself, taking the most effective straight-forward approach available.
    Im intelligent, well spoken, polite, but can also get down to business.
[Emphasis added.]

[25]

The
Gladue

report also contained
    two comments by Mr. K explaining why he pleaded guilty. In the first comment,
    he said he did so to protect his family. In the second comment, he said he
    pleaded guilty after being threatened by corrections officials, who had already
    set him up to be assaulted. Specifically, he claimed that on his way to court on
    the day he pleaded guilty, a transport officer said to him, you had ample time
    and opportunity to end this but you didnt, now we will.

[26]

During sentencing submissions, Mr. Ks defence
    counsel again raised the validity of the plea. He did not raise either of the
    new explanations disclosed in the
Gladue

report. Instead, he submitted
    that the pleas should have been struck because the complainants evidence left
    open possible defences. Once again, no suggestion was made that Mr. Ks
    experience as an Indigenous man bore on his decision to plead guilty. The trial
    judge rejected the suggestion that the evidence did not support the validity of
    the pleas.

[27]

On November 2, 2018, the trial judge provided detailed
    Reasons for Sentence and imposed a global sentence on Mr. K, then 41 years of
    age, of six years imprisonment, minus credit for time served. The other
    charges against Mr. K were withdrawn.

ISSUES

[28]

Mr. K argues that once the trial judge became
    aware that he was Indigenous, he had an obligation to seek out information
    relating to the impact that his experiences as an Indigenous person had on the
    voluntariness of his decision to plead guilty, even though Mr. K had not raised
    this issue in his application to strike his guilty plea. In a submission that
    would support Mr. Ks appeal, the intervener, the Aboriginal Legal Services (ALS),
    argued that, at the very least, a trial judge who learns that an Indigenous
    person is seeking to strike their plea has an obligation to raise the issue to
    ensure that the applicant can give due consideration to the impact their
    experiences may have had on their decision to plead guilty.

[29]

Mr. K also argued that it was unreasonable for
    the trial judge to treat his request to be segregated and his preference for
    segregation as voluntary.

[30]

The respondent Crown not only opposes Mr. Ks
    submissions on their merits, it argues that since Mr. K. did not raise his Indigeneity
    as an issue during his application to strike his guilty pleas, he should not be
    permitted to do so on appeal.

[31]

There are therefore three issues that require
    consideration:

A.

Is Mr. K barred from raising, for the first time on appeal, the
    failure of the trial judge to seek out information about his Indigeneity before
    denying his application to set aside his guilty plea?

B.

If not, given that he was made aware that Mr. K was Indigenous, did
    the trial judge err by denying Mr. Ks application to strike his guilty pleas
    without ensuring that he had information about the impact Mr. Ks experiences
    as an Indigenous man may have had on the voluntariness of his guilty pleas?

C.

Was it unreasonable for the trial judge to treat segregation as a
    voluntary choice made by Mr. K?

[32]

Before I address those three issues, it is
    helpful to explain why other potential issues alluded to in the foregoing
    recitation of material facts have not been included in the list of issues that
    require consideration. Notably, Mr. K did not argue before us that his plea was
    rendered involuntary because of pressure to protect his family, or because he
    was under duress from corrections officers.

[33]

In the interests of completeness, I will
    nonetheless explain in brief compass why, even if those issues had been argued,
    they would not have assisted Mr. Ks appeal.

[34]

Quite simply, even if Mr. K chose to plead
    guilty because of pressure to protect his family, more evidence would have been
    needed to show that this pressure undermined the validity of his guilty pleas. As
    Doherty J.A. explained in
R. v. T.(R.)
(1992), 10 O.R. (3d) 514 (C.A.),
    at para. 18:

No doubt most accused faced with serious
    charges and the prospect of a substantial jail term [feel themselves under
    pressure when they entered their pleas]. Absent credible and competent
    testimony that those emotions reached a level where they impaired the appellants
    ability to make a conscious volitional choice, the mere presence of these emotions
    does not render the pleas involuntary.

[35]

As for Mr. Ks claim in the
Gladue

report
    that he was under duress by corrections officers at the time he entered his
    guilty plea, this is an untested hearsay assertion. To be sure, in an appeal
    based on the validity of the trial process, including an appeal that a guilty
    plea was involuntary, a generous approach is taken that permits consideration
    of fresh evidence that may not satisfy the usual fresh evidence admissibility
    test set out in
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775, and in
Truscott
    (Re)
, 225 C.C.C. (3d) 321, at para. 92:
R. v. Rajaeefard
(1996),
    27 O.R. (3d) 323, at p. 228;
R. v. T.(R.)
, at para. 12. But such
    evidence must be credible before it will be acted upon:
R. v. Krzehlik
,
    2015 ONCA 168, 124 O.R. (3d) 561, at para. 5. Mr. K has not affirmed or sworn
    that his account is true, nor has he buttressed it with affidavit evidence: see
R. v. Alec
, 2016 BCCA 282, 337 C.C.C. (3d) 345, at para. 110. I see no
    other indicia of reliability or necessity that could provide a reasoned basis
    upon which the bald assertions made by Mr. K could be credited on appeal.

[36]

I will therefore only focus on the three issues
    that were raised and argued.

ANALYSIS

A.

Is Mr. K Barred from raising his indigeneity for
    the first time on appeal?

[37]

I would permit Mr. K to raise his Indigeneity
    for the first time on appeal. Mr. Ks central argument is that the trial judge
    erred by not taking the initiative of raising Mr. Ks Indigeneity when Mr. K
    brought his application to strike his pleas. Clearly, if Mr. K had raised this
    issue at trial, there would have been no need for the trial judge to do so, and
    the issue under appeal could not possibly have arisen. Put simply, to apply the
    bar against raising an issue for the first time on appeal in such circumstances
    would create a catch-22 that would prevent anyone from ever grounding an appeal
    on the alleged failure of a trial judge to raise an issue that the judge is legally
    required to raise.

[38]

For example, as I will explain below, a trial
    judge, aware that they are sentencing an Indigenous offender, is under an
    affirmative obligation to seek out pertinent and relevant
Gladue
information, even if the accused has not raised the issue. If an appeal of that
    error was to be prohibited unless the accused raised the issue at trial, that
    rule would become unenforceable.

[39]

Although this observation is enough to justify
    proceeding with the appeal on its merits, the same outcome arises from a more
    formal consideration of the three factors identified in
R. v. Reid
,
    2016 ONCA 156, 132 O.R. (3d) 26, at para. 43, for determining whether it is in
    the interests of justice to permit an issue to be raised for the first time on
    appeal.

[40]

First, the evidentiary record is sufficient to
    permit this court to effectively and fairly determine the new issue raised on
    appeal. The only evidentiary record required to determine whether the trial
    judge erred by not raising Mr. Ks Indigeneity is evidence that the trial judge
    knew Mr. K to be Indigenous yet did not raise this during his application to
    strike the guilty plea. Neither point is in contest.

[41]

Second, I can see no basis for believing Mr. K
    intentionally reserved this issue for appeal so that he could secure a tactical
    advantage. It is far more probable that the issue was simply overlooked.

[42]

Finally, this is not a case where it can be
    predicted in advance of hearing the appeal that no miscarriage of justice could
    result if we refuse to consider the issue Mr. K is now raising. Whether a trial
    judge is obliged in an application to set aside a guilty plea to inquire into
    the impact the applicants experiences as an Indigenous person may have had on
    the voluntariness of the decision to plead guilty is a serious issue for
    consideration.

[43]

I would therefore consider this new issue on appeal
    on its merits.

B.

Did the trial judge err by not inquiring into
    the effect Mr. Ks experiences as an indigenous person had on the voluntariness
    of his plea?

[44]

I would not find that the trial judge erred by
    failing to inquire into the effect that Mr. Ks experiences as an Indigenous
    person may have had on his decision to plead guilty. I am not persuaded that
    judges are under a general obligation during an application to set aside a
    guilty plea to raise the applicants Indigeneity where the applicant has not
    done so. Where, however, there are specific circumstances that raise the
    question of whether the applicants experiences as an Indigenous person may have
    adversely affected the voluntariness of their decision to plead guilty, a judge
    is required to inquire. In this case, there were no such circumstances and
    hence no duty to inquire was breached.

(1)

The
Gladue

Principles

[45]

The
Gladue

principles are not in
    controversy. These well-established principles are responsive to the overincarceration
    of Indigenous persons that has been caused by long-standing systemic and direct
    discrimination against Indigenous persons in this country. As described in
Gladue
,
    at para. 66, and reaffirmed in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1
    S.C.R. 433, at para. 59, those principles require a trial judge, in sentencing
    an Indigenous offender, to consider:

(a) the unique systemic or background factors
    which may have played a part in bringing the particular Aboriginal offender
    before the courts; and (b) the types of sentencing procedures and sanctions
    which may be appropriate in the circumstances for the offender because of his
    or her particular [Indigenous] heritage or connection.

[46]

The unique systemic or background factors which
    may have played a part in bringing the particular Indigenous offender before
    the courts are relevant to the offenders level of moral blameworthiness as
    systemic and direct discrimination can destroy opportunities and limit options
    for positive development in ways that may diminish the offenders personal
    culpability. The unique systemic or background factors of an Indigenous
    offender, in turn, may bear on the type of sentence that is culturally
    appropriate and therefore effective for that particular offender:
Ipeelee
,
    at paras. 72-73.

[47]

Mr. K is not arguing that his moral
    blameworthiness is a central consideration during an application to strike a
    guilty plea, nor is he urging that the fitness of a sentence is a relevant
    consideration. When he speaks of the application of the
Gladue

principles
    during an application to strike a guilty plea, I understand him to be
    submitting that the systemic or background factors of an Indigenous offender
    may bear on the integrity of their decision to plead guilty, and that they must
    therefore be considered by the trial judge.

(2)

The Obligation to Raise Indigeneity when
    Sentencing

[48]

In
Gladue
, at para. 83, Cory J. and
    Iacobucci J. described, for the majority, the information that trial judges
    should consider when sentencing Indigenous offenders. They directed trial
    judges to take judicial notice of the relevant systemic and background factors
    that bear on both the degree of responsibility of the offender and the
    identification of a fit sentence. In making this direction, they remarked that,
    for each particular offence and offender it may be that some evidence will be
    required in order to assist the sentencing judge in arriving at a fit sentence.

[49]

In
R. v. Wells
, 2000 SCC 10, [2000] 1
    S.C.R. 207, at para. 54, Iacobucci J. made clear for the court that when such particularized
    evidence is required, judges are under an affirmative obligation to inquire
    into the offenders experiences as an Indigenous person. This court has fulfilled
    this obligation by seeking such information when required to sentence Indigenous
    offenders:
R. v. Kakekagamick

(2006), 211 C.C.C. (3d) 289 (Ont.
    C.A.);
R. v. Macintyre-Syrette
, 2018 ONCA 259.

[50]

In
R. v. Sim
(2005)
, 201 C.C.C. (3d) 482 (Ont. C.A.),
    at para. 25, Sharpe J.A. explained the genesis of the affirmative obligation on
    sentencing judges to acquire necessary information about an Indigenous
    offenders personal background. He noted that, although our criminal justice
    system operates on the adversarial principle that it is for the parties to
    secure and present the relevant evidence, the special situation of [Indigenous]
    accused requires the criminal justice system to alter its procedure and adopt a
    more inquisitorial approach when sentencing an [Indigenous] offender. He went
    on to hold that this obligation applies when the Ontario Review Board
    determines an appropriate disposition for mentally disordered Indigenous
    offenders at a disposition hearing, and he cautioned that the failure to seek
    and/or consider such information is a legal error:
Sim
, at para. 29.

(3)

The Broader Application of
Gladue

Principles

[51]

Mr. K and the ALS argue that the
Sim
decision
    illustrates a proposition central to their argument: namely, that the
Gladue

principles are not confined to sentencing proceedings but imbue the entire criminal
    justice system, including applications to set aside guilty pleas. They offered,
    in support of this proposition, cases of high authority that have recognized and
    addressed systemic and direct discrimination against Indigenous persons by modifying
    legal rules or practices. Examples include recognition of an absolute right for
    Indigenous offenders to race-based challenges for cause when selecting juries (
R.
    v. Williams
, [1998] 1 S.C.R. 1128); upholding the abolition of peremptory
    challenges to prevent their discriminatory use against Indigenous offenders and
    Indigenous jurors (
R. v. Chouhan
, 2021 SCC 26, at paras. 23, 116);
    taking steps to eradicate prejudicial myths and stereotypes about Indigenous
    people that can taint judicial reasoning (
R. v. Barton
, 2019 SCC 33,
    [2019] 2 S.C.R. 579, at para. 201); and ensuring that conditional sentences are
    available to Indigenous offenders, where appropriate (
R. v. Sharma
, 2020
    ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311).

[52]

They also offered illustrations of the extended
    application of the
Gladue

principles, including to bail release
    (
R. v. Robinson
, 2009 ONCA 205, 95 O.R. (3d) 309;
R. v. Hope
,
    2016 ONCA 648, 133 O.R. (3d) 154); sanctions for civil contempt (
Frontenac
    Ventures Corp. v. Ardoch Algonquin First Nation
, 2008 ONCA 534, 91 O.R.
    (3d) 1, leave to appeal refused, [2008] S.C.C.A. No. 357); parole revocation
    hearings (
Twins v. Canada (Attorney General)
, 2016 FC 537, [2017] 1
    F.C.R. 79); and Law Society disciplinary proceedings (
Law Society of Upper
    Canada v. Robinson
, 2013 ONLSAP 18). They also point to
United States
    of America v. Leonard
, 2012 ONCA 622, 112 O.R. (3d) 496, in which a judicial
    review of the decision of the Minister to extradite two accused Indigenous
    offenders succeeded because the Minister did not properly consider their Indigenous
    status and the
Gladue

principles in deciding whether their
    extradition would be contrary to the
Charter
.

[53]

In addition, Mr. K and the ALS point out that
    the Supreme Court of Canada has recognized that discrimination experienced by
    Indigenous persons, whether as a result of overtly racist attitudes or
    culturally inappropriate practices, extends to all parts of the criminal
    justice system:
Ewart v. Canada
, 2018 SCC 30, [2018] 2 S.C.R. 165, at
    para. 57. They submit that the developments they have identified are examples
    of a more general obligation on courts that was articulated by Moldaver J. in
Barton
,
    at para. 200:

[O]ur criminal justice system and all
    participants within it should take reasonable steps to address systemic biases,
    prejudices, and stereotypes against Indigenous persons  head on.

(4)

The Relevance of Overrepresentation

[54]

Mr. K and the ALS do not rely solely on these
    analogous developments and the general obligation that they have identified.
    They point out that the
Gladue

principles developed in response
    to the overrepresentation of Indigenous persons in custodial settings, a
    problem that persists over two decades after that decision was released. They
    contend that Indigenous persons tend to plead guilty at a higher rate than non-Indigenous
    persons, thereby exacerbating the problem and giving urgency to the application
    of the
Gladue

principles where Indigenous persons apply to
    withdraw their guilty pleas.

[55]

Even though Mr. K did not bring a fresh evidence
    application to establish that Indigenous persons plead guilty at a higher rate
    than non-Indigenous persons, I am prepared to take judicial notice of this
    phenomenon for the reasons that follow.

[56]

Importantly, this is a social framework fact
    about the social context in which this litigation is occurring. In
R. v.
    Spence
, 2005 SCC 71, [2005] 3 S.C.R. 458, Binnie J. affirmed that judicial
    notice should not be taken of any facts, including social framework facts,
    unless the test of notoriety and indisputability has been met. He
    recognized, however, that a more flexible approach applies when taking judicial
    notice of social framework facts, rather than adjudicative facts that relate
    directly to the incident or event being litigated. He explained, at para. 65, that
    when considering whether to take judicial notice of a social framework fact:

[A] court ought to ask itself whether such fact
    would be accepted by reasonable people who have taken the trouble to inform themselves
    on the topic as not being the subject of reasonable dispute
for the particular purpose for which it is to be used
,
    keeping in mind that the need for reliability and trustworthiness increases
    directly with the centrality of the fact to the disposition in controversy. [Emphasis
    in original.]

[57]

The proposition that Indigenous accused persons
    plead guilty at higher rates than non-Indigenous accused persons is an
    important observation, since it adds credence to the suggestion that the experiences
    of Indigenous persons may influence the decision to plead guilty. Moreover, if
    a disproportionately high number of Indigenous accused persons plead guilty,
    this can only exacerbate the relative overincarceration of Indigenous persons
    in Canadian custodial settings.

[58]

Given the central purpose for which judicial
    notice is to be used in this case, a high level of reliability or trustworthiness
    is needed before judicial notice can be taken. I would conclude that this high
    level is met for four reasons.

[59]

First, the proposition advanced is consistent
    with the notorious and indisputable fact that Indigenous persons are
    overrepresented generally in the criminal justice system.

[60]

Second, the Crown has not taken issue with the
    claim that Indigenous offenders tend to plead guilty at higher rates than
    non-Indigenous offenders.

[61]

Third, the urgent need to redress the effects of
    discrimination in the criminal justice system has promoted a high tolerance for
    judicial notice relating to discrimination against Indigenous persons and its
    effects:
Ipeelee
, at para. 60

[62]

Fourth, and most importantly, Mr. K and the ALS have
    provided a rich body of credible information, much of it stemming from public
    institutions commissioned to inquire into anti-Indigenous discrimination in the
    criminal justice system, verifying this phenomenon:
First Nations
    Representation on Ontario Juries: Report of the Independent Review Conducted by
    The Honourable Frank Iacobucci
(Toronto: Ontario Ministry of the Attorney
    General, 2013), at para. 215;
Report of the Aboriginal Justice Inquiry of
    Manitoba
by the Honorable Alvin Hamilton and the Honorable Murray Sinclair
    (Winnipeg: Aboriginal Justice Inquiry of Manitoba, 1991); Department of
    Justice,
Guilty Pleas among Indigenous People in Canada
(Ottawa:
    Department of Justice Canada, 2017), at pp. 9-13; Kent Roach, You Say You Want
    a Revolution?: Understanding Guilty Plea Wrongful Convictions (2021), online:
    SSRN <https://ssrn.com/abstract=3869888>;
Set Up to Fail: Bail and
    the Revolving Door of Pre-Trial Detention
by Abby Deshman and Nicole Myers
    (Canadian Civil Liberties Association and Education Trust, 2014), online: <https://ccla.org/wp-content/uploads/2021/07/Set-up-to-fail-FINAL.pdf>.

[63]

In my view, reasonable people who have taken the
    trouble to inform themselves would accept that the proposition that Indigenous
    persons tend to plead guilty at materially higher rates than non-Indigenous persons
    is reliable and trustworthy enough to be judicially noted for the purpose of
    determining the proper application of
Gladue

principles when an
    Indigenous person applies to withdraw their guilty plea.

[64]

Several of the reports I have identified offer
    explanations for this phenomenon. The most relevant explanation was offered by The
    Honorable Frank Iacobucci in,
First Nations Representation on Ontario
    Juries
, at para. 215372, who explained that many Indigenous people plead
    guilty because they believe they will not receive a fair trial owing to
    racist attitudes prevalent in the justice system. I would also accept this
    proposition, which is a logical outcome of the despair that Indigenous persons
    no doubt face when caught up in the criminal justice system.

[65]

Finally, Mr. K relies upon the decision in
R.
    v. Ceballo
, 2019 ONCJ 612 as a persuasive precedent illustrating the operation
    of
Gladue

principles during an application to withdraw a guilty
    plea. In
Ceballo
, Rondinelli J. exercised discretion to permit an
    Indigenous woman to withdraw her guilty plea after rehearsing the broad
    application of
Gladue

principles, and after accepting, at para.
    16, the conclusion of the
Report of the Saskatchewan Indian Justice Review
    Committee

(Saskatchewan: Saskatchewan Indian Justice Review
    Committee, 1992) that Indigenous women who are incarcerated suffer tremendous
    displacement and emotional stress due to incarceration and separation from
    family. This had relevance to Ms. Ceballo, who the judge found to have pleaded
    guilty in material part because of the inordinate pressure she was under to
    reunite with her daughter, who was subject at the time to child protection
    proceedings. He found that this pressure undermined the voluntariness of Ms.
    Ceballos guilty plea.

(5)

The Legal Test for Withdrawing Mr. Ks Guilty
    Pleas

[66]

There is no closed list of valid grounds for
    withdrawing a plea:
R. v. T.(R.)
, at para. 10. Naturally, applications
    to withdraw guilty pleas will tend to allege that one or more of the
    prerequisites to a valid plea were unsatisfied at the time the plea was
    entered. There are three such prerequisites. To be valid, a guilty plea must be
    voluntary, unequivocal, and informed:
R. v. T.(R.)
, at para. 14.

[67]

Mr. K does not claim that his plea was equivocal
    or uninformed. Rather, it is his contention that it was not voluntary. A
    voluntary plea refers to the conscious volitional decision of the accused to plead
    guilty for reasons which he or she regards as appropriate:
R. v. T.(R.)
,
    at para. 16.

[68]

There are a range of ways that volition can be
    destroyed, including coercion, improper inducements or pressure imposed,
[1]
and incapacity. As I have
    explained, Mr. K has not sought to support his application to withdraw his
    guilty pleas on the basis that they were coerced. Nor does he suggest that his
    pleas were induced inappropriately. The claim he advances before us, like the
    claim he made before the trial judge, is that he lacked the subjective capacity
    to make a volitional choice to plead guilty.

[69]

The capacity to make a volitional choice to
    plead guilty is not high. In
R. v. M.A.W
.
, 2008 ONCA 555, 237
    C.C.C. (3d) 560, the Crown argued for a limited cognitive capacity test, the
    same standard used to determine an accuseds fitness to stand trial, or to
    resolve whether confessions are the voluntary product of an operating mind. The
    Crown submitted, based on that standard, that no more is required than an
    ability to understand the process, communicate with counsel, and make active or
    conscious choices. There is no requirement that those choices be wise or
    rational or in the accuseds best interest.

[70]

The appellant in that case encouraged the Court
    to reject the limited cognitive capacity test and adopt a higher test on the
    basis that the limited cognitive capacity test would allow pleas to be made by
    those who, because of their mental state, feel there is no other option than to
    plead guilty because their thinking is irrational, hopeless and helpless.
    This court nonetheless adopted the Crowns position, noting in the process that
    an applicant cannot succeed if he can merely show that his decision to plead
    guilty was not rational or in his best interests, or even that he was incapable
    of making a decision that was rational or in his best interests: at para. 36.

[71]

Laskin J.A., for the court, gave two reasons for
    this outcome. First, he concluded that a uniform standard of mental capacity
    should apply across related issues, noting that it would be incongruous to
    find an accused mentally competent to stand trial, yet unfit to enter a valid
    plea: at para. 32.

[72]

Second, Laskin J.A. concluded that the liberty
    interests of accused persons supported this standard. In an adversarial system,
    the autonomy and the choices of an accused person who is capable of conducting
    his or her own defence should be respected, otherwise the law would
    inappropriately smack of paternalism: at para. 35.

[73]

There are two further points that deserve emphasis,
    given the nature of the issue before us. First, as Laskin J.A. emphasized in
M.A.W
.
,
    at para. 33, the inquiry into volition is entirely subjective, an outcome
    consistent with the general observations made by Moldaver J. in
R. v. Wong
,
    2018 SCC 25, [2018] 1 S.C.R. 696, including at paras. 12 and 20.

[74]

Second, it is important to bear in mind that a
    plea of guilty entered in open court in the presence of counsel [is] presumed
    to be voluntary. The presumption is rebuttable but the onus is on the party
    seeking to withdraw a guilty plea:
R. v. Cherrington
, 2018 ONCA 653,
    at para. 21. Given the issue he raised, then, the onus was on Mr. K to
    demonstrate, on a balance of probabilities, that he lacked the capacity to
    make an active or conscious choice to plead guilty:
Cherrington
, at
    para. 21.

(6)

Gladue

Principles and Applications to Withdraw Guilty Pleas

[75]

I fully accept the general obligation of judges
    to take reasonable steps to address systemic bias, prejudice, and stereotypes
    against Indigenous persons. I am not persuaded, however, that this translates
    into a specific obligation to inquire in every case where a person known to the
    judge to be Indigenous seeks to withdraw a guilty plea. I will offer three
    reasons for my conclusion.

[76]

First, Mr. K and the ALS are not simply asking
    us to apply the
Gladue

line of authority by recognizing the
    impact that systemic and direct discrimination play in the criminal justice
    system and to take measures to ensure that this crucial appreciation is applied
    during applications to withdraw guilty pleas. They are asking us to impose an
    affirmative duty on trial judges, faced with an application to withdraw a
    guilty plea, to raise the issue of whether the experiences of an Indigenous
    person have affected the volition of their decision to plead guilty, even when
    the Indigenous person or their counsel have not done so.

[77]

As I have explained, Canadian courts have
    appropriately modified traditional adversarial principles and imposed such
    duties before but in every case, this has been where courts are imposing
    sanctions or dispositions on offenders. An application to withdraw a
    guilty plea does not involve the imposition of a sanction or disposition on
    offenders. Quite simply, acceding to the position that Mr. K and the ALS
    advance would not mark another application of existing
Gladue

principles.
    Instead, it would mark a material and problematic extension of the affirmative
    obligation that has been imposed pursuant to those principles. I will
    elaborate.

[78]

Gladue
itself
    is a sentencing case. During a sentencing hearing, the trial judge is charged
    with the responsibility of arriving at a fit sentence. In
Gladue
,

the
    Supreme Court of Canada recognized that the systemic and direct discrimination
    against Indigenous persons is an omnipresent evil, and that the effect of
    discrimination on the offender is highly relevant information required to
    arrive at a fit sentence. In those circumstances, the case law evolved to make
    it crystal clear that Indigeneity is so important a consideration in arriving
    at a fit disposition that judges must be obliged to augment the adversarial
    system by ensuring that they have the information they need to discharge their
    existing responsibility to impose a just disposition.

[79]

Parallel reasoning suggests that anytime courts
    are discharging their obligation to identify a fit disposition for Indigenous
    offenders, the same duty should apply. This line of reasoning explains the
    extension of the original
Gladue

principles to bail hearings,
    disposition hearings for mentally disordered offenders, hearings to sanction civil
    contempt, parole revocation hearings, and hearings to identify professional
    disciplinary sanctions. Even in
Leonard
, the Minister was required to
    consider the experiences of the Indigenous accused in order to gauge whether
    the Americans were apt to impose a disposition that was disproportionately
    harsh relative to the sentence a Canadian court would consider to be just, and
    therefore contrary to the
Charter
.

[80]

In contrast, in an application hearing to
    determine whether a plea can be withdrawn, a trial judge is not being asked to
    impose a disposition or sanction on the applicant. Nor is the trial judge
    discharging a duty to identify a fit disposition or sanction at the behest of a
    prosecutor. Instead, they are responding to an application initiated by an
    applicant that is based on their subjective state of mind.

[81]

Indeed, unlike a hearing where the judge has a
    duty to arrive at a fit sentence or sanction, in an application to withdraw a
    guilty plea, the applicant bears the onus of proof. This onus involves raising
    the material issues and presenting the required evidence.

[82]

Simply put, I see a world of difference between
    requiring a judge to acquire information about the Indigenous experiences of an
    offender that is needed to discharge an existing judicial obligation to arrive
    at a fit disposition, and requiring a judge to open a new issue relating to the
    effect that the Indigeneity of an accused person may have had on their subjective
    state of mind, when the accused person, who bears the onus, has not themselves raised
    any suggestion that their experiences as an Indigenous person have had any
    relevant effect.

[83]

Second, given the legal test that a judge must
    apply in determining whether an accused person has entered a voluntary plea,
    the experiences of the accused as an Indigenous person will not have the
    pervasive relevance that they tend to have when sanctions or dispositions are
    being imposed. Indeed, the hard truth is that Indigenous experiences are not commonly
    going to be relevant during an application to withdraw a guilty plea, given the
    state of the law. Even accepting the proposition that an Indigenous persons
    experiences can engender feelings of hopelessness and resignation, such
    feelings are not apt to be material to such an application unless those
    feelings of hopelessness or resignation are of such intensity that they
    veritably preclude the ability of the individual to make active or conscious
    choices. It is not enough that the person has made the choice to give up and has
    decided to plead guilty. Save in those cases where the experiences of an
    Indigenous person have compromised their mental fitness, the proposed inquiry
    is not likely to lead to relevant information. Under the current state of the
    law there is therefore no need for the kind of routine inquiry that is being
    suggested.

[84]

It is important to reaffirm in this regard that,
    unlike situations where the absence of volition is undercut by unseen coercion
    or unknown inducements or pressure exerted, I am speaking of the mental
    capacity of the individual seeking to withdraw the plea. If that individual is
    so broken by their experiences that they have lost the ability to make active
    or conscious choices and are unfit to stand trial, there will almost certainly
    be signs that something is amiss. As I will explain below, where there are
    signs that something is amiss relating to the capacity of the accused to enter
    a guilty plea, the trial judge has a duty to make the required inquiries.

[85]

Third, the submission that is being advanced
    before us has unappealing practical implications. I am not referring to the risk,
    discussed during oral submissions, that the proposed inquiry would delay the
    application to withdraw. I am concerned that if the obligation being imposed
    exists when an Indigenous accused person applies to withdraw a guilty plea,
    that same obligation would have to apply at the time the guilty plea is entered.
    There is no principled basis for confining the obligation to the former
    situation and not the latter. Every time an Indigenous person offers a guilty
    plea, the presiding judge would therefore be required to raise that persons
    Indigeneity to effectively determine if they are mentally competent to enter
    the plea. Although well-intentioned, it risks undermining the integrity and
    competence of Indigenous persons to presume that such inquiries are required.
    Opening the door, as Mr. K and the ALS ask us to, would risk promoting
    offensive stereotypes about the ability of Indigenous peoples to make important
    personal decisions free from paternalistic interference. Indeed, this is the
    very inquiry into the ability of an accused to make a voluntary guilty plea
    that Laskin J.A. cautioned would smack of paternalism in
M.A.W
.
at para 35.

[86]

Moreover, as Mr. K and the ALS have emphasized,
    Indigenous offenders remain tragically and significantly overrepresented in the
    criminal justice system. Those who have toiled in the courts are aware that few
    pleas occur on the set trial date. They instead tend to occur in busy plea
    courts where significant numbers of individuals, too many of them Indigenous,
    plead guilty, often for time served or short sentences of incarceration. The
    proposed obligation would not only add to court delay  a secondary concern
    but it could result in delay in receiving the pleas of Indigenous offenders who
    for legitimate reasons simply want to resolve the matter expeditiously.

[87]

Indeed, many Indigenous offenders plead guilty
    in dedicated
Gladue

courts. These courts typically carry heavy
    dockets, not only because of the overrepresentation of Indigenous offenders but
    also because of the focused attention that each offender is given in order to
    meet the demands of the
Gladue

principles. The proposed
    obligation could aggravate delay in
Gladue

courts, prolonging
    the exposure of Indigenous offenders to the stresses and restrictions of the
    criminal process.

[88]

Simply put, although the proposal to impose an
    affirmative duty on trial judges to raise the issue of whether the experiences
    of an Indigenous person have affected the volition of their decision to plead
    guilty is offered as a way to improve the liberty of Indigenous offenders, it
    would in my view be more likely to have the opposite effect of delaying liberty.

[89]

My rejection of the proposed affirmative
    obligation of inquiry that Mr. K and the ALS advocate should not be taken as a
    rejection of
Gladue

principles or of the obligation that judges
    have to address bias, systemic discrimination, and prejudicial stereotypes
    against Indigenous persons. Rather, to my mind, there is a better way of addressing
    the concern that Mr. K raises, which is already grounded in existing
    principles.

(7)

The Duty to Inquire

[90]

Section 606(1.1) of the
Criminal Code
permits a court to accept only voluntary guilty pleas. It provides:

606 (1.1)
A court may accept a plea of guilty only if it is satisfied that

(a) the accused is making the
    plea voluntarily;

(b) the accused 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; and

(c) the facts support the charge.

[91]

Section 606(1.2) provides:

606 (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 the plea.

[92]

In
R. v. G.(D.M.)
, 2011 ONCA 343, 105
    O.R. (3d) 481, at para. 42, Watt J.A. explained the effect of these provisions.
    He affirmed that s. 606(1.1) imposes an obligation on the presiding judge to
    satisfy him or herself of the voluntary and informed nature of the plea.  He
    then said that even though the failure to make an inquiry does not affect the
    validity of the plea, an inquiry is mandatory nonetheless.

[93]

This is not a toothless obligation. The fact
    that a failure by a judge to discharge that obligation is not
per se
a
    reversible error, reflects the fact that an appeal based on an improper guilty
    plea alleges a miscarriage of justice, and a miscarriage of justice does not occur
    unless the act, omission, or event complained of is prejudicial:
Wong
,
    at paras. 1, 5-6, 44, and 78. If the failure of a trial judge to conduct a plea
    inquiry had no prejudicial effect because the plea was informed, unequivocal,
    and voluntary, there is no sound basis to raise the judges failure to conduct
    a plea inquiry as a ground of appeal.

[94]

This is sensible. The duty to inquire into the
    validity of a guilty plea is not meant to be a
pro forma

exercise
    that leads to an automatic reversal if not attended to. It is a purposeful obligation,
    and if the failure to discharge that obligation is of no consequence because
    the plea was nonetheless valid, no ground of appeal arises. This does not mean
    that the failure to inquire cannot affect the outcome of an appeal. As the
    decision in
R. v. Beckford
, 2019 ONCA 998 reflects, at para. 43, a
    judges failure to conduct a plea inquiry can leave the door more readily open
    to a finding that a plea was not valid.

[95]

Quite clearly, to discharge the mandatory duty
    to inquire that arises from s. 606(1.1), a judge must inquire into apparent
    indications that there may be a problem with the validity of the guilty plea.
    Even in the era prior to the passage of s. 606(1.1) when there was no general mandatory
    judicial duty to inquire, it was expected that judges would exercise discretion
    to conduct inquiries if, in the circumstances, it was made to appear that a
    plea of guilty was improper:
Brosseau v. The Queen
, [1969] S.C.R. 181
    at pp. 188-190;
R. v. Adgey
, [1975] 2 S.C.R. 426, at pp. 442-44.

[96]

Based on this settled law, it follows that if
    there are indications at the time a plea is being entered that an Indigenous
    persons experiences may be having an adverse effect on the integrity of the
    guilty plea that is being entered, the trial judge is obliged to inquire to see
    if this is so. In my view, that same obligation would hold true where an
    Indigenous person subsequently applies to withdraw their guilty plea. After all,
    the authority of a trial judge to allow the withdrawal of a plea is a
    continuation of the discretionary authority to accept a plea:
R. v. Eizenga
,
    2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 44. Moreover, the criteria for
    accepting a guilty plea  that it be informed, unequivocal, and voluntary
    remain the same.

[97]

It is not entirely clear from the decision in
Ceballo
who raised the issue of the impact of Ms. Ceballos Indigeneity on her decision
    to plead guilty. If it was Rondinelli J. who did so,
Ceballo
would
    provide commendable example of the discharge of this obligation. In that case, Rondinelli
    J. noted at para. 14:

In my view, there is pressure and then there
    is
pressure
. This was not a situation in which Ms.
    Ceballo felt the type of anxiety and pressure that accused persons typically
    feel when they decide to plead guilty to a criminal offence. Instead, this
    guilty plea came at a very trying time in Ms. Ceballos life. She was in
    custody at the time of the guilty plea; she was dealing with some other
    outstanding significant criminal matters; and she was dealing with court
    proceedings relating to the custody of her daughter. I had the opportunity to
    observe Ms. Ceballos demeanour on a number of court appearances. I noted a
    growing sense of frustration and despair with each passing court appearance. As
    Ms. Ceballo testified, I havent been given a fair chance in life, period. Not
    just in the courts. Ms. Ceballo had trouble retaining counsel  With each day
    in custody, Ms. Ceballo saw her chances of being reunited with her children
    slipping away. [Emphasis in original.]

[98]

In these circumstances, there is a foundation
    for believing that Ms. Ceballos experiences and perspective as an Indigenous woman
    may well have influenced the pressure she was under, thereby compromising the
    voluntariness of her guilty plea. A trial judge encountering a similar
    situation would be right to initiate an inquiry.

[99]

In this way, by considering the impact that the
    experiences and perspectives of an accused Indigenous person may have had on
    the integrity of their decision to plead guilty in any case where those
    experiences appear to be relevant, courts can discharge their obligation to
    address systemic discrimination.

(8)

The Duty to Inquire was not Triggered

[100]

In this case, nothing occurred to require the trial judge to inquire
    into Mr. Ks experiences as an Indigenous man during the application to withdraw
    his guilty pleas. Mr. K did not raise the issue, and there is nothing on the
    record before us that should have caused the trial judge to make such an inquiry.
    In fact, there were factors that strongly suggested that Mr. Ks decision to
    plead guilty was voluntary and competent such that no inquiry would be needed.

[101]

First, a plea inquiry was conducted. Not only did Mr. K pledge the
    voluntariness of his plea during the plea inquiry, but as the trial judge
    observed, his responses in court revealed significant cognitive capacity.

[102]

Second, when Mr. K brought his application to withdraw his guilty
    plea, he identified a particular event that allegedly altered his capacity,
    namely his time in segregation. Implicit in his dedicated claim that segregation
    deprived him of capacity is an acknowledgment by him that prior to segregation,
    despite any challenges he experienced as an Indigenous man, he had the capacity
    to make active or conscious choices.

[103]

Indeed, the evidence in the
Gladue

report that was
    furnished to the trial judge prior to Mr. Ks sentencing affirmed that Mr. Ks
    volition was not compromised by his experiences as an Indigenous person. As the
    underlined passages from the
Gladue

report, reproduced above in
    paras. 23-24, show, Mr. K is quoted speaking of his strong problem-solving
    skills, and of how segregation caused him to develop a disability in [his]
    decision-making capabilities such that his mind set isnt the same as it was
    when [he] started. He complained of not being able to make decisions
    anymore. Once again, this evidence can only be understood as an affirmation
    that Mr. Ks capacity to make decisions was unaffected by his experiences as an
    Indigenous person.

[104]

In sum, Mr. Ks application before the trial judge turned on the
    impact that segregation had on his volition. The trial judge considered that claim
    and exercised his discretion to reject it. There was nothing requiring him to
    go further and initiate an inquiry into the impact that Mr. Ks experiences as
    an Indigenous person had on his volition. Even if the trial judge had been
    under a duty to make such an inquiry, this ground of appeal would fail. The
    admissions made by Mr. K in the
Gladue

report about his
    capacity despite his painful experiences as an Indigenous person show beyond
    all question that such failure to inquire would not have resulted in a
    miscarriage of justice.

[105]

I would therefore dismiss this ground of appeal.

C.

Was it unreasonable for the trial judge to treat
    segregation as a voluntary choice made by Mr. K?

[106]

The trial judges consideration of Mr. Ks request to be placed in
    segregation was not unreasonable. The issue, as posed by Mr. K, does not fairly
    capture the trial judges reasoning. The trial judge did not deny Mr. Ks
    application because his decision to go into segregation was voluntary. To the
    trial judge, the relevance of Mr. Ks request for segregation, and his
    thankfulness for having been segregated, arose from the indisputable fact that segregation
    helped alleviate Mr. Ks concern about his safety, notwithstanding the
    horrendous conditions of being placed in segregation. Since Mr. K wanted
    segregation, even as a desperate measure for self-preservation, the stress of
    being in segregation was lessened by the relief that segregation offered him. I
    see no problem with this reasoning.

[107]

I would therefore dismiss this ground of appeal.

CONCLUSION

[108]

In my view, the trial judge gave a cogent, well-reasoned basis for
    rejecting Mr. Ks claim that the segregation deprived him of the capacity to
    make a voluntary decision to plead guilty. Moreover, the circumstances
    surrounding the plea at issue strongly suggest that Mr. K made the choice to
    plead guilty because of the imposing strength of the case against him, and to
    demonstrate that he accepted responsibility for his actions in the hope that by
    doing so he could temper the significant punishment he had coming for the
    brutal crimes he committed against the complainant. I can see no basis for
    setting aside Mr. Ks plea.

[109]

For the reasons above, I would dismiss Mr. Ks appeal.

Released: November 19, 2021 David M.
    Paciocco J.A.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.

S.
    Coroza J.A.

[1]

See
R. v. Lamoureux
(1984), 13 C.C.C. (3d) 101 (Que. C.A.) and
R. v. Rajaeefard
(1996) 27 O.R. (3d) 323 (C.A.).


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Elenezi, 2021 ONCA 834

DATE: 20211119

DOCKET: C68748

Hoy, Coroza and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Elenezi

Appellant

Ewan Lyttle, for the appellant

Hannah Freeman, for the respondent

Heard and released orally:
    November 18, 2021

On appeal from the sentence imposed on December
    12, 2018 by Justice Hugh R. McLean of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant seeks leave to appeal his sentence
    for contempt of court.

[2]

He was part of a group of men who concocted a plan to lure a victim to a
    parking lot to assault and kidnap him as retribution for providing information
    to the Ottawa Police. When the plan was carried out, the 18-year-old victim
    attempted to flee. He was shot twice, causing his death.

[3]

The appellant accepted a plea deal for manslaughter. At his guilty plea,
    he affirmed that the agreed statement of fact, which included that one of two
    men  Nedeljko Borozan and Mohamed Mohamed  was the shooter, was true and
    complete. The appellant was sentenced to 12 years imprisonment.

[4]

Mr. Borozan and Mr. Mohamed were subsequently tried before a jury for
    first degree murder and kidnapping. After another intended Crown witness from
    the group refused to testify, the trial judge signed orders requiring the
    appellant and the other members of the group who, like the appellant, had pled
    guilty, to testify. The appellant appeared and, having received legal advice,
    refused to be sworn or testify at their trial. He said he was fearful of the
    consequences for himself and his family if he testified. At the time he refused
    to testify, he was 20 years of age. Both accused were subsequently acquitted.

[5]

The appellant was found guilty of contempt of court and sentenced to
    three years, consecutive to his 12-year sentence for manslaughter.

[6]

An appellate court can only intervene to vary a sentence if a sentencing
    judge made an error in principle that had an impact on the sentence or the
    sentence is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 11.

[7]

The appellant argues that the sentencing judge erred in principle by
    failing to consider three relevant factors  his youth, his rehabilitative
    prospects, and the totality principle  and that the sentencing judges failure
    to do so impacted on the sentence imposed. He further argues that the
    sentencing judge gave unreasonable weight to his refusal to testify. He submits
    that his sentence should be reduced from three years to one year.

[8]

We are not persuaded that there is any basis for this court to vary the
    sentence imposed.

[9]

The sentencing judge delivered brief oral reasons following lengthy
    submissions by counsel. The appellants youth and rehabilitative prospects were
    a focus of the sentencing hearing. The sentencing judge acknowledged the
    arguments made about the appellants youth and rehabilitative prospects. He did
    not fail to consider them. Rather, he concluded that denunciation must
    nonetheless be the primary principle, despite the appellants youth and
    rehabilitative prospects.

[10]

The
    sentencing judge also considered the totality principle and the need to avoid a
    crushing sentence. He found that a sentence of three years was required to give
    effect to the need to denounce the appellants entirely separate offence of
    contempt of court.

[11]

The
    trial judge did not give unreasonable weight to the appellants refusal to
    testify. The sentencing judge  who was also the judge at the murder trial
    appreciated the context surrounding the appellants refusal to be sworn. But he
    concluded that notwithstanding the appellants concerns, the court must bring
    home a denunciatory sentence to indicate to persons, being the accused and
    likeminded individuals, that this kind of behaviour will simply not be
    tolerated.

[12]

As
    this court observed in
R. v. Yegin
, 2010 ONCA 238, the justice
    systems response to a refusal to testify must be firm and direct
    significant jail terms above and beyond whatever other period of incarceration
    the individual is, or might be, facing for his own participation in the
    relevant events must be imposed. The sentence imposed was consistent both with
    the jurisprudence and the actual sentences imposed for other youthful
    offenders. In
R. v. McLellan
, 2016 ONSC 3397, sentences of 30 months
    were imposed on youthful offenders for refusing to testify in a murder trial.
    And in
R v. Omar
, 2017 ONSC 1833, affd 2018 ONCA 599, leave to appeal
    refused, [2018] S.C.C.A. No. 398, a three-year sentence for a youthful offender
    was upheld by this court.

[13]

Accordingly, leave to appeal sentence is granted but the appeal
    is dismissed.

Alexandra
    Hoy J.A.

S.
    Coroza J.A.

Sossin
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deakin, 2021 ONCA 823

DATE: 20211119

DOCKET: C67995

Fairburn ACJO, Rouleau &
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Deakin

Appellant

Carter Martell, for the appellant

Samuel Greene, for the respondent

Heard: October 28, 2021 by
    video conference

On appeal
    from the conviction entered on October 24, 2019, and the sentence imposed on December
    11, 2019, by Justice R.S. Gee of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant appeals
    his conviction for robbery and wearing a disguise with intent to commit an
    indictable offence as well as his four-year sentence.

[2]

The appellant
    entered a convenience store wearing a face-covering to conceal his identity. He
    was brandishing a knife and what appeared to be a firearm and demanded that the
    clerk open the till. He stole several hundred dollars and escaped with an
    accomplice.

[3]

The issue at
    trial was identity.

[4]

After the
    robbery, the police obtained surveillance video from the convenience store. The
    police then released pictures from the video showing the two perpetrators to
    the public.

[5]

The appellants
    sister, Mellissa Deakin, saw the photos and recognized the appellant as one of the
    perpetrators depicted. She then contacted the police.

[6]

The Crown called Ms.
    Deakin as a witness at trial. A
voir dire
was held to determine if, because of her
    prior acquaintance with the appellant, she was in a better position than the
    trier of fact to identity the perpetrator: see
R. v. Leaney
[1989] 2 S.C.R. 393 at pp. 412-13. At the conclusion of the
voir dire
,
    defence counsel conceded that Ms. Deakins opinion on identification was
    admissible subject to the trial judges determination of its ultimate reliability.
    As the trial judge noted, just because a witness is qualified to give the
    evidence does not necessarily mean that it ought to be accepted and relied on
    by the trier of fact.

[7]

In the course
    of her testimony, Ms. Deakin was shown five video clips drawn from surveillance
    video at the convenience store. They depicted the appellant walking in or in
    front of the store. She had not seen them before. In some videos, the appellant
    wore a face covering but, in two of the videos, the appellants face was
    uncovered although a baseball cap partially shielded the upper portion of his
    face. Ms. Deakin was certain that the person depicted in the video was her
    brother, the appellant. She noted the appellants distinctive walk which she
    described as a thug walk and recognized certain features of his face visible
    in parts of the videos.

[8]

The trial
    judge found Ms. Deacon to be a credible witness and her identification of the
    appellant to be reliable. He entered a conviction. He then imposed a sentence
    of three years for the robbery and one year for the wearing of a disguise to be
    served consecutively, resulting in a total sentence of four years.

[9]

The appellants
    principal ground of appeal is that the trial judge failed to appreciate the
    frailties in the identification evidence. He argues that, properly viewed, the
    identification evidence was so unreliable as to be incapable of grounding a
    conviction.

[10]

At the outset,
    the appellant explains that the photos the police released to the media from
    which Ms. Deakin identified her brother contain insufficient detail to allow
    for reliable identification. Ms. Deakin provided no explanation as to how she
    was able to recognize the appellant from these photos. In the appellants
    submission, the animus that Ms. Deakin felt toward her brother is likely what
    led her to attend at the police station and identify her brother as the person
    depicted in the photos. The two had had a falling out over the appellants
    discreditable lifestyle approximately one year before the robbery. The
    appellant argues that his sister was expecting him to get in trouble so, in
    effect, she placed him in the photo.

[11]

When Ms. Deakin
    attended at the police station, her belief that it was the appellant depicted
    in the photos was, in the appellants submission, reinforced by the polices
    failure to prepare a photo lineup. Rather, they showed Ms. Deakin a different
    photograph said to be of the appellant, one drawn from Facebook that she was
    familiar with, and had her confirm that the second photo was also of her
    brother. This is said to have further tainted her identification.

[12]

According to
    the appellant, Ms. Deakin would therefore have expected to see her brother when
    she was shown the videos at trial. In the appellants submission, this
    confirmation bias was not adequately considered by the trial judge.

[13]

The appellant goes
    on to argue that the videos are simply incapable of supporting the
    identification of the appellant. The alleged distinctive walk Ms. Deakin
    described as thug walk is, in his submission, generic in nature and provides little
    support for the identification. As for the photos in which the appellants face
    is partially revealed, Ms. Deakin was unable to adequately describe any distinctive
    facial features to justify the confidence in the identification she asserted.

[14]

Finally, the
    appellant notes that Ms. Deakin conceded that she was estranged from her
    brother. She had not seen him for about a year before the surveillance videos
    and two years by the time of trial. In the period since she had last seen him, she
    said that his appearance had changed somewhat.

[15]

Given these
    problems with the identification evidence, the appellant argues that, although
    the trial judge cautioned himself on the frailties of identification evidence
    and the danger of conflating credibility with reliability, he did not heed this
    caution. His reasons give no indication that he had in fact appropriately considered
    and weighed the problems.

[16]

We do not accept
    this submission. In his reasons for judgment, the trial judge adverted to the
    dangers of eyewitness identification. He acknowledged that, just because a
    witness is qualified to give recognition evidence, this does not absolve the
    trial judge of his responsibility to make his own assessment of the evidence
    and be satisfied beyond a reasonable doubt of its accuracy. He also noted that
    confidence does not equate with accuracy.

[17]

Mindful of
    these dangers, the trial judge then carefully analyzed Ms. Deakins evidence.
    He noted that Ms. Deakin acknowledged the change in the appellants appearance since
    she had last seen him. Aware that Ms. Deakin had had a falling out with her
    brother, the trial judge found that this affected neither her credibility nor
    the reliability of her evidence. He viewed Ms. Deakin as having testified in [a]
    careful, candid and honest manner. He accepted that the distinctive walk
    described by Ms. Deakin constituted a feature that his sister knowing [the
    appellant] as she does and for as long as [she] does, would be able to
    recognize. It was open to the trial judge to come to this conclusion.

[18]

As for the
    portions of the video depicting the appellants face, the trial judge focussed on
    two clips. With respect to the first, he found that given its quality and the
    amount of the face visible, especially in profile, Ms. Deakins identification
    from it is accurate and reliable. With respect to the second clip, he noted
    Ms. Deakins evidence to the effect that based on the shape and outline of the
    face, the nose and the lips, there is no doubt in her mind that the person was
    her brother. When describing what she recognized in the clip, the transcript
    reveals that Ms. Deakin got up to show on the video what she was describing. After
    recognizing that a witness confidence does not equate with accuracy, the
    trial judge found that this clip gives a very good view of the persons face
    and is clear and of high quality, such that again I am satisfied in the
    accuracy of Ms. Deakins identification.

[19]

As a result, we
    see no error in the trial judges approach.

[20]

In addition,
    despite the capable submissions made, we do not accept the suggestion that Ms.
    Deakins identification of the appellant was tainted by the manner in which the
    police carried out the investigation. Ms. Deakin independently identified the
    appellant from the photos released to the public and did so without any
    prompting.

[21]

We reject the
    suggestion that Ms. Deakin identified the appellant in the videos because she
    expected to see him in them. The record demonstrates otherwise. When shown the
    videos for the first time at trial, she testified that she was not able to identify
    the person in the first two clips. She only confirmed that the person depicted
    in the videos was her brother when shown clips of the perpetrator walking and
    clips that revealed portions of his face. Despite their falling out, Ms. Deakin
    was not looking to inculpate her brother. As she explained, she did not want to
    believe that it was her brother. When she first saw the picture, her heart
    kind of dropped. I felt like crap.

[22]

The appellant
    conceded at trial that Ms. Deakins opinion on identity was admissible. The
    weight to be given to that evidence was a matter for the trial judge. We see no
    error in his acceptance as to the accuracy of Ms. Deakins identification of
    her brother as the perpetrator in the surveillance videos.

[23]

Second, the
    appellant argues that the verdict is unreasonable. As we have explained, we see
    no error in the trial judges conclusion that the videos were sufficiently
    clear so as to allow Ms. Deakin to identify the appellant as the perpetrator.
    As the trial judge noted, the videos are of high quality and the amount of face
    visible in those videos is sufficient to allow the identification, particularly
    when combined with what the trial judge perceived to be the appellants
    distinctive walk. We reject this ground of appeal.

[24]

The appellant
    also tenders and seeks to admit fresh evidence. The fresh evidence relates to
    the appellants trial on charges for having made threats against Ms. Deakin.
    That trial was held approximately a year following the decision in the present
    case. The appellant was acquitted of those charges and he argues that Ms.
    Deakins testimony in that case was rejected by the trial judge. In addition,
    her testimony is in some measure inconsistent with testimony she gave in this
    case. In the appellants submission, the evidence is important for a full and
    proper appreciation on appeal of the reliability of Ms. Deakins evidence.

[25]

We do not admit
    the fresh evidence. In our view, it is simply not cogent. Ms. Deakins
    testimony in the later trial does not say anything about her credibility and
    reliability when she testified in the present matter. At best, it would show inconsistent
    testimony suggesting that her memory of events shifted in the time between the
    two trials.

[26]

Finally, the
    appellant appeals his four-year sentence on the basis that the trial judge did
    not explain why he made the one-year sentence for wearing a disguise
    consecutive to the three-year sentence for robbery.

[27]

We see no error
    in the trial judges sentence. This was a planned and deliberate robbery and
    involved a knife and what appeared to be a firearm. The appellant had a lengthy
    record and the sentence imposed fell well within the range. In fact, at the
    sentencing hearing, defence counsel submitted that an appropriate sentence was
    three to four years, probably, in fairness, probably close to the four, if not
    the four. Although the trial judge should perhaps have explained why he chose
    to make the two sentences consecutive, it is clear, in our view, that he considered
    a four-year sentence to be appropriate in the circumstances. In our view, the
    sentence is fit.

[28]

For these
    reasons the appeal is dismissed.

Fairburn A.C.J.O.

Paul Rouleau J.A.

Grant Huscroft J.A.