COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Espinoza-Ortega, 2019 ONCA 545

DATE: 20190628

DOCKET: C64371

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ismael Espinoza-Ortega

Appellant

Renée Gregor, for the appellant

Andrew Hotke, for the respondent

Heard: November 9, 2018

On appeal from the conviction entered by Justice Thomas
    P. Cleary of the Ontario Court of Justice on June 9, 2017, and from the sentence
    imposed on August 4, 2017.

Feldman J.A.:

OVERVIEW

[1]

The appellant pleaded guilty to one count of impaired driving causing
    bodily harm, one count of refusing to provide a breath sample from an accident
    that caused bodily harm, and one count of failing to stop at the scene of an
    accident knowing that bodily harm was caused.

[2]

Following the guilty plea, counsel for the Crown and for the defence
    presented a joint submission for sentence of 45 days (later amended to 40 days,
    the equivalent of time served before bail was granted counted as 1.5:1), three
    years probation, and a two-year driving prohibition.

[3]

Before considering the joint submission, the trial judge asked the Crown
    if there was a victim impact statement. The Crown advised the court that there
    was not, and agreed to contact the victim and give him the opportunity to
    present a statement to the court. On the return date, the victim delivered his
    statement in open court, outlining in detail his injuries and the significant
    effect that the collision had on his life.

[4]

After hearing the victim, the trial judge indicated that he was
    rejecting the joint submission on the basis that the agreed sentence was
    contrary to the public interest, and asked counsel to present their submissions
    on sentence. When counsel returned later that day, Crown counsel advised that
    the Crown could not support the joint submission or take the position that it
    was not contrary to the public interest. The appellant then moved, with the
    concurrence of the Crown, to withdraw the guilty plea, but the trial judge
    refused to allow the appellant to do so. The trial judge adjourned for
    sentencing submissions. Following those submissions, he imposed a sentence of
    12 months and one day in custody, plus one year of probation and a two-year
    driving prohibition.

[5]

The appellant appeals from conviction and sentence. He raises one ground
    of appeal on the conviction appeal: the trial judge erred in refusing to strike
    the appellants guilty plea. On the sentence appeal, the appellant submits
    that: (1) the trial judge erred by failing to consider relevant factors, which
    led him to fail to grant appropriate credit for the time the appellant spent on
    house arrest, and (2) the sentence imposed was harsh and excessive.

[6]

I would allow the appeal from conviction. In the circumstances of this
    case, the trial judge erred by refusing to strike the appellants guilty plea,
    which was not a fully informed plea: when the appellant pleaded guilty, he did
    not know the consequences of his plea because he did not know that the Crown
    would withdraw its support of the joint submission after the plea was entered
    and take the position that the agreed sentence was not in the public interest.
    In my view, in the circumstances of this case, allowing the guilty plea to
    stand would constitute a miscarriage of justice.

FACTS AND PROCEDURAL HISTORY

The Collision

[7]

On February 26, 2017, the appellant was arrested at the scene of a
    collision. He had been driving at 3 a.m. eastbound on Eglinton Avenue in the
    east end of Toronto. After failing to stop at three red lights, he collided
    with the rear end of the victims car, causing it to leave the roadway and hit
    a pole. There was significant damage to the victims car, and the victim, who
    was the driver, sustained life-threatening injuries.

[8]

Initially the appellant tried to leave the scene of the collision but
    witnesses at the scene prevented him from doing so. When the police arrived,
    the appellant was exhibiting signs of impairment. He complied with the
    attending officers initial demand for a breath sample, which registered 158 mg
    of alcohol per 100 mL of blood  well over the legal limit. He refused to
    provide a second sample.

[9]

The appellant was arrested and charged with one count each of: impaired
    driving causing bodily harm, refusing to provide a breath sample from an
    accident that caused bodily harm, dangerous operation of a motor vehicle,
    failure to stop at the scene of an accident knowing that bodily harm was
    caused, and criminal negligence causing bodily harm. He was released on strict
    house arrest bail after spending 27 days in custody. He then spent 134 days on
    house arrest bail, until sentencing on August 4, 2017.

The Proceedings in the Ontario Court of Justice

[10]

On
    May 29, 2017, at a Crown pre-trial, counsel for the Crown and trial counsel for
    the appellant entered into plea negotiations. They agreed on a joint position
    on sentence of 45 days in custody (which was later revised to 40 days, the
    equivalent of time served at a rate of 1.5:1 credit), three years probation,
    and a two-year driving prohibition.

[11]

Prior
    to this date, the appellants counsel had received disclosure from the Crown.
    The Crowns disclosure included a copy of an audio-recorded police interview
    given by the victim of the collision on March 15, 2017, after he was released
    from hospital, in which he described his injuries and the medical procedures
    that he had undergone while he was in the hospital. The police officer characterized
    the victims injuries as life-threatening, but stated that the victim was
    recovering. It was agreed as a fact for the purposes of the appeal that on May
    29, Crown counsel took the position that if the Crown received more information
    about the victims injuries, the offer to take a joint position may be off the
    table.

[12]

In
    a meeting before court on June 9, 2017, Crown counsel confirmed the joint
    position. The appellant proceeded to plead guilty to one count of impaired
    driving causing bodily harm, one count of refusing to provide a breath sample,
    and one count of failing to stop at the scene of an accident knowing that
    bodily harm was caused. Counsel for the appellant indicated for the record that
    she had completed a pre-plea inquiry with the appellant. She stated that the
    appellant understood that he had the right to a trial, that pleading guilty
    would require admitting the essential elements of the offence, and that,
    although there was a joint position on sentence, sentencing was ultimately up
    to the trial judge.

[13]

Counsel
    for the Crown read in an agreed statement of facts, which included the fact
    that the victim had suffered life-threatening injuries and was recovering.
    Counsel for the appellant confirmed that the facts read in by the Crown were
    correct.

[14]

The
    trial judge entered a finding of guilt. Then, citing s. 722(2) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, the trial judge asked the Crown whether he had
    taken steps to obtain a victim impact statement from the victim of the
    collision. When the Crown said no, the trial judge adjourned the proceedings to
    allow the Crown to speak to the victim and advise him that he could provide a
    victim impact statement to the court. It is important to note here that the
    Crown who attended at the plea hearing was not the one who had agreed to the
    joint position, apparently because that Crown was in another courtroom on
    another matter at the time.

[15]

On
    July 4, 2017, the victim attended court and, in accordance with s. 722(5) of
    the
Criminal Code
, was given the opportunity to read his victim impact
    statement. It took approximately 15 minutes. His statement detailed the extent
    of his injuries, including the continuing impact of the collision on his
    physical and mental health.

[16]

After
    the victim gave his statement, the trial judge asked if the Crown had received
    any further input from the Crown who made the plea deal with the appellant. The
    Crown answered that he had no further input from that Crown, but referred to
    the fact that the judge may want to take into account the detailed information
    from the victim, and noted that it illustrates the tragic consequences of
    driving in these circumstances.

[17]

The
    trial judge then informed counsel that he would not be acceding to the joint
    submission. He first recited the history of the proceeding before him including
    the guilty plea, the facts read in including that the victim had suffered
    life-threatening injuries, that he then asked for a victim impact statement,
    and that the victim had just now read his detailed statement to the court.
    After stating the correct test for rejecting a joint submission, the trial
    judge stated that he was not going to accept it:

[W]hen theres a joint submission, the court should only vary
    from it if the joint submission would be contrary to the public interest, which
    is a rather high level. Most joint submissions are, so to speak, gone along
    with regardless of whether the judge feels its a little too low or a little
    too high or not what he or she would have done. Im satisfied here based on the
    earlier facts I referred to and Mr. Winters detailed account of the impact
    upon him, that this joint submission is not one Im going to be endorsing.

[18]

The
    trial judge then told counsel that they could make sentence submissions later
    that day on the basis that the joint position would not be accepted. When they
    resumed after lunch, the Crown advised the court that he had been able to speak
    to both the Crown who made the plea agreement as well as with a senior Crown
    Attorney who had carriage of the appellants prosecution. Having done so, he
    advised the court of the following:

·

The Crown was not in a position to advise the court that the
    joint submission was not contrary to the public interest.

·

The Crown had made an error by agreeing to the joint position
    without having disclosure of the impact of the crime on the victim.

·

The Crown took responsibility for that error.

·

The Crown suggested that, had the Crown who negotiated the plea
    bargain been fully apprised of the extent of the victims injuries and the
    impact on his life, he would presumably never have agreed to the sentence of 45
    days incarceration.

·

Further, the Crown suggested that if the appellant did not have
    complete disclosure, fairness would dictate that he be given the opportunity to
    withdraw his guilty plea.

·

Referring to the decision of the Supreme Court of Canada in
R.
    v. Anthony-Cook
, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 58, the Crown
    noted that where a trial judge is not satisfied with a joint position, counsel
    should be given an opportunity to make submissions to alleviate those concerns.

·

Again referring to the instructions by the Supreme Court in
Anthony-Cook
,
    at para. 59, the Crown stated that he did not believe the judges concerns
    about the joint submission were going to be alleviated. In such cases,
Anthony-Cook
states that the judge may allow the accused to apply to withdraw his plea:
    para. 59.

·

The Crown then analogized what occurred in the appellants case
    to the example given by Moldaver J. in
Anthony-Cook
for when it may be
    appropriate to allow the withdrawal of a guilty plea. Moldaver J. in that case
    gave as an example where counsel have made a fundamental error about the
    legality of the joint submission: para. 59. The Crown stated that while the
    proposed sentence was not illegal, it was arrived at based on an error in
    judgment and premature negotiation in the absence of critical information that
    would otherwise have an enormous impact on what the appropriate disposition
    would be.

·

It was the Crowns submission that if the appellant wished to
    withdraw his guilty plea and reset the clock, as it were, that he be permitted
    to do so.

[19]

After
    the Crowns submissions, counsel for the appellant brought an application to
    strike the plea. Counsel agreed with the Crown that the victim impact statement
    contained significant additional information about the victims injuries, and
    that trial fairness required that the appellant be allowed to withdraw his plea
    in order to re-discuss the case with the Crown attorneys and to have a new
    position taken in light of the new information that was provided with respect
    to the injuries.

[20]

The
    trial judge then delivered his ruling rejecting the appellants application to
    strike his guilty plea. He began by outlining what had occurred up to that
    point. He recounted the guilty plea and the facts that were read in, including
    that the victim had suffered life-threatening injuries, and that he had told
    the parties that he would not decide on the joint submission until the victim
    had been given the opportunity to give a victim impact statement, pursuant to
    s. 722(2) of the
Criminal Code
. He then gave the following account of
    what the victim told the court:

Without giving all the details, in essence the life-threatening
    injuries were described as 13 days in intensive care, spleen was removed, two
    collapsed lungs, a very large tear in his diaphragm which caused significant
    rearrangement, as he put it, of his internal organs and they had to be put
    back, a large loss of blood, internal bleeding, various medical procedures such
    as chest tubes, six weeks wearing a neck support, the loss of 30 pounds,
    difficulty sleeping, that he was in physiotherapy, hes had 25 appointments
    with three per week still ongoing, estimated at least six months more of
    physiotherapy.

[21]

After
    continuing the narrative of what had occurred, the trial judge held that it
    would be inappropriate to allow the withdrawal of the guilty plea only because
    some of the details of life-threatening injuries are simply revealed in a
    victim impact statement, which has a defined use on sentencing in the
Criminal
    Code
and does not form part of the facts on the plea. He pointed out that the
    only example the Supreme Court gave in
Anthony-Cook
for when a
    withdrawal would be appropriate was where the joint submission was for an
    illegal sentence, and that this joint submission was not illegal. He concluded
    that allowing a withdrawal of the plea in this case would not comply with
Anthony-Cook
.

[22]

On
    August 4, 2017, counsel returned to make submissions on sentence. Crown counsel
    was not the Crown who was present during the plea, nor the Crown who had agreed
    to the joint submission, but the senior Crown Counsel who originally had
    carriage of the appellants prosecution. He advised the court that as a Crown
    officer, he could not seek a sentence that was higher than the joint position,
    but he would be making submissions and bringing forward case law to assist the
    court. While his submissions included some points favourable to the appellant,
    the case law cited included a number of cases where the charge was impaired
    driving causing death, and where very significant sentences had been imposed.

ANALYSIS

[23]

The
    appellant submits that the trial judge erred in law by denying his request to
    withdraw his guilty plea when it was clear that the plea was uninformed.

[24]

To
    analyze this alleged error, it is necessary to address the intersection of two
    legal issues: (1) the proper approach for trial judges to take when they are
    not prepared to sentence in accordance with a joint submission, and (2) the law
    governing when an accused may be permitted to withdraw a guilty plea. Each of
    these issues has been recently addressed by the Supreme Court of Canada  one
    in
Anthony-Cook
, and the other in

R. v. Wong
, 2018 SCC
    25, [2018] 1 S.C.R. 696.

The Applicable Legal Principles

[25]

The
Anthony-Cook
case addresses the importance of resolution discussions,
    including joint submissions on sentence, to the administration of justice. In
    that context, the Supreme Court of Canada gave directions on when and how a
    trial judge may depart from a joint submission.

[26]

In
Anthony-Cook
, the trial judge refused to accept a joint submission for
    manslaughter of 18 months in addition to one year of pre-trial custody. The
    trial judge considered the sentence unfit because there was a six-month error
    in the credit for pre-trial custody in the appellants favour, and he believed
    a period of probation was necessary. In spite of the trial judges concerns,
    Crown counsel maintained his position on the joint submission. Before imposing
    sentence, the trial judge invited the accused to withdraw his guilty plea but
    he declined to do so.

[27]

While
    the Court of Appeal for British Columbia dismissed the appeal, finding the
    sentence of two years less a day (after credit for pre-trial custody) plus
    three years probation to be fit, the Supreme Court of Canada set the sentence aside,
    and imposed the sentence that was originally proposed in the joint submission of
    18 months further incarceration. The Supreme Court considered the various
    tests that courts have applied for rejecting a joint submission and concluded
    that while joint submissions are not sacrosanct, a trial judge may not reject a
    joint position on the basis that the judge considers it to be unfit or even demonstrably
    unfit. The test is a more stringent one: to be rejected, the proposed sentence
    must be contrary to the public interest or bring the administration of justice
    into disrepute. Moldaver J., writing for the court, stated at para. 31:

It is more stringent than the other tests proposed and it best
    reflects the many benefits that joint submissions bring to the criminal justice
    system and the corresponding need for a high degree of certainty in them.
    Moreover, it is distinct from the fitness tests used by trial judges and
    appellate courts in conventional sentencing hearings and, in that sense, helps
    to keep trial judges focused on the unique considerations that apply when
    assessing the acceptability of a joint submission.

[28]

He
    made clear that the threshold is a high one and for good reason, stating, at
    paras. 33-34:

In [
R. v. Druken
, 2006 NLCA 67, 261 Nfld. &
    P.E.I.R. 271], at para. 29, the court held that a joint submission will bring
    the administration of justice into disrepute or be contrary to the public
    interest if, despite the public interest considerations that support imposing
    it, it is so markedly out of line with the expectations of reasonable persons
    aware of the circumstances of the case that they would view it as a break down
    in the proper functioning of the criminal justice system. And, as stated by
    the same court in
R. v. B.O.2
, 2010 NLCA 19, at para. 56, when
    assessing a joint submission, trial judges should avoid rendering a decision
    that causes an informed and reasonable public to lose confidence in the
    institution of the courts.

In my view, these powerful statements capture the essence of
    the public interest test developed by the Martin Committee. They emphasize that
    a joint submission should not be rejected lightly, a conclusion with which I
    agree. Rejection denotes a submission so unhinged from the circumstances of the
    offence and the offender that its acceptance would lead reasonable and informed
    persons, aware of all the relevant circumstances, including the importance of
    promoting certainty in resolution discussions, to believe that the proper
    functioning of the justice system had broken down. This is an undeniably high
    threshold  and for good reason, as I shall explain.

In explaining why a stringent test is warranted,
    Moldaver J. outlined the benefits of a guilty plea for the accused and for the
    Crown, for witnesses, for counsel, and for the administration of justice
    generally: paras. 35-36.

[29]

He
    emphasized in his reasons that the most important factor for the acceptance of
    an agreed sentence on a guilty plea for both the accused and for the Crown is
    certainty. For the accused it is the
quid pro quo
for giving up the
    right to a trial  the accused has some assurance that he will receive a
    somewhat reduced sentence, he has the opportunity to show and express remorse,
    and he is spared the cost and stress of a trial. For the Crown, any flaws in
    the case are overcome, witnesses are spared the ordeal of a trial, and the
    accused might supply useful information that would not be otherwise obtainable
    by the Crown.

[30]

However,
    for the benefits of joint submissions to be achieved, the parties must have a
    high degree of confidence that they will be accepted:
Anthony-Cook
,
    at para. 41. Consequently, it is important that trial judges exercise restraint
    and only reject a joint submission where the proposed sentence would be viewed
    by reasonable and informed persons as a breakdown in the proper functioning of
    the justice system:
Anthony-Cook
, at para. 42. To assist trial
    judges, Moldaver J. set out a list of six steps to help structure their
    approach in cases where they are troubled by a joint submission:

1.

The trial judge should consider the joint submission on an as-is basis
    and, subject to the failure to include a mandatory order, assume that other
    provisions have been considered but rejected: para. 51.

2.

The public interest test should be applied whether the judge is considering
    jumping or undercutting the proposed sentence: para. 52.

3.

Where the joint submission is contentious, the trial judge will want to
    know the circumstances that led to it in order to properly assess the public
    interest in not accepting it. Counsel should be prepared to inform the
    sentencing judge of all the relevant circumstances and explain why the joint
    submission is not contrary to the public interest in light of those
    circumstances: paras. 53-57.

4.

Where the judge is still concerned, counsel should be given an
    opportunity to make further submissions, including the possibility of allowing
    the accused to withdraw the plea: para. 58.

5.

If the trial judges concerns are still not alleviated, the judge may
    allow the accused to apply to withdraw the plea. At this point in his reasons,
    Moldaver J. stated that he was not going to settle in this case the
    circumstances when a plea may be withdrawn, but gave as an example, where
    counsel have made a fundamental error about the legality of the proposed joint
    submission: para. 59.

6.

Where the trial judge remains unsatisfied, clear and cogent reasons for
    rejecting the joint submission must be given: para. 60.

[31]

In
    this case, the trial judge referred to
Anthony-Cook
in his reasons.
    Before discussing whether he properly applied the instructions set out in that
    case, I will first discuss
Wong
, where the Supreme Court prescribed
    how courts should approach the application to withdraw a guilty plea.

[32]

In
Wong
, the accused was a permanent resident of Canada who pled guilty
    to one count of trafficking in cocaine. There was no joint submission as to
    sentence. The sentence imposed was nine months, which had immigration
    consequences for the accused that he was not aware of at the time of the plea.
    He sought to withdraw the plea on appeal.

[33]

A
    guilty plea must always meet the three requirements of being voluntary,
    unequivocal and informed:
Wong
, at para. 3;
R. v. T. (R.)

(1992),
    10 O.R. (3d) 514 (C.A.), at p. 519. One of the components of an informed plea
    is that the accused is aware of both the criminal consequences and the legally
    relevant collateral consequences of the plea:
Wong
, at paras. 3-4;
R.
    v. Girn
, 2019 ONCA 202, at paras. 51-52. Because Mr. Wong was not aware of
    the immigration consequences that flowed from a nine-month sentence, the
    majority of the Supreme Court held that his plea was uninformed.

[34]

In
    coming to this conclusion, the majority set out a two-step test to apply when
    considering an application to withdraw a guilty plea on the basis that it was uninformed:
Wong
, at para. 33. While
Wong
involved the withdrawal of a
    guilty plea on appeal, the two-step test would also apply at first instance if
    the accused became aware at that time of consequences that he did not know when
    he entered the plea.

[35]

To
    be allowed to withdraw a guilty plea on the basis that it was uninformed, the
    accused must show: (1) that he was misinformed about or unaware of information
    that he needed to have in order to give an informed plea, and (2) that he
    suffered prejudice amounting to a miscarriage of justice: see
Wong
, at
    paras. 5, 33-35;
Girn
, at para. 65. Prejudice under the second branch
    is to be assessed subjectively:
Wong
, at para. 6.

[36]

To
    demonstrate subjective prejudice on appeal, the appellant must file an
    affidavit establishing a reasonable possibility that he or she would have
    either (1) pleaded differently, or (2) pleaded guilty, but with different
    conditions:
Wong
,

para. 19; see also
Girn
, at paras.
    66-69. Such conditions could include accepting a reduced charge to a lesser
    included offence, a withdrawal of other charges, a promise from the Crown not
    to proceed on other charges, or a joint submission on sentencing:
Wong
,
    at para. 21.

The Application of the Principles to the Facts

[37]

The
    trial judge rightly inquired about a victim impact statement in accordance with
    s. 722(2) of the
Criminal Code
and delayed sentencing to allow the
    Crown to give the victim the opportunity to present his statement. It was
    following the statement, which provided further details of the injuries and
    effect of those injuries on the victim, that the trial judge determined to
    reject the joint submission. Referring to
Anthony-Cook
, the trial
    judge found that the sentence was not in accordance with the public interest.

[38]

The
    trial judge then asked both sides for further submissions. Crown counsel
    advised that the defence would be asking to withdraw the plea, and that the
    Crown joined in that submission based on two positions: (1) the appellant was
    not able to make an informed decision on the plea because he did not have all
    the details of the injuries to the victim; and (2) analogizing to the example
    given by Moldaver J. in
Anthony-Cook
, although the proposed sentence
    was not an illegal one, it was arrived at without full information and was
    based on an error in judgment.

[39]

However,
    the trial judge rejected both bases. He found that the plea was not uninformed.
    He also found that because the agreed sentence was not an illegal one, it was
    not the type of circumstance contemplated by the court in
Anthony-Cook
,
    where a sentencing judge should allow the plea to be withdrawn following a
    joint submission. In my view, he erred in both respects.

[40]

In
    the appellants submission before the trial judge and on appeal, the new
    information rendered his plea uninformed. The appellant submits that the trial
    judge erred by failing to strike the appellants plea as uninformed in the face
    of his and the trial Crowns position that the plea should be struck.

[41]

Contrary
    to the Crowns position before the trial judge, the Crown on appeal takes the
    position that the appellants plea was not uninformed because he had sufficient
    details of the victims injuries at the time of his election.

[42]

I
    would not decide this issue based on the extent of the appellants knowledge of
    the victims injuries. Rather, I would analyze the position on a different
    basis. The appellant did not know the legal consequences of his plea because he
    did not know that the Crown would take the position before the trial judge that,
    while he could not vary from the joint position, he could not make submissions
    that the joint position would not be contrary to the public interest. The
    appellant pled guilty on the understanding that the Crown would actively
    support the joint position arrived upon and that it was highly likely that he
    would receive the sentence agreed to because it would be presented and
    supported by both sides as a proper and appropriate sentence.

[43]

However,
    in the end, that did not happen. In my view, it is clear that the plea was an
    uninformed one as to the legal consequences that would flow, in particular the
    sentence that would be imposed.

[44]

The
    trial judge also erred by rejecting the application to withdraw the plea, based
    on a misunderstanding of
Anthony-Cook
. First, in
Anthony-Cook
,
    Moldaver J. stated that he was not going to discuss all the circumstances where
    a plea should be allowed to be withdrawn following rejection of a joint
    submission. He used the illegal sentence only as an example of such a circumstance.

[45]

Second,
    I agree with the analysis presented by Crown counsel before the trial judge. In
    this case, both counsel agreed to a sentence that was not illegal, but which
    Crown counsel later determined could not be supported as in the public interest
    and not contrary to the administration of justice. Crown counsel was
    accordingly not able to support the joint submission before the trial judge by
    explaining why the joint submission was not contrary to the public interest, as
    required in
Anthony-Cook
: see paras. 54-57. The joint position was a
    mistake on the part of both counsel, but especially the Crown, who later
    acknowledged that the sentence was agreed to by mistake and through an error in
    judgment, similar to agreeing to an illegal sentence.

[46]

It
    is clear from
Anthony-Cook
that circumstances where a joint position
    is going to be properly found to be contrary to the public interest are
    intended to be rare. It will be even more rare for Crown counsel to agree to
    such a sentence, then acknowledge that the agreement was made in error because
    the sentence could not be said to be consistent with the public interest.
    Therefore, such a circumstance, as the trial Crown submitted in this case, is
    the type of circumstance where an application to withdraw the plea should be
    allowed, subject to the prejudice criterion.

[47]

The
    second prong of the test on an application to withdraw a guilty plea on the
    basis that it was uninformed is the subjective prejudice component. The accused
    must show that he suffered prejudice because there is a reasonable possibility
    he would have elected to go to trial, or to plead guilty but with different
    conditions:
Girn
, at paras. 66-69. Where the validity of the plea is
    first raised as an issue on appeal, the appellant establishes prejudice by
    filing an affidavit: see
Wong
, at para. 19. While such an affidavit
    was filed in this appeal, it is not necessary to refer to it since we have the
    record of the appellants position on the issue before the trial judge,
    together with the trial Crowns concurrence.

[48]

In
    this case, the appellants counsel submitted to the trial judge that the
    purpose of withdrawing the guilty plea was to re-discuss the case with the
    Crown attorneys and to have a new position taken in light of the new information
    that was provided with respect to the injuries.

[49]

The
    record establishes that the appellant would not have pled guilty when he did,
    but would instead have continued negotiations with the Crown to try to reach an
    acceptable joint position. Crown counsel joined in the appellants application,
    effectively agreeing that there was subjective prejudice.

[50]

This
    was not a case of judge-shopping, which was what the trial judge said is
    typically the concern when an accused seeks to withdraw his plea after a trial
    judge indicates he will be rejecting the joint position. Counsel were not going
    to present the same submission to another judge. The intention was to have
    further resolution discussions with a view to reaching an agreement on a
    sentence that took into account the new information from the victim.

CONCLUSION

[51]

The
    trial judge erred in law by failing to allow the appellants application to
    withdraw his guilty plea. I would therefore allow the appeal, set aside the
    conviction and sentence, and order a new trial.

Released: K.F. June 28, 2019

K. Feldman J.A.

I agree. L.B. Roberts J.A.

I agree. Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fenton, 2019 ONCA 492

DATE: 20190613

DOCKET: C64350

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Fenton

Appellant

Cate Martell, for the appellant

John A. Neander, for the respondent

Heard: June 12, 2019

On appeal from the conviction entered on July 28, 2017 by
    Justice A. Schreck of the Superior Court of Justice, sitting with a jury.

REASONS FOR
    DECISION

[1]

The appellant was convicted of possession of a
    firearm and threatening the complainant, Mr. Safranko. She submits that the
    trial judge erred in failing to allow the defence to advance a theory which
    could have raised a reasonable doubt as to her guilt.

[2]

Destin Safranko had been friends with the
    appellant. He was homeless, and she had allowed him to stay at her home from
    time to time.

[3]

Mr. Safranko testified that on November 16, 2015,
    he visited the appellants home and slept over. He said the appellant showed
    him a shotgun which she retrieved from a black backpack kept in the laundry
    room. It is this possession by the appellant that formed the basis for the
    conviction on the possession count.

[4]

Safranko was anxious to get some money, and
    finally admitted at trial that he had stolen some purses from the appellants
    home and had planned to sell them to raise $100.00.

[5]

According to Safranko, the next day, after
    discovering the theft of the purses, the appellant and her partner called him
    and threatened to kill him. Later that same day, the appellant and her partner
    went to Safrankos grandparents home to confront him but he was not there.

[6]

In the early morning of November 18, 2015, while
    Mr. Safranko was sleeping at his grandparents home, someone fired a shotgun at
    the front door of that residence.

[7]

The appellant was acquitted of charges related
    to use of the firearm on November 18, 2015.

[8]

At trial, the Crown relied on photographs of a
    shotgun located on the appellants phone, three text messages found on the appellants
    cell phone which contained photographs of the shotgun, sent between November 9
    and 13, and cell tower evidence putting the appellants phone in the general
    area where the shooting occurred at the relevant time.

[9]

The defence relied on the evidence of the
    appellants daughter who testified that on November 17, two men came to her
    mothers residence looking for Mr. Safranko. She testified that they asked if
    he was there and asked to see where he kept his belongings. She took them to
    the laundry room and showed them a backpack. The men looked inside the backpack
    and shouted to her to make sure Destin has it (or all the rest of the stuff).
    The men left with the backpack.

[10]

The defence theory at trial was that Mr.
    Safranko had possession of the firearm, needed money, was in trouble and had
    been using the appellants phone to which he had liberal access to find a buyer
    for the gun.

[11]

After the close of the evidence, without
    objection having been made when the evidence was led, the Crown objected to the
    evidence of the appellants daughter on the ground that it should have been the
    subject of a third party suspect application in advance by the defence so the
    admissibility of that evidence could have been tested. The Crown sought a
    mistrial on that ground.

[12]

The trial judge held that evidence intended to
    show that Mr. Safranko was guilty of some of the offences amounted to third
    party suspect evidence and that the defence had to show that there is some
    basis upon which a reasonable, properly instructed jury could acquit based on
    the defence. (
R. v. Grandinetti
, 2005, SCC 5
    at para. 48)

[13]

The trial judge held that as there was no
    evidence as to the content of the backpack searched by the two men, there was
    no evidence connecting the shotgun to Mr. Safranko, other than his allegedly
    having seen it in the appellants possession and that accordingly there was no
    evidentiary basis for a finding that the shotgun was in Mr. Safrankos
    possession, as opposed to the appellants possession. He ruled the evidence of
    the appellants daughter inadmissible in so far as it was tendered to show that
    Mr. Safranko was the one who had possession of the shotgun.

[14]

He did however admit the evidence for the
    purpose of suggesting that it was the two unidentified men who shot at the door
    of the grandparents home,

it would be open
    to the jury to infer that the two men were upset with Mr. Safranko because he
    owed them something for some reason (Mr. Safranko admitted to having a history
    of theft). It would also be open to the jury to infer that they were looking
    for Mr. Safranko at a time proximate to the discharge of the firearm and that
    they had some awareness of the locations which Mr. Safranko frequented as they
    knew to look for him at Ms. Fentons home. Based on these inference, it would
    be open to the jury to infer that the two men had a motive to harm Mr.
    Safranko.

[15]

The trial judge addressed the potential
    prejudice to the Crown from the appellants unsuccessful attempt to argue that
    Mr. Safranko was a suspect in the possession of the shotgun count by
    instructing the jury that there was no evidence about the contents of the
    backpack when it was searched by the two unknown men.

[16]

At the close of the trial, defence counsel asked
    the trial judge about the limits of his ruling. He asked whether the effect of
    the ruling was that he could not suggest to the jury that Mr. Safranko was the
    owner of the firearm. The trial judge responded that defence counsel was
    correct, that there was no evidence of that. The trial judge told defence
    counsel he could submit that Mr. Safranko was not a credible witness, but that
    he could not suggest to the jury that at one point in time stole a firearm.
    The trial judge said You can say he stole something and/or otherwise has things
    that somebody wants, because there is an evidentiary basis for that. But I
    dont think theres any evidence what it was.

Analysis

[17]

The trial judges conclusion that there was no
    direct evidence about the contents of the backpack searched by the two men is
    unassailable. The question is whether there was some other evidence sufficient
    to give the defence an air of reality, and which could have afforded a basis
    upon which a reasonable properly instructed jury could acquit.

[18]

Evidence of an alternate suspect must be
    relevant. There must be a sufficient connection between the third party and the
    offence. Inferences must not be based on speculation or conjecture.

[19]

Here there are elements of the evidence
    independent of the contents of the backpack which could have been laid out for
    the jury as follows:

·

Mr. Safranko was a cocaine addict who was
    desperate for money.

·

He was so desperate that he stole from someone
    who provided him with a place to stay, hoping to raise $100.00

·

One could infer from the contents of the cell
    phone texts including pictures of the shotgun that the author of those texts
    was trying to sell the shotgun.

·

Those texts were sent to persons known to both
    the appellant and Mr. Safranko

·

Mr. Safranko stayed in the appellants apartment
    and had liberal use of her phone.

·

One could infer the two men believed Mr.
    Safranko had taken something of importance from them and were angry with him.

·

One could infer that he may have been the one
    sending the texts about the shotgun to try to get money, and that he therefore
    had possession of the shotgun.

[20]

All of these events occurred more or less
    contemporaneously. Mr. Safranko was intimately involved in these events and was
    a witness who had admittedly lied under oath. There were multiple
    inconsistencies in his evidence. None of the above need be necessary
    inferences, but they might raise a reasonable doubt in the mind of a juror as
    to whether the appellant had possession of the shotgun.

[21]

Had the jury been allowed to consider this chain
    of reasoning, it could have affected their assessment of Mr. Safrankos
    credibility and hence their reasoning on the threatening count as well. We
    cannot be sure that the verdict would necessarily have been the same if defence
    had been permitted to make its proposed arguments. Both convictions are set
    aside and a new trial ordered.

Doherty
    J.A.

David
    Watt J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fougere, 2019 ONCA 505

DATE: 20190618

DOCKET: C60022

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David R. Fougere

Appellant

Bernadette Saad and Joanne Prince, for the appellant

Grace Choi, for the respondent

Heard: March 6, 2019

On appeal from the conviction entered by Justice Robert
    B. Reid of the Superior Court of Justice, sitting with a jury, on September 3,
    2014.

Lauwers
    J.A.:

[1]

The appellant was convicted of aggravated assault on John Marcheson. He
    was sentenced to 12 months incarceration and 24 months probation. He appeals
    his conviction. For the reasons that follow, I would allow the appeal.

[2]

Between September 28, 2012 when the fight occurred on which the charge
    was based, and the beginning of the jury trial on August 25, 2014, the
    self-defence provisions of the
Criminal Code
, R.S.C. 1985, c. C-46,
    were amended. The amendments came into force on March 11, 2013. The trial judge
    applied the new provisions retrospectively, and used them to instruct the jury.
    Defence counsel did not object to the trial judges use of the new provisions,
    and did not object to the jury charge. The appellant was convicted of
    aggravated assault.

[3]

Since the appellants trial, this court held in
R. v. Bengy
,
    2015 ONCA 397, 335 O.A.C. 268, that the amended provisions apply prospectively,
    not retrospectively. There is no doubt that the trial judge erred in using the
    post-amendment self-defence provisions to instruct the jury. But in and of
    itself that is not sufficient to allow the appeal.
R. v. Phillips
,
    2017 ONCA 752, 355 C.C.C. (3d) 141, calls for a case-specific, functional
    inquiry to determine whether the error prejudiced the accused: at paras. 74-75.

[4]

However, there is no need to conduct the inquiry that
Phillips
calls
    for in light of another error relating to the trial judges failure to adequately
    correct a legally erroneous assertion made by the trial Crown in the jury
    address. Crown counsel said four times
that if
    the jury found that the appellant struck the complainant, Mr. Marcheson, first,
    then self-defence did not apply. This error, on its own, renders the verdict
    unsafe.

A.

Factual overview

[5]

The appellant and Lisa Beamer were each renting a room in William
    Vullings home. Mr. Marcheson was there with them. The appellant and Mr. Marcheson
    had known each other for about 40 years but had a history of tension, including
    some physical altercations. Ms. Beamer and Mr. Marcheson were good friends. Ms.
    Beamer and the appellant were not friends. Mr. Vullings was friends with all
    three of the others.

[6]

The group began drinking beer and playing cards in the afternoon. As the
    drinking continued through the evening and into the morning hours, tension grew
    between the appellant and Mr. Marcheson. Eventually, the appellant went to bed
    in his own room.

[7]

The appellant awoke and complained about the noise that the rest of the
    group was making. He directed offensive comments at Mr. Marcheson, who
    confronted the appellant. They fought. Both the appellant and Mr. Marcheson
    agreed that the appellant is much smaller than Mr. Marcheson in terms of
    height, weight, and build. The appellant suffered from a knocked-out tooth and
    bloody nose and lip. The appellant had a beer glass in his hand during the
    altercation, from which Mr. Marcheson suffered multiple lacerations to his face
    and neck. This led to the charge of aggravated assault.

B.

The trial evidence

[8]

The appellant and Mr. Marcheson gave different accounts of the physical
    altercation. Mr. Marcheson testified that the appellant struck him first with
    the beer glass. The appellant testified that Mr. Marcheson attacked him, and he
    used the glass in self-defence.

The appellants testimony

[9]

The appellant testified that the noise from the group woke him up. He
    heard Mr. Marchesons voice, and he yelled at him from inside his room. The
    appellant opened his door to go rinse a beer glass from which he had been drinking
    milk, and found Mr. Marcheson standing at his doorway. He tried to get past Mr.
    Marcheson, who said [y]oure gettin it and then punched the appellant in the
    face, knocking him out, with the glass still in his hand.

[10]

The
    appellant testified that he came to still holding the now broken glass. He
    dulled the glass on the coffee table to avoid hurting Mr. Marcheson, and held
    onto it as the two scuffled in the doorway. The appellant held the glass under
    Mr. Marchesons chin, who then backed off.

[11]

The
    appellant testified that as he headed back to his room, Mr. Marcheson picked
    him up, threw him onto the bed, sat on him, and proceeded to hit him 30 to 40
    times. The appellant rubbed the glass against Mr. Marchesons face to scratch
    him in order to get him to back off. He characterized Mr. Marchesons injuries
    as being self-inflicted as a result of his attack on the appellant.

[12]

The
    appellant denied striking the first blow.

The testimony of the other witnesses

[13]

Mr.
    Marcheson testified that he heard the appellant shouting insults from his room.
    He stood up and went to the appellants room door, opened it, and went inside.
    He stated that he left the room without incident. As he headed back to join Ms.
    Beamer and Mr. Vullings, he heard the appellant behind him. Mr. Marcheson
    turned around and the appellant hit him in the face with what he thought was a
    beer bottle. Ms. Beamer later told him it was a beer glass. She told him he was
    bleeding, and after hearing this he went back to the appellants room and hit
    him a few times.

[14]

Ms.
    Beamer testified that the group heard the appellant shouting at Mr. Marcheson
    from his room. Mr. Marcheson went into the hallway and shouted thats fucking
    enough. After ten minutes they heard the appellant come out of his room. Mr.
    Marcheson went into the hallway to see why the appellant was coming out. Ms.
    Beamer was behind Mr. Marcheson. She testified that the appellant came out of
    his room with a big thick glass mug in his hand and just clocked [Mr.
    Marcheson] right in the face.

[15]

Mr.
    Vullings testified that an argument took place between the two men, and Mr.
    Marcheson became increasingly frustrated. The two faced off in the hallway, and
    Mr. Marcheson said, Thats it, hes getting it! They then moved into the
    appellants bedroom. Mr. Vullings heard rustling, banging, and a smash. He got
    up after hearing the smash and saw Mr. Marcheson on top of the appellant
    punching him.

[16]

The
    jury was obliged to sort through this divergent evidence.

C.

Analysis

[17]

The
    issues to be resolved are: (1) whether the Crown misstated the law of
    self-defence, and (2) whether the trial judge erred by not correcting the
    misstatement.

(1)

Did the Crown misstate the law of self-defence in the jury address?

[18]

In

his jury
    address, Crown

counsel

stated

four

times

that

if

the

jury

found

that

the
    appellant

had

struck

the

complainant

first,

then

self-defence
was not available to the appellant
:

These are the factors: a

person
    is

that if

it's believed, on reasonable
    grounds, that force is

being

used

against
    that

person

or

another person, or
    that

the

threat

of

force

is

being

made against

them

or

another

person.

So

what

that

is

is

whether

Mr.

Fougere

believed

that, on

reasonable grounds, that

force

was

being

used

against

him,

against

him

or

another

person that's  in that

instance

self-defence is

open

to

him.

So
    if

on

the

Crown's theo
r
y  if

Mr. Fougere struck firs
t
,

if you find

that

he

struck first, self-defence is

over,

all

right, because Mr.

Fougere struck

first
.

So if you find that as a fact
,
that

Mr.

Marcheson
    was

struck

first, self-defence is

done,
    all right
. You don't  the Crowns met that  the Crown has, has established
    that that does not apply, that the reason the force was used was in

self-defence.

Now,

the

next

factor

is,

the

act

that

constitutes the

offence

is

committed for

the

purpose of defending

yourself.

Okay,

so

going

back

to

the

first

one,

Mr.

Fougere

would

have

to

believe
    that Mr. Marcheson had,

had assaulted
    him or was threatening to assault him; thats the first thing. Was  did Mr.
    Fougere believe, on reasonable grounds, that Marcheson was  had assaulted him
    or was threatening to assault him?
And if

you find that Mr. Fougere struck first, that

one's done
, but it

goes
    further

than

that.

The

next

one

is,
that
the

act

that

constitutes

the

offence,

the

aggravated

assault, is

committed

for the

purpose

of

defending

or

protecting
    oneself or

another person. Okay, what

that

means

is, is  you

have

to

find,

first

of

all,

that

Mr.

Fougere

thought

he

was

being
    attacked

or

there

was

a

threat

of

attack.

If

he

struck

him

first, obviously

that's not

the

case
.
    [Emphasis added.]

[19]

In
    his testimony at trial, the appellant denied striking the first blow. Is
    rejection of this denial fatal to his claim of self-defence? The appellant
    argues that even if

the

jury

rejected
his denial

and

believed

that he

struck

the

first

blow,

the jury,

properly

instructed,

could

still

have

found

that

the

Appellant

was

acting

in self-defence.

[20]

I
    agree with the appellants argument that there is

no automatic

preclusion
    of

self-defence where

the

trier

of

fact

finds

that

the

accused

struck

the

first blow. Under the old

provisions, a

first blow might
have
been

justified

as

self-defence

under s.
3
7

for

the

purpose

of

preventing

an

assault

against

the

accused.

Under

the
new
provisions, s. 34 may provide

justification for

a

first

blow

against
    another

where

the accused

is

reacting to

a

threat of

force.
Under
    both provisions, t
he

trier

of

fact

would

also

have

to
    determine whether the

force used

was

proportionate
    to the threat

perceived.

The defence would

apply

if

an

accused

believed

that he was being

assaulted

or

facing

threat

of

being assaulted, even if

the accused was mistaken in

that belief, so long

as

the

belief was objectively reasonable.

[21]

The
    appellant paints this picture. A jury

could
    have concluded that a

startled and frightened
    Fougere, who happened to be

holding a
    beer

glass while on his

way to the kitchen, reacted

to

a

perceived threat

of

force

(i.e.

Marcheson
    stating

that

Fougere

was

going to

get

it)

by striking

Marcheson as

they

encountered each

other

at

or

near

the

bedroom

door. The appellant argues that

a properly

instructed jury

could

have

found

that

Fougere

struck

the

first

blow

and

that

the

Crown

had not

proven

that

Fougere

was

not

acting

in

self-defence (emphasis in
    original). The appellants fear, notes counsel, could have been found to be reasonable
    in light of several contextual facts, taken from the appellants factum, and which
    do not appear to be in dispute:

·

Marcheson was 100 lbs. heavier than Fougere, and much taller;

·

Both Fougere and Marcheson acknowledged history of tension
    between them;

·

Vullings testified that Marcheson would pick on Fougere, while
    Fougere characterized it as being bullied by Marcheson;

·

Fougere recalled a previous physical altercation wherein Marcheson
    had him to the ground as someone else goaded that Marcheson should kill him;

·

All parties noted tension brewing on the night in question
    between Fougere and Marcheson;

·

Fougere testified that Marcheson made him nervous that night as
    he kept hovering outside his bedroom door;

·

Fougere testified that immediately preceding the physical altercation,
    he opened his door to find Marcheson right there;

·

Fougere, Vullings and Beamer all testified that Marcheson stated
    that he had had enough and/or that Fougere was going to get it just prior
    to the physical altercation; .

Consequently there was, argues the appellant, an air of
    reality to self-defence even if the appellant struck the first blow.

(2)

Did the trial judge err by not correcting the Crowns misstatement?

[22]

The
    trial judges charge was conventional on self-defence. But he did not comment
    at all on the Crowns assertion that if the appellant struck the first blow
    then he could not claim to have been acting in self-defence. This was an error.
    The Crowns submission on the first blow took on added force from the lack of
    correction. Arguably the charge reinforced the Crowns submission. First, after
    outlining the three conditions required to disprove self-defence, the trial
    judge stated that in considering them, the jury might find assistance in
    considering who struck the first blow. Absent a correction that self-defence
    was still available even if the appellant struck the first blow, if the jury
    considered only the Crowns position then a consideration of who struck the
    first blow might lead them to the erroneous conclusion that self-defence was
    not available. Second, in outlining the Crowns theory of the case, the trial
    judge repeated the Crowns position that the appellant did not believe on
    reasonable grounds that force or a threat of force was being used against him
    because he struck Mr. Marcheson first, before Marcheson ever acted
    aggressively.

[23]

The
    respondent argues that the appellants alternative position was not put to the
    jury at trial (perhaps for strategic reasons), and that the trial Crowns
    argument was, in any event, correct on the facts of this case. The respondent
    submits:

It is clear that the Crown was referring to the Appellant
    striking first
with the glass
, in anger, and causing serious lacerations
    to Mr. Marcheson as a first blow. There would have been no air of reality to a
    self-defence claim that the Appellant
reasonably
had to cause multiple
    serious lacerations on the face of the unarmed Mr. Marcheson as a first blow in
    response to the words youre getting it. [Emphasis in original.]

The respondents factum then recites all the reasons
    why the appellant was not actually in fear of Mr. Marcheson.

[24]

Regarding
    the Crowns argument that the alternative position was not put to the jury, I
    note that the trial judges duty is to instruct the jury on all available
    defences, even when counsel does not raise or rely on them
. See
R. v. Jackson
(1991), 51 O.A.C. 92 (C.A.), at para.
    64, aff d [1993] 4 S.C.R. 573. Even though the appellant did not put its
    alternative position before the jury, it would have still been incumbent on the
    trial judge to instruct the jury on the application of self-defence, based on
    the evidence led.

[25]

With
    respect, the respondents formulation oversimplifies the factual situation and presupposes
    a jury finding in favour of that view. It was the jurys responsibility as the
    trier of fact to consider the widely divergent evidence in light of a proper
    understanding of the applicable law, both in relation to the appellant striking
    first and whether the force he used was proportionate to the threat perceived.
    The trial judges failure to correct the Crowns misstatement inhibited that
    understanding. As a confounding factor, the trial judges erroneous decision to
    apply the new law may also have affected the argument and the jurys assessment
    of the evidence, to the appellants prejudice.

D.

Disposition

[26]

In
    the circumstances, I consider the verdict to be unsafe. I allow the appeal, set
    aside the conviction and order a new trial on the count of aggravated assault.

Released: P.L. JUN 18, 2019

P. Lauwers J.A.

I agree. R.G. Juriansz
    J.A.

I agree. S.E. Pepall
    J.A.