R. v Symonds, 2018 NSCA 34
[20] In R. v. Henneberry, 2017 NSCA 71, this Court recently re-iterated a number of general principles relating to guilty pleas in the context of an appellant’s request to have her plea set aside. In paragraphs 12 through 20, Justice Beveridge noted
• A guilty plea in open court is a formal admission of the essential elements of an offence;
• A trial judge can, but need not, conduct an inquiry regarding the validity of a guilty plea prior to acceptance. Although s. 606 of the Code encourages inquiry, failure to do so does not invalidate the plea;
• Before sentence is passed, a trial judge has a discretion to permit an accused to withdraw a guilty plea;
• An appellate court can, for “valid grounds”, permit an appellant to withdraw a guilty plea. The circumstances which may give rise to valid grounds are broad, but absent a legal error in a withdrawal application before a trial judge, the power of an appeal court to permit withdrawal is tied to a prevention of a miscarriage of justice (s. 686(1)(a)(iii) of the Code);
• The onus is on the appellant to demonstrate on a balance of probabilities that their plea was invalid. To be valid, a plea must be voluntary, informed and unequivocal. In R. v. T.(R.). (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514, Justice Doherty of the Ontario Court of Appeal wrote:
[14] To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at p. 371, 37 C.C.C. (3d) 1 at p. 52; Law Reform Commission of Canada Working Paper No. 63, "Double Jeopardy Pleas and Verdicts" (1991) at p. 30.
…
[16] I will first address the voluntariness of the appellant's guilty pleas. 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. Rosen, 1979 CanLII 59 (SCC), [1980] 1 S.C.R. 961 at p. 974, 51 C.C.C. (2d) 65 at p. 75. A guilty plea entered in open court will be presumed to be voluntary unless the contrary is shown: Fitzgerald, The Guilty Plea and Summary Justice, supra, at p. 71.
[17] Several factors may affect the voluntariness of a guilty plea. None are present in this case. The appellant was not pressured in any way to enter guilty pleas. Quite the contrary, he was urged by duty counsel not to plead but to accept an adjournment. No person in authority coerced or oppressed the appellant. He was not offered a "plea bargain" or any other inducement. He was not under the effect of any drug. There is no evidence of any mental disorder which could have impaired his decision-making processes. He is not a person of limited intelligence.
[18] In his affidavit the appellant asserts that he was anxious and felt himself under pressure when he entered his pleas. No doubt most accused faced with serious charges and the prospect of a substantial jail term have those same feelings. Absent credible and competent testimony that those emotions reached a level where they impaired the appellant's ability to make a conscious volitional choice, the mere presence of these emotions does not render the pleas involuntary. (Emphasis added)
• A voluntary plea is also one that is not coerced, rather arrived at by the accused’s free will. It is a plea untainted by improper threats, bullying or any improper inducement to plead guilty.
[21] It is further uncontested that to be informed, a guilty plea must be based upon the accused understanding the nature of the charges faced, the legal effect of a guilty plea and the consequences arising therefrom.
Ineffective assistance of counsel
[22] The principles relating to claims of ineffective assistance of counsel are also not in dispute. These were set out by Saunders, J.A. in R. v. West, 2010 NSCA 16:
[268] The principles to be applied when considering a complaint of ineffective assistance of counsel, are well known. Absent a miscarriage of justice, the question of counsel’s competence is a matter of professional ethics and is not normally something to be considered by the courts. Incompetence is measured by applying a reasonableness standard. There is a strong presumption that counsel’s conduct falls within a wide range of reasonable, professional assistance. There is a heavy burden upon the appellant to show that counsel’s acts or omissions did not meet a standard of reasonable, professional judgment. Claims of ineffective representation are approached with caution by appellate courts. Appeals are not intended to serve as a kind of forensic autopsy of defence counsel’s performance at trial. See for example, B.(G.D.), supra; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal ref’d [1996] S.C.C.A. No. 347; and R. v. M.B., 2009 ONCA 524.
[269] One takes a two-step approach when assessing trial counsel’s competence: first, the appellant must demonstrate that the conduct or omissions amount to incompetence, and second, that the incompetence resulted in a miscarriage of justice. As Major J., observed in B.(G.D.), supra, at ¶ 26-29, in most cases it is best to begin with an inquiry into the prejudice component. If the appellant cannot demonstrate prejudice resulting from the alleged ineffective assistance of counsel, it will be unnecessary to address the issue of the competence. (Emphasis added)
See also R. v. Fraser, 2011 NSCA 70, R. v. Gogan, 2011 NSCA 105, R. v. G.K.N. 2016 NSCA 29.
Receipt of Fresh Evidence
[23] Typically, when an appellant makes an allegation of ineffective assistance of trial counsel, it is accompanied by a motion to adduce fresh evidence. The test for the admission of fresh evidence is well-known. Section 683(1) of the Code allows this Court to accept fresh evidence “where it considers it in the interests of justice” to do so. In R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 the Supreme Court set out four factors which govern that analysis:
1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
3. The evidence must be credible in the sense that it is reasonably capable of belief.
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[24] It is also well-established that where an appellant’s complaints are focused on the fairness of the trial process itself, that fresh evidence may be accepted for that purpose. This was explained by the Ontario Court of Appeal in Truscott (Re), 2007 ONCA 575:
[85] The second category of fresh evidence that may be tendered on appeal is not directed at re-litigating factual findings made at trial, but instead is directed at the fairness of the process that produced those findings. Where an appellant proffers this kind of evidence on appeal, he or she attempts to demonstrate that something happened in the trial process that materially interfered with his or her ability to make full answer and defence. An appellant claims that the verdict is rendered unreliable because the unfairness of the process denied the appellant the opportunity to fully and effectively present a defence and to challenge the Crown's case. When this kind of fresh evidence is received and acted on in the court of appeal, the conviction is quashed as a miscarriage of justice. The miscarriage of justice lies in the unreliability of a verdict produced by a fatally flawed process.
See also R. v. Assoun, 2006 NSCA 47 and R. v. Ross, 2012 NSCA 56.
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