Date: 20170411
Docket: CR 15-02-01469
Indexed as: R. v. Granados
Cited as: 2017 MBQB 69
(Brandon Centre)
COURT OF QUEEN'S BENCH OF MANITOBA
BETWEEN:
Her Majesty The Queen
and
Jesus Arnoldo Sorto Granados
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(Accused) )
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J. Ross/K. Tschetter
For the Crown
N. Sims, Q.C.
For the Accused
JUDGMENT DELIVERED:
April 11, 2017
MENZIES, J.
[1]
Jesus Granados (the accused) was charged with two counts of
assault with a weapon pursuant to s. 267 (a), one count of possession of a
weapon for a purpose dangerous to the public peace pursuant to s. 88 and one
count of attempt to commit murder pursuant to s. 239(1) of the Criminal Code of
Canada. On May 3, 2016, the date scheduled for the commencement of his trial,
the accused entered a plea of guilty to the charge of attempt to commit murder.
As a result of entering that guilty plea, the Crown stayed proceedings on the
remaining charges.
A pre-sentence report was ordered and the matter was
adjourned to set a sentencing date.
[2]
The accused now applies to withdraw his guilty plea.
THE LEGAL PRINCIPLES
[3]
The effect of a guilty plea cannot be understated. As was noted by
Hill J. in the decision of R. v. Moser (2002), 163 C. C. C. (3d) 286 (Ont. S. C. J.)
at para. 29:
An accused's plea of guilt is a fundamentally significant
step in the criminal trial process. The plea relieves the
Crown of the burden to prove guilt beyond a reasonable
doubt - the presumption of innocence, the right to silence,
and the right to make full answer and defence to the
charge are at an end: Adgey v. The Queen (1973), 13
C.C.C. (2d) 177 at 183 per Laskin J. (as he then was) (in
dissent in the result); Regina v. T.(R.) (1992), 17 C.R.
(4th) 247 (Ont. C.A.) at 252 per Doherty J.A.; Regina v.
Ross, [1997] O.J. No. 1034 (C.A.) at para. 6 per curiam.
[4]
In the decision of R. v. Manimtim, 2002 MBQB 235, Beard J. (as
she then was) enunciated the principles governing an application to withdraw a
guilty plea.
[9] The following principles underlie an application to set
aside a guilty plea before sentence:
- a guilty plea entered in open court is presumed to have
been voluntary and valid, especially where the accused
was represented by counsel;
- the accused has the burden of proof to establish that the
guilty plea should be set aside and a plea of not guilty
entered;
- there is no requirement that the facts be read to the
accused and that there be an express admission of the
elements of the offence before the accused enters a guilty
plea, especially where the accused has legal counsel;
- the grounds for setting aside a guilty plea include the
following:
(i) the plea was not voluntary and unequivocal;
(ii) the plea was not informed, in that the accused
was not aware of the nature of the allegations
made against him or her, the effect of the plea
and the consequences of the plea; or
(iii) other circumstances make it justified, in the
interests of justice, to permit a withdrawal of the
plea;
- there is evidence of a viable defence.
[10] The Manitoba Court of Appeal considered an appeal
regarding an application to withdraw a guilty plea in R. v.
Jawbone, [1998] M.J. No. 235 in which the court approved
the following legal test for a withdrawal of a guilty plea:
[6]
The circumstances justifying the
exercise of such a discretion are not confined to
circumstances where there is a suggestion of
impropriety or error in the formal plea itself,
rather "valid grounds" (see R. v. Bamsey, [1960]
S.C.R. 294, at 298; 32 C.R. 218; 30 W.W.R. 552;
125 C.C.C. 329) for the accused being permitted
to withdraw his plea should not be too narrowly
defined or rigidly applied. The essential question
to be determined in each case is whether it is
justified in the interests of justice.
[5]
As to the burden of proof, Hill J. discussed the nature of the onus
in R. v. Moser, supra, at para. 43:
While the accused carries the burden of persuading the
court the plea is invalid and ought to be withdrawn, the
jurisprudence is not clear as to the standard of persuasion.
Some authorities advocate a balance of probabilities
standard (Regina v. C.(S.), supra at para. 13; Regina v.
Thawer, [1996] O.J. No. 989 (Prov. Div.) at para. 36 per
Omatsu, J.; Regina v. Mikalishen, [1996] B.C.J. No. 2541
(Prov. Ct.) at para. 51 per Stansfield J.) while other cases
apply a "heavy onus" or "heavy burden" hurdle for the
accused (Regina v. Dallaire, supra at para. 7; Regina v.
Lamoureux (1984), 13 C.C.C. (3d) 101 (Que. C.A.) at 106
per Rothman J.A.; Regina v. Samms, [1992] N.J. No. 344
(S.C.) at para. 8 per Gushue J.A. (as he then was)). While
the quality of the evidence prompting the striking or
withdrawal of a guilty plea cannot be speculative, suspect,
or lacking in credibility and reliability, I would hesitate to
place the burden of persuasion at a point threatening
adjudicative fairness. Whatever the standard for appellate
intervention, I am content that where a trial judge has a
real doubt as to the plea's validity, the court should strike
the plea and send the case to trial.
THE FORMAL ENTERING OF THE PLEA
[6]
On the opening day of the trial, the accused was formally
arraigned. Although the accused has resided in Canada for a number of years,
his first language is Spanish. A Spanish interpreter was present to translate the
proceedings for the accused.
Two counts of assault with a weapon and one
count of possession of a weapon for a dangerous purpose were read to the
accused to which he pled not guilty. The charge of attempt to commit murder
was read to the accused to which he pled guilty. When the Court asked the
accused to confirm his guilty plea to attempt to commit murder, the accused
replied through the interpreter that he was defending himself from the victim
and others.
[7]
The accused was told that if he was claiming he was acting in self
defence he may have a defence and the matter would proceed to trial. The
accused confirmed his intention to plead guilty to the attempt to commit murder
charge.
When asked if he had tried to kill the victim, the accused replied he
had.
[8]
The accused acknowledged that he was waiving his right to a trial,
that his plea was entered freely and voluntarily, and that he understood it was
the responsibility of the presiding judge to determine the appropriate penalty to
be imposed.
[9]
Upon the guilty plea being accepted, the Crown stayed the three
charges to which the accused had pled not guilty. As the accused had a minimal
prior record, the Court ordered a pre-sentence report to be prepared.
ANALYSIS
[10]
I agree that the governing principles on an application to withdraw
a guilty plea are those as set out by Beard J. (as she then was) in the
Manimtim decision, supra.
[11]
To be valid, a guilty plea must be unequivocal. The comments of
the accused that he was defending himself raise a question as to the unequivocal
nature of the plea. In hindsight, a better inquiry may have been required by the
court. The accused was advised that if he was acting in self defence that he
may have a defence to the charges. However, defence counsel did advise the
Court that the facts giving rise to the plea of self defence did not occur at the
same time as the circumstances giving rise to the allegation of attempt to
commit murder.
[12]
I have little difficulty concluding that the guilty plea was voluntary.
In his affidavit in support of this application, the accused describes how he came
to his decision to plead guilty. There can be little doubt he decided to plead
guilty of his own free will.
[13]
A guilty plea must be informed. What this means was explained in
the Moser decision, supra, at para. 34:
Finally, a guilty plea's validity depends on the plea being
informed: Regina v. T.(R.), supra at 254-7. It is essential
that the accused understand the nature of the charges
faced, the legal effect of a guilty plea, and the
consequences of such a plea. Where an accused
understands the factual basis for the allegations, counsel is
able to give advice and take instructions respecting
existence of the essential ingredients of the crimes
charged. As stated, the legal effect of a guilty plea is to
surrender the presumption of innocence and alleviate the
prosecution's burden of establishing guilt beyond a
reasonable doubt. The accused must generally know the
jeopardy faced by way of possible punishment. Often the
seriousness of the offences is self-evident and therefore so
too is the exposure to a stiff custodial disposition.
However, incorrect legal advice as to sentencing options
may call into question whether the plea was truly
informed: Regina v. Armstrong, supra at para. 2-4.
[14]
The accused swore an affidavit in which he stated that his defence
counsel and junior counsel met with him on May 2, 2016 at Brandon Correctional
Center. The accused maintains he was told that if he went to trial and was
convicted, he faced a sentence of 15 years for these offences. According to the
accused, the defence counsel advised him if he pled guilty he would receive a
sentence of six years. On May 3, 2016, the accused indicates that he met with
his counsel again before the start of the trial. At that time, the accused repeats
that defence counsel told him that if he pled guilty to attempt to commit murder,
the Crown would ask for six years. Counsel did advise the accused that the issue
of what was an appropriate sentence was the responsibility of the presiding
judge. The accused testified he pled guilty to avoid a sentence of 15 years. The
accused was unshaken from this version of the events upon cross-examination
by the Crown.
[15]
In response the Crown tendered affidavits of defence counsel and
junior counsel. Defence counsel was cross-examined on his affidavit.
[16]
Defence counsel swore that in his opinion the Crown had a strong
case and he advised the accused of that. Defence counsel swore he told the
accused that if he pled guilty, defence counsel would ask for a sentence of six
years while the Crown intended to ask for a sentence of ten years. Defence
counsel denied ever having mentioned a possible sentence of 15 years.
[17]
Junior counsel swore he did not recall defence counsel telling the
accused he would get six years on a guilty plea and 15 years after a trial. Junior
counsel did recall defence counsel relating to the accused the Crown would ask
for ten years and defence counsel would ask for six years.
[18]
There is no evidence before the court that the Crown at any time
agreed to a joint recommendation of six years for a guilty plea to an attempt to
commit murder.
[19]
The advice provided to the accused prior to the guilty plea is
relevant to the issue of whether or not the accused was truly informed at the
time he entered his guilty plea. In this case, credibility is an issue.
[20]
I note that junior counsel does not deny that there was ever a
conversation between defence counsel and the accused indicating the accused
would get six years if he pled guilty. Junior counsel merely says he did not recall
it.
While that may be a matter of semantics to some, this was an affidavit
drafted by a lawyer and sworn to by a lawyer to address a specific issue.
[21]
In assessing the advice the accused received prior to pleading
guilty, I prefer the evidence of the accused. Defence counsel was not credible. I
found defence counsel to be evasive in his testimony.
Early in cross-
examination, defence counsel testified he had not talked to the accused about
pleading guilty or considering a plea bargain with the Crown prior to the morning
of the trial. Defence counsel did however confirm that he had talked to the
accused about what he would ask for should the accused plead guilty. Defence
counsel also admitted telling the accused there was a sentencing advantage to
pleading guilty. I do not understand how these conversations could arise absent
a discussion about pleading guilty.
[22]
Defence counsel stated under oath in his affidavit of October 7,
2016 that the accused had given a warned statement to police denying he was
present at the event giving rise to the charges. Defence counsel acknowledged
in cross-examination that this was untrue. His explanation for this mistake was
that he overlooked this statement in the affidavit because he had not drafted it
nor read it carefully.
[23]
Filed as exhibit #8 in this proceeding is a letter sent by the defence
lawyer to the accused on May 6, 2016, mere days after the guilty plea which,
inter alia, reads as follows:
You were made aware on Sunday evening, May 1, 2016,
before the interpreter the Crown’s position and our
position would be 6 years. It was up to the Judge who
would determine your sentence after hearing submissions.
[24]
When confronted with this letter, defence counsel stated the letter
was obviously wrong. His explanation was that he sends out 50-60 letters a day
so he doesn’t read them carefully. Defence counsel admitted he sent this letter
to the accused to confirm what had happened in court. Unfortunately for the
defence lawyer, this letter operates against his credibility on two important
issues. The letter confirms what the accused testified he understood when he
entered the guilty plea. As well, the letter contradicts defence counsel when he
testified he had not discussed a guilty plea with the accused prior to the date
upon which the plea was entered.
[25]
I am highly concerned with the advice the accused received in this
matter.
[26]
I am persuaded that before entering of his guilty plea, the accused
had been advised by the defence lawyer there was a plea bargain for a joint
recommendation for six years if he pled guilty and that this was a significant
determining factor for him to enter his guilty plea.
[27]
I am not convinced the guilty plea entered by the accused was a
properly informed plea or that he understood the true consequences of entering
such a plea. For that reason I have a real doubt as to the validity of the guilty
plea.
IS THERE A VIABLE DEFENCE?
[28]
The accused need not prove his defence at this enquiry, but must
be able to show there is an arguable defence. In the pre-sentence report, the
accused indicated that at the time of this offence he was being assaulted by at
least three individuals. He indicated he took out a knife in self defence but his
hand with the knife was grabbed by two men and a struggle ensued. He denies
having intentionally assaulted anyone. Defence counsel confirmed that this is
the version of events the accused has always maintained with him. I am aware
the accused did not relate this version of the events to police in his warned
statement. While the case for the Crown may be strong, the accused need only
show he has an arguable defence.
If his version of events is accepted, the
accused would have an arguable defence to these charges.
INTERESTS OF JUSTICE
[29]
In addition to my concerns as to whether the plea entered by the
accused was an informed plea, the interests of justice require that the accused
be permitted to withdraw his plea. The accused entered a guilty plea as a result
of being advised of a plea bargain with the Crown which did not exist. The Court
should not allow the guilty plea to remain in effect where accused persons are
being persuaded to enter guilty pleas on the basis of misleading legal advice. It
would be a perversion of justice.
CONCLUSION
[30]
Having found the accused was misinformed as to the consequences
of pleading guilty to the charge of attempt to commit murder, I am not satisfied
that his plea was in fact an informed plea. In the circumstances of this matter, I
am also satisfied that the interests of justice require that the accused be allowed
to withdraw his guilty plea.
[31]
The Crown will be allowed to reinstitute the three charges which
were stayed in exchange for the guilty plea. New trial dates will be required.
____________________________ J.