R. v. Wilson

R. v. Wilson Court Supreme Court Date 2014-01-09 Citation 2014 NSSC 24 Docket CRH 347326 Judge/Registrar/Adjudicator Duncan, Patrick J. (Honourable Justice) (SC) Document Type Decision Decision Content Supreme Court of Nova Scotia Citation: R. v. Wilson, 2014 NSSC 24 Date: 20140109 Docket: CRH. 347326 Registry: Halifax Between: Her Majesty the Queen v. Andrew Norman Wilson Restriction on Publication: s.486.4 Judge: The Honourable Justice Patrick Duncan Heard: November 15, 2013 and January 9, 2014, in Halifax, Nova Scotia Written Decision January 29, 2014 Counsel: Catherine Cogswell, for Her Majesty the Queen Thomas Singleton, for the accused, Andrew Norman Wilson By the Court: Introduction [1] Mr. Wilson applies to withdraw a plea of guilty that he entered to the following charge: That he did on or about the 3rd day of April, 2010, at or near Halifax, in the County of Halifax in the Province of Nova Scotia, did unlawfully commit a sexual assault on K.V, contrary to section 271(1)(a) of the Criminal Code. [2] The application is supported by the affidavit and in person testimony of Mr. Wilson and of his mother, Anna Wilson. [3] Counsel acting for Mr. Wilson at the time of the entry of the impugned plea was Patrick MacEwen. He too provided affidavit and in person testimony. Various documents have been introduced in the hearing as well as a transcript of the court hearing at which the plea was tendered. Law [4] I have been referred by counsel to a number of authorities in which this issue has been considered. To summarize: 1. A court has the power to permit the withdrawal of a guilty plea at any time prior to imposition of sentence; Thibodeau v. R. [1955] S.C.R. 646, at para. 21. 2. The decision whether or not permission to withdraw a plea of guilty should be given rests in the discretion of the judge to whom the application for such permission is made. The discretion is to be exercised judicially. Thibodeau, at para. 21. 3. Withdrawal of plea is “permitted because the plea was originally improperly entered.” State v. Carta (1916), 06 Atl. 411 at p. 415, cited with approval by Cartwright J. in Thibodeau at para. 25. 4. A guilty plea entered in open court, particularly by an accused represented by counsel, is presumed to be a valid plea. R. v. Eastmond [2001] Carswell Ont 3911 (O.C.A.) at para.6. 5. “An accused seeking to set aside [a] plea bears the onus of demonstrating that the plea is not valid.” Eastmond at para. 6; see also, R. v. Clermont (1996) 150 NSR (2d) 264 (NSCA). 6. An accused “must show that the plea was made in error or under improper inducement or threats”. R. v. Hirtle (1991) 104 N.S.R.(2d) 56 (NSCA) at para.15. [5] Previous court decisions have identified a number of circumstances or factors that a court may consider individually or in some combination thereof in determining whether to grant the application. One very helpful summary is set out by Taylor J., in R. v. Joseph 2000 BCSC 1891: 48 The law with respect to changing plea is well established. In Adgey v. The Queen (1973), 13 C.C.C. (2d) 177, the Supreme Court of Canada held that the onus is upon an accused to satisfy the court that there are valid reasons for a court to exercise its discretion to permit a guilty plea to be withdrawn. In considering whether the exercise of a court's discretion to allow an application to be withdrawn should be exercised, there are a number of factors to be considered. These include firstly, was the accused represented by experienced counsel. Secondly, was the accused apprised of his position in law, based upon his disclosure of the facts to his counsel, and thus can be said to have understood the nature of the charge to which he pled. Thirdly, did the accused on those facts have a defence, if proved, that would be consistent with a valid defence. Fourthly, was the plea given in circumstances that amounted to pressure upon him to do so, or was the decision to enter the plea one made in the circumstances of reasonable time for contemplation. Fifth, what was the experience of the accused with the criminal justice system, and was the plea entered by the accused himself or simply by counsel appearing on his behalf. Those various factors are contained within the Adgey decision and the following cases: R. v. Atlay (1992), 70 C.C.C. (3d) 553, R. v. Read [1994] B.C.J. No. 1491, R. v. Temple [1995] B.C.J. No. 331, and R. v. Wally [1985] Y.J. No. 60. 49 To this list I also add what considerations did the accused have in mind in terms of motivation, such as protecting others by his own valid guilty plea, albeit on a basis unknown to the Crown. There is an overarching factor, being that the accused must establish that his plea was wrong and it would be unjust to uphold the plea. See R. v. Malone [1997] B.C.J. No. 835. [6] Some further specific examples include: 1. Where the wrong legal advice was given. R. v. White 2009 NSSC 313 at para. 10. 2. Where it is shown that the accused did not understand the nature and consequences of the plea; White, at para. 10. 3. Where it is shown that the accused did not intend to admit to the offence charged; White, at para. 15. 4. Where it is shown that the plea was entered in response to coercive or oppressive conduct by any person, including counsel for the accused at the time of plea; White, at para 11. 5. Where it is shown that legal counsel acted improperly or unprofessionally; Eastmond, at para. 3. 6. Where a miscarriage of justice would result. Hirtle, at para. 16. See also, R. v. H.(E.T.) (1989) 93 NSR (2d) 239 (NSCC) at para. 11, where the court considered whether the charges were well-founded. See also, R. v. McCollum 2008 NSCA 36 at para. 10; R. v. Murphy (1995) NSR (2d) 231 (NSCA) at para 11; R. v. Nevin 2006 NSCA 72, and authorities cited therein at paras. 7, 8, 16, and 20. Position of the Applicant [7] Counsel for Mr. Wilson submitted that the plea was not “free and voluntary”, but was entered in response to threats and inducements made by Mr. MacEwen to secure the guilty plea. It has also been submitted that Mr. MacEwen left Mr. Wilson “relatively little time to consider the implications” of the plea. [8] The validity of the plea was further vitiated, according to Mr. Singleton, by the failure of the court to conduct the inquiry in section 606 of the Criminal Code or to otherwise adequately inquire of the accused at the time of plea. [9] In essence the argument centres on three points identified by Justice Taylor in Joseph: 1. The plea was given in circumstances that amounted to pressure upon him to do so; 2. The plea was given in circumstances where Mr. Wilson did not have reasonable time for contemplation; and 3. It would be unjust to uphold the plea. Facts [10] Mr. Wilson’s submission turns substantially on the events of the day prior to and the day of the entry of his plea which took place on December 7, 2012. [11] Mr. Wilson’s trial was scheduled to commence on December 7, 2012. He attended with his mother at Mr. MacEwen’s office at around 1:30 p.m. on December 6 for pretrial preparation. There was a second meeting as between Mr. MacEwen and Mr. Wilson only, on the evening of the 6th, followed by the court appearance and change of plea on the following morning. [12] Mr. Singleton makes it clear that the accused’s argument relies substantially on the events of these two days. There are conflicts in the evidence which I will address. [13] Mr. Wilson testified that the first meeting of December 6 lasted approximately two hours. His mother was present for part of the meeting. He says that Mr. MacEwen attempted to persuade him to accept a plea and sentence offer presented by the Crown attorney, the particulars of which I will set out later. He instructed Mr. MacEwen that he was not prepared to accept the offer and that he wanted to proceed to trial. Mr. MacEwen presented him with written instructions in which the accused acknowledged that he had been provided legal advice which he was not accepting and that he wanted to proceed to trial. He says that he and his mother left after the document was signed. [14] In cross-examination Mr. Wilson agreed that Mr. MacEwen reviewed the strength of the Crown's case and referred to Mr. Wilson's position as an "uphill battle". The facts relied upon by Mr. MacEwen included: • The complainant alleged that she was the victim of non-consensual oral sex in a hotel that she and her husband were staying at in downtown Halifax. • C.V., the then husband of the complainant, alleged that he was the victim of an aggravated assault committed by the accused at the same time and place. • That following the assault the complainant made a 911 phone call in which she provided a description of the accused that matched his physical appearance and the clothes that he was wearing on the night in question. • That based on that description provided by the complainant, the accused was arrested within a few minutes of the 911 call and while he was still in the hotel where the alleged assaults took place. • That when he was arrested Mr. Wilson was wet, which was consistent with the allegation by Mr. V. that the attack upon him took place in the shower. • That when he was arrested, the zipper of the accused's pants was down and his belt was undone. • That subsequent lab analysis determined that blood found on the accused's clothing was consistent with the blood of C.V. • That Mr. Wilson has always maintained that he does not recall the incident. • That Mr. MacEwen’s assessment of the witnesses following preliminary inquiry was that they would be seen by a court to be credible. [15] The accused acknowledged that Mr. MacEwen showed no reluctance about proceeding to trial, notwithstanding the fact that the Crown's position in relation to the sexual assault allegation appeared to be a strong one. In relation to the charges alleging an assault on Mr. V., Mr. MacEwen was of the view that there were arguable defences. [16] Anna Wilson gave evidence that she was present for parts of this meeting and heard the discussion with respect to the proposed plea resolution. She was aware that the document which Mr. MacEwen wanted signed was an instruction from Mr. Wilson that he was not prepared to follow counsel's recommendation to accept the resolution offered by the Crown, and that her son wanted to go to trial. [17] Mr. MacEwen’s evidence is fairly consistent with but more detailed than that of the Wilsons. He testified that he reviewed the strengths and weaknesses of the respective positions of the Crown and of the defence. He confirmed that he felt that there were triable issues in relation to all charges except the sexual assault. He was of the opinion that the complainant was a strong witness and that there was no evidentiary basis that would provide a defence to the charge. [18] He testified that the first Crown offer for a plea agreement took place on March 12, 2012. It was at that time that Mr. Wilson was informed that he could resolve the matter by entering a plea of guilty to the sexual assault charge in return for a joint recommendation of four years imprisonment and that all other charges would be dropped. [19] Just before trial, the Crown altered its position. The agreement that was presented to the defence for discussion in December had the following elements: 1. Mr. Wilson to plead guilty to sexual assault and the remaining charges in the indictment would be dismissed. 2. The Crown would recommend a 4 year sentence if the defence joined in the recommendation. 3. If the defence did not join in the recommendation then the Crown would seek a 5 year period of incarceration and the defence could argue for any sentence it chose to. 4. If the accused entered a plea of guilty the Crown would not seek remand pending a sentencing hearing, but if the matter went to trial and the accused was found guilty then the Crown would seek remand. [20] During the afternoon meeting of December 6, Mr. MacEwen reviewed the onus that rests on the Crown to prove the case beyond a reasonable doubt, and the accused’s right to have his trial. He expressed his concern that there was no evidence to rebut any of the complainant's claims of having been sexually assaulted. He explained the proposed resolution to Mr. Wilson and Anna Wilson in great detail and that in his opinion the terms of the proposed resolution were reasonable and that an admission of guilt was consistent with what he felt the evidence would prove at trial. [21] He observed that Ms. Wilson was "not pleased". She stated that her son was not a sex offender and made it clear that her son would not be pleading guilty to anything. She expressed the opinion that this was all "a misunderstanding". [22] Mr. MacEwen was concerned that his client was not speaking freely during the time that his mother was present so he asked her to leave. This was consistent with his overall experience in dealing with the Wilsons; that when Ms. Wilson was not present, the accused was “much more open forthright about what ‘may’ have happened” and was far more interested in what the potential consequences would be if he pled and/or was found guilty of any of the charges. [23] Mr. MacEwen spoke to Ms. Wilson’s influence on her son’s legal instructions to counsel and how it manifested itself at different times during the approximately 2.5 years that he had been acting for Mr. Wilson. One example he gives occurred on March 12, 2012 when the Crown made the earlier offer to resolve the matter. Mr. MacEwen says at para. 58 of his affidavit: Anna Wilson advised Mr. Wilson, in my presence, that he would not be accepting any deals as he had done nothing wrong and that this was all just a story concocted [by] K.V. because she felt bad about the dissolution of her marriage. [24] Mr. Wilson, in his testimony, has a different version of this conversation. He says that his mother asked Mr. MacEwen why he should accept a deal when he is innocent of the charges. [25] I will add at this point, in my view that it is very clear that Anna Wilson does not believe her son is guilty or even capable of committing the offences with which he has been charged. She presents as a strong personality who has a great deal of influence over her son. When listening to her evidence and that of the accused, I have no doubt that it would be extremely difficult for Mr. Wilson to admit to her that he committed a criminal act. He may very well be a person who would rather be found guilty of the offences after trial than to have to admit his responsibility to his mother. The problem for him in this case is that doing that, going through a trial, triggered the risk of a greater penalty. He was in a difficult position. In these circumstances it was prudent of Mr. MacEwen to attempt to get independent instructions from his client without outside influences. [26] During the one on one meeting Mr. Wilson offered nothing new but Mr. MacEwen thought that he was giving serious consideration to the possibility of accepting the plea agreement. After a while the accused excused himself and went outside where he joined his mother. They returned to Mr. MacEwen's office at which time both indicated that they were not interested in the Crown offer. Mr. MacEwen was surprised that his client had decided against the change of plea and was concerned whether this was really Mr. Wilson’s instructions or those of his mother. They left sometime after 5 p.m. with Mr. MacEwen and the Wilsons understanding that the matter would proceed to trial on the following day. [27] As to the written instructions to counsel, Mr. MacEwen advised that he had two sets drafted in advance of his meeting: the first, were the instructions to proceed to trial against counsel's advice which was signed in the afternoon; the second, were instructions to change plea in relation to the sexual assault charge. [28] After the meeting, Mr. MacEwen continued with his trial preparation and met with senior counsel from his law office. The consensus of his colleagues was that Mr. Wilson had no triable defence with respect to the charge contrary to section 271 of the Criminal Code. Mr. MacEwen then contacted the Crown attorney charged with prosecuting the matter and advised that the case would be proceeding to trial on the following morning. There was a discussion with respect to the order of witnesses to be called by the Crown in the following days. [29] After Mr. MacEwen returned to his home, and carrying out further review of the file, he felt an increasing concern that Mr. Wilson would suffer severe consequences in sentencing following a trial that he was likely to lose. In a worst case scenario he saw a possible upper end range of sentence as 10 years imprisonment, a fact which was set out in the written legal instructions. He was very concerned that such a result might occur because of "the apparent degree of influence exercised upon Mr. Wilson by his mother, Anna Wilson." I infer that if Mr. Wilson could be going to prison for as much as 10 years, Mr. MacEwen wanted to make sure that it was Mr. Wilson’s decision and not that of Anna Wilson being forced upon him. [30] Mr. MacEwen again consulted senior counsel from his office and ultimately decided to contact Mr. Wilson to request that he meet with Mr. MacEwen at the law office at 8:30 p.m. that evening. He specifically asked Mr. Wilson to come alone. The accused agreed. [31] There are some significant differences in the description of that meeting. Mr. Wilson says the following: • That Mr. MacEwen told him that he had not prepared a defence. • That he should take the deal or he could spend 10 years in prison. • That the Crown could seek to have his bail revoked if he was found guilty after trial. • That he had to make the decision immediately although he had already rejected the deal earlier that day. • That he had to sign the instructions and was not allowed to consult his mother before signing. • That he felt intimidated by Mr. MacEwen. • That he panicked and signed the document. • That Mr. MacEwen told him that he could not change his mind and that he was calling the Crown to tell her that there would be a change of plea. • That while he agreed that it was his final call; he did not feel like he had much choice. [32] Mr. Wilson says that after the meeting he went back to the hotel and met with his mother. He was certain he had made a mistake. Although he considered calling other criminal lawyers he felt it was too late at night (10:30 p.m.) to do so. He ultimately concluded that he did not have adequate time to consider the implications of the plea to his life and career. [33] Elements of this are, of course, a re-statement of the terms of the offer from the Crown and are not controversial but Mr. MacEwen takes exception to much of the accused’s description of the discussion and the atmosphere. [34] He denies saying anything that was intended to, or that did act to coerce or threaten Mr. Wilson. His account is as follows: • That Mr. Wilson arrived at his office about 8:45 p.m. and that it was immediately apparent that he was aware of the certain outcome of the trial and understood the ramifications of proceeding to trial with the attendant risks of being found guilty of more than one offence and of increased sentences from what was proposed in the plea agreement. • That there was no realistic defence. • That his position before the court could be further aggravated by the court hearing the in person testimony of the Vs, as opposed to an agreed statement of fact. • That Mr. Wilson had a choice, that it was his alone, but that Mr. MacEwen’s legal advice was to accept the proposal. • That Mr. Wilson said it would be hard to admit guilt after over 2 years before the courts but he saw the Crown allegations of fact as irrefutable. • Mr. Wilson said he was prepared to accept responsibility for the sexual assault, but did not want to agree to a federal period of incarceration and wanted Mr. MacEwen to argue for the shortest possible sentence. • He testified that he specifically asked Mr. Wilson if he was sure about the change of plea to which Mr. Wilson replied: “Yes, positive”. • Mr. MacEwen acknowledged that he was surprised at how quickly Mr. Wilson agreed to the change of plea. • Based on the conversation, Mr. MacEwen concluded that Mr. Wilson was “a sober, responsible, educated adult” capable of providing him with the new instructions. • Mr. MacEwen read the provisions of section 606(1.1) verbatim from the Criminal Code and satisfied himself that Mr. Wilson understood the nature and consequences of the plea. • It was only after this that he presented the written instructions to change plea which document was executed at 9:12 p.m. • There was some further discussion and then Mr. MacEwen made a call to the Crown to advise of the changed instructions; he testified that Mr. Wilson said “make the call”. [35] In cross-examination, Mr. MacEwen stated that his impression was that Ms. Wilson was the problem and that it was entirely different to speak with Mr. Wilson alone as opposed to speaking with him when his mother was present. [36] Mr. MacEwen outlined his view of his duty to his client. In this case Mr. Wilson is an adult and is the client. It is he who suffers the consequences of a poor decision. Counsel saw it as his duty to ensure that any decision with respect to a change of plea, or to proceed to trial was arrived at by Mr. Wilson independently. When Mr. MacEwen called for the meeting in the evening he was not necessarily expecting that Mr. Wilson would change his plea and if he maintained his instructions to proceed to trial then Mr. MacEwen was entirely prepared to do so. [37] With respect to an allegation that he told Mr. Wilson that he was not prepared for trial, he flatly denied such an allegation and pointed out that this was the second time that the matter had been set for trial and that the case had been entirely prepared for the first trial date in March 2012. Trial preparation in December 2012 was, in essence, complete, subject to any new information that Mr. Wilson could provide that would speak to a defence. [38] The next morning, Mr. Wilson, his mother and Mr. MacEwen met at the courthouse. Mr. Wilson says that he was asked by Mr. MacEwen as to how he felt about the situation. Mr. Wilson testified that he told Mr. MacEwen that "you didn't really leave me much of a choice". He says that he felt that he had no choice but to follow through with the change of plea because, according to him, Mr. MacEwen had told him before that this was final. [39] Mr. MacEwen says that they met at the Law Courts and Ms. Wilson was unhappy. She felt that her son was an innocent person who was pleading guilty to an offence that he did not commit. He met with Mr. Wilson in the third floor North hallway of this building and had a conversation with him. Mr. MacEwen denies any conversation that would suggest a change of heart by Mr. Wilson. [40] I have reviewed the transcript of the court proceedings at which Mr. Wilson entered his plea. In it, Mr. MacEwen entered the guilty plea for his client and confirmed that he: …reviewed the provisions of section 606 with Mr. Wilson. and advised the court that Mr. Wilson: ….is aware of the fact he's waiving his right to a trial today. He's accepting the facts as they will eventually be read in by the Crown at the time of sentence. Does so freely and voluntarily. At this point in time there's no joint recommendation which we anticipate will be before the court. But he is aware of that if that should be the case in the future such recommendation would not be binding upon your Lordship or this Court. [41] The presiding Justice confirmed that Mr. MacEwen asked all of the questions that he intended to ask and stated that he was satisfied that Mr. MacEwen had in fact discussed these matters with his client. He then turned his attention to the accused and stated: The Court: Mr. Wilson you discussed the issues that Mr. MacEwen has just talked about? You understand the implications of pleading guilty to count 2? Mr. Wilson: Yes, your Honor. The Court: Okay. All right. I’m prepared to accept the plea of guilty on count 2…. [42] Mr. MacEwen testified that he was standing next to the accused at the time of his comments to the court and when Mr. Wilson responded to the judge as set out above. He had previously reviewed section 606 with Mr. Wilson and was very confident that Mr. Wilson fully understood the elements of that section and the significance of the information being provided to the court. Analysis [43] I begin by saying that where the evidence on material points differs as between Mr. MacEwen and Mr. Wilson, I prefer the evidence of Mr. MacEwen. His evidence presented a coherent and logical narrative that was supported by documentary evidence. He reflected a clear understanding of his responsibilities to his client and over a period of 2 1/2 years gained a thorough understanding of his client's case, and took reasonable steps throughout to keep him informed, and to ensure that he provided competent advice. He made every attempt to ensure that Mr. Wilson, as the client, understood the factual allegations made against him, the applicable law, the legal process engaged by the charges having been laid, and ultimately offered advice on the possible outcomes for the accused should he choose to proceed to trial or should he choose to enter a plea of guilty. [44] His professionalism and competence was reflected in a number of ways, including his willingness to consult senior counsel on more than one occasion to assist him in dealing with what was a very difficult case and a difficult client management problem. He wisely took written instructions which I have reviewed and accept as clear and intelligible to a man of Mr. Wilson’s apparent intelligence. [45] I found Mr. Wilson's evidence to be self-serving, selective and unconvincing. He may have convinced himself of some of what he now says but in my view his assertion that he was intimidated by Mr. MacEwen and that he did not have adequate opportunity to reflect on the consequences of a guilty plea are wholly inconsistent with the history of their solicitor-client relationship. [46] Mr. Wilson’s testimony that he paid Mr. MacEwen in excess of $50,000 in legal fees is provably wrong. Mr. MacEwen’s law firm accounting records, together with the explanatory evidence of Mr. MacEwen satisfy me that the fees were actually $14,730.57 plus taxes and disbursements bringing total billings to $17,000. Mr. Wilson, at best, was careless in his evidence, but more likely exaggerated this evidence to cast Mr. MacEwen in a negative light or himself in a more sympathetic light. To the opposite effect the evidence undermines Mr. Wilson’s credibility and reliability. [47] Mr. MacEwen had been Mr. Wilson’s counsel since May of 2010. While Mr. Wilson’s residence out of province made in person consultations infrequent there were written and teleconference communications for the purpose of discussing disclosure obtained from the Crown and taking instructions at various points. There was a preliminary hearing in March 2011 at which there was detailed examination and cross-examination of the two complainants. There was a meeting with the Wilsons after that to review the evidence and to take instructions for future steps. [48] At that point Mr. MacEwen made it clear that the evidence pointing to Mr. Wilson’s culpability was substantial in its quantity and its quality. Mr. Wilson maintained that he had no recollection of the events inside the room where Ms. V., allegedly, was sexually assaulted. Ms. Wilson was critical of Ms. V’s credibility. This and ensuing conversations would have made the extent of his jeopardy clear to Mr. Wilson some 19 months before he entered his guilty plea. [49] The Crown’s position was not conciliatory at that time and so resolution was not realistic. The trial was set for March 12 -16, 2012. There were in person trial preparation interviews on March 8 and 9. Mr. MacEwen continued his preparation until he was advised on March 11th that Ms. V’s mother had unexpectedly passed away and that the trial would need to be adjourned. Following this development the Crown made the first offer of resolution by way of a guilty plea to sexual assault, dropping of the other charges and a joint recommendation of a 4 year sentence. This was, as pointed out earlier, rejected outright at that time. [50] So it can be seen that the key plea and sentencing elements of the plea resolution that had been proposed and agreed to on the night of December 6, 2012 had been identified and discussed with the accused almost 9 months prior to that date. i.e., March 2012. [51] The concerns about the lack of a viable defence and the consequences of a guilty finding were identified some 19 months before, in the review conducted after the preliminary hearing. [52] I do not accept that on December 6, 2012, Mr. Wilson was either surprised or in any way lacked an understanding of what the plea agreement meant or what the consequences of it would be. He understood fully that the likelihood of successfully defending against the sexual assault charge was poor, especially in view of his selective and minimal recollection of the time of the alleged offences. [53] I note, parenthetically, that although he has always maintained he did not recall the events with K.V., in the Pre-sentence report, at page 4, he apparently did provide to the Pre-sentence report writer a version of events that was inconsistent with that provided by Ms. V. In fact, that particular paragraph in which he apparently gave some version of the events to the Pre-sentence Report writer - that had not been heard by Mr. MacEwen previously - ultimately caused the breakdown of the relationship between solicitor and client, that is between Mr. MacEwen and Mr. Wilson; and that was only in May of 2013, several months after the plea had been entered. Mr. Wilson’s inability to recall for Mr. MacEwen any of the events surrounding the K.V. allegations amounted to a lack of a basis to rebut the allegations. [54] As such, I do not agree that Mr. Wilson did not have adequate time to reflect on his decision. It was the product of various conversations with his counsel that cumulatively left him well informed by the time the ultimate decision was made. [55] The next question is whether Mr. Wilson was improperly induced or intimidated into entering a guilty plea. This is a somewhat more difficult question. On the face of it, he was presented with an option – go to trial and risk being convicted of multiple serious charges in relation to two victims followed by a very long sentence in jail or agree to admit to one serious crime with a promise of a Crown recommendation for a sentence that reflected the lower end of the available range of sentences having regard to the circumstances of the offence and of the offender. [56] Mr. Wilson was clearly being told that a guilty plea would provide him with a better result than what Mr. MacEwen thought was likely if it went to trial. No doubt Mr. Wilson felt pressure but that does not render Mr. MacEwen’s advice improper. I agree with Mr. Wilson in one thing he says: it was not a great choice to face. However, it must be remembered that part of the reason for that being the choice was Mr. Wilson’s own inability or willingness to provide his counsel with any details that could give an air of reality to a defence to the sexual assault charge. [57] The role of legal counsel is to be objective and to provide advice to the client which may include information that the client would rather not hear and would wish were not true. The reality is that it is crucial that the client be completely aware of his legal position, whether it is hopeless or sound. He needs to understand the choices that are available to him and have an opportunity to make an informed decision. [58] Either party, Crown or defence, is free to put forward proposed resolutions that are supportable on the provable facts and the law as applied to those facts. Once the Crown puts a proposal to the defence, the accused’s counsel has an obligation to convey that information to the client, to give advice on the proposal, and to take the client’s instructions. When the advice is that the client’s case is very weak and the likely consequences dire it is not improper for the lawyer to make that clear to the client – it is his or her duty to do so. [59] There are many situations where a lawyer may advertently or inadvertently cause a client to plead guilty improperly. For example, by misstating the law, or failing to adequately or reasonably assess the evidence; by simply giving wrong advice; by offering incentives that are not supported by the circumstances of the accused and of the offence alleged; by giving insufficient information for the accused to make an informed decision or by giving the client too little time to properly reflect and consider the advice. [60] In my view no such conduct occurred in this case. Mr. MacEwen was alert to his role. He called for the evening meeting with his client, and without Ms. Wilson present, not because he wanted to pressure Mr. Wilson into a guilty plea - he had already demonstrated that he was prepared to go to trial if that was Mr. Wilson’s true instructions - but rather because Mr. MacEwen wanted to be confident that Mr. Wilson was giving his instructions independently and without undue influence from his mother. When presented with the opportunity to admit his responsibility free of his mother’s influence Mr. Wilson did so and then confirmed that in writing. [61] The evidence which I accept leads me to conclude that Mr. MacEwen acted prudently and in the best interest of Mr. Wilson in giving him this last opportunity to accept the Crown’s proposal, one which had, in one form or another, been on the table for several months and which had been discussed not just in the evening meeting but also in the afternoon meeting of the 6th. [62] I do not accept therefore that there was “undue” or improper pressure exerted by Mr. MacEwen during the meetings of December 6, 2012 or at any other time. I accept that section 606 was reviewed with Mr. Wilson and that when the presiding judge presented him with the opportunity to contradict that assertion he did not do so. In particular I note that Mr. MacEwen stated for the record the essential components of section 606(1.1) and Mr. Wilson was immediately asked to confirm this information. While it might have been better if Mr. Wilson had personally entered the plea, or the trial judge asked the questions arising from 606, the relevant details were canvassed with the accused to the same ultimate effect. Conclusion [63] In summary, the accused was represented by experienced counsel. He was apprised of his position in law, based upon his disclosure of the facts to his counsel; and he understood the nature of the charge to which he pled. The accused had no apparent defence, if the facts as alleged by the Crown were proved. I do not accept that the plea was given in circumstances that amounted to improper or undue pressure upon him to do so, or was one made in the circumstances of inadequate time for contemplation. The plea was entered in open court, and made in circumstances where he was asked to confirm the plea and the 606 factors. [64] I am not satisfied that his plea was wrong and that it would be unjust to uphold the plea. [65] In conclusion, the application fails and I refuse to permit withdrawal of the plea. Duncan, J.