R. v. Espinoza-Ortega

R. v. Espinoza-Ortega Collection Decisions of the Court of Appeal Date 2019-06-28 Neutral citation 2019 ONCA 545 Docket numbers C64371 Judges Feldman, Kathryn N.; Roberts, Lois B.; Fairburn, J. Michal Subject Criminal Decision Content 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 appellant’s 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 appellant’s 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 victim’s car, causing it to leave the roadway and hit a pole. There was significant damage to the victim’s 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 officer’s 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 appellant’s counsel had received disclosure from the Crown. The Crown’s 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 victim’s 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 victim’s 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 there’s 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 it’s a little too low or a little too high or not what he or she would have done. I’m satisfied here based on the earlier facts I referred to and Mr. Winter’s detailed account of the impact upon him, that this joint submission is not one I’m 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 appellant’s 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 victim’s 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 judge’s 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 appellant’s 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 Crown’s 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 Crown’s 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 victim’s 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 appellant’s 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, he’s 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 appellant’s 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 appellant’s favour, and he believed a period of probation was necessary. In spite of the trial judge’s 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 judge’s 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 appellant’s 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 appellant’s plea as uninformed in the face of his and the trial Crown’s position that the plea should be struck. [41] Contrary to the Crown’s position before the trial judge, the Crown on appeal takes the position that the appellant’s plea was not uninformed because he had sufficient details of the victim’s injuries at the time of his election. [42] I would not decide this issue based on the extent of the appellant’s knowledge of the victim’s 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 appellant’s position on the issue before the trial judge, together with the trial Crown’s concurrence. [48] In this case, the appellant’s 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 appellant’s 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 appellant’s 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.”