R. v. McCollum

R. v. McCollum Court Court of Appeal Date 2008-04-23 Citation 2008 NSCA 36 Docket CAC 280022 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Hamilton, M. Jill (Honourable Justice); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - R. v. McCollum - 2008 NSCA 36 - 2008-04-23 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. McCollum, 2008 NSCA 36 Date: 20080423 Docket: CAC 280022 Registry: Halifax Between: Pamela Lynn McCollum Appellant v. Her Majesty the Queen Respondent Judges: Bateman, Cromwell and Hamilton, JJ.A. Appeal Heard: April 1, 2008, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bateman, J.A.; Cromwell and Hamilton, JJ.A. concurring. Counsel: Jason T. Dempsey, for the appellant Mark Scott, for the respondent Reasons for judgment: [1] This is an appeal by Pamela Lynn McCollum from an decision of Judge Carol Beaton of the Provincial Court dismissing Ms. McCollum’s application to set aside her guilty plea to a charge of abduction in contravention of a custody order (s. 282(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46). [2] The Information to which Ms. McCollum entered the plea charged that the offence occurred between August 14th and 23rd, 2005. The child in question was, by court order, in the joint custody of Ms. McCollum and his father, Andrew Keith Bishop. Ms. McCollum did not return the child to Mr. Bishop at the end of her period of custody. She had been living in Northport, Nova Scotia but, unknown to Mr. Bishop, had relocated to Alberta sometime around August 14th, 2005. The child was eventually located in Alberta, in her care. [3] On September 29, 2005, Ms. McCollum appeared with counsel in Provincial Court in Amherst, Nova Scotia and entered pleas of not guilty to both the s. 282(1) count and an additional charge of assaulting her former husband (s. 266(b)). Trial dates were set for mid-June 2006. A scheduled pre-trial was held in March. In mid-May 2006 the court was advised that Ms. McCollum had retained new counsel. [4] In early June, lawyer Jennifer Hebert, now acting for Ms. McCollum, requested new trial dates, which were set for early February 2007, with a pre-trial conference in early December 2006. On the first day of trial, February 1, 2007, Ms. McCollum appeared with her counsel and changed her plea on the s. 282(1) charge to guilty. Upon questioning by the judge she confirmed that the plea was entered voluntarily and that she understood by so doing she was foregoing the right to a trial. [5] At the same appearance Ms. McCollum maintained her not guilty plea to the assault charge, the trial of which went forward on that day with Ms. McCollum represented by her counsel, Jennifer Hebert. Ms. McCollum was found guilty of the assault. Sentencing for both offences was adjourned to March 19, 2007 and a pre-sentence report ordered. [6] On the sentencing date Ms. McCollum advised the court that her relationship with counsel Hebert was ended and that she intended to continue on her own behalf. She then made application to withdraw her guilty plea. It was Ms. McCollum’s submission that the guilty plea was not voluntary because it had been made in response to pressure from her then counsel. [7] The judge conducted an evidentiary hearing on the application. Ms. Hebert testified and was cross-examined by Ms. McCollum. Ms. McCollum testified on her own behalf and called, as additional witnesses, two supporters who had been present during her exchanges with counsel just prior to the entry of her guilty plea. [8] At the conclusion of the hearing the judge denied the motion, providing oral reasons. Sentencing on the two charges proceeded with Ms. McCollum receiving a suspended sentence and 18 months probation on the s. 282(1) charge and a consecutive period of six months probation on the assault. [9] Ms. McCollum appeals the judge’s refusal to set aside her guilty plea. [10] In determining Ms. McCollum’s appeal we are guided by the following law: a judge’s factual findings in determining whether a guilty plea is valid are to be accorded significant deference on appeal (R. v. Leonard, [2007] S.J. No. 612 (Q.L.) (C.A.)); the decision whether or not to allow an accused to withdraw a guilty plea is a discretionary one which, if exercised judicially, will not be lightly overturned (R. v. Thibodeau, [1955] S.C.R. 646); the fact that Ms. McCollum was represented by counsel prior to and at the time of entering her plea is a significant factor (R. v. Melanson, [1983] N.S.J. No. 453(Q.L.), 59 N.S.R. (2d) 54 (C.A.). Pace J.A. wrote for the Court in R. v. Melanson, supra: [8] It is my view that an appeal court in evaluating the grounds upon which a plea of guilty can be changed should give great importance to whether at the time the accused entered his plea he was represented by counsel. Certainly an accused who is speaking to the court on his own behalf may not fully understand the questions raised or the complexity of law involved and, even if he did, may not reply for fear of mistake or some other reason. However, where the accused is represented by counsel, who is trained and learned in the law, the court should be able to entertain and accept a plea of guilty upon the reliance that the charge has been fully explained to the accused and that the accused not only fully appreciates the nature of the charge, but also the effect of his plea and that he is admitting the facts as alleged in the charge. . . . [11] In her oral reasons the judge made several important factual findings: · prior to the entry of the guilty plea Ms. Hebert had provided detailed advice to Ms. McCollum both orally and by letter, setting out her options and the potential consequences should she be found guilty; · both Ms. Hebert and Ms. McCollum were aware that Ms. McCollum could choose to proceed with a trial, despite Ms. Hebert’s advice that it was in her interests to enter a guilty plea; · Ms. McCollum had a clear opportunity to address the court prior to the entry of the guilty plea; · Ms. McCollum’s effort to withdraw her guilty plea came weeks after its entry and was motivated by her dissatisfaction with counsel’s representation; · Ms. McCollum did not enter the plea under any improper inducements or threats. [12] The judge did not accept Ms. McCollum’s submission that she entered the plea out of fear that she would be forced to go ahead with the trial of the s. 282(1) on the scheduled day without counsel if she did not heed Ms. Hebert’s advice that she should enter a guilty plea. [13] All of these factual findings were available to the judge on the record before her. [14] I am not persuaded the judge erred in law or made a palpable and overriding error of fact in exercising her discretion to dismiss Ms. McCollum’s application to withdraw her guilty plea. [15] I would dismiss the appeal. Bateman, J.A. Concurred in: Cromwell, J.A. Hamilton, J.A.