Supreme Court

R v Beaulieu, 2017 NWTSC 23 Date: 2017 03 23 Docket: S 1 CR 2015 000 131

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: HER MAJESTY THE QUEEN

-and- WILLIAM BEAULIEU MEMORANDUM OF JUDGMENT (APPLICATION TO STRIKE GUILTY PLEA)

[1] On November 18, 2016, I heard William Beaulieu's Application to strike the guilty plea that he entered on April 11, 2016, to a charge of aggravated assault. On December 20, 2016, I dismissed the Application and said that written Reasons would follow. These are those Reasons.

I) BACKGROUND AND PROCEDURAL HISTORY [2] Mr. Beaulieu was charged as a result of two incidents that happened within a few hours of one another. The first was an assault on Marlin Shae, in the late evening on September 16, 2015. The second was an incident involving Daniel Jackson which occurred in the early morning hours of September 17, 2015.

[3] Complaints were made to the R.C.M.P. in Fort Smith about these incidents. As a result of the investigation, Mr. Beaulieu was arrested on October 1, 2015. He was charged with aggravated assault of Mr. Shae, assault causing bodily harm of Mr. Jackson, and some breach of Probation charges.

Page 2 [4] Mr. Beaulieu had a show cause hearing on October 6, 2015. He was represented by defence counsel Michael Martin at that hearing. On October 7, 2015, the Justice of the Peace denied Mr. Beaulieu's application for release.

[5] Mr. Beaulieu had appearances in the Territorial Court on October 20, 27 and November 3, 2015. By the November 3, 2015 appearance, the charge of assault causing bodily harm relating to the incident involving Mr. Jackson had been replaced with a charge of aggravated assault. On that date, represented by defence counsel Jay Bran, Mr. Beaulieu elected to be tried by a judge of this Court sitting alone, without having a preliminary hearing. On December 10, 2015, the Crown filed an Indictment which included the two counts of aggravated assault.

[6] By early 2016, Mr. Beaulieu became entitled to a review of his detention by operation of section 525 of the Criminal Code. On January 28, 2016, Mr. Bran wrote to the Court, indicating that Mr. Beaulieu had given him instructions to waive that bail review.

[7] On February 17, 2016, a Pre-Trial Conference was held. Counsel advised that the matter was ready to be set for trial.

[8] On April 1, 2016, the Court received correspondence from the Crown indicating that the matter was expected to resolve without a trial, and requesting to have the matter brought forward to be spoken to in Yellowknife on April 11, 2016.

[9] On April 11, 2016, Mr. Beaulieu appeared before the Court. The Crown indicated it would file a new Indictment alleging a single count of aggravated assault naming both Marlin Shae and Daniel Jackson as victims. Mr. Beaulieu entered a plea of guilty to that count. A Pre-Sentence Report was ordered and the sentencing hearing was adjourned to June 13, 2016.

[10] At the June 13, 2016 appearance, Mr. Bran advised that he had a conflict on the matter, applied to be removed as counsel of record, and told the Court that he understood that Mr. Beaulieu's matter had been transferred to defence counsel Marissa Tordoff. Mr. Bran’s application to be removed as counsel of record was granted.

[11] Ms. Tordoff was present on June 13, 2016. She advised that she had received conflicting instructions from Mr. Beaulieu and could not act on the matter. She also said that she anticipated that Mr. Beaulieu would apply to strike the guilty plea. The matter was adjourned to June 27, 2016 so that new arrangements could be made for Mr. Beaulieu’s legal representation.

Page 3 [12] On June 27, 2016, defence counsel Charles Davison appeared with Mr. Beaulieu. He confirmed that there would be an application to withdraw the guilty plea. He asked that the matter be adjourned so that he could prepare materials in support of that application.

[13] Mr. Davison filed the Application and supporting materials on August 25, 2016. The hearing was eventually set to proceed November 18, 2016. This was the earliest date the hearing could be set for, in light of the availabilities provided to the Court.

II) LEGAL FRAMEWORK [14] Some aspects of the legal framework that governs this Application are well settled. Others are more controversial and were the subject of conflicting submissions at the hearing.

A) Features and effect of a valid guilty plea [15] A guilty plea is a fundamentally significant step in the criminal trial process. It carries a number of serious consequences: it relieves the Crown from the burden of proving guilt beyond a reasonable doubt; it puts an end to the presumption of innocence, the right to silence, and the right to make full answer and defence. Adgey v. The Queen [1975] 2 S.C.R. 426; R. v. Moser, [2002] O.J. No.552 (Ont. S.C.), para 29.

[16] Because of those serious consequences, a guilty plea, to be valid, must have minimally sufficient characteristics to ensure that the accused's forfeiture of his or her right to trial is fair: the plea must be voluntary, informed, and unequivocal. Moser, supra, para 31. R v Duong, 2006 BCCA 325, Para 12; R. v. T.(R.), [1992] O.J. No.1914 (Ont. C.A.), para 14.

[17] A “voluntary plea” is a “conscious volitional decision of the accused to plead guilty for reasons that the accused considers appropriate”. T.(R.), para 15; R v Alec, 2016 BCCA 282, para 72. In other words, it is a choice, a decision that an accused makes, of his or her own free will.

[18] Often, there are internal or external pressures on an accused who decides to plead guilty. These may include, for example, the advantages obtained through plea negotiations with the Crown; the desire to spare witnesses from having to testify; remorse.

Page 4 [19] Not every type of pressure renders the plea involuntary. What is unacceptable is if the plea is the result of circumstances that unfairly deprived the accused of making a free choice about whether or not to go to trial. This could include pressure from the court; pressure from defence counsel; incompetence of defence counsel; cognitive impairment of the accused; emotional disintegration of the accused; the accused's faculties being impaired by drugs or medication at the time the plea is entered. Moser, para 33.

[20] A guilty plea must also be unequivocal. To be unequivocal, the plea must not be made in circumstances that suggest that the plea was confusing, unintended, or that the accused did not intend to admit the essential elements of the offence. Moser, para 32. A plea that is qualified, modified, uncertain or conditional may be an equivocal one. Alec, para 73.

[21] Finally, the plea must be informed. For the plea to be informed, the accused must understand the nature of the charges, the legal effects of the plea, and its consequences. Where an accused was represented by counsel at the time the plea was entered, the advice given by counsel will obviously be an important consideration in determining whether the plea was informed. The fact that an accused has prior experience with the criminal justice system is also a factor to consider. Moser, paras 34-35.

[22] Since the enactment of Subsection 606(1.1) and (1.2) of the Criminal Code, judges are required to satisfy themselves that a guilty plea is voluntary and informed before accepting it:

606. (...) (1.1) A court may accept a plea of guilty only if it is satisfied that the accused (a) is making the plea voluntarily; and (b) understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and iii) that the court is not bound by any agreement made between the accused and the prosecutor.

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. (...) Criminal Code, R.S.C. 1985, c. C-34, s. 606.

Page 5 [23] It was well established, before the enactment of Subsection 606(1.1), that a guilty plea entered in open court by an accused who is represented by counsel was presumed to be valid. Moser, Para 37.

[24] The enactment of Subsections 606(1.1) and (1.2) has not altered this presumption. Arguably, it has strengthened it. If the requirements of the provision have been complied with, the presumption of validity of the plea may be more difficult to rebut because important features of what makes a guilty plea valid have been specifically canvassed, upfront, with the accused.

[25] Non-compliance with Subsection 606(1.1) does not automatically render the plea invalid: Subsection 606(1.2) makes that very clear. At the same time, the things that the court is required to satisfy itself of are essential characteristics of a valid guilty plea (that the plea is voluntary and informed). Practically speaking, it may be easier for an accused to rebut the presumption of validity of the plea if, for whatever reason, Subsection 606(1.1) was not complied with at the time the plea was offered.

[26] As such, I conclude that compliance with Subsection 606(1.1) is part of the overall circumstances that the court must consider on any application to strike a guilty plea. If the requirements of that provision are met, this gives rise to a strong presumption that the plea is valid. If they are not, depending on the circumstances, it may assist the accused in his or her attempt to rebut the presumption. But compliance with Section 606(1.1) is not determinative of the matter, and I see no reason to treat it as a distinct step in the analysis. It is simply part of what the court must examine in deciding whether a guilty plea ought to be struck.

B) Significance of Acceptance of Plea and Admission of Facts [27] On this Application, Defence argued that no inquiry into the validity of the plea was needed because it was never formally accepted by the Court, and Mr. Beaulieu did not admit any facts.

[28] Factually, Defence is correct: there is nothing on the Court record that suggests that the Court formally accepted Mr. Beaulieu’s plea or inquired about the underlying facts of the offence after the plea was offered on April 11, 2016. After Mr. Beaulieu entered his guilty plea, the sentencing hearing was adjourned by consent so that a Pre-Sentence Report could be prepared. No reference was made

Page 6 to the Crown’s allegations in support of the charge, and Mr. Beaulieu was not asked to admit any facts. [29] This manner of proceeding is not at all unusual in this jurisdiction. On the contrary it is quite common for this to happen. Sometimes, facts are alleged and admitted at the time a guilty plea is entered, even when the balance of the sentencing hearing is to be adjourned to a later date. But often, if sentencing is to be adjourned, facts are not placed before the Court until the date of the sentencing hearing. Once the facts are admitted and the Court is satisfied that those facts make out the offence charged, a Conviction is formally entered. There is no such thing, in this Court, as a separate step whereby a guilty plea is “accepted” at an earlier point in the proceedings.

[30] The interpretation advocated by Defence, if correct, would mean that entering a guilty plea, in and of itself, would not have any legal consequence unless it was accompanied by some inquiry into the facts and a formal acceptance of the plea by the Court. I disagree with that interpretation, because I find it inconsistent with the overarching principles, referred to above at Paragraph 15, about the significance of a guilty plea in the context of the criminal trial process.

[31] I also find that this interpretation is inconsistent with Subsection 606(1.1). It makes no sense that Parliament would place an obligation on the court to ensure that a guilty plea meets certain basic characteristics unless the intention was for the plea itself to carry meaningful consequences.

[32] Moreover, Subsection 606(1.1) requires the court to be satisfied that the accused understands that the guilty plea represents an admission of the essential elements of the offence. It does not require the court to satisfy itself that the accused admits specific facts.

[33] When a guilty plea is entered and the Court finds that the requirements of Subsection 606(1.1) are met, this, in my view, amounts to an acceptance of the plea by the Court. At that point, the plea carries the legal consequences recognized by the jurisprudence, whether facts are admitted or not.

[34] That is not to say that the admission of facts is irrelevant to an application to strike a guilty plea. An accused who has admitted the facts and later seeks to have the plea struck may well face more of an uphill battle than one who has not admitted any facts. It depends on the circumstances of each case, and in particular, on the basis for seeking to have the plea struck.

Page 7 [35] For example, if the facts have been admitted, and the accused’s basis for asking to strike the plea is that he or she did not understand that the guilty plea meant admitting the essential elements of the offence, having admitted specific facts may present an additional hurdle in getting the plea struck. But if the basis for applying to strike the plea is that the accused was cognitively impaired at the time of the plea and did not actually appreciate what was happening, the admission of facts may not make any difference.

C) Burden of proof [36] The next contentious issue that I must address is the burden of proof that applies to an application to strike a guilty plea.

[37] Aspects of this issue are well settled: allowing an accused to withdraw a guilty plea is a discretionary decision; that decision must be exercised judicially; and the onus is on the accused to establish that the plea should be struck.

[38] The nature of the onus that the accused must meet, however, is not clear at all. The approach in the case law is not uniform. In a number of cases, the issue is not addressed specifically. In the cases where the burden is addressed, it is not described in a consistent manner.

[39] In this case, the Crown argued that the accused must establish that the plea was not valid on a balance of probabilities. Defence argued that it is sufficient for the accused to raise a doubt about the validity of the plea.

[40] The Crown relies on R v Trautman, 2015 ABPC 189. In that case, the judge, in considering the application to strike guilty pleas, adopted the standard of balance of probabilities:

Each guilty plea entered by Mr. Trautman is presumed to be valid. The burden is upon Mr. Trautman to prove otherwise on a balance of probabilities: Adgey v. The Queen, [1975] 2 SCR 426, 39 D.L.R. (3d) 553; R. v. Eizenga 2011 ONCA 113.

Trautman, supra, para 23. [41] The two appellate cases referred to in this excerpt, Adgey and Eizenga support the proposition that the accused bears the burden on an application to strike a guilty plea. But neither specifically addresses what that burden is.

Page 8 [42] The standard of balance of probabilities was endorsed by the British Columbia Court of Appeal in R v Alec, 2016 BCCA 282. However, the Court applied this standard in the appellate context, when the validity of a guilty plea is raised for the first time on appeal. Alec, para 80. It does not necessarily follow that the same standard applies when an application to strike a plea is presented to the trial court. The appellate review of a conviction appeal following a guilty plea does not engage the same principles as those that govern the exercise of discretionary powers at the trial level.

[43] As for the Defence's position, there is some support for it in Moser: 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.

Moser, para 43. [44] In several other cases, the onus that the accused has to meet is not described in reference to a specific burden of proof. In R v Moore, 2004 BCPC 560, at Paragraph 23, the Court described the onus on the accused as being "particularly difficult" when the plea was entered with the assistance of counsel. In R v Gill, 2014 BCSC 1150, the presiding judge did not specifically identify a standard of proof during his analysis of the matter but granted the application to strike the plea, saying that he was, on the evidence, "left with a meaningful concern" about the validity of the pleas. In R v Rabesca, 2015 NWTTC 05, at Paragraph 40, the Court said that the withdrawal of a guilty plea "should only be allowed in exceptional cases". This requirement “exceptional circumstances” was also adopted, in the appellate context, in R v Staples, 2007 BCCA 616 and R v Hoang, 2003 ABCA 251.

Page 9 [45] Perhaps the reason for this apparent difficulty in finding a consistent articulation of the applicable burden of proof in this context stems from the nature of the inquiry. The decision to strike a guilty plea requires considering and balancing a number of factors and can present itself in a myriad of different circumstances. It does not easily lend itself to the application of “traditional” burdens of proof.

[46] Courts often have to make decisions without reference to a specific burden of proof. For example, the residual discretion to exclude evidence because its prejudicial effect outweighs its probative value is not exercised in reference to a specific burden of proof. It is an evaluative decision based on all the factors in the case. The decision on an adjournment application is another example of a discretionary, evaluative decision that is based on weighing factors, and not on whether a party has proven something. The same is true for decisions to allow the use of testimonial aids (sections 486.1 and 486.2 of the Criminal Code); decisions to exclude the public from the courtroom (section 486 of the Criminal Code); or the decision on an application pursuant to section 64 of the Youth Criminal Justice Act, S.C. 2002, c.1 to have a young person sentenced as an adult.

[47] A wide variety of inquiries may have a bearing in deciding whether there are valid grounds to allow an accused to withdraw a guilty plea. Alec, para 77. While the onus of satisfying the court that the guilty plea should be struck is on the accused, it does not come down to the accused proving anything to a specific degree. In my view, this is another example of an evaluative decision that the Court must make, based on an assessment and balancing of all the facts.

[48] I now turn to the evidence adduced on this Application, and my findings of fact.

III) ASSESSMENT OF EVIDENCE AND FINDINGS OF FACT [49] Mr. Beaulieu and Mr. Bran testified at the hearing. They have very different accounts of key aspects of their interactions leading up to the April 11, 2016 appearance, including what happened at the meeting that took place at the courthouse that morning.

A) Mr. Beaulieu's evidence [50] Mr. Beaulieu testified that he did not assault Mr. Shae and that while he did use force against Mr. Jackson, he did so in self-defence. Mr. Beaulieu testified he

Page 10 never intended to admit any of the allegations involving Mr. Shae. He instructed Mr. Bran to offer a guilty plea to the Jackson charge in exchange for the Shae charge being dropped. He did so to get matters dealt with so he would not have to spend months on remand waiting for his trial.

[51] Mr. Beaulieu remembers Mr. Bran advising him of the Crown's counter-offer, which was to combine the two counts into one, and that the Crown would be seeking a sentence of three to four years in custody. Mr. Beaulieu agreed that Mr. Bran "probably said something along the lines" that he thought the Crown's position was reasonable and that he was going to make it a joint submission.

[52] Mr. Beaulieu testified that he did not want to agree with the counter-offer because he was not guilty of having assaulted Mr. Shae. Despite this, he told Mr. Bran, initially, that he would agree to this resolution.

[53] The Friday before the April court appearance, Mr. Beaulieu advised Mr. Bran that he no longer wanted to plead guilty to the combined count. Mr. Beaulieu testified that Mr. Bran's reaction was to tell him he was not going to help him or say anything for him in court.

[54] Mr. Beaulieu said that he met with Mr. Bran on April 11, 2016 at the courthouse, before the matter was spoken to in court. He said Mr. Bran did not explain anything about the consequences of the guilty plea. All Mr. Bran, said, according to Mr. Beaulieu, was that Mr. Beaulieu had to do what he wanted to do and that he, Mr. Bran, would not speak for him. Mr. Beaulieu also testified that he told Mr. Bran during that meeting that he did not want to plead guilty.

B) Mr. Bran's evidence [55] Mr. Bran testified about his interactions with Mr. Beaulieu during the period of time when he was his counsel.

[56] Mr. Bran recalled entering the election at the November 3, 2015 appearance. Before that appearance, he said he reviewed the matter with Mr. Beaulieu and sought his instructions as to the election.

[57] Mr. Bran had an email exchange with Crown prosecutor Alexander Godfrey about resolving this matter. A print-out of this email exchange was made an Exhibit at the hearing.

Page 11 [58] Mr. Bran confirmed that he sent an email to the Crown on March 14, 2016, offering a resolution of the matter whereby Mr. Beaulieu would plead guilty to the charge involving Mr. Shae in exchange for the Crown withdrawing the count involving Mr. Jackson. Mr. Bran testified that in his practice, he would not have put a resolution offer in writing or in an email unless he had instructions from Mr. Beaulieu to do so. He also said that before making such an offer he would have canvassed the requirements of section 606(1.1) of the Criminal Code with his client.