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Decision of the Week

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pineda, 2019 ONCA 935

DATE: 20191127

DOCKET: C62380

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chris Denny Pineda

Appellant

Naomi M. Lutes, for the appellant

Caitlin Sharawy, for the respondent

Heard: September 12, 2019

On appeal from the conviction entered on May 22, 2013 by Justice Steve A. Coroza of the Ontario Court of Justice.

REASONS FOR DECISION

Background

[1]           The appellant seeks to set aside his guilty pleas on the basis that they were uninformed. Had he known the immigration consequences of his guilty pleas, he maintains that he would have instead proceeded to trial. For the reasons set out below, we allow the appeal, set aside the guilty pleas, and order a new trial on all counts of the information.

[2]           The appellant, an American national, came to Canada at age three and thereafter became a permanent resident. His four dependent children all reside in Canada, as do his mother and developmentally challenged brother. He conducted his business in Canada and considered himself Canadian. However, he never applied for, or received, Canadian citizenship.

[3]           On November 1, 2012, the appellant was charged with three firearm-related offences under the Criminal Code and one possession offence under the Controlled Drugs and Substances Act. He plead guilty to three of the offences – careless storage of a firearm, unlawful possession of a loaded prohibited firearm, and possession of cocaine – and a fourth charge was withdrawn. Pursuant to a joint submission he received a global sentence of 15 months incarceration less time spent in pre-trial custody, followed by 36 months probation. As a result of these convictions and sentences, he was stripped of his status as a permanent resident and ordered deported to the United States, with no right of appeal. He now resides in the U.S. and is not permitted re-entry into Canada where his children continue to reside. 

[4]           The appellant now seeks to introduce fresh evidence to establish that his guilty pleas were uninformed because he was unaware of the serious immigration consequences of them.

Analysis

[5]           To be valid, a guilty plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and “legally relevant collateral consequences” of that plea: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-4. Legally relevant collateral consequences include immigration consequences. To set aside a presumptively valid plea, the appellant must establish that: (i) he was unaware of a legally relevant consequence of the plea, assessed objectively; and (ii) he has suffered prejudice, in the sense that he would have acted differently had he been properly made aware of the consequences: Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33.

[6]           In the fresh evidence, the appellant states that although he was advised by his lawyer that there might be immigration consequences to his guilty pleas, and that he should seek the advice of an immigration lawyer, he did not understand that deportation would be within the range of possible consequences. He had thought he might be subject to questioning by an immigration official, or subject to an immigration hold. He did not consult an immigration lawyer. Trial counsel, in his affidavit, did not contradict this evidence. Trial counsel agreed that although he had a conversation with the appellant and alerted him that there might be immigration consequences, he likely did not discuss any specific immigration consequences with the appellant. Trial counsel’s evidence, at its highest, was that the word “deportation” may have come up.

[7]           There was no plea comprehension inquiry conducted in court. The appellant’s counsel advised the trial judge that the plea inquiry had been conducted with the appellant in advance. The trial judge was not made aware of the appellant’s immigration status or that immigration consequences could flow to the appellant as a result of his convictions.

[8]           The respondent concedes that the fresh evidence should be admitted. We are satisfied that the fresh evidence meets the Palmer criteria, as modified to assess the validity of a guilty plea, and ought to be admitted: R. v. Sangs, 2017 ONCA 683, at para. 7.

[9]           It is the respondent’s position that, at a minimum, the appellant was wilfully blind as to the immigration consequences arising from his plea. The respondent argues that the appellant should not be permitted to rely upon his wilful blindness in support of the claim that his pleas were involuntary: R. v. Girn, 2019 ONCA 202 at 62-3, 79. 

[10]        Based on the record before us, however, it seems clear that the appellant did not know the serious jeopardy he was in. While his lawyer told him that there may be serious immigration consequences arising from his guilty pleas, his lawyer admits that he did not “get into the specifics”. Rather, he told the appellant that he should seek the advice of an immigration lawyer. Knowing that the in-custody appellant had not done so, and did not know the “specifics” about the consequences of a guilty plea, the lawyer assisted the appellant with entering his plea. 

[11]        The consequences were, of course, grave. Not only was the appellant deportable after the plea because of his permanent resident status, but the length of sentence meant that he would not have a right of appeal from such an order. 

[12]        On the basis of the fresh evidence, we are satisfied that the appellant had not been informed by his counsel and was not otherwise aware of the potentially serious immigration consequences arising from his guilty pleas, specifically that he could be deported without a right of appeal. 

[13]        With respect to prejudice, we accept that the appellant would have elected to stand trial if he had been aware of the immigration consequences of his pleas. In his reasons for sentence, the sentencing judge noted the Crown’s case was circumstantial, there were triable issues including “issues with respect to whether or not the Crown could prove beyond a reasonable doubt that he was in fact in possession of the item that’s been exhibited…”. The consequences of deportation were devastating to the appellant’s relationship with his dependent children. The appellant states that had he known he would be facing deportation without a right of appeal, he would have taken all available steps in an effort to stay in Canada and keep his family together. One of those steps would have been pleading not guilty in the face of what he characterized as a weak Crown case. 

DISPOSITION

[14]        We admit the fresh evidence, set aside the pleas of guilty and consequent convictions, and order a new trial on all counts in the information.

“David Watt J.A.”

“B.W. Miller J.A.”

“Fairburn J.A.”




Substituted Acquittal Entered & Drug Conviction Overturned

Delay in access to legal advice following arrest in accused’s home results in conviction being overturned and substituted acquittal being entered. Read the case below.

Court of Appeal for Ontario located in Toronto Ontario.  Delay in access to legal advice following arrest in accused's home results in conviction ebbing overturned and substituted acquittal being entered.  Read the case below.
Ontario Court of Appeal, Toronto

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noel, 2019 ONCA 860 

DATE: 20191101

DOCKET: C65221

Huscroft, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Marlon Noel 

Appellant

Leo Salloum, for the appellant

Marie Comiskey, for the respondent

Heard: September 26, 2019

On appeal from the conviction entered on February 21, 2018 by Justice Jocelyn Speyer of the Superior Court of Justice, sitting without a jury.

substituted acquittal

REASONS FOR DECISION

substituted acquittal

[1]          Mr. Daniel Noel (Mr. Noel) appeals his drug related convictions. For reasons that follow, we allow his appeal, set aside his convictions, and substitute verdicts of acquittal. 

[2]          The material facts are these.

[3]          On December 21, 2015, Durham Regional Police obtained a warrant to search a residence where Mr. Noel lived with his partner, Ms. Stacey Long, and his brother, Mr. Prince Noel. All three residents were suspected of small-scale cocaine trafficking in the Oshawa area. The warrant, which was based on confidential information and surveillance, authorized a search for cocaine, other controlled substances, and related evidence of drug trafficking. 

[4]          The police, armed with the search warrant, executed a dynamic entry into the residence at 10:28 p.m. Shortly thereafter, Mr. Noel was arrested by Officer Aiello at gunpoint in a bedroom containing his belongings and identification. He was taken to the floor and handcuffed. His partner, Ms. Long, and his brother, Mr. Prince Noel, were also arrested.

[5]          Officer Aiello did not advise Mr. Noel of his right to counsel. As previously arranged by the police entry team, Mr. Noel was brought to a central location in the house where, within five minutes of the police’s entry into the residence, another officer, Officer Gill, read him his rights to counsel. He asked to speak to a lawyer, but no steps were taken to facilitate his right to counsel. 

[6]          The search of the bedroom in which he had been arrested led to the discovery of $5,670 Canadian, $71 USD, 73 grams of cocaine, 55 grams of marijuana, and a digital scale. 

[7]          At 11:04 p.m., Mr. Noel was transported to the station. At Mr. Noel’s trial, Officer Gill testified that as he was leading Mr. Noel to the transport vehicle, Mr. Noel claimed ownership of the drugs and that his brother was not involved.

[8]          Mr. Noel arrived at the station at 11:10 p.m. On his arrival, no one took charge of facilitating his right to counsel. 

[9]          At 12:48 a.m., Officer Capener placed two calls to duty counsel on behalf of two of the persons arrested at the residence and left messages requesting that duty counsel return the calls. Officer Capener testified that these calls were placed for Mr. Noel and Ms. Long, but the trial judge had concerns about the accuracy of his evidence as to who the calls were placed for. 

[10]       At 1:25 a.m., cell staff advised Officer Westcott that Mr. Noel’s brother received a call from duty counsel, but that Mr. Noel had not. Officer Westcott called the duty counsel office and left a message for someone to call Mr. Noel. The evidence did not establish whether duty counsel ever called back.

[11]       During trial, Mr. Noel alleged several Charter breaches. He attacked the validity of the search warrant, contended that the dynamic entry violated s. 8, argued that his arrest was arbitrary contrary to s. 9, and claimed violations of both the informational and implementational components of his s. 10(b) right to counsel.

[12]       The trial judge rejected all the alleged violations, except one. She found that Mr. Noel’s right to consult counsel without delay was violated, an implementational breach. However, she denied Mr. Noel the exclusionary remedy he sought under s. 24(2) and admitted the evidence. 

[13]       Ultimately, the trial judge found Officer Gill’s testimony about Mr. Noel’s self-incriminating statement to be unreliable but convicted Mr. Noel on the balance of the evidence.

[14]       Mr. Noel appeals his convictions. He urges that the trial judge erred in failing to find that the dynamic entry violated s. 8, in finding the arrest not to be arbitrary contrary to s. 9, and in finding that there was no s. 10(b) informational breach. He also argues that the trial judge committed errors of principle in her exclusionary ruling relating to the s. 10(b) implementational breach that she did find. He asks us to reconsider the s. 24(2) remedy, to exclude the evidence, and to set aside his convictions.

[15]       Mr. Noel argues, in the alternative, that the conviction was unreasonable even if all the evidence was properly admitted, because the evidence could not support a finding that Mr. Noel knew the secreted narcotics were in his room.

[16]       We reject this latter ground of appeal. If the evidence discovered during the search were to be admitted, the convictions would not be unreasonable. The evidence discovered during the search of the bedroom linked to Mr. Noel gave solid support for the trial judge’s decision to convict.

[17]       However, we conclude that the trial judge committed errors of principle in her s. 24(2) Charter ruling. These errors were material to her findings relating to the seriousness, and impact, of the s. 10(b) implementational breach, which arose from the delay in facilitating Mr. Noel’s right to counsel. 

[18]       Specifically, the trial judge found the seriousness of the breach to have been “attenuated somewhat in this case, because the police complied with their obligation to hold off questioning the arrestee until after contact with counsel was facilitated.” This passage contains two errors. 

[19]       First, had the police attempted to use Mr. Noel as a source of self-incriminating evidence before he had a reasonable opportunity to speak to counsel, that would have been yet another s. 10(b) breach. The seriousness of the breach the trial judge did find cannot be attenuated by the fact that the police did not commit an additional breach of Mr. Noel’s rights. 

[20]       Second, there is no evidence that Mr. Noel ever succeeded in speaking to counsel. The evidence was that at 1:25 a.m., approximately three hours after his arrest, Officer Westcott left a message with duty counsel on Mr. Noel’s behalf, but there was no evidence that anyone followed up to ensure contact occurred. It is true that the onus is on Mr. Noel to establish the s. 10(b) breach, and that he did not lead affirmative evidence that he never managed to speak to counsel. That does not change the fact, though, that there is no affirmative proof that he did. It was not appropriate for the trial judge to proceed on the assumption that Mr. Noel did ultimately speak to counsel. It was also not appropriate for the trial judge to conclude that the seriousness of the breach was mitigated by that assumed consultation. 

[21]       In addition, the trial judge erred in evaluating the impact of the breach. She said:

I have heard no evidence about the impact of the breach on the protected interest of the accused. He did not testify on this application about any impact. It is his onus to demonstrate that a breach occurred and that the evidence should be excluded. While the evidence is that his right to confer with counsel was delayed, and there is necessarily an impact on his constitutionally protected interests as a result, there is no evidence that it was denied, or that the delay impacted adversely on his ability to have a meaningful conversation with counsel. On balance, I conclude that this factor is quite neutral in the s. 24(2) analysis. [Emphasis added.]

substituted acquittal

[22]       With respect, this passage reflects a misunderstanding of the relevant Charter protected interest. That interest is the right is to consult counsel without delay. The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. It would be inconsistent with solicitor-client privilege to expect a detainee to lead evidence about the quality of their solicitor-client conversation. More importantly, this inquiry misses the mark. 

[23]       The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34. 

[24]       For example, an arrest and the search of one’s home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1144.  

[25]       Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination: Bartle, at p. 191;R. v. T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4. 

[26]       Beyond this, the right to counsel is also important in providing “reassurance” and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

substituted acquittal

[27]       Mr. Noel was not required to offer direct evidence about why he required access to counsel without delay. He asked to speak to counsel promptly but that right was denied. In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as “quite neutral” in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay. 

[28]       Given these errors in principle, the trial judge’s determination that the admission of the evidence would not bring the administration of justice into disrepute does not require deference, nor do her assessments of the seriousness and impact of the breach. In considering these matters afresh, we come to a different conclusion.

[29]       The s. 10(b) violation found by the trial judge was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel arrived at the station at 11:10 p.m., entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. Instead, he was placed in a cell and left there. 

[30]       Rather, it was about an hour and a half later that Officer Capener called duty counsel on behalf of only two of the three detainees, keeping insufficient records to confirm who those detainees were. 

[31]       It was not until 1:25 a.m., now about two and a half hours after Mr. Noel’s arrival at the station, that Officer Wescott left a message with duty counsel, specifically on Mr. Noel’s behalf. There is then no confirmation that counsel actually spoke to Mr. Noel. 

[32]       From the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay. Indeed, the trial judge characterized the police conduct in this regard as demonstrating “carelessness” – a characterization with which the Crown does not take issue.

[33]       Moreover, the impact of the breach was significant, not neutral. Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.

[34]       We are mindful of the impact of excluding necessary, reliable evidence in this serious prosecution on the repute of the administration of justice. However, this was a clear violation of a well-established rule. The law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out. Furthermore, it is troubling that the police in this case could not provide any reasonable explanation for the delay, nor could they even say whether Mr. Noel did, in fact, speak to counsel. As noted by Brown J. in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44: “… exclusion has been found to be warranted for clear violations of well-established rules governing state conduct”.

[35]       We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to consult counsel without delay. Given the collection of facts in this case, we conclude that the evidence must be excluded, notwithstanding that doing so undermines the Crown’s case against Mr. Noel.

[36]       Given this conclusion, we choose not to resolve Mr. Noel’s grounds of appeal relating to s. 8, s. 9, and the informational branch of s. 10(b). In doing so, we should not be taken as expressing agreement with the trial judge’s rulings. It is simply unnecessary to grapple with these issues given the significance of the s. 10(b) implementational error.

[37]       We therefore allow the appeal, set aside the convictions against Mr. Noel, and substitute verdicts of acquittal.

“Grant Huscroft J.A.”
“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

http://www.ontariocourts.ca/decisions/2019/2019ONCA0860.htm

substituted acquittal




Drug Possession. Hamilton Enforcement is up.

Recently released information from Statisitics Canada shows that Hamilton is one of the top major cities for the enforcement of marijuana drug possession charges, coming in eighth out of thirty-four cities. For the purposes of gathering information, Statistics Canada defined “Hamilton” to include Grimsby and Burlington, but if Hamilton alone is considered, the enforcement rates are even higher. Not only are individuals more likely to be charged with marijuana drug possession in the city of Hamilton and the surrounding areas, but the Statistics Canada information highlighted an upward trend in the number of these types of charges over the past nine years. Across Canada, the increase in marijuana-related investigations and charges both increased by 30% since 2006. However, in Hamilton, the rate of investigations increased by 185% and the number of charges increased by 154%.

drug possession

Statistics Canada also provided additional information about the general severity of marijuana drug possession charges. These charges are unique in that they are frequently an individual’s only charge in a particular case. 55% of adults, and 50% of youth charged with possession of marijuana had no other concurrent charges. In comparison, when the cases involved other drugs, the amount of single-charge cases dropped to 23% for adults, and 24% for youth.

Getting a Lawyer to Fight Drug Possession Charges

The lawyers at Smordin Law understand that while a marijuana drug possession charge may not seem like the most serious criminal matter, it can still affect an individual’s life in a variety of ways. This includes possible employment repercussions such as a termination or lack of hiring due to a criminal record, difficulty travelling to other countries, and the stress of navigating the criminal court system. If you are facing a possession charge, contact Smordin Law to explore your options.




Production Charge. Judge Strikes Down Mandatory Minimums

Being found guilty of Marijuana Production Charge had recently commanded a mandatory sentence.    The Controlled Drugs and Substance Act reads Sec 7 (1) (2)(b):

  • (b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of

    • (i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

    • (ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,

    • (iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,

    • (iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,

    • (v) imprisonment for a term of two years if the number of plants produced is more than 500, or

    • (vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;

Production Charge Struck Down

The Brampton man in this Globe and Mail Article successfully brought a constitutional challenge to the six-month minimum jail term for conviction on a production charge for growing between six and 200 marijuana plants for the purposes of trafficking. The man, who pleaded guilty to working in a grow-op, stated that the mandatory minimum was “cruel and unusual punishment” and the judge agreed with his position.

Following the reasoning of a recent Supreme Court decision, the judge stated that it was possible that an individual who has a licence to legally grow marijuana to accidentally grow more than the allotted amount, thereby creating a situation where an honest mistake is criminalized. The judge further stated that attaching a mandatory sentence, that at its minimum, would be six months, is “grossly disproportionate” for dealing with such a situation.

The judge added that a mandatory minimum sentence cannot be served intermittently, which would significantly disrupt an individual’s life, as a continuous six months in jail can greatly affect a person’s social and financial stability. This ruling is a step forward in ensuring equitable results for Ontarians who are facing criminal charges for growing marijuana plants.

Though this ruling only applies in Ontario, it may influence future rulings in other jurisdictions.

 

 

production charge