R. v. I.G.D., 2014 BCPC 196 (CanLII)
Citation: R. v. I.G.D. Date: 20140826
2014 BCPC 0196 File No: 159616
Registry: Victoria
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
I.G.D.
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Crown: J. Gillings
Counsel for the Defendant: H. Doehring
Place of Hearing: Victoria, B.C.
Dates of Hearing: May 27, June 10, August 13, 2014
Date of Judgment: August 26, 2014
Background
[1] On October 24, 2013, Mr. D entered a guilty plea to one count of sexual assault, contrary to section 271 of the Criminal Code. He now applies to withdraw that plea, and to enter a plea of not guilty to the same charge.
[2] Mr. D faces three counts, two of which carry mandatory minimum jail sentences in the event of conviction and the third of which does not. The guilty plea which he entered was to the third count, and was entered on the understanding that, if pled guilty to count #3, the Crown would not proceed with counts #1 and #2. Because of the present application, the Crown has not (yet) stayed counts #1 and #2.
[3] Between April and October, 2013, Mr. D’s counsel, Mr. Schwartz, conducted extended negotiations with Crown counsel, Mr. Weir. From the point of view of Mr. Schwartz and Mr. D, the objective of the negotiation was to induce the Crown to accept a guilty plea on count #3 in exchange for the Crown’s agreement to stay counts #1 and #2. If successful, such an outcome would allow Mr. Schwartz to argue that count #3 would not justify a custodial sentence, an outcome which Mr. D was very eager to avoid. From the outset of the negotiation, Mr. Weir was amenable to a bargain along the lines proposed. The contentious issue in the negotiation was the identification of those particulars of count #3 which Mr. D would admit and those which he would deny. The resolution of that issue would have a significant effect on the sentence to be imposed, and so was important to both parties. Agreement was reached in October, 2013, after months of negotiations, and Mr. D’s guilty plea was duly recorded.
[4] When the guilty plea was entered, Mr. Schwartz and Mr. Weir were entirely ad idem on the question of which particulars of count #3 were to be admitted and which were to be denied. Mr. D says that:
a. Mr. Schwartz did not discuss the particulars with him before entering into the agreement with Mr. Weir.
b. Some of the particulars which Mr. Schwartz admitted on his behalf are not true.
c. He did not instruct Mr. Schwartz to admit those particulars.
d. Mr. Schwartz did not discuss with him the possibility of defending count #3 on the ground that he had no sexual motive or intention when he touched the complainant.
e. He wishes to defend count #3 on that ground.
f. He understands that, because counts #1 and #2 have not yet been stayed, he remains in jeopardy on those counts.
[5] Mr. Schwartz says that:
a. before he made the agreement with Mr. Weir, he discussed the particulars in detail with Mr. D and received detailed and specific instructions from Mr. D about which allegations were to be admitted and which denied;
b. the agreement conforms to those instructions.
[6] During the hearing at which Mr. D tendered his guilty plea, there was no discussion or statement about which of the particulars Mr. D admitted and which he denied.
The Issues on the Application
[7] The evidence of Mr. D differs from that of Mr. Schwartz on a fundamental issue; i.e. whether Mr. D instructed Mr Schwartz to admit certain of the particulars alleged by the Crown. I am excused from the obligation to make a finding of fact on that issue because Mr. Doehring, who appeared for Mr. D on the application, concedes that Mr. Schwartz’ evidence is accurate and that Mr. D’s is not. Because the future course of these proceedings is unpredictable, I think it appropriate to say that I would have reached that conclusion in the absence of Mr. Doehring’s concession. However, in light of the concession, I need not trouble the reader with an exposition of my reasons for that conclusion. I attach a summary of the evidence as Appendix “A” to these reasons.
[8] Mr. Doehring says that the issue on the application is neither what advice Mr. Schwartz gave to Mr. D nor what instructions Mr. D gave to Mr. Schwartz, but rather whether Mr. D was capable of properly understanding the advice and giving the instructions.
[9] I draw the following summary of the governing principles from the judgment of Doherty, JA in Regina vs R.T. [1992] OJ # 1914; 1992 CanLII 2834 (ON CA), 10 OR (3d) 514.
a. The court may permit the accused to withdraw a guilty plea if the plea was invalid.
b. The accused carries the onus of proving invalidity on a balance of probabilities.
c. To constitute a valid guilty plea, the plea must be voluntary and unequivocal. In addition, the plea must also be informed; that is, the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea.
d. A guilty plea is invalid if the accused lacked the requisite mental capacity when the plea was entered. The test for this purpose is the same as the test for fitness for trial: R vs M.A.W. 2008 ONCA 555; [2008] OJ #2738; 237 CCC (3d) 560.
[10] Mr. Doehring raises three issues on this application:
a. He says that Mr. D’s plea was equivocal.
b. He says that Mr. D’s plea was uninformed because Mr. Schwartz did not discuss with Mr. D the possibility of defending the charge of sexual assault on the ground that Mr. D had no sexual motive or purpose in touching the complainant.
c. He says that Mr. D’s plea was invalid because of Mr. D’s mental incapacity.
Equivocal Plea
[11] Mr. Doehring drew to my attention the judgment of Mr. Justice Schultes in R vs Gill 2014 BCSC 1150. In that case, his Lordship made enquiries of Mr. Gill, as contemplated by section 606.1.1 of the Criminal Code, before accepting a guilty plea from him. When asked if he understood the charges against him, Mr. Gill replied:
Whatever the charges are there, I’m pleading it, yeah …
* * *
I don’t understand that in details, but I know that it’s a -- I have the charge for this one, so I’m pleading for it.
* * *
I don’t know the details, but …
Some nine months later, Mr. Gill applied for leave to withdraw his guilty pleas. In support of his application, he tendered the evidence of a clinical psychologist, who expressed the opinion that Mr. Gill suffered from a mental illness which affected his ability to understand legal proceedings, to make informed choices about the conduct of his defence and to communicate those choices to his counsel. I pause to observe that no similar evidence was tendered at the hearing before me. The psychologist said that “… it is likely that Mr. Gill’s decision-making capacity was impaired by his mental condition at the time of the pleas …”. Despite that evidence, Mr. Gill did not argue that his guilty pleas were involuntary. Rather, he tendered medical evidence to explain “… why someone who disputed a fundamental aspect of the Crown’s case … would still decide to plead guilty”. Mr. Gill’s application was made solely on the ground that his pleas were equivocal. At paragraph 91 of his reasons for judgment, Mr. Justice Schultes defined an equivocal plea as one that is “qualified, modified or uncertain”, and allowed Mr. Gill’s application on the ground that his pleas met that definition. In view of the words uttered by Mr. Gill (quoted above) in response to Mr. Justice Schultes’ questions, it is quite clear that his pleas were equivocal and uncertain.
[12] The guilty plea in this case was entered before a Justice of the Peace on October 24, 2013. Mr. Weir, Mr. Schwartz and Mr. D were all present. Mr. Schwartz, on behalf of Mr. D, entered a plea of guilty to count #3. No action was taken in relation to counts #1 and #2, which remain unresolved. A presentence report and a psychological assessment were ordered by consent. The following is the full text of the portion of the proceedings in which the guilty plea was entered:
Mr. Schwartz:
Your Worship, Richard Schwartz, counsel for Mr. D. This is Mr. D. My instructions this morning, Your Worship, are to indicate a change of plea on Count 3 of Information 1596161-1, Sorry, not Count 3 - yes, on the C-2, Count 3.
The Court:
I’m sorry. Can you be clear again --
Mr. Weir:
Yeah.
The Court:
About
Mr. Schwartz:
Yes, Count 3, January 1st, 2006
The Court:
Yes
Mr. Schwartz:
June 30th and May, that count.
The Court:
And you’re pleading how to that count?
Mr. Schwartz:
Guilty to that count. The Crown will ultimately have directions on Counts 1 and 2. And I am asking -- we are jointly asking for pre-sentence materials and given the nature of the matter perhaps with a psychiatric component.
A discussion of scheduling ensued.
[13] There is nothing equivocal, modified or uncertain about the words used by Mr. Schwartz to enter Mr. D’s guilty plea. In my view, the question of equivocation or uncertainty must be assessed objectively by reference to the words spoken. An unspoken reservation, equivocation or uncertainty does not affect the validity of the plea, nor does subjective, but unexpressed, equivocation or uncertainty in the mind of the accused.
Uninformed Plea
[14] Mr. Doehring says that Mr. D’s plea was uninformed because Mr. Schwartz did not discuss with Mr. D the possibility of defending the charge on the ground that Mr. D had no sexual motive or intention when he touched the complainant. Mr. Schwartz did not have a detailed or specific recollection of discussing that issue with Mr. D, although he believes that he did so at an early stage of his retainer. However, he points out that the issue became moot in October, 2013, when Mr. D instructed Mr. Schwartz to admit that he had an erection and masturbated in the presence of the complainant. Mr. Doehring acknowledges that Mr. Schwartz’ account of the advice which he gave and the instructions which he received is objectively accurate, although he places in issue Mr. D’s ability to understand the advice he was given. That being so, I must conclude that Mr. D instructed Mr. Schwartz to admit that Mr. D had an erection and masturbated in the presence of the complainant. That admission having been made, as it was by Mr. D to Mr. Schwartz, and by Mr. Schwartz to Mr. Weir, before the guilty plea was entered, the defence of absence of sexual motive or intent was no longer available to Mr. D. As a result, he was properly informed of the legal position and the legal issues at the time when he entered his guilty plea.
Lack of Capacity
[15] Mr. D has a history of psychiatric illness, beginning in 1985. He was hospitalized for psychiatric treatment on three separate occasions between 1985 and 2006. No firm diagnosis was made at that time. Those hospitalizations are described as the consequence of “manic” behaviour.
[16] Mr. D was next admitted to hospital, for psychiatric reasons, on March 13, 2013, about three weeks after the police interviewed him in relation to the present charges, and shortly before the Information was sworn. He was then diagnosed with depression with psychosis, and a personality disorder not otherwise specified with antisocial traits and avoidant traits. Medications were prescribed. He was discharged on May 2, 2013, and was assessed as stable at that time.
[17] Mr. D was seen, as an out-patient, by Dr. Roth, a psychiatrist, on May 21, 2013. Dr. Roth diagnosed him with Bipolar Affective Disorder and cocaine and alcohol dependence disorder in sustained remission. Mr. D told her that he had “… lots of guilt and self-loathing …” about the offences with which he is charged. Dr. Roth and a psychiatric social worker continued to see him during the period May - September, during which period his depression is reported to have deepened. He failed to attend medical appointments during October, and was next seen on November 25, when he reported anxiety about the impending sentencing hearing.
[18] I ordered a psychiatric assessment of Mr. D on June 10, 2014. He was interviewed for that purpose by Dr. Breitman, a psychiatrist, on July 2, 2014. Dr. Breitman provided a written report to the court, in which she opined:
Although [Mr. D] had been admitted to hospital earlier in [2013] with reports of delusional thinking, including persecutory thoughts, there is no available information to suggest psychotic thinking in October, 2013. Additionally, it does not appear that Mr. D was suffering from any disordered thinking which would have interfered with his ability to communicate with counsel.
* * *
… based on available information with regards to his mental state in October, 2013, and his description of his understanding of the proceedings, it is likely that he knew what was happening to him with regards to the criminal process and that he understood the nature and object of the proceedings. It is also likely … that he had, at a minimum, a rudimentary understanding of the potential outcomes in a criminal trial ….
* * *
With regards to whether Mr. D was able to communicate and instruct counsel, there is no clear indication that this ability would have been impaired in any significant way which would have interfered with his ability to recount the necessary facts relating to the offence in such a way that his counsel could have properly prepared a defence.
* * *
… it is my psychiatric opinion that Mr. D was not unfit to stand trial in October, 2013.
Mr. Doehring did not require Dr. Breitman to attend for cross-examination, and did not challenge her opinion.
[19] Mr. Schwartz, an experienced criminal counsel, said that he believed that Mr. D understood the nature and consequences of his guilty plea, and was able to provide Mr. Schwartz with proper instructions.
[20] My observation of Mr. D in the witness box (admittedly, some 8 months after the relevant date) was that he is an intelligent and articulate individual, with a good understanding of the legal process and ample intellectual capacity to instruct counsel and participate in court proceedings.
[21] All of the evidence before me supports the proposition that Mr. D was fit to stand trial in October, 2013, when he instructed Mr. Schwartz to enter a guilty plea on his behalf. As a consequence, I must find him to have been fit for trial at that time, and need not rely on the presumption stated in section 672.22 of the Criminal Code. For that reason, his application cannot succeed on the ground of mental incapacity.
[22] Mr. Doehring submits that, even if Mr. D was fit to stand trial in October, 2013, he is entitled to succeed on the present application if he can show that he did not understand the advice given him by Mr. Schwartz. In my view, that submission cannot be accepted because of the judgment in R vs M.A.W. In that case, it was held that limitations on intellectual or mental capacity may affect the validity of a guilty plea only if they are such as to render the accused, at the time the plea is tendered, unfit to stand trial. Mr. D’s mental condition in October, 2013 did not meet that standard.
Disposition
[23] I find no merit in any of the three grounds advanced by Mr. Doehring, and so dismiss Mr. D’s application.
Commentary
[24] In this case, no particulars were provided to the presiding judicial officer when the guilty plea was tendered. That is the common practice in this court. My experience in this case leads me to think that some change in that practice would be appropriate.
[25] Section 606 of the Criminal Code provides
(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.
[26] In this case, less than 5 minutes of court time would have been needed to recite, in open court and in the presence of Mr. D, the admissions which had been agreed between Mr. Schwartz and Mr. Weir. Such a recitation would have obviated the need for any enquiry by the presiding judicial officer under section 606(1.1), and would probably have obviated any basis for the present application. Counsel should consider whether such a recitation should be a common practice when a guilty plea is tendered.
August 26, 2014
________________________
T. Gouge, PCJ
Appendix “A”
Summary of the Evidence on the Application
[27] Mr. D has a criminal record comprising nine convictions over a span of 35 years, from 1976 to 2011. None of his convictions are for sexual offences. The significance of his criminal record, for present purposes, is that he has some experience of, and familiarity with, the criminal justice system.
[28] The Crown alleges that the incident giving rise to the charge occurred between January, 2006 and December, 2007, when the alleged victim, J.T., was 8 – 9 years of age. Mr. D says that it happened about 3 years before that, when J. T. was about 6.
[29] At the hearing before me, Mr. D said that:
a. J.T. is the daughter of a friend.
b. Mr. D considered himself to be a substitute father for J.T., whom he loves as his daughter.
c. In his family, it is common for fathers and young daughters to shower together.
d. On the day in question, it was hot and muggy. He and J.T. were sweaty, and showered together. After the shower, he put on his bathrobe, and wrapped J.T., who was still naked, in a towel. He carried her into the bedroom and laid her on the bed, where he proceeded to towel her dry. As he did so, he kissed her in various places on her face and body, including the outer part of her thighs, and blew bubbles on her belly. There was nothing sexual about this contact. He did not touch or approach her genitals in any way. He was not sexually aroused and had no sexual motivation.
e. On another occasion, he was kissing J.T. on the lips when she put her tongue in his mouth. He was startled by this and withdrew, but not as quickly as (he acknowledges in hindsight) he should have done. J.T. explained that she and her classmates had been experimenting with “French kissing” in the schoolyard.
[30] Mr. D was interviewed by the RCMP on February 21, 2013, after receiving a proper Charter warning and the opportunity to speak with legal counsel. The following are pertinent extracts from the interview:
Q. … did you in 2007 take a bath with [J.T.] and have her touch your penis, masturbate in front of her and then kiss and lick her inner thighs, did you do that?
A. No, I didn’t do that.
Q. Okay
A. I did have a shower with her.
* * *
Q. Okay. What happened? Tell me.
A. Um, just that we had a shower together and that I put her to bed afterwards but there was no, I mean, we talked about, ah, sexual things. Whenever she asked me I tried to explain them as best I could. Um, her and [J.T.’s sister] had come across one of their mother’s pornography magazines. So she was asking about, in some of the pictures she had seen in it, um, what the adults were doing you know. And we had a relationship where, ah, we kinda made fun of adults because they didn’t want to have any fun and I explained to her that, ah, sex, was one of the things that adults do have for fun, you know. As best as I thought she could understand it, um, but, ah, then I don’t know why she would say that I had an erection or, or that, um, I asked her to touch my penis because there’s no truth to that.
* * *
Q. … I want to clear something up for you. She didn’t say, there was nowhere in her statement, um, where she said you had an erection.
A. Oh.
Q. … her statement was that you directed her to touch your penis, okay? So, the … word “erection” was … actually never mentioned.
A. Okay.
* * *
Q. … she says you masturbated in front of her. She says that she touched your penis. … and you’re saying that didn’t happen.
A. I’m saying that she didn’t touch my penis.
Q. Okay.
A. And didn’t invite her to.
* * *
Q. … [J.T.] said … that … you and her used to kiss.
A. To kiss?
Q. Yeah. And she said what was different was that, ah, you used to French kiss with her, so you would, ah, use your tongue and she, she said that, that you had said this is the way adults do it and you’d demonstrate, ah, French kissing with her.
A. Actually, she initiated that one time just by sticking her tongue out.
The interviewing officer asked Mr. D if he would be willing to submit to a polygraph test, and Mr. D said that he would. No polygraph test was administered, and Mr. D heard no more about it.
[31] After the police interview, Mr. D attended at the office of the Legal Services Society, and was referred to Mr. Richard Schwartz. Mr. Schwartz is an experienced criminal counsel, who served as Crown counsel from 1980 – 1982, and has been in private practice as defence counsel and ad hoc Crown counsel since 1982. Mr. D retained Mr. Schwartz on February 25, 2013.
[32] An information was sworn against Mr. D on March 19, 2013. It alleged three counts: (i) Count #1, an allegation of sexually touching J.T. contrary to section 151 of the Criminal Code; (ii) Count #2, an allegation of inviting J.T. to touch Mr. D for a sexual purpose, contrary to section 152 of the Criminal Code; and (iii) Count #3, an allegation of sexual assault, contrary to section 271 of the Criminal Code.
[33] Mr. D’s first court appearance on those charges was on March 21, 2013. In an affidavit sworn on April 4, 2014, Mr. D deposed that:
There was no communication with Mr. Schwartz from the initial appearance until mid-October, 2013 ….
When cross-examined at the hearing before me, Mr. D said that was incorrect, and that he had spoken once by telephone and twice in person with Mr. D during that time period. Mr. D said that:
a. The only person who discussed the details of the allegations against him before he entered his guilty plea was the RCMP officer who interviewed him on February 21, 2013.
b. He and Mr. Schwartz never discussed those details. In particular, Mr. Schwartz never spoke to him about masturbation or an erection. He never gave Mr. Schwartz any instructions to make admissions on those subjects.
c. His discussions with Mr. Schwartz were limited to the concise statement of the allegations in the Information.
d. Mr. Schwartz never discussed with him any potential defences to the charges. In particular, Mr. Schwartz never told him that he could not be convicted unless the trial judge were convinced that he had touched J.T. with “criminal intent”. However, after being referred to paragraph 5 of his affidavit (which might be construed to be inconsistent with that assertion), he conceded that he “must have” discussed that issue with Mr. Schwartz.
e. Mr. Schwartz did not tell Mr. D that he had no defence to the charges, but “… he made it seem like there wasn’t”.
[34] In an affidavit sworn on May 26, 2014, Mr. Schwartz deposed that:
… my contacts with [Mr. D] in this matter have included conversations in person or by telephone on numerous occasions. My best recollection of my contacts with Mr. D, based on notes from my file, is that we met in person on the following dates in 2013: February 25, May 22, June 21, July 11, October 16, October 24, and we had significant telephone conversations on April 23, May 10 and between October 9 through to the 24th.
Mr. Schwartz provided oral evidence at the hearing before me, during which he confirmed the evidence quoted. During his cross-examination, he was not asked to refer to the file notes mentioned in his affidavit. His recollection of the dates of his communications with Mr. D was not challenged. In his oral evidence, Mr. Schwartz said that:
a. He spoke by telephone with Mr. D on April 23, 2013. At that time, Mr. D was in a hospital psychiatric ward, receiving treatment consequent upon a suicide attempt.
b. Mr. D was deeply distraught, and very frightened by the prospect of a jail sentence if he were convicted. He told Mr. Schwartz that the suicide attempt had been prompted by the charges against Mr. D.
c. Mr. Schwartz was of the opinion that counts #1 and #2 of the information carried a mandatory minimum jail sentence in the event of conviction, but that count #3 did not. He so advised Mr. D. He told Mr. D that, if the Crown would agree to stay counts #1 and #2 in exchange for a guilty plea on count #3, it would remain open to Mr. Schwartz to try to persuade the court to refrain from imposing a jail sentence. Mr. Schwartz thought that he had a reasonable chance of persuading the court to impose a conditional sentence order on count #3.
d. Mr. Schwartz discussed in detail with Mr. D the allegations made in the Report to Crown Counsel (“the RTCC”); i.e. that Mr. D had asked J.T. to touch his penis, that he had masturbated in front of her, that he had kissed and licked her inner thighs, and that he had “french-kissed” her.
e. Mr. D instructed him to make an offer to Crown counsel, as described below.
[35] Mr. Schwartz sent an e-mail to Mr. Weir, Crown counsel, on April 24, 2013, as follows:
WITHOUT PREJUDICE
I am counsel for Mr. D. Further to our discussion of today’s date I can propose early resolution on this matter as follows: GP Count #3 SOP #1 & #2.
Facts admitted include, for a sexual purpose, having a shower with J.T., kissing J.T. on the lips and on her inner thighs.
Facts denied include having her touch him for a sexual purpose, having a bath with her, masturbating in her presence, or having an erection in her presence.
Hopefully, this will avoid the trauma of a trial for all concerned.
In this context, “GP” means “guilty plea” and “SOP” means “stay of proceedings”.
[36] During his oral evidence, Mr. Schwartz said that:
a. Mr. Weir rejected the offer made on April 24 because it contained insufficient admissions of the particulars to satisfy Mr. Weir.
b. Mr. Schwartz informed Mr. D of the rejection and of the reasons for it.
c. On May 22, 2013, he had a “very intense and serious” conversation with Mr. D in one of the meeting rooms outside courtroom #101 in the Victoria courthouse. During that meeting, he advised Mr. D that the Crown would not agree to Mr. Schwartz’ offer of a guilty plea to count #3 in exchange for a stay of proceedings on counts #1 & #2 unless Mr. D were willing to resile from his denial of most of the particulars alleged by the Crown. Mr. D said “ok”.
d. Mr. Schwartz and Mr. Weir discussed the case often during the ensuing months in search of a compromise satisfactory to both sides.
[37] Mr. D entered a plea of “not guilty” to all three counts on June 21, 2013. A trial confirmation hearing was then scheduled for October 10, 2013 and a trial date was scheduled for November 12 & 15, 2013.
[38] As a result of discussions between Mr. Schwartz and Mr. D, the trial confirmation hearing was adjourned from October 10 to October 24, 2013.
[39] In his affidavit, Mr. Schwartz deposed that:
… [Mr. D] met with me on October 16, 2013 and agreed that he would plead guilty to count three … and admit that he did, for a sexual purpose, have a shower with [J.T.], kiss her on the inner thighs, have a bath with her, masturbate in her presence and have an erection in her presence. He specifically denied “French kissing” her, and that denial was acceptable to Crown counsel ….
During his oral evidence, Mr. Schwartz confirmed that the meeting took place as described, but was uncertain of the date. He said that it must have been between October 16 and October 24, but that he could not be precise. However, he also said that it “must have been” before October 17. He said that Mr. D’s “bottom line” was that he would not admit “french-kissing” J.T.
[40] Mr. D agrees that he met with Mr. Schwartz in the latter part of October, and that the meeting occurred some days before the guilty plea was entered on October 24. He says that:
a. The only misconduct which they discussed was the act of taking a shower with J.T.
b. Mr. Schwartz did not seek, and Mr. D did not give, instructions to admit any of the other allegations in the RTCC.
c. He understood that each of counts #1 and #2 would carry a mandatory minimum jail term in the event of conviction, but that count #3 would not.
d. He did instruct Mr. Schwartz to attempt to negotiate a plea bargain which would offered the possibility of a non-custodial sentence.
e. He knew that he had a choice. He could plead guilty or maintain his “not guilty” plea and face a trial.
[41] On October 21, 2013, Mr. Weir sent an e-mail to Mr. Schwartz, as follows:
Further to our brief discussion of last week, is your client prepared to enter a guilty pleas (sic) as set out on the ISP (i.e. to 151)? I know you countered (below) but I’m not sure where we left it.
Also, as I understand, the allegations that your client disputes are those pertaining to his “french-kissing” the complainant. His version, again as I understand, I that while he kissed her, it was her that initiated the use of the tongue. If I have this correct, he does not dispute the remainder of the allegations contained in the complainant’s statement including those described by you (below).
We have not discussed the disposition nor have I ever suggested that the Crown would seek less than a custodial disposition.
If I have all of that correct, are you prepared to enter a GP this Thursday so that the dates can be cancelled? Do you suggest getting a PSR and/or psych? If not, shall we just leave the date for sentencing on the first day presently set aside for trial ….?
In that e-mail, the reference to “below” is to Mr. Schwartz’ e-mail of April 24, 2013 (quoted in paragraph 35, above), “ISP” means “initial sentencing position”, “PSR” means “pre-sentence report” and “psych” means a psychological assessment of Mr. D.
[42] Mr. Schwartz replied by e-mail on October 22, as follows:
I had offered gp to #3, s. 271 as there is no mandatory minimum.
[43] As noted above, a guilty plea was entered and a psychological assessment was ordered on October 24, 2014.
[44] The psychological assessment was performed by Dr. Dugbartey, who interviewed Mr. D on November 12 and 21, 2013 and delivered his report on November 26, 2013. The following passages appear in the report under the heading “The defendant’s version of the offence”:
Mr. D said his only offence, for which he pleaded guilty, was that “it was a French kiss that I gave to a nine year old girl. And it happened because she had been French kissing with the boys when she was in grade three. So, after this, I gave her a kiss on the lips and she slipped her tongue into mine and that was all there was to it. ….”
* * *
I then asked the defendant whether there was anything else that was either inappropriate or criminally offensive involving him and the victim. He said: “I don’t believe she said anything [to police] other than there was this one incident, as far as I know.”
When cross-examined at the hearing before me, Mr. D’s evidence was inconsistent. He agreed that those passages accurately reflect what he said to Dr. Dugbartey, and that the last remark attributed to him by Dr. Dugbartey was about the “french kissing” incident. However, he also said that he discussed with Dr. Dugbartey the fact that he had shared a shower with J.T. He said that, in answering Dr. Dugbartey’s questions, he was “containing himself” to the allegations in the Information.
[45] Ms. Lissa Laing Punnett is the probation officer who was assigned to prepare Mr. D’s presentence report. She interviewed Mr. D in November, 2013. She has no specific recollection of the interview. She has a standard-form interview questionnaire which she uses during such interviews. One of the questions is:
Tell me your version of event(s)?
It is her invariable practice, before putting that question to the offender, to have a copy of the RTCC open on the table in front of her, and to review with the offender each of the allegations made in the RTCC. In so doing, she would not read out loud passages from the RTCC, but would summarize each allegation, identifying the specific acts alleged. She is confident that she did so in this case. She said that, if the offender does not dispute the allegations in the RTCC, she writes “admits Crown version of events” beside the question quoted above. It is her practice, if the offender disputes any of the allegations in the RTCC, to note in point form which allegations are disputed by the offender. In this case, her note beside that question reads:
admits Crown version of events - feels horrified now - not at time, but reflecting back
Ms. Laing Punnett had not seen Dr. Dugbartey’s report before she interviewed Mr. D. When she later read Dr. Dugbartey’s report, she was astonished by the passages quoted in paragraph 44, above, which are “completely contrary” to what Mr. D said to Ms. Laing Punnett during her interview of him.
[46] Mr. D denies that Ms. Laing Punnett reviewed with him in any detail the allegations in the RTCC, or that he admitted any of them to her. He acknowledges that he expressed remorse, as described by Ms. Laing Punnett in her presentence report, but insists that he was remorseful only for a lack of judgment in showering with a young girl and that he never believed that he had committed any crime or done anything wrong.
[47] Dr. Breitman reports that, when she interviewed Mr. D for the purposes of a fitness assessment, Mr. D:
… admitted that he showered and dried off J.T. “for some unknown reason” and advised that it seemed natural because his brother-in-law did this with his niece. He stated that J.T. asked him to kiss her and asked to kiss him. He stated that the shower happened but that is not touching. He stated that he kissed her on the belly but not on the lips or thighs.
[48] The reader will observe that Mr. D’s evidence, both of what actually happened and what he told each of Mr. Schwartz, Dr. Dugbartey, Ms. Laing Punnett and Dr. Breitman, differs significantly from the evidence given and records maintained by each of the others.