



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Krzehlik, 2015 ONCA 168

DATE: 20150316

DOCKET: C55973

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Klaudius Krzehlik

Appellant

Joseph Di Luca, for the appellant

Michael Perlin, for the respondent

Heard: January 20, 2015

On appeal from the conviction entered on August 13, 2012,
    by Justice Simon C. Armstrong of the Ontario Court of Justice.

Epstein J.A.:

Introduction

[1]

The appellant pleaded guilty to assaulting his wife with a weapon and to
    assaulting his son.  The appellant was alleged to have held a knife to his
    wifes throat and to have hit his adult son in the shoulder.  The trial judge
    entered a conviction in relation to both offences and sentenced the appellant
    to 25 days in jail, in addition to five days of pre-sentence custody, to be
    served intermittently.

[2]

The pleas were entered and the sentence imposed on the appellants first
    appearance before a judge of the Ontario Court of Justice. He had been arrested
    four days earlier and held in custody. The appellant was not represented by
    counsel when he entered his pleas.

[3]

The appellant seeks to have his guilty pleas set aside primarily on the
    basis that his admission of the underlying facts was equivocal.

[4]

The appellant seeks to rely on additional evidence. The proposed
    evidence consists of an affidavit of the appellant, the transcript of his
    cross-examination on that affidavit and the affidavit of duty counsel who
    advised the appellant shortly before his guilty pleas. The evidence speaks to
    the circumstances following the appellants arrest that led up to his guilty
    plea.

[5]

The appellant bears the onus of showing that the plea was invalid. An appellate
    court is entitled to examine the trial record and any additional material,
    which, in the interests of justice, should be considered: see
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.). When an appellant seeks to argue that a guilty
    plea was involuntary, equivocal or not informed, the appellant need not satisfy
    the admissibility criteria set forth in
R. v. Palmer
(1979), 50 C.C.C.
    (2d) 193 (S.C.C.): see
R. v. Rajaeefard
(1996), 104 C.C.C. (3d) 225,
    at p. 228. The additional evidence amplifies the trial record and assists the
    court in examining and resolving the appeal. While the appellants additional evidence
    should be considered, as I will discuss, I would reject much of the appellants
    evidence as it is simply not credible.

[6]

At the conclusion of hearing this appeal, the panel indicated that the
    appeal was dismissed with reasons to follow.  I would dismiss the appeal for
    the following reasons.

Underlying Facts of Arrest and Guilty Pleas

[7]

The appellant was arrested on Thursday, August 9, 2012. He was charged
    with nine domestic violence offences that were alleged to have taken place between
    April 2011 and March 2012.  At that time, the appellant was 65 years old with
    no criminal record.  He had a number of medical issues. He was living with his
    wife of 24 years and their adult son.

[8]

According to his affidavit, the appellant spent Thursday night in a cell
    on a cold bench with no blanket.

[9]

The next morning, on Friday, August 10, 2012, the appellant was brought to
    the Newmarket courthouse for a bail hearing.  He was placed in a holding cell. The
    appellant says that while in the holding cell he was advised by another inmate
    that to get bail he needed either a surety to live with or a place in a bail
    program, which would require him to reside in a shelter.

[10]

The
    matter was called for a bail hearing.  The Crown indicated he was not able to
    consent to bail as the appellant did not have a release plan.  Duty counsel
    advised the justice of the peace that the appellant had asked to be referred to
    the bail program and that it was duty counsels intention to assist the
    appellant in a contested bail hearing later that day.  The presiding justice of
    the peace indicated she would be looking for a surety rather than release to
    the bail program.

[11]

The
    justice of the peace then said that the appellants bail hearing would be
    adjourned until Monday.  She added that if the appellant secured a surety or a
    place in the bail program, and if there were time, the bail hearing could occur
    that afternoon. The appellant says that he was accepted into the bail program
    shortly after 1:00 p.m., was told his bail hearing would be that afternoon, but
    that the hearing did not take place.

[12]

The
    appellant was held over the weekend at a remand centre. In his affidavit, the
    appellant states that during this time he ate, drank and slept very little.  He
    was strip-searched upon entry.  He experienced various difficulties with other
    inmates some of whom told him that he may have to wait months for trial and
    that he could get more than one year in jail if found guilty of the charges he
    faced.

[13]

In
    his affidavit, the appellant describes the early events of Monday, August 13,
    2012, as follows.  When he arrived at the courthouse for his bail hearing, he
    was disoriented, depressed and filled with anxiety: I couldnt concentrate on
    anything except surviving the day.  He spoke with duty counsel, a different
    counsel than the one who had assisted him the previous Friday.  He told her he
    was innocent of all charges.  Duty counsel, after speaking to the Crown,
    advised the appellant that bail would be opposed.

[14]

The
    appellant came to believe that if he was denied bail he would have to wait at
    least 60 days before re-applying. He also came to believe that he could plead
    guilty and hire a lawyer to appeal his case within 30 days.  When
    cross-examined on this point, the appellant explained that he believed that, by
    appealing, any admissions of guilt he made in court would effectively be
    withdrawn.  He thought this was routinely done.  The appellant does not
    allege that anything duty counsel said gave rise to this belief.

[15]

It
    was against this background that the appellant told duty counsel he would plead
    guilty. Therefore, before the bail hearing could commence, duty counsel asked
    that the matter be traversed for a guilty plea. After being traversed, the
    appellants case was held down to allow duty counsel to conduct a plea
    comprehension inquiry with the appellant.

[16]

After
    discussing the matter with the appellant, duty counsel advised the trial judge that
    the appellant would be continuing with this plea and sentencing on his own and
    duty counsel will not be assisting.  According to duty counsels affidavit,
    although she has no recollection of the conversation, her belief is that the
    most likely reason for her statement to the court was that the appellant was
    denying the facts asserted by the Crown but nonetheless planned to admit them.

Guilty Plea Proceedings

[17]

The
    trial judge conducted a standard plea comprehension inquiry. The appellant
    confirmed that he wanted to plead guilty to two of the nine counts. The
    appellant also confirmed that he understood he would be giving up his right to
    a trial, that no one had put any pressure on him to plead guilty and that he
    understood that the trial judge would determine his sentence.

[18]

Crown
    counsel read in the facts, including facts pertaining to charges the
    prosecution would not be proceeding with. The judge accepted the guilty pleas
    and convicted the appellant. The transcript of the exchange between the trial
    judge and the appellant leading up to his convictions reads as follows:

THE COURT:  All right sir. Is what I've been told substantially
    correct? Is that basically correct sir?

MR. KRZEHILK:   No Your Honour.

THE COURT: Well lets  the incidents in question...

MR. KRZEHLIK: Can I ask...

THE COURT: Just hang on a second. Can I see the Information
    please? All right. The two counts that you pleaded guilty to refer to February
    of this year.

MR. KRZEHLIK: Yes sir.

THE  COURT:  And  the  allegation  there  was  that  you  held 
    a  knife  to  [your wifes] throat and threatened to slit her throat. Is that
    correct sir?

MR. KRZEHLIK: Can I give you the...

THE COURT: No sir, I need to know an answer to that. That's the
    gist of what...

MR. KRZEHLIK: Yes sir.

THE COURT: Is that correct?

MR. KRZEHLIK: Yes sir.

THE COURT:  All right and on count  nine, what I've  been told
    is that you hit [your son] when he was showering after you told him that he
    couldn't  shower. Is that correct sir? Well did you hit him that day sir?
    Sometime in February 2012.

MR. KRZEHLIK: I would say yes Your Honour.

THE COURT: Well sir I don't...

MR. KRZEHLIK: No, no...

THE  COURT:  If  you say  yes, its  because  you  did it, not 
    because you're  just saying it.

MR. KRZEHLIK: No I understand that, okay.

THE COURT: Did you do that sir?

MR. KRZEHILK: Yes.

THE COURT: All right, then I'm going to find you guilty of both
    charges.

MR. KRZEHLIK: Your Honour?

THE COURT: Yes.

MR. KRZEHLIK: Can I not even mention anything about the
    situation?

THE COURT: Yes you can. I'll give you a turn in a minute.

MR. KRZEHLIK: Oh thank you.

THE COURT: But I need to know...

Mr. KRZEHLIK: Thanks you.

THE COURT: ...whether or not you're admitting the basic...

MR. KRZEHLIK: Yes Your Honour.

THE COURT: ...gist of these offences. Otherwise there's no
    point in proceeding.

MR. KRZEHLIK: Yes Your Honour.

[19]

Following
    this exchange, the trial judge proceeded to hear from the Crown and the
    appellant on sentencing.  The appellant offered context for the alleged assaults
    against his wife and son.  With respect to his son, the appellant said he was
    frustrated by his disobedience but that I shouldnt have slapped him on the
    arm.  With respect to his wife, the appellant said there was dialogue going back
    and forth and things [were] being said from both sides and it just got out of
    hand. He then appeared to express remorse saying, Ive been sort of ashamed
    about it, okay, about the whole thing, about the whole incident.  He later
    added, I can assure you that I love my family very much and never would [let]
    any physical harm come to them.  My job is to protect them, not to  to harm
    them, okay.  And I guess sometimes you just get frustrated, okay.

[20]

After
    pronouncing sentence, the trial judge accepted the appellants request that he
    be allowed to serve his sentence intermittently.  The seven remaining charges
    were withdrawn.

Submissions of the Parties

[21]

In
    his affidavit, the appellant states he misled the court during the plea
    comprehension inquiry.  He says he never assaulted his wife with a knife and
    that the contact with his son was so minor that it does not amount to assault. 
    He did not want to assert his innocence before the trial judge for fear that he
    would be sent back to jail. He attributes this decision to plead guilty to stress,
    fear, lack of food and sleep, and his failure to appreciate the options
    available to him and the extent of his legal predicament.

[22]

The
    appellant submits that the trial judge should have conducted a more thorough
    plea comprehension inquiry.  The withdrawal of duty counsel was a red flag. It should
    have been clear to the trial judge that the appellant was prevaricating.  He
    wanted to add information and was equivocal about whether the Crowns facts
    were correct. The appellant contends that the trial judge approached the
    proceedings with the goal of taking the guilty pleas in mind rather than
    substantively assessing whether the pleas were truly unequivocal.

[23]

The
    appellant further argues that he was deprived of conscious choice.  His age,
    poor health, lack of food and sleep, stress and the trauma of a weekend in jail
    led him to conclude that he was trapped.  He had no realistic alternative other
    than to plead guilty.

[24]

Although
    the appellant asserts that no one pressured him to plead guilty, he also suggests
    that he was deprived of procedural fairness.  He submits that the plea process
    is inherently stressful and that his own experience before the courts was no
    exception.

[25]

Crown
    counsel submits that the guilty pleas were valid. They were accepted by the trial
    judge following a thorough plea comprehension inquiry during which the judge
    confirmed that the appellant intended to plead guilty, had not been pressured
    to do so and was aware of the implications of his pleas.

Analysis

[26]

Notwithstanding
    his guilty pleas, the appellant is entitled to appeal his convictions. 
    Where valid grounds exist for doing so, an appellate court will permit the
    withdrawal of the plea and quash the consequent conviction: see
R. v. Adgey
,
    [1975] 2 S.C.R. 426, at pp. 430-31.  A guilty plea may be found
    invalid if it was not voluntary, unequivocal, and informed, or if the
    circumstances that led to the guilty plea demonstrate that a miscarriage of
    justice occurred: see
R. v. T. (R.)
(1993), 10 O.R. (3d) 514 (C.A.),
    at p. 519; see also
R. v. Kumar
, 2011 ONCA 120, 268 C.C.C. (3d) 369,
    at para. 34.  The accused has the onus to show that the plea was
    invalid on a balance of probabilities: see
R. v. Easterbrook
(2005),
    65 W.C.B. (2d) 2 (Ont. C.A.), at para. 5.

[27]

In
    his written submissions, counsel for the appellant advanced three grounds in
    support of his argument that the appellant should be entitled to withdraw his
    guilty pleas  the pleas were equivocal, were entered while the appellant was
    under stress and the appellant was not appropriately informed of the
    consequences of a guilty plea.  In oral argument, counsel for the appellant
    pressed only one ground  that the pleas were equivocal.

Were the pleas equivocal?

[28]

The
    appellant argues that the record, as expanded by the additional evidence, indicates
    that the guilty pleas were equivocal. During the plea comprehension inquiry the
    appellant first denied that the facts read in were basically correct.  Shortly
    thereafter, the appellant agreed that he was admitting the basic gist of the
    two offences.

[29]

The
    appellant submits that in the light of this equivocation, particularly given
    the circumstances in which the pleas were taken  he came right from bail court
    and duty counsel had withdrawn  the trial judge should have conducted a more thorough
    plea comprehension inquiry.  Securing the appellants admission that the facts
    read in captured the basic gist of what happened was not good enough.  The
    record should demonstrate that the appellant agreed that he took a knife and
    put it to his wifes throat and that he intentionally hit his son.

[30]

While
    the appellants exchange with the trial judge indicates some initial waffling,
    what is pivotal in my view is that, in the end, the appellant made unequivocal
    admissions to facts that supported the offences to which he pleaded guilty. Nothing
    in the record suggests that the guilty pleas were qualified, modified or
    uncertain.

[31]

Moreover,
    the statements the appellant made to the trial judge during the sentencing
    submissions  that he was ashamed of the incident with his wife, that he had to
    learn to control his temper, that he was willing to participate in a partner
    abuse program  inform the conclusion that his pleas were unequivocal.  While
    the appellant qualified his conduct in relation to assaulting his son by
    explaining that he was frustrated with his sons behaviour, and that the
    physical contact was not forceful, this qualification did not affect the
    unequivocal nature of the appellants plea to having assaulted his son.

[32]

Finally,
    the evidence contained in the appellants affidavit attempting to explain why he
    pleaded guilty, notwithstanding his innocence, is not credible.  In key areas
    the appellants evidence is contradicted by that of duty counsel who advised
    him as to his plea.  For instance, duty counsels affidavit states that she was
    certain that she would not have advised the appellant that the effect of
    commencing an appeal would be to nullify the plea proceedings and admissions
    made in court, or to somehow place the appellant in the same legal position as
    he was before pleading guilty.  Duty counsels evidence is to be preferred for
    a number of reasons.  She has no interest in the outcome of this appeal and, in
    fact, supported the appellants position that in their conversation he denied
    the facts alleged against him.  In addition, it is unlikely that duty counsel
    would give the appellant such profoundly incorrect legal advice. Furthermore, the
    appellants additional evidence contains a number of internal inconsistencies. In
    his cross-examination, the appellant was evasive and argumentative.  For
    instance, when it was pointed out that the appellants recollection of what he
    said in court was not in the transcript, the appellants response was that the
    court reporter must have missed it.

[33]

In
    my view, there is nothing in the record of the proceedings before the provincial
    court judge, as augmented by the additional evidence placed before us, that
    detracts from the import of the appellants unequivocal admissions of guilt.

Were the pleas voluntary?

[34]

First,
    I note that the transcripts indicate that on both the Friday and the Monday
    court appearances the appellant was listening carefully, asking questions and
    understood what was taking place.

[35]

In
    my view the stress the appellant experienced did not rise to such a level that
    it impaired his ability to make a conscious choice.  While unquestionably
    difficult, the circumstances in which the appellant found himself were not
    unique.  Individuals must normally decide whether to plead guilty in difficult
    circumstances.  They are under pressure.  They are faced with options none of
    which are favourable. However, as this court has said, without more,
    circumstances such as these cannot invalidate a guilty plea, on appeal: see
R.
    v. Carty
, 2010 ONCA 237, 253 C.C.C. (3d) 469, at para. 37.

[36]

Considering
    the evidence as a whole, the appellants ability to make a conscious choice
    whether or not to plead guilty was not impaired and the pleas were voluntary.

Were the pleas informed?

[37]

As
    previously noted, in his affidavit the appellant asserts that he understood
    that if he pleaded guilty, so long as he appealed within 30 days of the date of
    convictions, the pleas would be automatically overturned.  Duty counsel denies
    that she would have said this to the appellant.  There is no evidence to
    support a finding that the appellants alleged misunderstanding was induced by
    duty counsel or by any action on the part of the state. During the plea
    comprehension inquiry by the trial judge, the appellant stated that he
    understood that he was surrendering his right to a trial and that he would be
    sentenced for a serious crime. And there can be no doubt that the appellant
    knew the charges he was pleading guilty to.

[38]

In
    my view, the appellant has not met the onus of establishing that his pleas did
    not meet the legal threshold for being informed.

Additional Issue  Nature of the
    Appellants Additional Evidence

[39]

Finally,
    in his additional evidence, the appellant admits that this request to withdraw
    his pleas is part of a scheme devised shortly after his arrest to deceive the
    court to enable him to get out of jail.  In my view, the appellant should not
    be allowed to manipulate the system to serve his own immediate purposes and
    then come to this court for an order for a do-over. As the court concluded in
R. v. Moser
(2002), 163 C.C.C. (3d) 286 (Ont. S.C.), at para. 42,
    citing
R. v. Gurney
, [2001] O.J. No. 2227 (C.A.), at para. 1: a valid
    guilty plea must not be disturbed by a calculated scheme designed to manipulate
    the system.

Conclusion

[40]

I
    am satisfied, on the basis of the amplified record, that the appellants pleas
    were voluntary and unequivocal and that he understood their true effect.  Allowing
    him to withdraw his pleas in these circumstances would undermine the
    overarching goals of certainty and finality that a guilty plea is intended to
    foster.

Disposition

[41]

Accordingly,
    while I have considered the appellants additional evidence, I would dismiss
    the appeal.

Released: March 16, 2015 (DW)

Gloria
    Epstein J.A.

I
    agree K.M. Weiler J.A.

I
    agree David Watt J.A.


