






Citation:


R. 
          v. J.G.T.


Date:  20030102







2003 
          BCCA 1


Docket:  CA028657






COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






REGINA






RESPONDENT






AND:






J.G.T.

(Y.O.A.)






APPELLANT














Before:


The 
          Honourable Chief Justice Finch







The 
          Honourable Madam Justice Rowles







The 
          Honourable Madam Justice Huddart












H. 
          S. Rosenberg


Counsel 
          for the Appellant




K. 
          Ker


Counsel 
          for the Respondent (Crown)




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




November 
          28, 2002




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 2, 2003










Written 
    Reasons by:

The 
    Honourable Madam Justice Rowles



Concurred 
    in by:

The 
    Honourable Chief Justice Finch

The 
    Honourable Madam Justice Huddart


Reasons for 
    Judgment of the Honourable Madam Justice Rowles:




[1]

The appellant's conviction appeal was dismissed at the conclusion of 
    the oral hearing, with reasons to follow.  These are the reasons.

[2]

The appellant was arrested in Sparwood, British Columbia, on 4 June 
    2001 on a charge of robbery.  The incident leading to his arrest involved 
    three teenagers, including the appellant.  Two days later the appellant pleaded 
    guilty in Youth Court to the following count in an Information:

[JGT], 
    on or about the 4th day of June, 2001, at or near Sparwood, in the Province 
    of British Columbia, did rob [MAG] of knives, contrary to Section 344(b) of 
    the Criminal Code.

[3]

On his appeal, the appellant seeks to have his plea withdrawn, his 
    conviction set aside and a new trial ordered.

[4]

The appeal is brought under s. 686(1)(a)(iii) of the
Criminal 
    Code
on the ground there was a miscarriage of justice.  One of the 
    appellant's arguments is that he was not guilty of one of the essential elements 
    of the offence of robbery and therefore a guilty plea ought not to have been 
    entered.

[5]

The appellant's factum sets out four grounds of appeal in relation 
    to the proceedings in which his plea was taken.  The first ground was abandoned 
    at the commencement of oral argument.  In the remaining grounds, the appellant 
    asserts that the learned Youth Court judge:

(i)   
    ... failed to satisfy himself that the Appellant understood the exact nature 
    of the offence charged;

(ii)  
    ... failed to satisfy himself that the Appellant was in fact pleading guilty 
    to all of the essential elements of the offence charged;

and

(iii) 
    ... failed to conduct the proceedings on the guilty plea in substantial compliance 
    with procedural requirements.

[6]

During oral argument, appellant's counsel added a further ground, namely, 
    that the appellant had ineffective assistance of counsel.  In that regard, 
    the appellant argued that his trial counsel had permitted a plea to be taken 
    precipitously when he was not guilty of one of the essential elements of the 
    offence of robbery and when the Crown had "overcharged" the offence, 
    as the proceedings in relation to one of the other teenagers later showed.

[7]

By way of background, the appellant appeared in Youth Court in Cranbrook, 
    British Columbia, on the afternoon of 5 June 2001.  He was charged in 
    an Information with failure to comply with a probation order contrary to section 
    26 of the
Young Offenders Act
and with robbery contrary to section 
    344(b) of the
Criminal Code
.  A judicial interim release hearing 
    was held at that time.  Mr. Richard J. Strahl, who was duty counsel at the 
    time, represented the appellant.

[8]

During the hearing, the following description of the circumstances 
    of the alleged robbery was provided by Crown counsel.  The seven year old 
    complainant was playing with a friend near his home and elementary school.  
    They were accompanied by an adult male.  Three teenagers including the appellant 
    were also in the area.  The adult male momentarily left the complainant unattended. 
    The teenagers then approached and asked the complainant to show them, or give 
    to them, two knives he had in his pockets.  When the child refused, the appellant 
    picked him up and turned him upside down by his heels, while one of the other 
    teenagers went through his belongings.  She took two knives from the complainant 
    before he was dropped to the ground.  The teenagers took the knives and ran.

[9]

Appellant's counsel responded briefly to the circumstances as follows:

Just briefly on the circumstances, Your Honour.  I can advise the court that 
    the behaviour of my client which is certainly untoward towards this seven 
    year old was not to obtain weapons, but to -‑ he tells me to teach the 
    young lad a lesson.  He says that we're all by the river, the young boy and 
    others were saying unkind things towards his group and others and as well 
    throwing stones and as well waving these two knives.  So, they thought they 
    would take it upon themselves, incorrectly, to teach this young lad a lesson 
    and unfortunately the charges arose as a result.  He tells me he did not mean 
    to hurt the child, but only meant to frighten him with regard to his involvement 
    with the knife business.  He did not want the boy doing that.  He feels very 
    bad that the boy was traumatized as a result and certainly should have known 
    better, he says.  He feels very bad for what took place.  He was not trying 
    to hurt the boy, but only to scare him and he certainly succeeded in doing 
    that.

[10]

At 
    the conclusion of the hearing, the appellant was detained pending his trial.

[11]

The following morning, 
    the appellant again appeared in Youth Court with Mr. Strahl as his counsel.  
    Mr. Strahl indicated to the judge that the matter was for sentencing.  Mr. 
    Strahl waived reading of the Information and entered a plea of guilty to the 
    robbery charge.  Immediately thereafter, the judge said:

THE 
    COURT:  Yes, thank you.  The record should show that [J.G.T.], a youth, is 
    present before the court in custody, that Mr. Strahl is his counsel, and that 
    he has waived Mr. [T.]'s right to be read Count 2 of Information 2286 and 
    entered a plea of guilty to that count.

You can deal very briefly with the circumstances, Ms. Hough, because I heard 
    them yesterday afternoon.

MS. 
    HOUGH:  Yes, Your Honour, just to recap what the Crown advised you yesterday, 
    was that three teenagers, one being Mr. [T.], were in the vicinity of two 
    other young seven year olds who were being watched by the other boy's father, 
    when the father left the area momentarily, these three teenagers approached 
    the young boy [G.], asked to see his knives.  When the little boy said no, 
    Mr. [T.] is the one that picked him up by his -- lifted him up, suspended 
    him upside down by his heels, and the female teenager then frisked the boy, 
    took the two knives from the little boy.  They then dropped the little boy 
    on the ground.  He received no injuries and they took his knives.  The knives 
    were located a short distance away, about two hundred metres away from where 
    the robbery took place.  And the little boy has been highly, highly traumatized.  
    That's where the Crown's major concern is, Your Honour.  The weapons were 
    recovered.

And does Your Honour wish to have his record re-entered?  I can -

[12]

The 
    Youth Court Judge then interjected to ask Mr. Strahl whether the facts outlined 
    by Crown counsel were admitted:

THE 
    COURT:  Any quarrel with the facts as outlined?

MR. 
    STRAHL:  Only to say, Your Honour, that he does admit that he took hold of 
    him and shook him, but didn't hang him upside down, but admits to all the 
    other elements of the --

THE 
    COURT:  Thank you.

[13]

Crown 
    counsel later directed a stay of proceedings on the first count in the Information 
    which charged the offence of failing to comply with a probation order.

[14]

The 
    appellant was sentenced to a period of two months and 26 days in open custody.  
    The appellant filed an appeal against sentence but we were told during oral 
    argument that the sentence appeal has been abandoned.

[15]

The 
    conviction appeal was originally set to be heard in this Court on 11 March 
    2002.  Shortly before that date, the appellant gave notice to the respondent 
    that he intended to put forward fresh evidence in the form of affidavits from 
    himself and Mr. Strahl.  Upon being served with the affidavits, Crown counsel 
    moved for an adjournment and sought directions in chambers, asking that cross-examination 
    of the affiants be permitted.  Madam Justice Southin directed, among other 
    things, that the cross-examination could take place before the Court.  The 
    appeal was re-set for hearing on 28 November 2002.

[16]

Shortly 
    before the appeal was to be heard, Crown counsel informed the Court through 
    the Deputy Registrar that cross-examination of the affiants would not be required 
    as she understood there was no suggestion on the appellant's part that the 
    plea to the robbery count had been entered without instructions.

[17]

When 
    an appeal is put forward under s. 686(1)(a)(iii) of the
Criminal Code
, 
    it is for the appellant to persuade this Court that a miscarriage of justice 
    occurred in the court below.  In this case that means that the appellant must 
    establish "valid grounds" to set aside the plea.  What might constitute 
    valid grounds has been examined in cases such as
R. v. Adgey
, 
    [1975] 2 S.C.R. 426;
R. v. Bamsey
, [1960] S.C.R. 294; and
R. 
    v. Meers
(1991), 64 C.C.C. (3d) 221 (B.C.C.A.) and include the plea 
    being involuntary because the accused did not understand the nature of the 
    offence or the consequences of pleading guilty.  When seeking to set aside 
    a plea, the appellant bears the onus of establishing that his guilty plea 
    was not voluntary, not informed or not unequivocal.  Generally speaking, affidavit 
    evidence is required to support such a submission because a guilty plea is 
    presumed to be voluntary.

[18]

An 
    examination of the transcript in this case does not support the assertion 
    in the third ground of appeal that the Youth Court judge failed to conduct 
    the proceedings in substantial compliance with procedural requirements.  The 
    appellant was represented by counsel at the time of the plea and sentencing.  
    Although the robbery charge was never formally read to the appellant, his 
    counsel indicated at the bail hearing that they had discussed the charges 
    and the appellant was aware of the nature and circumstances of them.  During 
    the bail hearing, the youth court judge twice referred to the fact that the 
    appellant was charged with robbery.

[19]

The 
    taking of the plea was not done formally but it was done in accordance with

the

accepted practice

in

this Province.  A plea entered by counsel binds the accused.  Nothing 
    in the transcript suggests that the appellant's intention was to do anything 
    other than to admit fully his guilt for the offence and to admit the circumstances 
    of the offence as read out by Crown counsel, with the exception of the qualification 
    that he had not held the complainant upside down.  In the circum­stances, 
    the judge was not bound to interrogate the appellant before accepting his 
    guilty plea through counsel.

[20]

Trial 
    counsel's submissions on both the bail and the sentence hearings were responsive 
    to the issues raised and demonstrated the appellant's awareness of the consequences 
    of the proceedings.  I see nothing in the transcript or the affidavit evidence 
    put forward by the appellant which would support a suggestion that the Youth 
    Court judge ought to have gone further than he did to satisfy himself that 
    the appellant both understood the nature of the offence charged and was acknowledging 
    his guilt on all the essential elements of the offence.

[21]

There 
    is no evidence before us that trial counsel or anyone else pressured, coerced, 
    or induced the appellant into pleading guilty.  Nor is there any evidence 
    to show that the appellant's ability to understand the proceedings or the 
    effect of the plea was impaired in any way.

[22]

I 
    turn now to the appellant's argument that had it not been for the ineffective 
    assistance of his trial counsel, a plea to the robbery count would not have 
    been entered.

[23]

The 
    general approach to an ineffectiveness claim was considered by the Supreme 
    Court of Canada in
R. v. G.D.B.
, [2000] 1 S.C.R. 520, 2000 SCC 
    22, commencing at paragraph 26:

The approach to an ineffectiveness claim is explained in
Strickland v. 
    Washington
, 466 U.S. 688 (1984), per O'Connor J.  The reasons contain 
    a performance component and a prejudice component.  For an appeal to succeed, 
    it must be established, first, that counsel's acts or omissions constituted 
    incompetence and second, that a miscarriage of justice resulted.

Incompetence is determined by a reasonableness standard.  The analysis proceeds 
    upon a strong pre­sumption that counsel's conduct fell within the wide range 
    of reasonable professional assistance.  The onus is on the appellant to establish 
    the acts or omissions of counsel that are alleged not to have been the result 
    of reasonable professional judgment.  The wisdom of hindsight has no place 
    in this assessment.

[24]

The appellant's 
    first point is that his trial counsel ought to have advised him not to enter 
    a plea to robbery because he was not guilty of one of the essential elements 
    of that offence, that is, the intent to steal.  In the affidavit the appellant 
    has put forward as fresh evidence, he has deposed, in part:

5.   
    Among other things, I told Mr. Strahl that the boy had been waving his knives 
    at us, that I decided to teach him a lesson, that I decided to take the knives 
    away from him, that I wasn't trying to harm the boy, that I held the boy and 
    that [one of the other teenagers] took the knives from him and then I put 
    the boy down.  I told Mr. Strahl that [the other teenagers] and I left the 
    area and that the knives were dropped on the ground not far from where we 
    left the boy.  Mr. Strahl asked me if I thought I had committed a robbery 
    and I said no.

* * *

9.   
    I had no intention to hurt the boy; I had no intention to keep his knives.  
    All I did, with [the other teenagers], was to help take the knives away from 
    the boy because he was swinging them around at people.

[25]

Appellant's 
    counsel conceded there was no issue with respect to the assault component 
    of the offence of robbery but argued that a plea ought not to have been entered 
    when the appellant had "no intention to keep the knives".  That 
    argument cannot succeed for the simple reason that an intention to temporarily 
    deprive the complainant of the knives sufficed.  Section 322(1) of the
Criminal 
    Code
provides that every one commits theft who fraudulently and without 
    colour of right takes anything with intent to deprive, temporarily or absolutely, 
    the owner of it.

[26]

The 
    appellant's other point concerning ineffective assistance of counsel amounts 
    to no more than an assertion that trial counsel might have obtained a better 
    result, for example, a plea to an included offence.  This argument must also 
    be rejected.  Nothing in the affidavit material shows that any act or omission 
    on the part of trial counsel constituted incompetence in relation to the proceedings 
    or resulted in a miscarriage of justice.

[27]

In 
    summary, the appellant has not established valid grounds to set aside the 
    plea and has not shown that any act or omission on the part of trial counsel 
    amounted to incompetence or resulted in a miscarriage of justice.

[28]

The 
    appeal is dismissed.





THE HONOURABLE MADAM JUSTICE ROWLES



I 
    AGREE:





THE 
    HONOURABLE CHIEF JUSTICE FINCH



I 
    AGREE:





THE 
    HONOURABLE MADAM JUSTICE HUDDART


