



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beckford, 2019 ONCA 998

DATE: 20191218

DOCKET: C63560

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Immanuel Constantin Beckford

Appellant

Anthony Moustacalis and Christen Cole, for the appellant

Katie Doherty, for the respondent

Heard: November 4, 2019

On appeal from the convictions entered on November 24,
    2016 by Justice J. Elliott Allen of the Ontario Court of Justice.

Huscroft J.A.:

OVERVIEW

[1]

The appellant pleaded guilty to five charges arising
    out of his participation in a violent home invasion. He was sentenced to a term
    of 15 months imprisonment, which included a 12-month mandatory minimum penalty
    for one charge of use of an imitation firearm in the commission of an offence.

[2]

The appellant seeks to have his guilty pleas
    struck because of the ineffective assistance of counsel. He says that trial
    counsel did not properly advise him as to the strength of the Crowns case and
    his potential defences, and that he did not understand he was pleading guilty
    to an imitation firearm charge and that it carried a mandatory minimum sentence.
    The appellant informed the court that he has abandoned his sentence appeal.

[3]

I conclude that the appellants plea to the
    imitation firearm charge must be struck on the basis that it was uninformed,
    and that he received ineffective assistance of counsel in respect of the four
    additional charges.

[4]

I would allow the appeal for the reasons that
    follow.

BACKGROUND

[5]

Jeremy Draper was a drug dealer. On February 23,
    2016, he was contacted by a man seeking to buy marijuana, and arrangements were
    made to complete the purchase at his home on February 26, 2016. The appellant
    and seven other men drove to Drapers home in two cars. The appellant was armed
    with a metal baseball bat and the other men brought their own weapons.

[6]

At approximately 1:45 a.m., one of the
    appellants co-accused was invited into Drapers home. Shortly afterwards, a
    group of six men rushed into the home and assaulted Draper. He was hit twice
    with a metal baseball bat and one of the intruders pointed an imitation firearm
    at his face. He fled into a bedroom and locked himself in with his girlfriend.
    Drapers roommate, Spencer Gorman, came out of his room and was beaten with the
    baseball bat and a baton, and was kicked and punched. He suffered several
    injuries before returning to his bedroom and barricading his door. The
    intruders stole numerous items including a laptop computer, a video game system,
    and approximately 68 grams of marijuana.

[7]

The appellant and four co-accused fled from the
    scene in a blue BMW. Three unidentified men fled in a white car. The white car
    was never found but the blue BMW was stopped by the police approximately 15
    minutes after the incident. The appellants brother was driving the BMW and the
    appellant was in the front seat.

[8]

All of the occupants were arrested and the car
    was searched incident to the arrests. Among other things, the police found a
    jar containing approximately 68 grams of marijuana, three pieces of pre-cut
    duct tape, a grey and black balaclava, a grey neck warmer, the missing laptop
    computer, a baton handle (the bottom portion of which was found inside Drapers
    home), blue latex gloves, and two black replica firearms.

THE FRESH EVIDENCE

[9]

The trial record in this case is brief. It is
    supplemented by affidavits sworn by the appellant, his father, trial counsel,
    and the appellants parole officer, all of whom were cross-examined by Crown
    counsel in accordance with this courts protocol for claims of ineffective
    assistance of counsel.

[10]

The Crown concedes that the fresh evidence
    should be admitted. This concession is appropriate. In my view, it is in the
    interests of justice to admit the evidence pursuant to s. 683(1) of the
Criminal
    Code
, R.S.C., 1985, c. C-46.

The appellant retains counsel and gets bail

[11]

Mr. Howard Goldkind was retained by the
    appellants father, Barrington Beckford, following the appellants arrest. He
    knew Mr. Goldkind and considered him a friend. Mr. Goldkind also agreed to act
    for the appellants brother.

[12]

Mr. Goldkind secured the release of both the
    appellant and his brother following contested bail hearings. I will refer to
    Mr. Goldkind as trial counsel for the balance of these reasons.

The appellants meetings with trial counsel

[13]

The appellant says that he never met with trial
    counsel at his office. Their initial meeting was at a restaurant and subsequent
    meetings were held in waiting areas and anterooms at the Guelph courthouse,
    before and after court appearances. Trial counsel confirms that he never met
    with the appellant at his office but says that he spoke with the appellant many
    times by telephone and had a long meeting with him on November 24, 2016, just
    before the appellant pleaded guilty.

[14]

The appellant says that he repeatedly told trial
    counsel that he was eager to move forward with his case, as he found the bail
    conditions stressful and was concerned that they might interfere with his plans
    to seek a patent for an algorithm he had developed. Trial counsel acknowledges
    that the appellant claimed he was working on a patent, but he described this as
    pipe dreams and ludicrous and said he didnt give it a minutes credence.
    He thought it was an absolute joke. However, he also acknowledges that the
    appellant was keen to get the matter dealt with and move on with his life.

The judicial pre-trial

[15]

A pre-trial was held on September 9, 2017 in the
    Ontario Court of Justice before the trial judge. The appellant says that trial
    counsel informed him following the pre-trial that if he pleaded guilty to four
    counts (break and enter, two counts of assault with a weapon, and possession of
    marijuana), the remaining charges would be withdrawn. He says that trial
    counsel told him that the Crown was seeking a 16-month sentence, which might be
    reduced to a lengthy period of probation or a period of house arrest if he had
    a good pre-sentence report.

[16]

Trial counsel testified that, following the
    meeting, he informed the appellant that the Crown would be seeking a sentence
    of 12-18 months if the appellant pleaded guilty to four charges. He considered
    this a very attractive outcome.

[17]

Trial counsel denies that he told the appellant
    he might be able to avoid jail. He did testify, however, that he was confident
    that he had without question the one Judge in that jurisdiction who would not
    send him to the penitentiary; the one Judge in that jurisdiction who would be
    impressed by the pleas and the PSR [pre-sentence report] and that hed be
    foolish not to take advantage of that.

The decision to plead guilty

[18]

The appellant says that he would not have
    pleaded guilty if he had known that he was certain to be sentenced to a jail
    term. He says that he decided to plead guilty on the understanding that he
    might be able to avoid going to jail and that the evidence against him was
    conclusive of his guilt, including DNA and fingerprint evidence that trial
    counsel told him was in the additional disclosure package he had received. The
    appellant maintains that he was not advised that he would be pleading to the
    imitation firearm charge, or that this charge included a 12-month mandatory minimum
    term of imprisonment.

[19]

Trial counsel denies informing the appellant
    that there was DNA or fingerprint evidence that inculpated him. He testified
    that he did not read the DNA report and did not know whether there was
    fingerprint evidence. He says that he offered the disclosure to the appellant but
    the appellant declined to read it, saying that he wanted to plead guilty to the
    charges.

Entering the guilty pleas

[20]

On November 24, 2016, counsel for the Crown advised
    the court that she was seeking guilty pleas to counts three, five, eight, eleven,
    and the
Controlled Drugs and Substances Act
S.C. 1996, c. 19 (the 
CDSA
)
    count for possession of marijuana charge  a total of five of 12 counts in the
    two informations. Trial counsel stated, I just have four counts that we were
    going to resolve.

[21]

The court noted that the marijuana charge was on
    a separate information, and both Crown counsel and trial counsel indicated
    their agreement. Crown counsel reiterated that she was seeking guilty pleas to
    counts three, five, eight, eleven, and the separate marijuana count.

[22]

Trial counsel informed the court that he had
    conducted a plea inquiry with the appellant. The following exchange took place:

Mr. Goldkind: I can indicate to Your Honour,
    subject to your queries Ive very carefully explained to my client the
    ramifications of the giving up of the right to a trial

The Court: Right.

Mr. Goldkind: etcetera, etcetera, but I, I
    did indicate to him that thats always subject to queries from Your Honour.

The Court: Okay, I dont need to  with
    experienced counsel like you I certainly dont need to make an inquiry. I
    assume your client understands his options with respect to going

Mr. Goldkind: Come forward, sir.

The Court: going to trial and wants to be
    tried in this court today and waives the reading of the election?

Mr. Goldkind: His exact words, Your Honour,
    which Ill reiterate, are he wants to resolve this and move on with his life.

The Court: Okay, all right, in this court

Mr. Goldkind: In this

The Court: today?

M. Goldkind: court.

The Court: Thank you.

Mr. Goldkind: Right?

Immanuel Beckford: Yes.

The Court: arraign him, please.

[23]

The trial judge did not conduct a plea inquiry.

[24]

The appellant was then arraigned on five charges: break and enter of a dwelling-house
    (s. 348(1)(b)); use of an imitation firearm while committing an indictable
    offence (s. 85(2)(a)); assault with a weapon: baseball bat (s. 267(a)); assault
    with a weapon: metal baseball bat & baton (s. 267(a)); and possession of
    cannabis (s. 4(1) of the
CDSA
). He pleaded guilty following the
    reading of each charge.

[25]

Trial counsel acknowledged the facts after they
    were read in. The trial judge then stated: [The appellant is] a party to those
    offences. Trial counsel replied: Absolutely. The court then entered findings
    of guilt on all counts.

[26]

The appellant says that he attempted to get trial
    counsels attention during his plea because he was confused. Trial counsel says
    that this is untrue and that the guilty pleas proceeded without incident.

Post-plea discussions

[27]

The appellant says that he attempted to reach trial
    counsel between plea and sentencing, but his calls were not returned. The
    appellants father reached trial counsel by phone and the appellant heard the
    call. He says that his father asked why the appellant had pleaded guilty to the
    imitation firearm charge, and trial counsel assured him that there was nothing
    to worry about because the judge would not take it into account at sentencing.

[28]

Trial counsels evidence is that he spoke with
    the appellant following his guilty pleas. The appellant expressed no concerns
    and did not speak about the imitation firearm. Trial counsel says that he
    remained in contact with the appellant and returned a number of phone calls from
    the appellant and his father. In particular, he says that he spoke with the
    appellants father by telephone concerning a charge relating to a shotgun. He
    told him that the shotgun would not be taken into account at sentencing because
    the shotgun charge had been withdrawn. Trial counsel says that the imitation
    firearm was not mentioned, nor did they speak about an airsoft pistol.

Sentencing

[29]

The appellant was sentenced on March 3, 2017.
    The appellant says that prior to the sentencing hearing he reiterated his
    confusion as to what he had pleaded guilty to, and that trial counsel did not
    inform him of the sentence he would be asking the judge to impose.

[30]

Trial counsel called the appellants father as a
    character witness and provided character reference letters to the court. He
    made the following submission, which did not include a specific recommendation
    as to the appropriate sentence:

Mr. Goldkind: Your honour, Ive spent hours
    with this young man. He realizes the gravity of what took place. Hes ashamed
    of himself. Hes ashamed of letting down his family and you can see the
    antecedents he comes from. Hes ashamed of hurting his father terribly. My
    view, your honor, with respect is that he should receive the sentence that
    would not obviously ruin his prospects for rehabilitation. Hes been on a tight
    leash for a year and more importantly, hasnt breached in any way, shape or
    form. So, your honor, we discussed at the JPT [judicial pre-trial] some time
    ago a period of incarceration. I would think this might call for a period. I
    leave it completely in your honors wisdom. The others, to my surprise, I think
    fair to say decided to roll the dice and they want to, they want to take their
    chances, and thats fine, but my client indicated, your honor, that he wanted
    to plead guilty, he has pleaded guilty. Hes accepted responsibility. Hes ashamed
    of himself. Hes hurt the community. Hes hurt the parties in question, but he
    is entered a plea very, very quickly. Thank you very much, your honour.

[31]

Crown counsel sought a sentence in the upper
    reformatory range, noting that s. 85(2)(a) carries a mandatory minimum
    sentence of one year, which he said, has to ultimately inform this court and
    ultimately binds this court.

[32]

The trial judge expressed strong disapproval of
    mandatory minimum sentences, stating that he regarded them as an insult of the
    judiciary by the legislature. He acknowledged that he was required to impose
    the mandatory minimum in this case but added I dont have to be informed by
    it. The trial judge acknowledged that there was a limit to how far he could go
    in being creative with the other sentences to minimize the impact of [the
    mandatory minimum] on the accused. He stated that if he were concerned only
    about the welfare of the appellant he would impose a conditional sentence, but he
    acknowledged that he did not have the power to do so.

[33]

The trial judge found that the appellant had
    every factor that could be present in mitigation of sentence and expressed the
    concern that incarceration would have a corrupting effect. He sentenced the
    appellant (and his brother) as follows:

The best I can do for them in all the
    circumstances is an aggregate sentence of 15 months, and I do that taking into
    account that theyve both been on house arrest for a year, that that is a very
    considerable penalty in itself. I take into account that they have complied
    scrupulously with the terms of their bail. I take into account their remorse and
    their plea, but this is one of the most serious crimes that can happen and the
    sentences being suggested right across the board, nobodys suggesting they
    shouldnt go to jail given the law the way it is now and so the sentence will
    be on all offenses, except the gun offense. There will be sentences of three
    months in custody concurrent to each other and there will be a year consecutive
    with respect to the 85(2). The aggregate sentence with respect to each is 15
    months. I quite frankly dont see the need for probation in this case. They
    have extremely supportive families. They have been rehabilitated by their
    arrest and I dont think theyre a danger to the public in the future, so Im
    not putting them on probation. There will be DNA orders. There will be Section
    109 orders for life for the possession of weapons.

[34]

The appellant says that he learned of the
    mandatory minimum sentence for the imitation firearm offence only after he
    heard Crown counsel discuss it and the trial judge refer to it.

Post-sentencing discussions

[35]

The appellant says he learned that he had been
    convicted of the imitation firearm charge when he reviewed paperwork provided
    to him after he had been incarcerated. The appellants father says that trial
    counsel informed him that his notes did not reflect five convictions and that
    the mandatory minimum penalty was the result of two convictions for assault
    with a weapon.

[36]

Trial counsel says that he spoke with the
    appellants father several months following sentencing and asked how many charges
    the appellant had pleaded guilty to. Trial counsel told him that the appellant
    had pleaded guilty to four charges.

DISCUSSION

[37]

The appellant says that his guilty plea was not
    informed because of the ineffective assistance of counsel. He says, first, that
    he was not properly advised by his counsel as to the strength of the Crowns
    case and his potential defences. Second, he says that he was unaware that he
    was entering a plea to the imitation firearm offence.

[38]

In my view, whether the appellants plea to the
    imitation firearm charge was informed may be determined without regard to the
    ineffective assistance of counsel analysis. As the Supreme Court said in
R.
    v. Wong
, 2018 SCC 25, [2018] 1 SCR 696, at para. 24, the ineffective
    assistance of counsel claim adds an unnecessary layer to the analysis when
    dealing with the issue of whether a plea was informed; it is concerned with the
    source of the plea problem rather than the plea itself. I will address the imitation
    firearm plea first, then consider whether the appellant received ineffective
    assistance of counsel on the balance of the charges.

The imitation firearm plea

[39]

A valid plea of guilty must be voluntary, unequivocal, and
    informed: see
Wong
at para. 3; and
R. v. T.(R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519
. Whether the appellants
    plea was voluntary and unequivocal is not at issue in this case. The question
    is whether his plea was informed.

[40]

In
order for a plea to be informed, it must be
    entered by an accused who is aware of the nature of the allegations made
    against him or her, the effect of his or her plea, and the consequences of that
    plea. See
R. v. R.P.
, 2013 ONCA 53, 302 OAC
    78, at para. 40, leave to appeal refused, [2013] S.C.C.A. No. 133, citing
T.(R.)
,
at p. 519;
R. v. Lyons
,
[1987] 2 S.C.R. 309, at pp. 371-372.

[41]

The validity of a plea of guilty is normally
    determined by a plea inquiry conducted by a trial judge. As Watt J.A. explained
    in
R. v. D.M.G.
, 2011 ONCA 343, 105 OR (3d)
    481, at para. 42:

For the plea to be informed, the accused must understand that
    the plea is an admission of the essential elements of the offence and that the
    presiding judge is not bound by any agreement made by the accused and the
    prosecutor. The accused must also understand the nature and consequences of a
    guilty plea. Under s. 606(1.2) the failure of the trial judge to fully inquire
    about the voluntary and informed nature of the accuseds plea does not affect
    the validity of that plea. But an inquiry is mandatory nonetheless.

[42]

As the above extract from the transcript
    demonstrates, the trial judge decided that it was not necessary to conduct a
    plea inquiry because he trusted that trial counsel had properly advised the
    appellant.

[43]

This appeal might well have been avoided if the
    trial judge had conducted a plea inquiry rather than relying on counsel to have
    done so. In the absence of a plea inquiry, this court must determine the validity
    of the appellants plea based on the record, including the fresh evidence.

[44]

Although the appellant states categorically in
    his affidavit that he was not advised by trial counsel concerning the imitation
    firearm charge, or that it came with a mandatory minimum sentence, in
    cross-examination he acknowledged that he met with trial counsel prior to
    entering his plea and had a very brief plea inquiry. He knew that he was
    giving up his right to a trial but says that he was not informed of the
    imitation firearm charge.

[45]

The appellants evidence is, on its own, insufficient
    to establish that he was not informed as to the imitation firearm charge.
    However, based on trial counsels evidence I am satisfied that the appellants
    plea to the imitation firearm charge was not informed. Trial counsel did not
    advise the appellant that he would be pleading to the imitation firearm charge,
    and as a result the appellant was unaware of that charge and the mandatory
    minimum sentence it carried.

[46]

Trial counsels testimony and preparation notes
    reflect, at the very least, confusion about the counts that would be involved
    in the plea. Trial counsel testified at several points that the appellant was
    going to be pleading to four counts, not five: break and enter to commit the
    indictable offence of theft, assault with a metal bat, assault with a metal bat
    and baton, and possession of marijuana. He also testified that, at the judicial
    pre-trial, he made a note indicating that the Crown would be asking for a
    sentence of 12-18 months. He then gave the following evidence:

Q: So thats the deal you think is very
    attractive?

A: Absolutely.

Q: Plead to those four counts and that
    potential range of sentence.

A: Yes. You have to understand, sir, this note
    is a summary, writing as fast as I can, of what took place.

Q: But what I just said is accurate; right?

A: It appears so except clearly  where it
    says assault weapon twice, clearly one of those we believe to be imitation, but
    that wasnt written.

Q: Im going to suggest to you that thats not
    clear at all, Mr. Goldkind.

A: Well, its clear to me.

[47]

Trial counsel acknowledges that his notes from
    the judicial pre-trial and from his meeting with the appellant on the day of
    the guilty plea do not refer to the imitation firearm charge. His note from the
    meeting with the appellant on the day of the guilty plea read: Four charges
    here, not the gun charge.

[48]

Trial counsel gave the following evidence about
    the notes he took on the day of the plea:

Q: And these are notes from that day, November
    24. And again, these dockets reflect about four lines from the top of your note
    that there were guilty pleas to four charges, as discussed in the JPT; correct?

A: Yes.

Q: Not five; right?

A: Right.

Q: So Im going to suggest to you even after
    the hearing, after youre back out at court, youre still confused about what
    has happened; you think its four counts when it was five.

A: I wasnt confused sir. I thought it was
    four counts.

[49]

Trial counsel acknowledges that he informed the
    appellants father that the appellant had pleaded guilty to four charges. His
    testimony and notes surrounding the mandatory minimum likewise suggest that the
    imitation firearm issue was not discussed. Trial counsel also acknowledges that
    neither his note from the judicial pre-trial nor his note from the day of the
    plea refers to a mandatory minimum sentence, and that the mandatory minimum
    sentence was not discussed in court on the day of the plea. He testified as
    follows:

Q: Where in that transcript, Mr. Goldkind, is
    it made plain to Mr. Beckford that hes facing a mandatory minimum sentence?

A: I dont think those words are used.

Q: Exactly.

A: By no one.

Q: Including you; right?

A: Absolutely. Youre right.

Q: In fact, following this day, November 24, 2016,
    you continued to believe that he had pleaded guilty to four counts; correct?

A: I did. I did.

[50]

Despite this testimony, trial counsel continued
    to reject the suggestion that he was confused and insisted that he would have
    raised the matter with the court if he had been confused. He insists that he knew
    what the plea deal was and that it included a plea to the imitation firearm charge.
    Trial counsel denies that the appellant raised concerns about the imitation
    firearm charge following his pleas. He says that the appellant was concerned
    about the charges he faced involving the shotgun that was allegedly used in the
    home invasion, and that he informed the appellant that the trial judge had
    disabused his mind of a shotgun.

[51]

It may be that trial counsel conflated the
    shotgun charges  which were withdrawn  with the imitation firearm charge. But
    the reason for the apparent confusion is irrelevant. I am satisfied that trial
    counsel did not advise the appellant concerning the imitation firearm charge
    and its consequences ­ in particular, the one-year mandatory term of
    imprisonment it included. I have no doubt that the appellant wanted to plead guilty
    and put the matter behind him, as trial counsel says, and that trial counsel
    determined that the total sentence the appellant would likely receive was
    advantageous. Nevertheless, the appellants choice to plead guilty to the
    imitation firearm charge was not made on an informed basis.

[52]

Counsel for the Crown submits that appellants
    confusion regarding his plea to the imitation firearm charge is undercut by his
    silence during and following the plea proceedings. She states that the
    appellant is a university-educated person and it is not credible to accept that
    he fundamentally misunderstood the nature of the charge to which he pleaded
    guilty.

[53]

This submission must be rejected. The appellant retained
    experienced counsel to protect his interests and was entitled to rely on
    counsel. He cannot be faulted for failing to act on his own behalf during or
    following the plea proceedings.

[54]

I conclude that the appellants plea to the
    imitation firearm count was not informed. It must be set aside.

The remaining charges

[55]

It is not necessary to determine whether the appellants imitation
    firearm plea taints his remaining pleas. As I will explain, those pleas must be
    struck because the appellant received ineffective assistance of counsel.

[56]

The appellant says that trial counsel failed to properly advise him as
    to the strength of the Crowns case before he decided to plead to the remaining
    charges. In particular, he points to the following shortcomings in the assistance
    trial counsel provided:

·

He failed to consider the ability of the victims in the home to
    identify the appellant;

·

He failed to interview the appellant about the nature of his
    arrest or the circumstances of his statement to the police, including inculpatory
    statements made in the absence of consultation with counsel, and similarly, he
    failed to advise the appellant of any defences, including
Charter
applications concerning the inculpatory statements and the search of his
    cellphone, again without consultation with counsel; and

·

He told the appellant that DNA and fingerprint reports directly
    implicated him in the metal baseball bat assault, when in fact the DNA report
    did not implicate the defendant and there was no fingerprint report.

[57]

In order to succeed on his claim of ineffective assistance of counsel in
    respect of his pleas, the appellant must establish, on a balance of
    probabilities:

i)

the facts on which the claim is grounded;

ii)

the incompetence of the representation provided by trial counsel
    (the
performance
component); and,

iii)

a miscarriage of justice as a result of the incompetent representation
    by trial counsel (the
prejudice
component).

See
R. v. Cherrington
,
    2018 ONCA 653, at para. 25.

[58]

Watt J.A. summarized the courts approach in
R. v. Girn
, 2019
    ONCA 202, 373 CCC (3d) 139, at para. 92:

Once the facts that underpin the claim have been established,
    the ineffective assistance analysis begins with the prejudice component. This
    component engages a determination of whether a miscarriage of justice has
    occurred. Either because of some procedural unfairness in the proceedings, a
    compromise of the reliability of the verdict or some combination of both
    consequences:
R. v. B. (G.D.)
, 2000 SCC 22, [2000] 1 S.C.R. 520,
    at paras. 28, 34;
Cherrington
, at para. 27. Where the reviewing
    court does not make a finding of prejudice, it is undesirable for the court to
    conduct an inquiry into and render a conclusion upon the performance
    component:
B. (G.D.)
, at para. 29;
R. v. Lavergne
,
    2017 ONCA 642, at para. 17.

[59]

With respect to the prejudice component, the appellant argues that he
    pleaded guilty in reliance on trial counsels advice, believing that trial
    counsel had assessed the case against him when, in fact, he had failed to do
    so.

[60]

I accept that, if this is the case, a finding of prejudice should
    follow. The appellant need not show that he had a viable defence to the charges
    against him in order to have his pleas set aside. As the Supreme Court has
    stated, prejudice results from pleading guilty and thereby giving up the right
    to trial:
Wong
, at para. 23, citing
R. v. Rulli
, 2011 ONCA
    18, at para. 2; see also
R. v. Quick
, 2016 ONCA 95, 129 O.R. (3d) 334,
    at para. 38.

[61]

The performance component relates to trial counsels alleged
    incompetence. The assessment proceeds from a strong presumption of competence,
    is tested against a standard of reasonableness, and accords no place to
    hindsight:
Cherrington
, at para. 26. The main issues are whether the
    appellant has established the facts necessary to ground his claim and whether
    those facts reflect the incompetence of trial counsel.

[62]

Counsel for the Crown submits that the appellant has failed to meet his
    burden to establish the facts on which his claim for ineffective assistance of
    counsel is grounded. She says that the appellants version of events is not
    reasonably capable of belief: his account is inconsistent and evasive, and he
    has a strong motivation to fabricate his claims. According to Crown counsel,
    the evidence of trial counsel should be preferred. She emphasizes the
    presumption in favour of competence and highlights trial counsels lengthy career
    at the criminal bar. The case against the appellant was strong and it was
    reasonable to think that the appellant was at risk of receiving a lengthy
    penitentiary term if convicted. Trial counsel, she submits, exercised
    reasonable judgment in the circumstances.

[63]

I am not persuaded by the appellants evidence at various points. It is,
    as the Crown suggests, self-serving to say the least. If there were no
    additional evidence, the claim of ineffective assistance of counsel would fail.

[64]

But trial counsels evidence establishes the facts necessary to support
    the appellants claim. Indeed, it is clear from a reading of trial counsels
    evidence that his performance did not fall within the range of reasonable
    professional assistance.

[65]

Plainly, trial counsel formed the view that the case against the
    appellant was so strong  and the deal offered was so advantageous  that the
    appellant should plead guilty. Nevertheless, it was trial counsels duty to assess
    the strength of the evidence against the appellant before advising him, and his
    own evidence establishes that he did not adequately do so. That evidence
    suggests that trial counsels knowledge of the appellants guilt  and disapproval
    of the appellants actions  led to his failure to take appropriate actions on the
    appellants behalf.

Identification evidence

[66]

Trial counsel was examined at length concerning the ability of the
    occupants of the house that was invaded to identify the appellant. He testified
    that the appellant admitted to him that he went into the house, swinging the
    bats. The following exchange took place:

Q: Thats not the question, Mr. Goldkind. Im sorry to
    interrupt you. The question is not whether [the appellant] said he was in the
    house. The question is what discussions did you have with him about the ability
    of the Crowns witnesses to identify him?

A: I think all I can say is that when a client admits quite
    openly that he went in the house; was wielding the bat like a bludgeon and enjoyed
    every minute of it, that tells me that there is no need to examine him further
    about the identification.



Q: Because you say [the appellant] admitted the offense to you,
    you thought you had no obligation to test the strength of the Crowns case.

A: No, I wont go that far, but its very significant to me
    when a client admits openly and with pleasure his role in the matter. Thats a
    very telling factor.

Q: So I just want to understand exactly what youre saying.

A: Sure.

Q: Is it your position that because [the appellant] admitted to
    you his presence in the house, that your obligation to test the Crowns case
    and to consider whether they could actually prove it if it went to trial was no
    longer your obligation?

A: Ill answer it this way. When Michael Beckford [the
    appellants brother] admitted to me that he drove the car and waited outside
    purposely and when [the appellant] admitted to me his role in the matter and
    what he took with him in the house, that stops me from cross-examining my
    client about the strength of the Crowns witnesses.

The appellants Charter
    rights

[67]

Trial counsel acknowledged that he does not know whether the appellant
    called counsel while he was in custody after arrest and did not discuss the
    matter with him because he did not think it was relevant. Nor did he query the
    circumstances of the appellants strip-search, the fact that he was held for
    approximately 10 hours without being brought before a justice before he gave
    his statement, or the propriety of the police request for the appellant to
    provide his cell phone password.

[68]

In summary, trial counsel did not consider possible
Charter
claims the appellant might have made. His evidence was that the police had
    treated [the appellant] extremely fairly in all circumstances; that the police
    hadnt roughed him up or intimidated him but had treated him like a gentleman;
    and that he hadnt been mistreated in any way, shape or form.

The appellants police statement

[69]

Trial counsel was asked a series of questions concerning the appellants
    police statement. He rejected the suggestion that the appellants statement to
    the police that he was outside the house is at least partially exculpatory of
    the appellant, describing the suggestion as ludicrous and quibbling with the
    semantics. The statement was not totally truthful, in his view. He testified:

Q: So from your point of view youre satisfied that he went
    into the house, therefore what his statement says is irrelevant to your
    assessment of the strength of the Crowns case?

A: Absolutely correct.

[70]

It was put to trial counsel that the appellants statement was ambiguous
    and potentially exculpatory concerning his knowledge of imitation firearms. For
    example, the appellant stated that his brother has a replica BB gun, but I
    know he didnt have it on him; that its possible one of the other guys
    brought it; that I dont know exactly what weapons the men in the white car
    brought; and that I didnt see a sawed-off shotgun, but someone else
    mentioned it. Trial counsel gave the following evidence:

Q: Im going to suggest to you, again, that the statement makes
    it plain that hes  whether or not its true, whether or not its true, that
    hes making assumptions about whether or not theres a gun, a replica shotgun;
    correct?

A: Sir, Ive been dealing with criminals for 50 years. This is
    a perfect illustration of a young man who was wanting to tell the truth, but
    not wanting to rat out other people. Hes deflecting; hes minimizing his role.
    He knew darn well there was a shotgun; he knew there was an imitation gun.

Q: But thats not apparent on the face of his statement; is it?

A: Its apparent to me.

Q: Thats not what hes 

A: Its apparent to anybody with any knowledge of the criminal
    system and criminal conduct. Read it carefully. Its as clear as day.

Q: So you dont think that that portion of the statement is
    exculpatory 

A: Not at all.

The DNA and fingerprint
    evidence

[71]

Trial counsel denies that he told the appellant there was DNA evidence
    inculpating him, but his evidence raises a different problem: he admits that he
    did not even read the DNA report. He denies telling the appellant that
    fingerprint evidence inculpated him and says that he offered the fingerprint
    evidence to the appellant at the courthouse. However, when it was suggested to
    him that there was no fingerprint evidence, he acknowledged that he does not
    know whether or not this was because he did not read the disclosure package
    provided on the day of the judicial pre-trial:

Q: If theres no [fingerprint] evidence you couldnt have
    offered it to him, could you?

A: No, I offered him the package that the police gave me at the
    courthouse.

Q: But you didnt consider that package at all because you
    didnt think it important?

A: Why would I consider it, sir, when the client told me that
    hes guilty and he wants to plead guilty?

Q: Well, because you might want to consider whether its in
    your clients interest to plead guilty based on an assessment of the Crowns
    case.

A: Well, with all due respect, youre being a Monday morning
    quarterback, which is foolish. A client tells you he did it; the client wants
    to get on with it; the client wants to do his time; he wants to avoid the penitentiary;
    end of story.

Its not my obligation to cross-examine a client to rip apart
    his possible defences. Youve got my position.

The reasonableness of
    counsels performance

[72]

In summary, trial counsels evidence establishes that he never met with
    the appellant at his office; did not obtain written instructions; did not
    review the DNA disclosure package; did not adequately assess the strength of
    the Crowns case; did not consider possible
Charter
infringements; and
    made no submissions as to the appropriate sentence.

[73]

The recurring theme in trial counsels evidence is an insistence that
    his knowledge of the appellants guilt obviated the need for him to take the
    sorts of steps that would normally be taken before advising an accused person regarding
    a guilty plea. Moreover, trial counsels evidence is replete with inappropriate
    criticism of his client and disapproval of his conduct and character. For
    example, he testified that the appellant treated the matter as a caper and a
    big joke. Trial counsel said that the appellant enjoyed hitting people with
    the bat and seemed to revel in what he had done.

[74]

Whatever trial counsel may have thought of his client, it was his duty
    to represent him to the best of his abilities. He was required to evaluate the
    strength of the evidence against the appellant before advising him to enter a guilty
    plea, no matter how advantageous he thought that plea would be.

[75]

The shortcomings in the representation provided by trial counsel go to
    the heart of his responsibilities as counsel. They compel the conclusion that
    the appellant did not receive the effective assistance of counsel. The appellants
    guilty pleas to the remaining charges must also be struck.

CONCLUSION

[76]

In the interests of justice, all of the pleas must be set aside.

[77]

I would allow the appeal and order a new trial.

Released: December 18, 2019 (D.W.)

Grant Huscroft J.A.

I agree. David Watt J.A.

I agree. Gary Trotter J.A.


