





CITATION:
R. v. Henry, 2011
          ONCA 289



DATE: 20110412



DOCKET: C52614



COURT OF APPEAL FOR ONTARIO



Cronk, Lang and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Ainsley Henry



Applicant/Appellant



Paul Burstein, for the applicant/appellant



Sarah Shaikh, for the respondent /Crown



Heard:   April 1, 2011



On appeal from a conviction entered by Justice Frank N.
          Marrocco of the Superior Court of Justice, sitting without a jury, on January
          18, 2010.



Watt J.A.:



[1]

On the scheduled trial date, Ainsley Henry (the
    appellant) re-elected trial by a judge of the Superior Court of Justice,
    sitting without a jury, and pleaded guilty to a single count of possession of
    cocaine for the purpose of trafficking.

[2]

When he pleaded guilty, the appellant was 35 years old.
    There is no suggestion that he suffered from any intellectual or linguistic
    deficit. He was represented by very experienced counsel who had been his lawyer
    for more than two years on this and several related charges.

[3]

The trial judge accepted the appellants plea of guilty
    and recorded a conviction.  At the
    appellants request, sentencing proceedings were adjourned for several weeks to
    permit preparation of a pre-sentence report.
Counsel were
not of the same mind about the
    nature and quantum of sentence that was fit for the appellant in the
    circumstances.

[4]

Before proceedings resumed on the date set for
    sentencing, the appellant discharged his trial counsel, retained new counsel
    and filed an application with the trial judge to set aside his guilty plea.

[5]

The appellant moved to set aside his guilty plea on the
    grounds that the plea was uninformed and involuntary. It was
uninformed
because the appellant had not
    been permitted to listen to recordings of police surveillance activities
    leading to his arrest.  These recordings
    had been subpoenaed to the trial court by his trial counsel on the date fixed
    for trial.  The plea was
involuntary
because of the pressure
    faced by the appellant on the date he entered the plea.

[6]

The trial judge reserved judgment on the appellants
    motion. He eventually dismissed the motion and provided counsel with written
    reasons for his decision. On a later date, the trial judge sentenced the
    appellant to a term of imprisonment of 12 months after awarding him a credit of
    six months for the three months that the appellant had been detained in custody
    prior to conviction and sentence.

THE GROUNDS OF APPEAL

[7]

In
    this court, the appellant challenges the trial judges decision not to set
    aside his guilty plea. In his factum, he advanced several grounds of
    appeal.  Each alleged a discrete error in
    the trial judges decision rejecting the appellants motion to set aside his
    guilty plea. However, in his oral argument, Mr. Burstein concentrated his
    submissions on the requirement that, to be valid, a plea of guilty must be
    informed.  He submitted that the
    appellants plea of guilty was not informed because it was based on a
    mishearing of the police communications by trial counsel that led trial counsel
    to an erroneous conclusion about the viability of a constitutional challenge to
    the appellants arrest and subsequent search.  As the direct result of counsels advice about the futility of the
    constitutional challenge, the appellant decided to plead guilty.

ANALYSIS

[8]


The argument advanced here by Mr. Burstein
    was not raised before the trial judge. Some further background and procedural
    history is necessary to provide context for the argument now raised.

The Preliminaries to Arrest

[9]

The appellant was not the target of police surveillance
    on May 31, 2008, but his appearance in the surveilled area attracted the
    attention of at least one of the officers who had had previous dealings with
    him. Typically, several officers took part in the surveillance.

[10]

When police apprehended the appellant, he bolted from their
    custody.  After a brief foot chase,
    officers captured the appellant. In his possession they found 29 grams of
    cocaine and $250 in a plastic bag. The cocaine was wrapped in separate
    packages. The appellant also had a cell phone, an item he was prohibited from
    having under the terms of a prior judicial interim release order.

The Defence Position

[11]

From the outset, the appellants experienced trial
    counsel took a common approach to all the charges the appellant then faced.
    Counsel challenged the legality of the appellants arrest in each of the three
    incidents that gave rise to three separate sets of similar charges.

[12]

Trial counsel reviewed the notes of the surveillance
    officers provided as part of Crown disclosure.  He considered it possible, if not likely, that the disclosed notes would
    not coincide with the radio communications taking place among the officers
    contemporaneous with the appellants arrest. As a result, counsel subpoenaed
    the recorded communications from the Toronto Police Service. In this case, the
    subpoena was returnable on the trial date.  Counsel would then listen to the recordings to determine how they
    compared to the written disclosure. Any discrepancies and deficiencies that
    appeared would support the application to exclude the search findings at trial.
    Exclusion of the evidence would lead to an acquittal, provided the prosecutor,
    apprised of the discrepancies, could not be persuaded to withdraw the charges
    prior to trial.

The Trial
    Date

[13]

On the scheduled trial date, counsel for the appellant
    indicated to the trial judge that he wished to listen to a CD of the police
    communications after the prosecutor had listened to it and determined whether
    any editing was required.  Defence
    counsel pointed out what he heard on the recording would in all likelihood be
    determinative.  The trial judge
    adjourned the proceedings to permit counsel to listen to the recording.

[14]

Trial counsel for the appellant listened to the CD on a
    computer in the prosecutors consulting room. The appellant wanted to listen to
    the recording himself, but no facility was available for him to do so.  Trial counsel advised the appellant that the
    recording demonstrated that an officer believed she had seen the appellant
    using his cell phone, which eliminated any prospect of success on their
    anticipated constitutional challenge.

[15]

Trial counsel made it clear to the appellant that he
    (the appellant) had to decide whether to plead guilty to the charge. A few
    moments later, the appellant decided to do so, but instructed his counsel to advocate
    for a conditional sentence rather than join the Crown in a submission for a
    custodial sentence.

The Plea
    of Guilty

[16]

The prosecutor, trial counsel and the appellant
    returned to the courtroom where the appellant entered his plea of guilty. Among
    the facts read by the prosecutor and not disputed by the appellant was that the
    original apprehension of the appellant was for breach of recognizance because a
    police officer had seen the appellant apparently talking on a cell phone while
    under police surveillance.

[17]

Trial counsel affirmed the importance of the content of
    the tapes in the resolution of the case by a guilty plea. The trial judge was
    not invited to listen to the CD or to read a transcript of the conversations.
    Neither the CD nor the transcript was filed as an exhibit.

The Motion
    to Set Aside the Guilty Plea

[18]

The evidence on the motion to set aside the plea of
    guilty as uninformed and involuntary included the appellants affidavit, on
    which he was cross-examined before the trial judge, and the evidence of the
    appellants trial counsel. The appellant waived solicitor-client privilege. The
    CD was filed as an exhibit and the transcript made available to the trial
    judge.  The CD was
not
played during the hearing of the motion.

The
    Positions of the Parties on Appeal

[19]

For the appellant, Mr. Burstein submits that trial
    counsel had little time to listen to the police communications recording.  He had no transcript to assist him. In the
    end, trial counsel simply misheard some of the words spoken on the recording.
    Nothing on the recording supports the trial counsels conclusion that any
    police officer reported having seen the appellant with a cell phone up to or
    held to his ear. The absence of such an observation and the overall tenor of
    the recording
leaves
open a viable argument that the
    officers lacked reasonable and probable grounds to arrest the appellant.

[20]

Mr. Burstein argues that the appellants plea of guilty
    was uninformed because it was based on misinformation provided quite
    inadvertently by trial counsel. Mishearing the recording led trial counsel to
    advise the appellant that his constitutional complaint, for all practical
    purposes his only defence, was doomed. A plea of guilty entered on the basis
    of erroneous information about the viability of a defence is uninformed, thus
    should be set aside.

[21]

Ms. Shaikh sees it differently. An accused has no
    absolute right to review every item of disclosure. The appellants experienced counsel
    subpoenaed the police communications to determine whether they revealed a viable
    constitutional claim.  He formed the
    impression that what everyone agreed was the only possible defence, exclusion
    of the prosecutions evidence, was no longer viable. Counsel advised the
    appellant accordingly, and the appellant decided to plead guilty when
    confronted with this reality.

[22]

Ms. Shaikh says that the appellant wants to second
    guess the assessment made by his experienced trial counsel who had represented
    him for over two years. To countenance such a claim would work great mischief
    in the administration of criminal justice by putting at risk the finality of
    trial proceedings.

The
    Recording

[23]

On the application before the trial judge to set aside
    the guilty plea, the CD of the police communications was filed as an exhibit at
    the conclusion of argument. The CD was not played in open court, nor did
    counsel contend that the transcript of the communications did not accurately
    represent what was said or what trial counsel claimed to have heard.

[24]

On the hearing of the appeal, Mr. Burstein played the
    critical portions of the police communications. We also had the benefit of the
    transcription prepared by civilian members of the Toronto Police Service. The
    recording lacks concert hall clarity, understandably in the circumstances, but
    several features predominate. Neither the recording nor the
transcript
    disclose
a communication by any police officer reporting an observation
    of the appellant with a cell phone up or close to his ear.  Further, the officers appear to recognize
    that their observations of the appellant do not rise to the threshold of
    reasonable and probable grounds for a belief that the appellant was in
    possession of controlled substances for the purpose of trafficking. And
    finally, the communications afford some indication that the officers are casting
    about in search of some pretext to detain the appellant.

The
    Applicable Principles

[25]

Among the requirements for a valid plea of guilty is
    the prerequisite that the plea of guilty be informed.  An accused must be aware of the nature of the
    allegations made against him or her, as well as the effect and consequences of
    the plea of guilty:
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519; and
R. v. Taillefer; R. v. Duguay
, [2003] 3 S.C.R. 307, at para. 85.

[26]

An informed plea is one based on sufficient information
    concerning the nature of the charges against an accused.  We impose disclosure duties on the prosecutor
    to ensure that any decision made by an accused about his or her case, including
    whether to plead guilty, is made with full knowledge of the relevant facts:
Taillefer
;
Duguay
at para. 86.

[27]

A breach of the duty to disclose can impact on the
    validity of a guilty plea where it affects the basis upon which the accused
    decides to plead guilty:
Taillefer
;
Duguay
at para. 88. Where non-disclosure
    is advanced as a basis for a claim that a plea of guilty was uninformed, an
    accused must demonstrate a reasonable possibility that the undisclosed material
    would have influenced his or her decision to plead guilty, if it had been
    provided prior to entry of the plea. In cases of non-disclosure, the question
    is whether a reasonable and properly informed person, put in the same position,
    would have run the risk of standing trial had she or he received timely
    disclosure of the undisclosed information, when it is assessed along with the
    previously disclosed information:
Taillefer
;
Duguay
at para. 90.  In cases of non-disclosure, where there is a
    realistic possibility that an accused would have run the risk of a trial, had
    she or he been in possession of the undisclosed information or new avenues of
    investigation, then the accused should be given leave to withdraw the plea of
    guilty:
Taillefer
;
Duguay
at para. 90.

The
    Principles Applied

[28]

When the police arrested the appellant he was in
    possession of 29 grams of cocaine in separately packaged plastic bags inside
    another plastic bag that also contained $250 in cash. The appellant also had a
    cell phone. If this evidence were admitted at trial, the appellant faced a
    significant risk of conviction of possession of cocaine for the purpose of
    trafficking.

[29]

The appellants trial strategy, common to three sets of
    similar charges, was to seek exclusion of the real evidence that constituted
    the prosecutors case. The appellant sought to establish that his arrest was
    arbitrary because the police lacked reasonable and probable grounds to arrest
    him. The real evidence was found on a search incident to that arrest.

[30]

It is beyond argument that prior to the
arrest,
the police had no reasonable and probable grounds to
    believe that the appellant had controlled substances in his possession for the
    purpose of trafficking.

[31]

The surveillance officers knew that the appellant was
    bound by the terms of a recognizance not to possess a cell phone.  Any observations of the appellant with a cell phone,
    for example speaking into it while driving his car, could afford reasonable and
    probable grounds to arrest the appellant for breach of his recognizance. If the
    appellant could establish the absence of the essential reasonable and probable
    grounds, proof of a constitutional infringement was an essential hurdle
    overcome on a path towards exclusion of the products of the search as evidence
    in the proceedings.

[32]

The police communications were critical to the
    appellants trial strategy. If the communications failed to support any
    sighting of a cell phone during surveillance, counsel could advance an argument
    that the arrest was arbitrary, unsupported by the essential, reasonable and
    probable grounds. The content of the recording could also prove a valuable
    source for cross-examination in the event that the officers testimony was
    inconsistent with their contemporaneous words. On the other hand, if the
    recording confirmed the required reasonable and probable grounds, any claim of
    arbitrary arrest was, at best, problematic.

[33]

Trial counsel listened to the recording. So far as we
    are aware, he did not have the benefit of a transcript with which to follow the
    conversations. The circumstances in which trial counsel listened to the
    recording were not ideal, but he raised no concern about their adequacy.

[34]

Trial counsel concluded that the recording confirmed
    the written disclosure he had received.  Of particular importance to him was a passage that, in his opinion, revealed
    that a police officer reported having seen the appellant with a cell phone up
    to or close to his ear. In the mind of trial counsel, this comment interred the
    argument about arbitrary arrest.  He told
    the appellant that he was dead in the water on his challenge to the
    admissibility of the prosecutions evidence and should consider a change of
    plea. A few minutes later, the appellant pleaded guilty.

[35]

Without objection from Ms. Shaikh for the respondent,
    we listened to the recording of the relevant police communications on the
    hearing of the appeal. The recording reveals no reported observation by any of
    the officers that the appellant had or was using a cell phone. The recording
    reveals an early uncertainty about whether the person under observation was, in
    fact, the appellant, and could also be taken as supporting an assertion of a
    pretextual stop.

[36]

An informed guilty plea requires that the accused
who
enters it has sufficient information about the charge to
    make an informed decision about his or her plea:
Taillefer; Duguay
at paras. 85-86
.  If
the plea is not informed, leave may
    be given to set it aside. A plea may not be informed if it was entered without
    timely knowledge of information that is relevant to the decision of whether to
    plead guilty or run the risk of a trial:
Taillefer
;
Duguay
at para. 90.

[37]

The appellant does
not
complain of a failure on the part of the prosecutor to meet the disclosure
    obligations imposed upon her under
R. v.
    Stinchcombe
, [1991] 3 S.C.R. 326. Thus, the factual matrix differs from
    that in
Taillefer
;
Duguay
. But the decision to plead guilty
    here was grounded on a misapprehension of information critical to the viability
    of the appellants only defence. Had the true state of affairs been
    communicated to the appellant, there was a realistic likelihood that he would
    have run the risk of a trial. In my opinion, under reasoning analogous to that
    applied in
Taillefer
;
Duguay
, the appellant should be given
    leave to withdraw his plea of guilty.

CONCLUSION

[38]

For
    these reasons, I would allow the appeal from conviction, set aside the guilty
    plea entered below, and order a new trial on the indictment.

RELEASED:  April 12,
    2011 EAC

David
    Watt J.A.

I
    agree E.A. Cronk J.A.

I
    agree S.E. Lang J.A.


