



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yasotharan, 2019 ONCA 568

DATE: 20190704

DOCKET: C64215

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Meera Yasotharan

Appellant

Ryan MacIsaac and Simon G. Cameron, for the appellant

Mabel Lai, for the respondent

Heard: July 2, 2019

On appeal from the
    conviction entered on September 22, 2016 by Justice Russell J. Otter of the Ontario
    Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant alleges that her guilty plea to a
    charge of fraud was uninformed and involuntary primarily because she received
    ineffective assistance from her then counsel.

[2]

The Crown alleged that the appellant
    misrepresented the status of her cohabitation and was overpaid by the Ontario
    Works programme when she received social assistance. She was criminally charged
    with one count of fraud over $5,000.

[3]

As set out in the psychiatric report of Dr.
    Joseph Regan, the appellant suffers from a permanent intellectual development
    disorder and has an IQ of 42. She speaks limited English and can neither read
    nor write in English or her native Tamil.

[4]

A Tamil paralegal and interpreter directed her
    family to a lawyer, John Guoba, with whom he had previously worked. Mr. Guoba
    testified that, when working with members of the Tamil community, he would
    generally meet with the family as well as the client. He did so here. The appellants
    father gave Mr. Guoba a retainer. Mr. Guoba met with the appellant three times,
    in the presence of her father and the interpreter.

[5]

Mr. Guoba, having reviewed the Crown disclosure,
    concluded that there was a strong case against the appellant. He also concluded
    that, despite her disability, the appellant was capable of organizing and
    conducting her affairs.

[6]

At the judicial pretrial, Mr. Guoba advised the
    judge about the appellants disability and referenced Dr. Regans report. The
    Crown proposed resolution of a guilty plea and a restitution order. Mr. Guoba
    negotiated a restitution order of $14,400, down from a total alleged
    overpayment of $27,992.

[7]

Mr. Guoba met with the appellant and her father
    to discuss the proposal. The meeting was mostly in English although the Tamil
    interpreter was there. Mr. Guoba told the father that a trial would be
    expensive and advised her to plead guilty. The father said she would. Mr. Guoba
    testified that it is common in the Tamil community for a father to speak for
    family members. Mr. Guoba asked the appellant if she would plead guilty, and
    she simply nodded.

[8]

The parties advised the court that there would
    be a guilty plea and joint submission. When the trial judge asked the appellant
    how she pleaded, she responded I plead guilty. The trial judge accepted the
    joint submission.

[9]

We recognize that Mr. Guoba had a difficult
    situation before him. His client did not speak English. Even in Tamil, she
    understood only 50% of what was said to her. This required extraordinary care
    and patience to be sure that the appellant understood the consequences of the
    plea.

[10]

The fresh evidence, including the updated report
    of Dr. Regan, make it clear that the appellant did not understand the
    implications of the plea. In particular, the impact that the restitution order
    would have on her ability to access Ontario Works payments in the future was
    never explained to her. Nor did she grasp that she would have to pay the money
    back. She was dependent upon her father and essentially did what he said.

[11]

Mr. Guoba frankly acknowledged that he should have
    met with the appellant alone. We agree. She also should have been told that the
    plea would impact her future payments for social assistance.

[12]

The appellant was not informed about the
    consequences of her guilty plea. Her conviction therefore gives rise to a
    miscarriage of justice: see
R. v Quick
, 2016 ONCA 95, 129 O.R. (3d)
    334, at para. 43.

[13]

The appeal is allowed, the conviction is set
    aside, and a new trial is ordered. However, in the interests of justice, taking
    into account the appellants intellectual disability, the financial hardship
    she has endured, and the strides she has made to improve her circumstances in
    life, we exercise our discretion under s. 686(8) of the
Criminal Code
to enter a stay of proceedings against the appellant.

Doherty J.A.

J.C. MacPherson J.A.

M.L. Benotto J.A.


