



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cherrington, 2018 ONCA 653

DATE: 20180718

DOCKET: C54897

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Cherrington

Appellant

George Cherrington, acting in person

Andrew Hotke, for the respondent

Anthony Moustacalis, appearing as
amicus curiae

Heard: June 29, 2018

On appeal
    from the conviction entered on June 5, 2009 and the sentence imposed on October
    9, 2009 by Justice Gregory Regis of the Ontario Court of Justice.

By
    the Court:


[1]

The appellant pleaded guilty to a single count of fraud over $5,000
    before a judge of the Ontario Court of Justice. About five months later, he was
    sentenced to a term of imprisonment of 12 months to be served in the community
    and made the subject of a free-standing restitution order for $52,027.36. He
    appeals his conviction on the ground that his plea of guilty was not voluntary
    or fully informed, in part because counsel who represented him on entry of the
    plea and during submissions as to sentence provided ineffective assistance.

[2]

At the conclusion of submissions by
amicus
and the appellant,
    we dismissed the appeal. We promised to provide reasons for our decision. These
    are our reasons.

The Background Facts

[3]

The fraud alleged and admitted by the appellant on his plea of guilty
    extended over a period of more than four and one-half years. It involved
    receipt of social services benefits to which the appellant was not entitled and
    included not only false claims, but also failures to report income as required.

[4]

The appellant was charged in early February, 2007. A year later, he
    retained senior counsel in a local law firm. In the ensuing months, senior
    counsel appeared on the appellants behalf on several court dates and on two
    pre-trials, one with the Crown and the other with the judge before whom the
    appellant would later plead guilty (the presiding judge).

[5]

Over the next year, an associate in the office of senior counsel (trial
    counsel) attended with the appellant on many court appearances and on five
    further judicial pre-trials with the presiding judge.

The Plea of Guilty

[6]

On June 5, 2009, after the final judicial pre-trial had been held, the
    appellant appeared before the presiding judge and entered a plea of guilty to
    the offence charged. He was represented by trial counsel.

[7]

Prior to entry of the plea of guilty, the presiding judge asked whether trial
    counsel had done the plea comprehension inquiry with the appellant. Counsel
    acknowledged that he had done so and continued:

[TRIAL COUNSEL]: Yes, Your Honour. I can just indicate for the
    record I have fully reviewed the plea inquiry with Mr. Cherrington. He does
    understand that by entering a plea before Your Honour today he is waiving his
    right to a trial, does have the right to take the matter to trial and let the
    Crown prove their case beyond a reasonable doubt. He understands that by
    entering this plea he must be admitting the allegations that form the basis of
    the offence, and that he must be doing so freely and voluntarily, and Im
    advised that is. Finally, Your Honour, he understands that despite what the
    Crown is asking for, or the defence is asking for by way of sentence, the final
    determination as the sentence is Your Honours. Is that correct, sir?

GEORGE CHERRINGTON: Yes.

[8]

Trial counsel did not obtain written instructions from the appellant
    confirming the above statement to the court.

[9]

On arraignment, the appellant pleaded guilty. The trial Crown recited
    the circumstances of the offence. Trial counsel for the appellant confirmed the
    correctness of the Crowns recital and added:

He does admit the allegations  Is that correct, sir?

The appellant responded:

Yes. Yes, it is.

[10]

In
    making preliminary submissions on sentence, trial counsel for the appellant
    reminded the presiding judge of their earlier discussions during the pre-trials
    about the appellants involvement in a very serious motor vehicle accident which
    left him in constant pain and hampered his ability to retain information. Trial
    counsel filed a letter from the appellants family physician confirming, among
    other things, the appellants problems with memory, mood and speech.

[11]

Over
    the next four months, trial counsel sought further information to put before
    the presiding judge in support of his submission in favour of a conditional
    sentence.

[12]

Four
    months after entry of the plea of guilty, the appellant was sentenced to a term
    of imprisonment of 12 months to be served in the community. The presiding judge
    also imposed a restitution order for $52,027.36.

The Grounds of Appeal

[13]

In
    this court, nine years after he pleaded guilty, the appellant, with the
    assistance of
amicus
, seeks to set aside his plea of guilty and
    conviction on the grounds that his plea was neither fully informed nor
    voluntary because:

i.

his counsel failed to provide him effective legal assistance; and

ii.

he failed to appreciate the effect and consequences of his plea due to
    his then medical condition.

The Claim of Ineffective Legal
    Assistance

[14]

To
    begin, the allegation of ineffective assistance. The complaint appears first to
    have emerged when the appellant reported senior counsel to the Law Society of
    Upper Canada alleging that senior counsel:

i.

overcharged
    him;

ii.

took advantage
    of his cognitive difficulties;

iii.

inappropriately
    transferred the file to junior counsel; and

iv.

forced him to plead guilty
    under duress.

The regulatory body found insufficient evidence of
    professional misconduct to warrant any further proceedings. The appellant also
    applied to assess the fees charged by senior counsel but abandoned this claim
    partway through senior counsels testimony, saying:

I was wrong to  to bring [senior counsel] or put him through
    this  threw all my anger towards him

[15]

Before
    this court, the appellant alleges several deficiencies in trial counsels
    performance in the process that culminated in a guilty plea. Failing to contact
    potential witnesses. Neglecting a full assessment of the appellants cognitive
    difficulties. Leaving unexplored potential
mens rea
defences.
    Pressuring the appellant to plead guilty, without devising any semblance of a
    trial strategy.

[16]

Trial
    counsel filed an affidavit for the proceedings before this court. He denies
    pressuring the appellant to plead guilty. When trial counsel began to appear on
    the appellants behalf, the matter was on the resolution track  and for good
    reason, given the strength of the Crowns case. Trial counsel considered
    possible defences to the charges against the appellant, including the
    appellants claim that his family was responsible for the fraudulent
    transactions. Counsel did not believe this defence was likely to succeed at
    trial  among other reasons, documents in the Crowns disclosure made it clear
    that the appellant was the ODSPs primary contact person. Counsels goal was to
    achieve a sentencing disposition compatible with the appellants wishes and
    instructions  no jail. That goal was achieved.

[17]

Senior
    counsel also filed an affidavit for this appeal, corroborating much of the
    evidence provided by trial counsel. Of particular note, senior counsel confirms
    that the appellants primary concern was avoiding a jail sentence, and states
    that he (senior counsel) remained involved with the file from start to finish,
    with routine updates from trial counsel throughout.

[18]

The
    respondent opposes the claim of ineffective assistance. The respondent submits
    that the appellants cognitive difficulties did not vitiate his ability to
    understand the case against him, communicate with counsel, or make active and
    conscious choices. Trial counsel, moreover, acted reasonably by pursuing a
    resolution of the case and avoiding trial, given the strength of the case
    against the appellant. Trial counsels performance was neither deficient nor
    did it cause a miscarriage of justice.

The Validity of the Guilty Plea

[19]

The
    second ground of appeal concerns the validity of the appellants guilty plea,
    independent of any deficiencies in the performance of trial counsel. The
    appellant, supported by
amicus
, submits that he did not grasp the
    effect and consequences of his guilty plea. He relies on the following
    statement he made on the final day of sentencing submissions:

IIm really sorry for  what Ive done. Um  I take full
    responsibility and because of this Ive disgraced myself and my family. I-I-Im
    from brain injuries, I-I-was  I guess I was really unsure of certain things,
    and  back then on  on my part.

This statement, according to the appellant and
amicus
,
    demonstrates that the appellant did not understand that he had a potential
mens
    rea
defence to the charges against him. The appellant also points to his
    medical difficulties to explain why he was unable to enter a voluntary and
    informed plea.

[20]

The
    respondent insists that the appellants guilty plea was voluntary and informed.
    In the respondents view, the guilty plea was the culmination of a lengthy
    process aimed at securing a conditional sentence  a process in which the
    appellant was an active and informed participant. The respondent also observes
    that the appellant, during multiple court appearances, failed to say anything
    about being pressured to plead guilty by trial counsel.

The Governing Principles: Voluntary and Informed Pleas of Guilty

[21]

A
    plea of guilty is
voluntary
if it represents the conscious volitional
    decision of an accused for reasons that the accused regards as appropriate.
    Pleas of guilty entered in open court in the presence of counsel are presumed
    to be voluntary. The presumption is rebuttable, as for example, by evidence of an
    accuseds limited cognitive capacity, a mental disorder or condition, or
    cognitive or emotional issues such as anxiety, depression, chronic pain, anger
    management problems and difficulty in communication. However, an accused who
    claims involuntariness must demonstrate that he or she lacked the capacity to
    make an active or conscious choice whether to plead guilty:
R. v. T. (R.)
(1992),
    10 O.R. (3d) 514 (C.A.), at p. 519;
R. v. M.A.W.
, 2008 ONCA 555, 237
    C.C.C. (3d) 560, at paras. 23-37. To enter a voluntary plea of guilty, an
    accused need only be able to understand the process leading to the plea,
    communicate with counsel, and make an active or conscious choice. Whether the
    choice to plead guilty is wise, rational or in the accuseds best interest is
    not part of the inquiry:
M.A.W.
, at para. 35;
R. v. Baylis
,
    2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47.

[22]

Where
    an accused on appeal challenges the validity of his guilty plea on the grounds
    of cognitive disability, there is unlikely to be any meaningful distinction
    between a finding that the accused had the requisite mental capacity to enter a
    valid plea and a finding that the accused exercised that capacity and entered a
    valid plea:
Baylis
, at paras. 49-50.

[23]

A
    plea of guilty is
informed
when an accused is aware of:

i.

the nature of the allegations;

ii.

the effect of the plea; and

iii.

the criminal and legally relevant collateral consequences of pleading
    guilty.

See,
R. v. Wong
, 2018 SCC 25, at paras. 3-4.

[24]

An
    accused who seeks to withdraw a guilty plea on the basis that it was uninformed
    because he or she was unaware of legally relevant consequences when the plea
    was entered must demonstrate subjective prejudice. To do so, an accused must
    show by affidavit that he or she would have either:

i.

proceeded to trial on the basis of a plea of not guilty; or

ii.

pleaded guilty but with different considerations.

To determine the veracity of an accuseds claim, a
    court can look to objective contemporaneous evidence:
Wong
, at para.
    6.

[25]

An
    accused may also seek to set aside a plea of guilty on the ground that counsel
    who represented him or her when the plea was entered provided ineffective legal
    assistance, thus rendering the plea involuntary or uninformed. To succeed in a
    claim of ineffective assistance of counsel, an appellant must establish:

i.

the facts that underpin the claim;

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
    (the
prejudice
component).

This is a burden that is not easily discharged
: R.
    v. G. (D.M.)
, 2011 ONCA 343, 105 O.R. (3d) 481, at paras. 100-101.

[26]

The
performance
component has to do with incompetence on the part of trial
    counsel. This inquiry proceeds from a strong presumption of competence, is
    tested against a standard of reasonableness, and accords no place to hindsight:
G. (D.M.)
, at para. 107.

[27]

The
prejudice
component serves as the starting point of the ineffective
    assistance analysis once the facts that underpin the claim have been
    determined. The prejudice component engages a determination of whether a
    miscarriage of justice has occurred, either because of some procedural
    unfairness in the proceedings, compromise of the reliability of the result or
    both:
R. v. B. (G.D.)
, 2000 SCC 2, [2000] 1 S.C.R. 520, at paras. 28,
    34. Absent a finding of prejudice, consideration of the
performance
component
    is otiose:
B. (G.D.)
, at paras. 29 and 34;
R. v. Lavergne
,
    2017 ONCA 642, at para. 17.

[28]

Challenges
    to the validity of pleas of guilty advanced for the first time on appeal
    require us to examine the trial record and any additional material tendered by
    the parties which, in the interests of justice, should be considered in
    assessing the validity of the plea:
T. (R.)
, at p. 519;
R. v.
    Hanemaayer
, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 16;
R. v. Sangs
,
    2017 ONCA 683, at para. 7.

[29]

In
    some cases, an appellants plea of guilty will appear to meet all the
    traditional tests for a valid guilty plea  unequivocal, voluntary and informed
     yet we retain a discretion, to be exercised in the interests of justice, to
    receive fresh evidence to explain the circumstances leading up to the plea that
    may demonstrate a miscarriage of justice has occurred. As a corollary of the
    authority to admit fresh evidence, we have the power to set aside the guilty
    plea in the interests of justice:
Hanemaayer
, at paras. 19-20.

Analysis

[30]

To
    take first the submission that the plea of guilty should be set aside on the
    ground that it was involuntary, the product of improper pressure from trial
    counsel and the appellants compromised mental state.

[31]

As
    we will briefly explain, this ground of appeal fails.

[32]

We
    begin, as the authorities teach, from the presumption that a plea of guilty
    entered in open court with the assistance of counsel is voluntary. The essence
    of the appellants claim of involuntariness resides in the combined or
    cumulative effect of two factors:

i.

pressure from trial counsel to plead guilty; and

ii.

the compromised mental state of the appellant.

Neither singly nor together do these factors warrant
    setting aside the appellants plea of guilty.

[33]

We
    will first address the allegation of pressure from trial counsel to plead
    guilty. In our view, the appellants complaint is neither borne out by the
    record compiled for this hearing nor capable of satisfying the standard to be
    met to succeed on this ground. We reach this conclusion for three reasons.

[34]

First,
    a guilty plea was bruited with senior counsel and the case pursued a resolution
    track with the appellants knowledge and consent before trial counsel became
    involved. The record makes clear that senior counsel never relinquished control
    of the appellants file.

[35]

Second,
    when the plea was entered, trial counsel explained to the presiding judge that
    he (trial counsel) had conducted a plea comprehension inquiry with the
    appellant. This included an understanding on the appellants part that the plea
    was entered freely and voluntarily. The appellant confirmed with the presiding
    judge the correctness of trial counsels statement.

[36]

Finally,
    the appellant appeared in court on several occasions between entry of his plea
    of guilty and the imposition of sentence. At no time during those appearances
    did he say anything about being pressured by counsel to plead guilty, or
    suggest that he was not guilty of the offence for which he was convicted.

[37]

Turning
    next to whether the appellants plea of guilty can be set aside as involuntary
    on account of his mental state when he entered his plea.

[38]

Recall
    that the limited cognitive capacity standard is controlling. It requires
    nothing more than that the appellant:

i.

understood the process in which the plea was entered;

ii.

could communicate with counsel; and

iii.

could make an active or conscious choice.

[39]

The
    record refutes any suggestion that the appellant did not understand the process
    in which he entered his plea of guilty, could not communicate with counsel or
    could not make an active or conscious choice.

[40]

Counsel
    were aware of the appellants physical and mental health issues. Their
    testimony discloses that the appellant had a significant grip on what the
    charges were all about, their factual basis and the evidence the Crown was
    alleging proved them. He was able to follow and participate meaningfully in
    discussions about disclosure and legal issues. The memos counsel wrote
    following communications with the appellant indicate that he was giving
    instructions and discussing various aspects of the case, among them,
    conditional sentences, Legal Aid and electronic monitoring.

[41]

This
    evidence persuades us that the appellants medical issues did not render his
    plea involuntary.

[42]

We
    also reject the submission that the appellants plea of guilty should be set
    aside as uninformed.

[43]

The
    record demonstrates that the appellant and senior counsel discussed having a
    trial in December 2008 after trial dates had been set. However, in early
    January 2009, the appellant told trial counsel that he wanted to plead guilty
    and receive a conditional sentence. When the plea was entered, the appellant
    agreed that he understood he had the right to have a trial and that he was
    giving up this right by entering a plea of guilty. The record does not disclose
    any criminal or legally relevant collateral consequences of which the appellant
    was unaware when he pleaded guilty. Nor does it indicate that the appellant
    misunderstood the nature of the allegations against him.

[44]

Finally,
    and for related reasons, we reject the claim of ineffective assistance of
    counsel. We do not consider this to be a case in which the reception of the
    fresh evidence demonstrates a miscarriage of justice.

[45]

To
    begin, as explained above, the appellant has failed to establish many of the
    facts relied upon in support of his allegation of ineffective assistance  for
    example, the claim that trial counsel pressured him to plead guilty.

[46]

Turning
    to the
prejudice
component of the ineffective assistance inquiry, we
    acknowledge that the appellant need not show a viable defence to the charges
    against him to have his plea set aside  the prejudice lies in the fact that
    in pleading guilty, the appellant gave up his right to a trial:
R. v.
    Rulli
, 2011 ONCA 18, at para. 2;
R. v. Quick
, 2016 ONCA 95, 129
    O.R. (3d) 334, at para. 38. However, when considering the
performance
component,
    we are unable to agree that trial counsels conduct fell below a standard of
    reasonableness. The case against the appellant was largely documentary. It was
    also a formidable case to answer. The allegations were well documented,
    verified by a variety of witnesses and included a combination of the
    appellant's own statements and inaccurate earnings verification reports signed
    personally by the appellant. In these circumstances, trial counsels chosen
    strategy  pursuing a resolution of the matter via plea negotiation, after
    considering possible defences and with the consent of the appellant and senior
    counsel  fell within the vast expanse of reasonable professional assistance:
G. (D.M.)
, at para. 107.

Conclusion

[47]

For
    these reasons, we dismissed the appeal. We are indebted to
amicus
for
    his focused and able submissions in oral argument, and to both
amicus
and
    counsel for the respondent for their very helpful facta and the record they
    jointly prepared to deal with the ineffective assistance claim.

David
    Watt J.A.
G. Pardu J.A.
L.B. Roberts J.A.


