2005 CarswellOnt 7747
Her Majesty The Queen v. Czeslaw Giczewski
Ontario Court of Justice
Clark J.
Heard: November 29, 2005
Oral reasons: November 29, 2005
Docket: Brampton 03-14778-00
Counsel: R. Lemke, for Crown
L. Sabsay, for Czeslaw Giczewski
Subject: Criminal
Criminal law --- Pre-trial procedure -- Pleas -- Guilty plea -- Duties of court -- Permitting withdrawal of plea
Accused drove home after leaving scene of minor motor vehicle accident -- Police found accused to be under influence of alcohol some 17 minutes later -- Accused was charged with failing to stop with intent to avoid liability, impaired driving, and driving with excessive alcohol -- Accused pleaded guilty to charge of impaired driving, but subsequently sought to have plea struck -- Accused had not paid full retainer and had not met counsel before day of trial -- Counsel was about two hours late and spent only half-hour with accused while assisted by interpreter -- Accused believed adjournment would not be granted and that he had no defence -- Accused had always intended to plead not guilty on basis that he drank only after arriving home, but he did not get to tell counsel his side of story -- Accused was under impression that he would go to jail if he did not plead guilty -- Accused brought application to strike guilty plea -- Application granted -- Plea was struck despite communication with experienced counsel through properly accredited interpreter, written instructions, and plea inquiry -- Accused was placed at disadvantage by late arrival of counsel -- Accused had not paid full retainer and likely viewed himself as not being in position of strength -- Accused was left with impression that his situation was hopeless and pleaded accordingly -- Cases such as this often proceeded to trial even when they appeared hopeless -- Foundation for defence existed -- Administration of justice was best served by giving accused benefit of doubt and allowing him to advance defence -- Justice had been sacrificed for expediency and accused could not be said to have made informed decision.
Cases considered by Clark J.:
R. v. B. (W.) (2001), 2001 CarswellOnt 5008 (Ont. S.C.J.) -- considered
R. v. Ceballo (1997), 1997 CarswellOnt 5003, 14 C.R. (5th) 15 (Ont. Prov. Ct.) -- followed
R. v. Husain (2004), 2004 CarswellOnt 5112 (Ont. S.C.J.) -- considered
R. v. Lodge (1996), 7 O.T.C. 314, 1996 CarswellOnt 2665 (Ont. Gen. Div.) -- considered
R. v. Toussaint (1984), 40 C.R. (3d) 230, [1984] C.A. 290, 16 C.C.C. (3d) 544, 1984 CarswellQue 16 (Que. C.A.) -- considered
APPLICATION by accused to strike guilty plea.
Clark J. (Orally):
1 I'm prepared to make my ruling in the matter of Czeslaw Giczewski. The defendant was charged on November 24 th, 2003, with the offences of fail to stop with intent to avoid civil or criminal liability; impaired driving; and driving over 80.
2 A plea of guilty was entered on March 7 th, 2005, to the charge of impaired driving. It was contemplated that the other charges were to be withdrawn on the sentencing date. Sentencing was remanded to May 30 th, 2005, so that a pre-sentence report could be prepared. Subsequently, the defendant had someone on his behalf contact Mr. Hicks, or at least the Byer's law office, to advise that he wished to have his plea of guilty struck.
3 The essence of the defendant's application is that he always intended to plead not guilty to these charges. He believed he had a defence in the nature of not having consumed any alcohol until he arrived home after being involved in a minor motor vehicle accident. Simply put, in the seventeen minute period from the time he left the scene of the accident until the police arrived at his residence to investigate the matter, he had then consumed a significant amount of alcohol.
4 The defendant takes the position that he was led to believe by his counsel, whom he had only met on the day of trial, and who had arrived approximately two hours late, having been involved in another court in another jurisdiction, and after having spent approximately thirty minutes with him with the assistance of the Polish interpreter, and having provided written instructions to counsel, that he should enter a plea of guilty to the impaired driving charge.
5 He did so for the following reasons: First, he believed that he would not successfully obtain an adjournment of this trial. Second, he believed or was advised that a conviction was a foregone conclusion because counsel had told him effectively he had no defence to the charges. Third, he never had an opportunity or chance to tell counsel his side of the story. Fourth, it was his impression that he would most assuredly go to jail if he did not plead guilty. His affidavit materials and viva voce evidence effectively suggest that the defendant had a fear of going to jail. The fact that he was under tremendous pressure to make a decision because the Crown was opposing an adjournment was at the foundation of the decision that he made on March 7 th, 2005.
6 The position of the Crown Lawyer is that this was a valid and informed plea of guilty and that all procedural safeguards had been followed. On the scheduled date for sentencing, May 30 th as the Court recalls, new counsel for Mr. Giczewski, Mr. Sabsay appeared. He had previously advised Mr. Giczewski to not follow through with the preparation of the pre-sentence report, quite appropriately, pending this application to strike the plea. A date was then selected to argue this matter, the first mutually convenient date being August 31 st, 2005. At that time evidence was called from Mr. Hicks who had been counsel for Mr. Giczewski for purposes of the guilty plea and Ms. Brebenjiac(ph) who had been the Polish interpreter involved in the proceedings on March 7 th, and who was involved in assisting counsel to discus this matter and to take instructions from Mr. Giczewski.
7 The matter was then remanded to today's date, again, one of the earlier or earliest mutually convenient dates to all parties. On this date viva voce evidence was given by Mr. Giczewski. Submissions were made by counsel and casebooks had been prepared and provided to the Court in advance of today. The Court will say from the outset that it would like to be more precise and to perhaps provide more cogent written reasons for this ruling, while at the same time the Court does not wish to add to the significant passage of time in order to do so. This matter deserves to be dealt with today in the interests of justice. Also at the outset, the Court would like to both thank and commend counsel for their professionalism and their careful and sensitive and sensible advertence to the delicate competing interests in cases such as this.
8 Perhaps in a practical sense, the irony of this matter is that almost two-thirds of any sentence that might have been imposed by the Court would now have been served, at least as it relates to a suspension of a licence in the event of a conviction. It is interesting that in cases of this nature and having reviewed the case law that some of the golden threads of our justice system are called upon to be repeated, namely, "justice must not only be done, but must be seen to be done." Equally important is that, "it is better that nine guilty men go free, than to convict one innocent man." The case law and the considerations in this matter evoke that type of thinking.
9 The Court would like to outline some of the general principles that must be considered in matters of this nature. First, the onus on establishing the plea to be invalid is on the applicant. Second, the plea constitutes a formal admission of the essential legal ingredients of the offence. Third, where there is doubt that the defendant knows what he is doing when entering a plea the Court should make inquiries. Fourth, when the defendant is represented by counsel, the Court is entitled to presume that the plea was validly made. However, a guilty plea should be permitted to be withdrawn or set aside when it results in a miscarriage of justice. A guilty plea has both a procedural and an evidentiary aspect. When a defendant pleads guilty, the plea constitutes a formal admission to the essential legal ingredients of the offence. As well, by pleading guilty the defendant effectively consents to a conviction being entered without the necessity of a trial and waives the attendant procedural safeguards.
10 Next, there are practical and valid policy considerations why a Court should not allow a guilty plea to be withdrawn, except in exceptional circumstances. Both the defendant and the state benefit when a guilty plea is entered. For the defendant, additional charges may be withdrawn or a reduced sentence recommended. A guilty plea may also be treated as a mitigating factor on sentence. The benefit to the state is that judicial resources and Crown resources are saved. The Court must always be mindful however, that the importance of a guilty plea is more than an administrative convenience; it must promote the values inherent in the criminal trial process.
11 Another factor for the Court to consider is where the defendant is represented by trial counsel who is an experienced criminal defence lawyer, as is the situation in this case. Another factor for the Court to consider is that the defendant's first language is not English. In the circumstances, this defendant had the benefit of a Polish Interpreter, a Court accredited Polish Interpreter. In any event it would appear that language is not an issue in this application. The evidence would suggest that the defendant had no difficulty comprehending, nor did counsel indicate that he was unable to communicate or receive proper instructions.
12 When considering factors that militate against granting this application, the Court has considered first, that Mr. Giczewski is in large measure the author of much of what happened. He did not respond to a letter from his counsel at the time Mr. Byers -- which letter had been prepared and presumably sent on December 22 nd, 2004. As the Court understands his response in the materials that were filed, Mr. Giczewski was scared because he had not paid his lawyer, and that he had either just started work or was still unable to meet the retainer required. The phrase "burying his head in the sand," has been used either in the course of the presentation of this case or in the written materials.
13 The second factor that militates against this application being successful, is that upon this matter being held down for a reasonable period of time, Mr. Giczewski, through his counsel, advised very clearly that a plea was to be entered. A plea inquiry was conducted by the Court, and indeed counsel articulated that the same plea inquiry had been conducted by himself. What must be considered however, is whether these were mere incantations and were merely gone over in a perfunctory fashion? More will be said about this shortly.
14 Another factor that is not favourable to the defendant, is that the Polish Interpreter, on March 7 th, in no way added to any confusion and in fact facilitated instructions being obtained. The next factor to consider, potentially unfavourably to the applicant, is the fact that written instructions were then obtained, ostensibly to again provide a procedural and substantive safeguard to there being any equivocal interpretation to Mr. Giczewski's instructions to plead guilty.
15 The Court then of course must consider various factors that potentially favour an application to strike the plea. At the outset of the proceedings on March 7 th, it was apparent that Mr. Giczewski was not prepared to proceed to trial. He was effectively seeking an adjournment stating to the Court that although he was unable to retain fully the services of Mr. Byers or members of his office, he had taken it upon himself to consult with another counsel who spoke his first language. The consultation was hardly meaningful. A brief inquiry was made, and likely in such an untimely way that counsel was unable to even attend Court even as a courtesy, to advise that he would be prepared to represent Mr. Giczewski's interests if the matter could be adjourned. Nonetheless, Mr. Giczewski indicated to the Court that if the matter could be adjourned his proposed new counsel could attend the next week. Mr. Giczewski should not be cloaked with the knowledge or awareness that his trial could be by appointment.
16 The Court is left to some degree to speculate as to what it might have done had a formal adjournment application been put forward. On one hand the Court might well have denied the adjournment and would have then provided all the necessary trial and procedural safeguards that would be afforded any self-represented accused. On the other hand, the Court might well have been guided by the considerations set out in the case of R. v. Husain [2004 CarswellOnt 5112 (Ont. S.C.J.)], a decision of Justice Hill in this jurisdiction, dated December 7 th, 2004, considering a number of factors, one of which was to determine whether there was any evidence of an intent to manipulate the system by the accused. The Court was not left with the impression at any time that Mr. Giczewski was attempting to manipulate the system.
17 The Court also considers that this matter was not marked "with or without counsel," suggesting two things: One, that counsel was prepared to commit to this matter regardless of retainer issues being completed, and two, that Mr. Giczewski had never been advised, at least by the Court that his matter would proceed on March 7 th regardless. Another factor to consider is that counsel Mr. Hicks, perhaps through no fault of his own, but merely being given his own instructions by his principals or colleagues on that day, showed up later that day, rather than referring to it as showing up late, which is perhaps unfair. Nonetheless, this case became more charged with a sense of urgency when counsel was unable to be present either prior to court on that date, which would be the usual time for counsel to meet with a client and to have an opportunity to discuss the possibility of narrowing issues or even resolving issues prior to court. The Court draws from this that perhaps at this point, Mr. Giczewski was already placed at a disadvantage. It is likely that Mr. Giczewski, recognizing that he was not coming from a position of strength in that he had not paid a full retainer to this particular law office, felt that he may not be entitled to the full menu of services.
18 The next factor the Court considers is that Mr. Hicks, in his evidence indicated, and the Court accepts, that he recognized that retainer issues were, to use his words "a landmine" and that he had advised his colleague or principal that he did not and would not place himself in a situation that might compromise that fact.
19 Another factor, is that as a result of the exchange with counsel, whom Mr. Giczewski had never met, and over a period of approximately thirty minutes where he knew he had to make an informed decision, he was left with the impression, and the Court accepts substantially that his plea was one out of a degree of hopelessness. That particular phrase is actually used in the case of R. v. Lodge, [1996] O.J. No. 2365 (Ont. Gen. Div.), which is one of the cases presented by the defence. Another passage is taken from the case of R. v. B. (W.), [2001] O.J. No. 587 (Ont. S.C.J.), where the Court determined that the defendant in that case was frightened by the situation, and pleading guilty was an easy way out. The Court in B. (W.) further stated that there was little time for reflection when presented with the chance to enter a guilty plea.
20 The Court notes as well that many trials relating to these types of charges do proceed even if apparently hopeless, given the nature of legislation and often the lack of distinction or benefit between a plea of guilty and a trial on its merits. Many individuals give instructions, or counsel take it upon themselves, to seek instructions that it is appropriate to make the Crown prove its case at trial.
21 Another factor, is that it would appear from the evidence that Mr. Hicks took the position that he could not competently represent Mr. Giczewski, and conduct a trial on this date. Although not articulated, the apparent reason would be that he had not had or spent sufficient time to develop that is a viable position or option. It may be that the interests that were being protected were no longer those of the defendant, but perhaps even inadvertently, interests of retainer might still have been a consideration in not proceeding to trial. The Court is not prepared to make that finding, but it provides a lingering and insoluble point.
22 The Court considers as well, the case of R. v. Toussaint (1984), 16 C.C.C. (3d) 544 (Que. C.A.). At page two, the Court states that there is a fine line between a total absence of evidence to support a defence and where there is some evidence of one. In the present case, there is some evidence to constitute a foundation for a defence. The administration of justice would be best served if the Court gave the defendant benefit of the doubt and allowed him to advance his defence or his position.
23 The Court has also considered that no matter what happens, an accused should feel that his or her legal position has been improved by having had counsel. An individual should not be left with the impression that his position has been prejudiced. Trials are meant to be conducted in an informed way. Indeed, all court proceedings are to be conducted in an informed way, and upon sober reflection of all options and factors. To do otherwise, is potentially compromising justice.
24 In the circumstances of this case, the Court finds that justice has been sacrificed for expediency. Simply put, this was a rush job. Although thorough within the thirty minutes spent, in the grand scheme of things, it created an atmosphere of some confusion. It would appear that all the outward badges or indicia supportive of trial and procedural fairness were extended to Mr. Giczewski. His responses to the plea inquiry reinforced that outward position as being sound.
25 Upon considering the evidence in this application, and the dynamics surrounding the way in which the case was discussed and the written instructions were provided, the Court cannot be satisfied that the cumulative effect of all of those actions and words amounted to an informed decision. Therefore, the Court cannot be satisfied that fairness was extended to Mr. Giczewski.
26 The Court is left asking itself the rhetorical question, "how could Mr. Giczewski have fully appreciated his jeopardy, or the possible consequences, when he had not discussed these with counsel of his choice?" He had that opportunity on March 4 th, three days before the trial, but the Court understands that the substance of that discussion had to do with matters unrelated to his side of the story or his defence. In the case of R. v. Ceballo , [1997] O.J. No. 5035 (Ont. Prov. Ct.), there is meaningful analysis on pages eight through ten by Justice Fairgreave. This Court echoes the approach taken in Ceballo. The voluntary and unequivocal nature of the plea, on its face, appeared appropriate, but the defendant believed that it was the best way to put the matter behind him and to minimize the potential consequences for himself.
27 The Court also finds that it is fair to say that as a result of the advice he received from his lawyer, the defendant had no confidence that a trial would ascertain the truth of the matter or produce a just disposition. Despite the plea inquiry, the written instructions, and the fact that there were no language issues, it is unfortunate that justice was not served in this case and that this case somehow fell through the cracks. Mr. Giczewski was subjected to pressures that interfered with the exercise of appropriate judgement by him. Although the Court was not necessarily left with this impression, Mr. Giczewski must have been. He could not expect the same attention or vigorous defence that he might otherwise have, having regard to his retainer issues and having regard to the fact that he had already considered that he wished to retain other counsel. Perhaps as significant is the fact that his counsel at the time on March 7 th, indicated that he had not prepared for trial, or to be more charitable, had conceded that he or his office would not be able to competently represent Mr. Giczewski's interests should the matter proceed to trial. As Justice Fairgreave has indicated in Ceballo, knowing that his lawyer had not prepared for trial, he felt at the climactic moment that there was, "no one in his corner." To also borrow the wording of Justice Fairgreave at page ten of Ceballo, while the defendant may have understood his options and the consequences of a guilty plea, he made the wrong choice based on the improper pressures that had been placed on him.
28 The Ceballo case goes on to say that there is serious reason to doubt the defendant's guilt and that it would be wrong to conclude that the testimony given in trial would inevitably be rejected. The Court in the present case is not prepared to speculate on the outcome except to say that a defence was to be proffered however meritorious or futile it may be. The importance is that the defendant be entitled to his day in court.
29 Accordingly, the application is granted and the matter will be placed back before the Court to set a new date for trial and it will be not only be ordered, but expected that this matter will be expedited for that purpose. The plea of guilty therefore is struck.
Application granted.
END OF DOCUMENT
