The Defence Toolkit – March 18, 2023

I. EVIDENCE

[12] D.C. Stojic searched a coat closet in the hallway, where he found a quantity of cash which was referred to during the hearing as the “closet money.”

[13] In the front left pocket of a jacket, D.C. Stojic found two bundles of cash wrapped in elastic bands. The smaller bundle contained papers bills in $20, $50 and $100 denominations. All of the bills of each denomination were kept together.

[14] The larger bundle contained polymer bills in $20 and $100 denominations with the bills of each denomination kept together. D.C. Stojic agreed that in the photographs, there did not appear to be in any $50 dollar bills in the polymer bundle.3 However, he later testified that he had made a note about there being $50 bills in both bundles. In fact, his notes had said: “Small one has 20s, 50s, 100, other cash packed in a similar way with denominations.” In his testimony, he suggested that there may have been 50-dollar bills that were not apparent on the photographs.

[15] D.C. Stojic placed the bundles of money and the bags of cocaine he had located in the same property bag, which he did not seal. He then transported all of the items to the police station. At no time did he remove any money from either bundle.

[16] D.C. Stojic testified that it was common practice to put smaller amounts of seized money in an unsealed property bag for transportation to the police station. Larger amounts, which D.C. Stojic believed meant $10000 or more, were to be put into sealed bags and sent to the Asset Forfeiture Unit. D.C. Stojic did not believe that the money he seized was over $10000 because he usually used debit cards and had not “handled cash in years.” He accepted that he was wrong.

[17] When shown the photograph of all of the seized items laid out on the table, he identified the two bundles of bills on the very right as the ones he seized from the closet.4

[32] D.C. Dhaliwal identified the property report he created for the seized money.7 He testified that most of the information at the top of the report, such at the applicant’s name, date of birth and address, was automatically populated by the system. The report had a column headed “Property Receipt No.” which had nothing written below it. D.C. Dhaliwal testified that this was an “oversight” on his part.

(a) The Applicant

[71]  The applicant does not claim to know the denominations in the larger bundle.

[72]  I accept the applicant’s evidence that there was $15000 in polymer bills in the closet. According to him, there were 190 bills (50 X $20 and 140 X $100), and the bundle depicted in the photograph appears to be consistent with that number based on my examination of the cash exhibit.19 It appears from the photograph that about three quarters of the bills are brown and one quarter is green, which is consistent with the denominations identified by the applicant.

[73] I do not accept the applicant’s evidence that there was $1800 in paper money. The applicant testified that there was initially $1200 in $20 bills but only $920 in the money that was seized, which would mean that $280 worth of $20 bills are missing. However, if there was initially a total of $1800 and now a total of $1570, only $230 would be missing. If the applicant is correct about the number of $20 bills there were, he could not be correct about the total amount. I do not, however, find that the applicant was intentionally trying to mislead the court. Given the limited purpose for which this money was to be used, it is not surprising that he would not keep careful track of the total amount.

(ii) Conclusions Respecting the Money

F. Was There a Breach of Section 7 of the Charter?

[99] In my view, the remedy of partial exclusion would be inadequate in the circumstances and would require the court to draw an artificial line between the seizure of some of the drugs and the rest of the search. This is a “residual category” case where there is prejudice to the integrity of the justice system and the appropriate remedy must be directed to addressing that prejudice, as was explained in Babos, at para. 39:

Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[102] The third part of the test in Babos, which requires a balancing of the interests favouring a stay with those favouring a trial on the merits, is only required where there is still uncertainty over whether a stay is warranted. However, the Court in Babos, at paras. 41-43, suggested that the balancing will usually be required in cases where the residual category is in issue, and adopted the following from R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 60:

In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. [Emphasis added.]

[1] This appeal concerns whether and, if so, why this Court should set aside the appellant’s guilty pleas and quash his convictions for possession of controlled drugs for the purpose of trafficking. The appellant, Beverly Keith Klassen, and his friend, Janessa Rae Marchuk, were tried together on those charges on a three-count Information. Following adverse Charter rulings on admissibility, Mr. Klassen pleaded guilty to all three counts and the trial continued against Ms. Marchuk. Mr. Klassen testified and claimed sole responsibility for the offences, but the trial judge convicted Ms. Marchuk. However, she later stayed the proceedings on the basis that  Ms. Marchuk’s s. 11(b) Charter right to be tried within a reasonable time, as contemplated in R. v. Jordan, 2016 SCC 27, had been infringed.

[2] On appeal, Mr. Klassen asks this Court to set aside his guilty pleas and quash his convictions. In his submission, allowing the convictions to stand would amount to a miscarriage of justice because his trial counsel provided him with ineffective assistance and his pleas were uninformed. According to Mr. Klassen, armed with proper information he would not have pleaded guilty, the outcome of the proceedings likely would have been different, and therefore he was prejudiced. Consequently, he submits, we should set aside his guilty pleas, allow the appeal, and direct a new trial.

[3] In my view, Mr. Klassen’s guilty pleas were uninformed because he was unaware of their direct legal consequences, namely, that he was forfeiting his right to appeal the Charter rulings and to pursue a Charter remedy based on s. 11(b) and Jordan principles. It is also reasonably possible that he would not have pleaded guilty had he been aware of the consequences of doing so. As a result, Mr. Klassen was prejudiced and allowing his pleas to stand would amount to a miscarriage of justice pursuant to the principles articulated in R. v. Wong, 2018 SCC 25. For that reason and those that follow, I would set aside the guilty pleas, quash the convictions, allow the appeal, and direct a new trial.

[22] Immediately following delivery of the ruling, the drugs were admitted into evidence and the Crown closed its case. At that point, trial counsel advised the judge that he had been instructed to change Mr. Klassen’s pleas to guilty on all three counts of the Information. The judge asked Mr. Klassen if that was correct and he replied “[y]es” to her question. No further plea inquiry was conducted and guilty pleas were recorded on all three counts.

[23] The presumptive Jordan ceiling was reached on July 25, 2018, two days before Mr. Klassen entered his guilty pleas.

Proceedings Following Guilty Pleas

[24] After Mr. Klassen entered his guilty pleas, the trial was adjourned to allow counsel for Ms. Marchuk to consider whether to call Mr. Klassen to testify. When it resumed on July 30, 2018, Mr. Klassen testified as a witness for the defence. In doing so, he acknowledged selling drugs on the night in question, but claimed that Ms. Marchuk was not involved and he was simply giving her a ride when Constable Sylka stopped them. Ms. Marchuk testified to generally similar effect.

[25] On December 5, 2018, Ms. Marchuk completed her testimony and her counsel made final argument. On January 16, 2019, the judge delivered oral reasons for judgment. She rejected Mr. Klassen and Ms. Marchuk’s testimony, found they were in joint possession of the drugs for the purpose of trafficking, and convicted Ms. Marchuk on all three counts.

[26] On February 25, 2019, Ms. Marchuk brought an application seeking a stay of proceedings for unreasonable delay based on s. 11(b) of the Charter and the principles articulated in Jordan. On April 23, 2019, the judge sentenced Mr. Klassen to 15 months of incarceration. On June 21, 2019, she heard Ms. Marchuk’s Jordan application. On September 16, 2019, she granted the application and stayed the proceedings.

[27] In her ruling on Ms. Marchuk’s Jordan application, the judge noted that the total delay from the date the Information was sworn (January 25, 2017) to the date the trial completed (January 16, 2019) was 23 months and 21 days, not accounting for defence delay or exceptional circumstances. In other words, the total delay under consideration was 171 days over the presumptive Jordan ceiling, which, as noted, was reached two days before Mr. Klassen entered his guilty pleas. After reviewing the history of the proceedings, noting that the original two-day trial estimate was inadequate, and attributing 91 days of delay to Ms. Marchuk, the judge expressly declined to speculate on “whether a decision could have been rendered by the court on July 30th if defence was able to make a decision on July 27 on calling a case”. She also characterized the period from May 15, 2018 to July 30, 2018 as a discrete event and deducted 75 days as result. She concluded her ruling by finding that “[b]ased on the court’s calculation this puts the case five days over the Jordan ceiling”. That being so, she directed a stay of proceedings.

On Appeal

Fresh Evidence Application

[28] In advancing his appeal, Mr. Klassen relies on two affidavits that he swore, two affidavits sworn by trial counsel, and their respective cross-examinations as fresh evidence. The first two affidavits were sworn and filed before the main factums were filed. The second two were sworn in response to a memorandum from the division originally assigned to hear the appeal. In the memorandum, the division noted that both parties acknowledged the presumptive ceiling in Jordan had passed when Mr. Klassen pleaded guilty and asked that they address the advice, if any, provided on the Jordan issue prior to entry of the pleas.

[29] The parties agree that the fresh evidence is admissible based on the principles outlined in Wong (paras. 6, 19) and R. v. Ball, 2019 BCCA 32 (paras. 100–104).

[30] In my view, Mr. Klassen and trial counsel were both straightforward, generally credible witnesses. Although their memories differed on some details, their accounts were substantially similar in most material respects. Based on their affidavits and their testimony, I would find the following facts:

• When Mr. Klassen pleaded guilty, trial counsel knew that the presumptive Jordan ceiling had passed, but did not believe a Jordan application would succeed given the number of defence adjournments, the increasingly complicated nature of the case, and the fact that two accused were involved. It did not occur to trial counsel that if Mr. Klassen continued on with the trial rather than pleading guilty his chances of succeeding on a Jordan application brought later in the proceedings might improve.
• When Mr. Klassen pleaded guilty, trial counsel did not tell him that the presumptive Jordan ceiling had passed or discuss bringing a Jordan application at the time or later in the proceedings. In particular, he did not advise Mr. Klassen that he could seek a Charter remedy based on s. 11(b) and Jordan principles, but that he would lose the right to do so by entering the guilty pleas.
• Mr. Klassen entered his guilty pleas based on the information and advice he received from trial counsel.
• After he pleaded guilty, Mr. Klassen learned that Ms. Marchuk was seeking a stay based on Jordan principles. When he questioned trial counsel about the Jordan issue, trial counsel told him the Jordan clock had stopped running when he entered his guilty pleas.

Discussion

Legal Framework

Challenging a Guilty Plea on Appeal

[36] As the Court emphasized in Wong, guilty pleas play a centrally significant role in the Canadian criminal justice system. For an accused, pleading guilty waives the right to require the Crown to prove its case beyond a reasonable doubt and surrenders the right to make full answer and defence, including by pursuing Charter-based arguments. For society, maintaining the finality of guilty pleas helps to ensure the stability, integrity, and efficiency of the administration of justice because most criminal cases are resolved by guilty pleas. Given their central significance for the criminal justice system as a whole, a court may accept a guilty plea only if it is “voluntary, unequivocal and informed”: Wong at paras. 2–3, 43, 62; R. v. Hexamer, 2018 BCCA 142 at para. 57; s. 606(1.1), Criminal Code.

[37] For a guilty plea to be informed, the accused must be aware of the nature of the allegations, and the effect and legal consequences of the plea. The consequences of the plea include those collateral consequences that flow from the conviction and bear on sufficiently serious legal interests of the accused: Wong at paras. 2–4, 43, 63, 96–97; R. v. Lam, 2020 BCCA 276 at paras. 7, 75, 79. For example, in Wong the guilty plea was uninformed because the appellant was unaware of the legally relevant collateral consequences of his conviction and sentence in connection with immigration when he pleaded guilty. In Lam, the guilty plea was uninformed because the appellant was unaware that as a significant and direct legal consequence of his guilty plea he would forfeit his right to challenge the validity of a search warrant.

[38] Canadian courts have also repeatedly found guilty pleas uninformed when the accused entered them based on a mistaken belief that doing so would not forfeit the right to appeal an adverse ruling on the admissibility of evidence: see, for example, Duong; R. v. Chuhaniuk, 2010 BCCA 403; R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.). In Duong, Justice Rowles explained the proper procedure for an accused to follow to preserve the right to appeal an adverse ruling on admissibility, namely, to admit the underlying facts and invite the judge to convict: at para. 8.

[39] This Court has jurisdiction under s. 686(1)(a)(iii) of the Criminal Code to set aside a guilty plea if allowing it to stand would amount to a miscarriage of justice: Wong at para. 1. As Justice Fitch stated in Lam, s. 686(1)(a)(iii) concerns itself with the prejudicial impact of an event relating to a trial, and extends to events that lead to actual and apparent unfairness: at para. 78.

[41] The Wong framework for striking an uninformed guilty plea involves a two- step analysis. First, the impugned plea must be shown to be legally invalid because the accused was misinformed about sufficiently serious information. Second, prejudice serious enough to constitute a miscarriage of justice must be shown. The first step – whether the unknown information falls within the scope of what an accused must know to give an informed plea – “objectively assesses the seriousness of the unknown legal consequence”: Wong at para. 34. At the second step, the Court assesses whether there is a reasonable possibility the accused would have proceeded differently had they been aware of the legally relevant consequence, either by declining to plead guilty or by pleading guilty but with different conditions. In other words, the standard of proof is a “reasonable possibility” and the test for prejudice is purely subjective. Accordingly, unlike the objective approach adopted to assessing the quality of the unknown information when determining whether a guilty plea is uninformed, at the second step of the analysis the Court assesses prejudice by asking if the evidence establishes a reasonable possibility that this accused has suffered prejudice viewed exclusively from their subjective perspective: Wong at paras. 4–6; 26; 33-36; Lam at paras. 80, 87, 89, 93.

[42] …the majority held that the prejudice inquiry is purely subjective to the accused in light of the fundamentally subjective and deeply personal nature of a decision to plead guilty. However, it stated, the credibility of an accused’s subjective claim may be assessed objectively: at paras. 6, 11, 12, 25–26, 36.

[43] The majority in Wong went on to state that where the court accepts the veracity of an accused’s claim that they would have pleaded differently armed with the relevant information, “the accused has demonstrated prejudice and should be entitled to withdraw his or her plea”: at para. 20. It also observed that the accused “need not show a viable defence to the charge in order to withdraw a plea on procedural grounds” because the prejudice “lies in the fact that in pleading guilty, the [accused] gave up [the] right to a trial”: at para. 23, citing R. v. Rulli, 2011 ONCA 18 at para. 2. In other words, the majority explained:

[23] ... Requiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty. An accused is perfectly entitled to remain silent, advance no defence, and put the Crown to its burden to prove guilty beyond a reasonable doubt. It does not make sense to let an accused proceed to trial at first instance without any defence whatsoever, but to insist on such a defence to proceed to trial when withdrawing an uninformed plea. Though the decision to go trial may be unwise or even reckless, we are not seeking to protect an accused from himself or herself. Rather, we seek to protect an accused’s right to make an informed plea.

[Emphasis added.]

[44] In rejecting the minority rationale for adopting a modified objective approach to assessing prejudice, the majority discussed the Court’s guidance in R. v. Taillefer, 2003 SCC 70. In doing so, it emphasized the nature of the salient prejudice in cases involving uninformed guilty pleas, namely, the impact of the misinformation on the accused’s decision to plead guilty:

[35] ... prejudice – that is, whether the accused’s being uninformed impacted the plea – is assessed subjectively by considering whether the accused would have taken a meaningfully different course of action in pleading. This is entirely consistent with Taillefer, where prejudice was similarly assessed by considering whether the accused would have made the same plea. In particular, a subjective analysis conforms to the direction in Taillefer that “the breach must bear on the accused’s decision to enter the guilty plea”, that courts must assess “the impact of the unknown evidence on the accused’s decision to admit guilt”, and that the test is whether “there was a realistic possibility that the accused would have run the risk of a trial, if he or she had been” informed (para. 90 (emphasis added))...

[Emphasis in original.]

[45] An appellant who challenges a guilty plea for the first time on appeal bears the onus of establishing valid grounds for the appellate court to set it aside and quash the convictions. Where the appellant claims that the guilty plea is invalid and should be set aside because it was uninformed, affidavit evidence to that effect is generally required for the appeal to succeed: Wong at paras. 6, 19, 30; Lam at paras. 88–90; Zaworski at paras. 4, 54.

[46] …focusing on whether ineffective assistance was the source of the invalidity “only confuses the analysis”: Wong at paras. 24, 60; see also, Lam at paras. 69–72 and Zaworski at para. 48.

Were Mr. Klassen’s guilty pleas uninformed and, if so, on what basis?

[52] I am unclear on the reasoning behind Crown counsel’s submission that Mr. Klassen’s guilty pleas were not uninformed even if he was unaware that the presumptive Jordan ceiling had passed and that he would forfeit his right to pursue a Charter remedy based on s. 11(b) and Jordan principles by pleading guilty. This is particularly so bearing in mind the Crown’s argument in its main factum that when Mr. Klassen pleaded guilty he voluntarily gave up the right to raise Charter-based arguments “when it would have been apparent that the Jordan ceiling had been reached” and he decided “to instead appeal the Charter ruling” (emphasis added). In other words, prior to receiving this Court’s request for submissions on the Jordan issue, the Crown relied on the assumption that Mr. Klassen knowingly chose to give up pursuit of a Charter remedy based on s. 11(b) and Jordan principles when arguing that he was not prejudiced by uninformed guilty pleas. In my view, in doing so the Crown was suggesting Mr. Klassen knew the Jordan ceiling had been reached and for that reason his pleas were not uninformed.

[53] As I have explained, when an appellant asks this Court to set aside a guilty plea because it was uninformed there are two key questions for consideration: (i) whether the plea was uninformed and, if so, (ii) whether the appellant suffered subjective prejudice.…

[54] For Mr. Klassen’s guilty pleas to be informed he needed to know of their direct and serious legal consequences. Given that the presumptive Jordan ceiling had passed, in my view, one of the objectively serious legal consequences of pleading guilty of which Mr. Klassen was unaware was that he would forfeit the right to pursue a Charter remedy based on s. 11(b) and Jordan principles. This was so regardless of whether trial counsel’s view of the strength of a Jordan argument was reasonable and regardless of whether a Jordan application, brought then or later, likely would have succeeded. In the circumstances, Mr. Klassen had a right to pursue a Charter remedy based on Jordan principles, and, as the Court stated in Wong, he was entitled to throw a “Hail Mary” if he wished to do so: at para. 20. In addition, and importantly, the decision on whether to plead guilty was his alone to make and he was entitled to make it based on proper information: Wong at paras. 2– 4, 20, 33–35.

[55] However, when he pleaded guilty Mr. Klassen was unaware that the presumptive Jordan ceiling had passed and he would be forfeiting the right to pursue a Charter remedy based on s. 11(b) and Jordan principles. I reach this conclusion based on his evidence, trial counsel’s evidence, and the absence of a substantive plea-comprehension inquiry when he entered the pleas. As he testified, Mr. Klassen did not know that “18 months was a lot of time” and that he was forfeiting the right to pursue a remedy for unreasonable delay by pleading guilty. In these circumstances, as I see it, Mr. Klassen’s guilty pleas were uninformed on that basis as well.

[57] Like Justice DeWitt-Van Oosten in Zaworski, I endorse Justice Fitch’s comments in Lam with respect to plea-comprehension inquiries:

[102] In conducting the plea comprehension inquiry required by s. 606(1.1), it may be helpful for judges to confirm with the accused his or her understanding that a plea of guilty constitutes a waiver of the right to require the Crown to prove its case beyond a reasonable doubt and, concomitantly, a surrender of the right to make full answer and defence, including by pursuing Charter-based arguments seeking the exclusion of evidence in defence of the offences charged: Wong at para. 62, per Wagner J. (as he then was) dissenting in the result; R. v. Hexamer, 2018 BCCA 142 at para. 57.

I would add only that it may also be helpful for judges to confirm that the accused understands pleading guilty will forfeit their right to appeal all previous rulings associated with the case: R. v. Lopez-Restrepo, 2018 ONCA 887 at para. 24.

Does the evidence establish a reasonable possibility that Mr. Klassen would not have pleaded guilty had he been properly informed?

[58] I am satisfied that it is reasonably possible Mr. Klassen would not have pleaded guilty had he known that by doing so he would forfeit his right to appeal the Charter rulings and to pursue a Charter remedy based on s. 11(b) and Jordan principles. I reach this conclusion based on his evidence and trial counsel’s evidence, considered in the overall context of the case.

[59] Specifically, I accept that while Mr. Klassen was willing to do whatever he could to help Ms. Marchuk obtain an acquittal, he was not, as he testified, “about to throw [himself] under the bus to get her off”. Nor was it necessary for him to plead guilty to admit possessing the drugs for the purpose of trafficking in an effort to assist her. I also accept that Mr. Klassen intended to appeal the Charter rulings before he pleaded guilty, and believed he would be entitled to pursue that appeal when he entered his guilty pleas. Further, I am satisfied that, properly advised, Mr. Klassen would have been told the presumptive Jordan ceiling had passed and the chances of a Jordan application succeeding could improve if he continued on with the trial, but if he pleaded guilty he would forfeit the right to pursue a Charter remedy based on s. 11(b) and Jordan principles.

[60] Given this context, I am confident that it is reasonably possible Mr. Klassen would not have pleaded guilty had he known that by doing so he would forfeit his right to appeal the Charter rulings and to pursue a Charter remedy based on s. 11(b) and Jordan principles.

[61] Properly construed, this concludes the analysis of whether this Court should set aside Mr. Klassen’s guilty pleas. Based on Wong principles, the guilty pleas should be set aside: they were uninformed and Mr. Klassen suffered prejudice giving rise to a miscarriage of justice because it is reasonably possible that he would not have pleaded guilty if he had been properly informed.…

[72] In my view, in cases where a guilty plea is found to be uninformed the combined effect of Wong and Zaworski is not that the Court should examine the quality of the misinformation in assessing whether allowing the plea to stand would amount to a miscarriage of justice. As the majority made clear in Wong, the salient prejudice in such cases is the impact of the misinformation on the appellant’s subjective decision to plead guilty. If the appellant would have pleaded differently armed with proper information on the legal consequences of pleading guilty, serious prejudice has been demonstrated because there has been a breach of procedural fairness such that allowing the plea to stand would amount to a miscarriage of justice. That is so regardless of whether the outcome of the proceedings may be legally justifiable.

[75] To repeat, in this case Mr. Klassen was unaware of the direct and serious legal consequences of his guilty pleas and there is a reasonable possibility that he would have pleaded differently had he been aware of them. It follows that he has demonstrated subjective prejudice and that allowing his guilty pleas to stand would amount to a miscarriage of justice.

Conclusion

[76] For these reasons, I would set aside the guilty pleas, quash the convictions, allow the appeal, and direct a new trial.