IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Gill, |
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2019 BCSC 63 |
Date: 20190121
Docket: 65713-1
Registry: Chilliwack
Regina
v.
Jagdev Singh Gill
Before: The Honourable Associate Chief Justice H. Holmes
On
appeal from: An order of the Provincial Court of British Columbia,
dated December 15, 2016 (R. v. Gill [CW 85700-1]).
Reasons for Judgment
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Counsel for the Crown: |
R. Macgowan |
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Counsel for Jagdev Singh Gill: |
P.P.S. Sahota |
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Place and Date of Hearing: |
Chilliwack, B.C. January 7, 2019 |
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Place and Date of Judgment: |
Chilliwack, B.C. January 21, 2019 |
[1] Jagdev Singh Gill appeals from his convictions for two summary conviction offences. He contends that the guilty pleas he entered were not valid and should be set aside, and a new trial ordered.
[2] Mr. Gill says that he did not understand the nature of the allegations underlying the charges, or the consequences of the guilty pleas. He says that this was largely because he missed a dose of his prescribed blood pressure medication when he was under arrest, and was mentally confused as a result, and because the duty counsel who represented him in the sentencing proceeding did not listen to his concerns or detect that he was confused. Mr. Gill also says that he was pressured into the guilty pleas by duty counsel and by his own desire to be released from custody and to return home to his family where he could resume taking his blood pressure medication.
[3] I will briefly outline the background to Mr. Gill’s guilty pleas, before then discussing whether they were invalid or resulted in a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code.
[4] The main undisputed facts relating to the sentencing proceeding are helpfully summarized in Mr. Macgowan’s written argument as quoted below:
2. On December 15, 2016, the appellant appeared in Provincial Court at Abbotsford before Her Honour Judge Ritchie on three count Information. Count 2 alleged an assault of Surinder Grewal. Count 3 alleged an assault of Amandeep Waraich.
3. The incident giving rise to the alleged assaults had occurred the previous evening, and the appellant had been arrested and charged in the morning of December 15, 2016.
4. In the proceedings in the Provincial Court, the appellant had the assistance of a Punjabi speaking interpreter and was represented by duty counsel, Mr. Christopher Terepocki. The appellant met with Mr. Terepocki (and the interpreter) prior to making his appearance before Ritchie PCJ.
5. The appellant’s matter was called in the afternoon and the appellant appeared before Ritchie PCJ from in custody. Mr. Terepocki advised the Court that he had “clear instructions from Mr. Gill to enter guilty pleas with respect to Count 2 and 3 on the Information.” Mr. Terepocki waived the formal reading of the charges on the appellant’s behalf. Ritchie PCJ then addressed the appellant directly. She asked him to confirm that he was “pleading guilty to one count of assaulting Surinder Grewal [...] and one count of assaulting Amandeep Waraich.” The appellant answered yes to both.
6. The Crown then gave a summation of the circumstances giving rise to the charges. The Court was told the following:
a. The appellant’s family and Ms. Waraich’s family had been close for many years.
b. Notwithstanding the fact that both Ms. Waraich and the appellant were married to other people, the appellant was romantically interested in Ms. Waraich and had “aggressively” pursued a relationship with her, something she did not reciprocate.
c. Two days prior to the incident giving rise to the assaults, Ms. Waraich called police to report harassing telephone calls made to her by the appellant. In response to this, the police spoke to the appellant and told him not to contact Ms. Waraich any further.
d. At 8:30 PM on December 14, 2016, the appellant attended to the front door of the basement suite where Ms. Waraich resided and knocked on the door. The door was answered by Surinder Grewal, who is Ms. Waraich’s father.
e. Mr. Grewal told the appellant that Ms. Waraich did not wish to speak to him. In response, the appellant pushed Mr. Grewal into the basement suite and onto the floor, before climbing on top of him. Ms. Waraich entered upon the scene and was slapped by the appellant on the left side of her face, leaving a small mark and slight swelling.
f. The appellant then exited the basement suite and left in a vehicle.
g. The witnesses provided statements to the police.
h. The appellant did not have a criminal record.
7. The Crown next advised the Court of its sentencing position on the two counts to which the appellant had plead guilty, that being a suspended sentence and a period of probation with several conditions (the Crown also sought, and was granted, an order compelling a sample of the appellant’s DNA be provided for the DNA databank).
8. Mr. Terepocki then addressed the Court. He advised that it was a joint submission as to sentence. He provided the appellant’s antecedents and reiterated that the appellant had no criminal record. He further offered that the appellant “was under the influence of alcohol at the time,” that he intended to “get help with this problem,” and that he was looking forward to going home to his wife and children.
9. The Court then inquired as to whether the appellant wished to say anything. The appellant responded “I’m very sorry, apologetic.” The Court then gave reasons for imposing the sentence that had been jointly proposed. At the conclusion of the proceedings, the appellant thanked the Court.
[5] Mr. Macgowan’s written submissions also include a useful summary of some of the evidence Mr. Gill provided by affidavit on this appeal:
10. … the appellant deposes that when he was arrested that morning he was without his blood pressure medication. He states that as a result of this and the stress he was under, he “did not know what was going on,” that he was not himself, that he felt his brain was “numb” and that he “could not make any decision.” He states that he met with duty counsel and relied upon his advice, but that he “did not know what the right was and wrong at that time”.
11. The appellant further deposes that he had a witness to the events, that “no assault had taken place,” and that the complainants had made “a false complaint, which could have been proved at trial.”
[6] Mr. Gill was cross-examined on his affidavit during the hearing of the appeal. During that cross-examination, he acknowledged that he met with duty counsel twice before pleading guilty in court, and that he was assisted throughout by a Punjabi interpreter (who, the record indicates, happened to be the same interpreter as assisted Mr. Gill during the hearing of this appeal). Mr. Gill maintained that he was confused at the time and did not understand the nature of the charges or the consequences of pleading guilty. As well, he felt pressured to enter the pleas both by duty counsel and by his own desire to be released.
[7] The Supreme Court of Canada in Adgey v. R., [1975] 2 S.C.R. 426 held that a judge can set aside a guilty plea where there are valid grounds to do so. An appellant seeking to withdraw a guilty plea for the first time on appeal has an onus to establish that the guilty plea was not valid: R. v. Wiebe, 2012 BCCA 519, para. 25 citing R. v. T.(R.), 10 O.R. (3d) 514 (Ont. C.A.) at 519.
[8] As Stromberg-Stein J.A. succinctly reminded us in R. v. Singh, 2014 BCCA 373, at para. 33, “[t]o be valid, a guilty plea must be voluntary, unequivocal, and informed by an appreciation of the nature of the allegations, the legal effect of the plea, and the consequences of the plea”.
[9] Mr. Gill submits that his guilty pleas were neither informed nor voluntary, and that to maintain them would result in a miscarriage of justice. I will address these submissions in turn.
[10] Mr. Gill contends that missing a dose of his blood pressure medication left him confused and unable to appreciate the nature of the allegations or the effect or consequences of pleading guilty to the charges.
[11] However, the evidence does not support this position. Apart from Mr. Gill’s bare assertion, there is nothing to indicate that Mr. Gill was confused or mentally disoriented in any way, or to indicate that missing a dose of his medication could have caused such a result.
[12] Mr. Gill provided a note from his doctor confirming that he had been on medication for high blood pressure for the preceding three years. However, the doctor gave no information about how severe Mr. Gill’s condition was, the frequency of his doses, or the potential consequences for Mr. Gill of missing a dose. Mr. Gill himself did not elaborate in any way about his blood pressure problem.
[13] Other evidence indicated that Mr. Gill was not confused when he entered his guilty pleas.
[14] The transcript of the proceedings shows no sign of confusion. When the Court spoke to Mr. Gill, he answered in a brief but appropriate fashion. When, at the end of the proceedings, the Court asked Mr. Gill if he had anything to add, Mr. Gill said, “I’m very sorry, apologetic”. At no time did Mr. Gill ask a question or voice any concern about Crown counsel’s description of the circumstances of the offences, or about the acknowledgements and submissions made by duty counsel on Mr. Gill’s behalf.
[15] In addition, the affidavit evidence of duty counsel, Christopher Terepocki, strongly suggests that Mr. Gill was not confused. Mr. Terepocki had no specific memory of his dealings with Mr. Gill, but was certain that he would not have proceeded to assist him in entering guilty pleas if Mr. Gill had not been fully aware of the nature of the charges and of the consequences of pleading guilty.
[16] Because Mr. Terepocki did not recall his specific dealings with Mr. Gill, his evidence was necessarily general, relating to his usual practice at the time. However, the evidence addressed in detail various aspects of Mr. Terepocki’s usual practice, and for that reason was compelling. Mr. Terepocki explained that, when instructed by a client to plead guilty, he required a clear and unequivocal instruction. He also explained that he was particularly cautious about his professional obligations at the time because he was in the process of representing another client on an ineffective assistance of counsel application before the Court of Appeal. Mr. Terepocki added that he would have exercised yet further caution in a situation such as Mr. Gill’s, because charges of assault have multiple potential defences, and additionally because Mr. Gill required an interpreter.
[17] I note also that, when Mr. Terepocki made his submissions on behalf of Mr. Gill during the sentencing hearing, he told the Court that he had “clear instructions” to enter guilty pleas, and also provided information about Mr. Gill and the offence that, one infers, Mr. Gill must have given him – Mr. Gill does not suggest in this appeal that he did not. Those submissions were as follows:
MR. TEREPOCKI: Your Honour, I’ve received clear instructions from Mr. Gill to enter guilty pleas with respect to Count 2 and 3 on the Information that’s in front of the court this afternoon.
…
MR. TEREPOCKI: Your Honour, this is a joint sentencing submission. We’re in agreement that a lengthy period of probation likely makes sense in this situation. The conditions proposed by my friend are not unreasonable.
Mr. Gill is 41 years old. He moved to Canada from India in 2001. He has a wife and two children, two boys, aged 15 and 12. He comes before this court with no criminal record. He’s employed full-time as a truck driver. He was under the influence of alcohol at the time. He intends to get help with this problem but he has a wife and children and looks forward to going home to them.
[18] Mr. Gill submits that Mr. Terepocki’s evidence has no value in the appeal because his affidavit refers to dealings with Mr. Gill on December 16, 2016, when the actual dealings were the day before, on December 15, 2016.
[19] This submission has no merit at all. Mr. Terepocki’s obvious error about the date has no bearing on his evidence as it relates to this appeal. His affidavit describes his practice over a broad period, not on a specific day.
[20] Mr. Terepocki’s evidence is much more persuasive than Mr. Gill’s. As I have noted, Mr. Gill’s affidavit evidence consists of bare and unsupported assertions. The evidence Mr. Gill gave under cross-examination was of no greater help to him, and some of that evidence was not credible. For example, Mr. Gill agreed that on the date of his plea, he knew that he was charged with assault, but that he did not understand the meaning of assault, even in a general way. However, he also testified that when duty counsel told him that the charges were for assaulting the two named complainants, he responded that he had not committed those offences. It is not plausible that Mr. Gill could have had no understanding at all of what assault meant but could also have denied assaulting the two complainants.
[21] Mr. Gill submits that his failure to report to a probation officer after his release, as the probation order required, provides evidence that he did not understand the sentencing proceedings in which the probation order was imposed. However, this submission cannot assist because it relies on somewhat circular reasoning. It assumes that Mr. Gill did not wilfully breach the probation order, for which he was later charged and arrested on January 5, 2017, when there is no evidence in this appeal to support that proposition except Mr. Gill’s own statement.
[22] Finally, in support of his submission that he was not informed when he pleaded guilty, Mr. Gill submits that this was necessarily so because, the pleas following so shortly after the events and his arrest, the Crown had not given him or duty counsel the full disclosure package to which he would be entitled had the charges proceeded to trial. In particular, neither he nor duty counsel had been given written versions of statements made by the complainants.
[23] This submission too has no merit. For a guilty plea to be valid, the accused must understand the basis of the allegations, as they relate to the elements of the offence charged. However, the accused need not, in this context, be informed of every detail in the evidence that may ultimately support (or discredit) the allegations.
[24] Further, as was the situation in R. v. T. (R.), supra at 528-529, Mr. Gill does not indicate what part of the disclosure, had it been given to him, would have influenced his decision to plead guilty, or how.
[25] Mr. Gill has not established that his guilty pleas were not informed.
[26] Next, Mr. Gill submits that his guilty pleas were not voluntary because he was pressured to make them by duty counsel and by his own strong desire to be released to return home to resume his blood pressure medication and to see his wife and children.
[27] I do not accept Mr. Gill’s evidence that duty counsel pressured him in any way. Some of my observations above about Mr. Terepocki’s evidence, which by implication conflict with Mr. Gill’s evidence, apply in this context as well.
[28] In addition, Mr. Gill’s evidence under cross-examination on this point was not credible. When asked if duty counsel was rude to him, Mr. Gill responded that he could not remember now, but at the time he felt duty counsel was not speaking in a nice manner. On its face, it seems implausible that Mr. Gill could testify now that duty counsel was rude at the time, but that he lacks any current memory of the rudeness. However, even if Mr. Gill meant to testify that he could not now remember any details of the rudeness, and remembers only the broad fact that duty counsel was rude, his evidence is far from sufficient to outweigh the effect of Mr. Terepocki’s evidence, or to establish, alone or in conjunction with other evidence, that his pleas were not voluntary.
[29] In his affidavit, Mr. Gill deposes that he had a defence to the charges, and a witness to support his position that the offences did not take place. In his evidence under cross-examination, Mr. Gill testified that he told duty counsel that he did not assault anyone, but duty counsel would not listen, and would only direct him to plead guilty.
[30] This evidence also was unconvincing. It is inconsistent with Mr. Terepocki’s evidence, which, as I have explained, I accept. Also, Mr. Gill offers no detail at all about his defence to the charges, or about the identity of the supporting witness or the evidence that person would give (except that the person was with Mr. Gill at the time of the events and witnessed them). This reduces the weight of Mr. Gill’s evidence on the point. It also leaves the Court unable to assess whether the facts Mr. Gill would put forward amount to a defence that the law recognizes.
[31] Mr. Gill’s desire to return home to see his family and to resume his blood pressure medication may have played a part in motivating him to plead guilty at a very early opportunity. However, those motivating factors do not make his guilty pleas involuntary. Nothing in the evidence supports a conclusion that Mr. Gill did not make a conscious volitional choice in entering the pleas.
[32] Mr. Gill has not established that his guilty pleas were involuntary.
[33] Mr. Gill has not shown that his pleas were not informed and voluntary.
[34] Further, he has not shown that for the guilty pleas to stand would result in a miscarriage of justice.
[35] Some of the reasons I have already given apply also in this context. I refer in particular to my conclusion about Mr. Gill’s claim to have a valid defence to the charges to which he pleaded guilty.
[36] I note also that Mr. Gill benefitted from the plea arrangement with the Crown, which included a joint submission to the Court about the appropriate sentence. Mr. Gill received a lenient sentence (of a suspended sentence with probation for 18 months) for the two charges to which he pleaded guilty, and the Crown directed a stay of the proceedings on a third charge (count 1).
[37] There is no basis for concluding that to maintain the guilty pleas would result in a miscarriage of justice.
[38] The appeal is dismissed.
“The Honourable Associate Chief Justice H. Holmes”