R. v. Kim (D.), 2011 SKCA 74

• Judge: Jackson, Smith and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 15, 2010
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 74;(2011), 375 Sask.R. 68 (CA)

R. v. Kim (D.) (2011), 375 Sask.R. 68 (CA);

    525 W.A.C. 68

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JL.019

Darcy Kim (appellant) v. Her Majesty the Queen (respondent)

(1805-CR; 2011 SKCA 74)

Indexed As: R. v. Kim (D.)

Saskatchewan Court of Appeal

Jackson, Smith and Ottenbreit, JJ.A.

June 21, 2011.

Summary:

The accused was charged with aggravated assault. The Crown accepted a guilty plea to assault causing bodily harm, a lesser included offence. The Crown sought a sentence of imprisonment in the range of 18 months to two years less a day. The accused's lawyer sought a conditional discharge or a non-custodial sentence (a suspended sentence and probation). Given the severity of the injuries inflicted on the victim, the sentencing judge concluded that neither a conditional discharge nor a suspended sentence with probation were appropriate and sentenced the accused to six months' imprisonment, a DNA order, a 10 year weapons prohibition and a $100 victim surcharge. The accused appealed the conviction, seeking to expunge his guilty plea and a new trial.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 3131.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to benefit of lesser punishment - An accused was charged with aggravated assault - The Crown accepted a plea to assault causing bodily harm - The Crown sought a sentence of imprisonment in the range of 18 months to two years' imprisonment less a day - The accused's lawyer sought a conditional discharge or a non-custodial sentence (a suspended sentence and probation) - Given the severity of the injuries inflicted on the victim, the sentencing judge sentenced the accused to six months' imprisonment, a DNA order, a 10 year weapons prohibition and a $100 victim surcharge - The accused appealed the conviction, asserting that his plea was invalid because he was negligently misinformed that, inter alia, a conditional sentence was an available sentencing option - The accused asserted that he only learned during the sentence hearing that a conditional sentence was no longer available for this type of offence (i.e., a personal injury offence) - The Saskatchewan Court of Appeal stated that both the Crown and the accused's counsel had been mistaken in believing that amendments to the Criminal Code had made a conditional sentence unavailable as the offence here was committed prior to the amendments coming into effect and the accused was entitled to the benefit of the lesser punishment (Charter, s. 11(i)) - That error was the proper subject of a sentence appeal - Even assuming that the accused, in pleading guilty, relied on a belief that a conditional sentence was an available sentence, he did not suffer prejudice that could be remedied by expunging the plea - See paragraphs 40 to 43.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Saskatchewan Court of Appeal stated that "An accused represented by counsel is entitled to receive effective legal assistance pursuant to ss. 7 and 11(d) of the Charter. An appellant may therefore challenge a conviction on the basis that ineffective assistance of counsel occasioned a miscarriage of justice. The appellant must establish the facts on which the claim of incompetence is based, that the representation provided was incompetent, and that the incompetent representation resulted in a miscarriage of justice. Incompetence is determined by a reasonableness standard. However, the wisdom of hindsight has no place in this assessment and counsel's actions must be assessed against the circumstances that existed at the time. ... Moreover, allegations of incompetence or ineffectiveness of trial counsel must meet a strong presumption of competence. ...Where unfairness is said to result from the incompetence of counsel, the appellant must show there was a reasonable probability that the result might have been otherwise had he received competent legal representation ... Finally, an appellate court is generally not required to embark upon an assessment of counsel's competence unless it is satisfied that the conduct in issue resulted in a miscarriage of justice." - See paragraph 36.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - [See Civil Rights - Topic 3158 ].

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - [See Civil Rights - Topic 3131.1 ].

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - The Saskatchewan Court of Appeal stated that "Jurisprudence has established that a court of appeal may set aside a plea of guilty where it is satisfied that it is in the interests of justice to do so. ... In the case before us, the appeal brought on this basis must fall within the right of appeal granted by s. 675(1)(a)(iii) [of the Criminal Code], and therefore requires the leave of this Court. In the most general terms, in order to grant the appeal, expunge the guilty plea and order a new trial, the Court must be satisfied that it is in the interests of justice to do so. Where the guilty plea is shown to be invalid, the plea may be set aside on the grounds that there has been a miscarriage of justice. Where the validity of the plea is raised for the first time on appeal, the onus is on the appellant to establish that the plea was invalid. A valid guilty plea must be voluntary, informed and unequivocal. The plea must be informed in the sense that the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea." - See paragraph 33.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - The Saskatchewan Court of Appeal stated that "It is well established that subsequent dissatisfaction with the sentence received is not in itself a sufficient reason to expunge a guilty plea. ... On the other hand, in R. v. Armstrong, ... the Ontario Court of Appeal set aside a guilty plea and quashed a conviction where an accused pled guilty to two charges of uttering a forged document on the mistaken belief, caused by the erroneous advice of trial counsel, that she would be eligible for a conditional discharge and could avoid a criminal record. This was not in fact a legally available sentence for the charge in question. The Appellate Court was satisfied that this significantly influenced the appellant's decision to plead guilty, and set aside the plea." - See paragraph 35.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - An accused was charged with aggravated assault - The Crown accepted a plea to assault causing bodily harm - The Crown sought a sentence of imprisonment in the range of 18 months to two years' imprisonment less a day - The accused's lawyer sought a conditional discharge or a non-custodial sentence (a suspended sentence and probation) - Given the severity of the injuries inflicted on the victim, the sentencing judge concluded that neither a conditional discharge nor a suspended sentence with probation were appropriate and sentenced the accused to six months' imprisonment, a DNA order, a 10 year weapons prohibition and a $100 victim surcharge - The accused appealed the conviction, asserting that his plea was invalid because he was negligently misinformed that, inter alia, a conditional discharge was a possibility - The accused relied on the fact that at a pretrial conference, the judge, who happened to be the sentencing judge, opined that a conditional charge was not an appropriate sentence - The Saskatchewan Court of Appeal rejected the assertion - At the time of pretrial conference, the charge was aggravated assault for which a conditional charge was legally unavailable - At the sentencing hearing, the accused's counsel provided precedents in support of that option - Moreover, it could not be said that the accused relied substantially on the availability of that sentencing option in deciding to plead guilty - A conditional discharge was never presented to him as anything more than a long shot - The focus of his lawyer's submissions at the sentencing hearing was for a non-custodial sentence, whether that was achieved by way of a conditional discharge or by way of a suspended sentence and probation - The accused's main concern was avoiding a jail sentence and it did not matter how that was accomplished - The accused did not suffer prejudice that justified expunging the guilty plea - See paragraph 44.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - An accused was charged with aggravated assault - The Crown accepted a plea to assault causing bodily harm - The Crown sought a sentence of imprisonment in the range of 18 months to two years' imprisonment less a day - The accused's lawyer sought a conditional discharge or a non-custodial sentence (a suspended sentence and probation) - Given the severity of the injuries inflicted on the victim, the sentencing judge concluded that neither a conditional discharge nor a suspended sentence with probation were appropriate and sentenced the accused to six months' imprisonment, a DNA order, a 10 year weapons prohibition and a $100 victim surcharge - The accused appealed the conviction, asserting that his plea was invalid because he was negligently misinformed that, inter alia, it was highly unlikely he would be sentenced to jail - The Saskatchewan Court of Appeal stated that the evidence was clear that the accused knew that a custodial sentence was a possibility and that that was what the Crown was seeking - The accused's guilty plea was therefore valid even if he truly did not expect that he would be sentenced to incarceration - See paragraph 45.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The Saskatchewan Court of Appeal set out the test for the admission of fresh evidence and stated that "... where, as here, the ground of appeal is that the appellant was led to plead guilty as a result of incompetent representation, this test is not strictly applicable. ..." - See paragraph 38.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - An accused was charged with aggravated assault - The Crown accepted a plea to assault causing bodily harm - The Crown sought a sentence of imprisonment in the range of 18 months to two years' imprisonment less a day - The accused's lawyer sought a conditional discharge or a non-custodial sentence (a suspended sentence and probation) - The sentencing judge sentenced the accused to six months' imprisonment, a DNA order, a 10 year weapons prohibition and a $100 victim surcharge - The accused appealed the conviction, seeking to expunge his guilty plea - The accused sought to admit fresh evidence in support of allegations that he did not receive effective legal advice prior to his decision to plead guilty and his claim that he had a viable defence to the charge - The Saskatchewan Court of Appeal, in dismissing the appeal, assessed each of the accused's allegations in light of the applicable legal principles and the evidence to determine whether, if that evidence was admitted, it was sufficient, in any case, to justify setting aside the guilty plea - See paragraph 39.

Cases Noticed:

R. v. Hanemaayer (A.) (2008), 239 O.A.C. 241; 234 C.C.C.(3d) 3; 2008 ONCA 580, refd to. [para. 33].

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R. (3d) 514 (C.A.), refd to. [para. 33].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 27].

R. v. Armstrong (G.), [1997] O.A.C. Uned. 3 (C.A.), refd to. [para. 35].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 36].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 36].

R. v. Qiu (X.D.) (2010), 268 O.A.C. 352; 2010 ONCA 736, refd to. [para. 36].

R. v. S.G.T. (2011), 366 Sask.R. 90; 506 W.A.C. 90; 265 C.C.C.(3d) 550; 2011 SKCA 4, refd to. [para. 38].

R. v. E.R.M. (2002), 217 Sask.R. 259; 265 W.A.C. 259; 163 C.C.C.(3d) 343; 2002 SKCA 30, refd to. [para. 38].

R. v. Smith (S.A.) (2007), 299 Sask.R. 312; 408 W.A.C. 312; 223 C.C.C.(3d) 114; 2007 SKCA 71, refd to. [para. 38].

R. v. Cook (D.A.) (2010), 259 Man.R.(2d) 109; 2010 MBQB 237, refd to. [para. 41].

R. v. Tremblay (J.G.), [2001] 2 W.W.R. 722; 274 A.R. 203; 2000 ABQB 551, refd to. [para. 41].

Counsel:

Bob P. Hrycan, for Darcy Kim;

W. Dean Sinclair, for the Crown.

This appeal was heard on December 15, 2010, and June 8 and 9, 2011, by Jackson, Smith and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. Smith, J.A., delivered the following judgment for the court on June 21, 2011.