IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | R. v. Irwin, |
| 2013 BCSC 2100 |
Date: 20131120
Docket: 26379
Registry:
Vancouver
Between:
Regina
Respondent
And
Derek William Irwin
Appellant
Before:
The Honourable Mr. Justice Ehrcke
On
appeal from: An order of the Provincial Court,
dated December 19, 2012 (R. v. Irwin, (19 December 2012),
North Vancouver Registry 58600-1-K, 58600-2-KC).
Reasons for Judgment
Counsel for the Respondent: | E.A. Wolfram |
Appearing on his own behalf: | D.W. Irwin |
Place and Date of Hearing: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
Introduction
[1]
This is a summary conviction appeal by Mr. Irwin from the
imposition of a recognizance under s. 810 of the Criminal Code. He
maintains that he was pressured into entering into the recognizance, that he
did not fully understand its consequences, that he had inadequate
representation by his counsel, and that he never acknowledged that the
complainant had reasonable grounds to fear him. The parties have used the
expressions peace bond and recognizance interchangeably, and I shall do so
as well to signify a recognizance under s. 810.
The Recognizance
[2]
On December 19, 2012, in proceedings before Provincial Court Judge
Challenger in North Vancouver, Mr. Irwin was ordered to enter into a peace
bond under s. 810 of the Criminal Code for a period of 12 months. The
only conditions, beyond keeping the peace and being of good behaviour, are that
Mr. Irwin is to have no contact with the complainant C.W., and that he is
not to attend at her residence or place of employment.
Section 810
[3]
The Courts authority to order a peace bond, and the procedure involved,
are set out in s. 810 of the Criminal Code:
810. (1) An information may be laid before a justice by or on
behalf of any person who fears on reasonable grounds that another person will
cause personal injury to him or her or to his or her spouse or common-law
partner or child or will damage his or her property.
(2) A justice who receives an information under subsection
(1) shall cause the parties to appear before him or before a summary conviction
court having jurisdiction in the same territorial division.
(3) The justice or the summary conviction court before which
the parties appear may, if satisfied by the evidence adduced that the person on
whose behalf the information was laid has reasonable grounds for his or her fears,
(a) order that the defendant
enter into a recognizance, with or without sureties, to keep the peace and be
of good behaviour for any period that does not exceed twelve months, and comply
with such other reasonable conditions prescribed in the recognizance, including
the conditions set out in subsections (3.1) and (3.2), as the court considers
desirable for securing the good conduct of the defendant; or
(b) commit the defendant to
prison for a term not exceeding twelve months if he or she fails or refuses to
enter into the recognizance.
(3.1) Before making an order under subsection (3), the
justice or the summary conviction court shall consider whether it is desirable,
in the interests of the safety of the defendant or of any other person, to
include as a condition of the recognizance that the defendant be prohibited
from possessing any firearm, cross-bow, prohibited weapon, restricted weapon,
prohibited device, ammunition, prohibited ammunition or explosive substance, or
all such things, for any period specified in the recognizance and, where the
justice or summary conviction court decides that it is so desirable, the
justice or summary conviction court shall add such a condition to the
recognizance.
(3.11) Where the justice or summary conviction court adds a
condition described in subsection (3.1) to a recognizance order, the justice or
summary conviction court shall specify in the order the manner and method by
which
(a) the things referred to
in that subsection that are in the possession of the accused shall be
surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations,
licences and registration certificates held by the person shall be surrendered.
(3.12) Where the justice or summary conviction court does not
add a condition described in subsection (3.1) to a recognizance order, the
justice or summary conviction court shall include in the record a statement of
the reasons for not adding the condition.
(3.2) Before making an order under subsection (3), the
justice or the summary conviction court shall consider whether it is desirable,
in the interests of the safety of the informant, of the person on whose behalf
the information was laid or of that persons spouse or common-law partner or
child, as the case may be, to add either or both of the following conditions to
the recognizance, namely, a condition
(a) prohibiting the
defendant from being at, or within a distance specified in the recognizance
from, a place specified in the recognizance where the person on whose behalf
the information was laid or that persons spouse or common-law partner or
child, as the case may be, is regularly found; and
(b) prohibiting the
defendant from communicating, in whole or in part, directly or indirectly, with
the person on whose behalf the information was laid or that persons spouse or
common-law partner or child, as the case may be.
(4) A recognizance and committal to prison in default of
recognizance under subsection (3) may be in Forms 32 and 23, respectively.
(4.1) The justice or the summary conviction court may, on
application of the informant or the defendant, vary the conditions fixed in the
recognizance.
(5) The provisions of this Part
apply, with such modifications as the circumstances require, to proceedings
under this section.
Facts
[4]
On August 8, 2012, Mr. Irwin was having an argument with his
girlfriend, C.W., who at that time had been residing with him for the past few
months. While she was lying on the bed using a laptop computer, he kicked the
laptop. As a result, the laptop struck and injured her. He indicated regret and
said it was an accident that the laptop struck her. She left the residence and
went to live with her family in Duncan, but she did not initially report the
incident.
[5]
Subsequently, Mr. Irwin became concerned about her mental health
and the possibility that she might be suicidal, so he contacted the North
Vancouver RCMP. As a result, police in Duncan spoke to C.W., took a statement
from her, and Information No. 58600-1-K was laid, charging Mr. Irwin
with assault of C.W.
[6]
Mr. Irwin was arrested and appeared in Provincial Court in North
Vancouver on October 2, 2012. Mr. Sudeyko, an experienced criminal defence
lawyer, was duty counsel that day and dealt briefly with Mr. Irwin, who
was released on bail.
[7]
Mr. Irwin met with Mr. Sudeyko at his office on October 4,
2012, and they discussed the incident of August 8, 2012. Mr. Irwin told Mr. Sudeyko
he was not interested in a guilty plea.
[8]
There were further meetings and court appearances, which I will discuss
in more detail in a moment, but eventually, on December 19, 2012, Mr. Irwin
appeared with Mr. Sudeyko before Judge Challenger on a new Information No. 58600-2-KC,
under s. 810 of the Criminal Code. The circumstances of the August
8, 2012 incident were presented to the Court, and the s. 810 recognizance
was imposed, following which the Crown entered a stay of proceedings on the
Information charging Mr. Irwin with assault of C.W.
[9]
Mr. Irwin now submits that he should not be bound by that
recognizance and that it should be set aside on the basis that he was pressured
into it, that he did not fully understand its consequences, that he was
inadequately represented by Mr. Sudeyko, and that he never acknowledged
that C.W. had reasonable grounds to fear him.
[10]
Mr. Irwin applied to Provincial Court Judge Challenger on April 24,
2013 to have the recognizance cancelled. When Judge Challenger pointed out to
him that during the hearing on December 19, 2012, he agreed with the
allegations and agreed the complainant had reason to fear him, he replied, I
yeah, I guess I didnt hear that. Judge Challenger denied his application.
[11]
Mr. Irwin renewed his application before Judge Challenger on May 17,
2013, and again she denied the application to cancel the peace bond.
[12]
Mr. Irwin now appeals to the British Columbia Supreme Court to set
aside his peace bond recognizance.
Appellate Jurisdiction
[13]
Mr. Irwins appeal is brought pursuant to s. 813(a)(i) of the Criminal
Code, which provides:
813. Except where otherwise provided by law,
(a) the defendant in proceedings
under this Part may appeal to the appeal court
(i) from a conviction or order made against him,…
[14]
In R. v. J.L.S., 2002 BCCA 174, our Court of Appeal held at para. 16
that s. 810 of the Criminal Code does not create an offence, and
the section is in the nature of preventative justice.
[15]
Although appeals under s. 813 are generally in relation to summary
convictions, and although the imposition of a s. 810 peace bond does not
involve a conviction because the section does not create an offence, I am
nevertheless satisfied that a person may challenge the imposition of a
recognizance under s. 810 on the basis that it is an order made against
him within the meaning of s. 813(a)(i). The jurisdiction to appeal
against the imposition of a recognizance was implicitly recognized in R. v.
J.L.S. at para. 38.
Evidence on Appeal and Solicitor-Client Privilege
[16]
In order to understand the submissions of Mr. Irwin on this appeal,
it is necessary to refer to conversations between him and the lawyer who
represented him in Provincial Court, Mr. Sudeyko. Mr. Irwin has
specifically waived solicitor-client privilege with respect to these
discussions: see R. v. Irwin, 2013 BCSC 1382.
[17]
The affidavit of Mr. Irwin, sworn October 9, 2013, and the
affidavit of Mr. Sudeyko, sworn October 18, 2013, have both been placed
before me on this appeal. Both affidavits concern the events surrounding the
appearance in Provincial Court resulting in the imposition of the peace bond. In
these circumstances, where this appeal involves the appropriateness of the
legal representation leading to the order appealed from, I am satisfied that
these affidavits are properly admissible as evidence on the appeal: see R.
v. Le, 2013 BCCA 455 at para. 14; R. v. Dunbar, 2003 BCCA 667.
[18]
In addition to those two affidavits, Mr. Irwin sent an email to the
Court on October 29, 2013 along with various attachments, including photographs.
As this additional material concerns matters occurring well after the time when
the peace bond was imposed, I find it to be irrelevant to the issues on this
appeal.
Mr. Sudeykos Affidavit
[19]
In response to the allegations made by Mr. Irwin, Mr. Sudeyko
swore an affidavit, which is now in evidence on this appeal. In that affidavit,
Mr. Sudeyko swears that he discussed with Mr. Irwin the likely
consequences of going to trial on the assault charge, and the possibility of
persuading the Crown to proceed instead on a s. 810 peace bond. After
discussions with the Crown in which they indicated their acceptance of the
peace bond proposal, Mr. Irwin changed his instructions and told Mr. Sudeyko
that he wanted to go to trial. Mr. Sudeyko then told Mr. Irwin he
would seek an adjournment for him so he could retain other counsel. Mr. Irwin
again changed his mind and agreed to enter into a peace bond.
[20]
Mr. Sudeyko deposed as follows:
1. I am criminal defence counsel in North Vancouver,
British Columbia, and as such have personal knowledge of the facts herein,
except where stated to be upon information and belief, and where so stated, I
verily believe them to be true.
2. I represented Derek Irwin in relation to a charge
of assault on file 58600 in North Vancouver Provincial Court. A copy of the
information is attached as Exhibit A to my affidavit.
3. I was duty counsel the morning of October 2nd,
2012 and dealt briefly with Mr Irwin, who was in custody having been arrested
on a warrant on a charge of spousal assault. Mr Irwin was released on a
recognizance with conditions by a Justice of the Peace.
4. Later the same day, Mr Irwin telephoned with
respect to retaining me to represent him on these charges and a meeting was
arranged.
5. On October 4th, I met with Mr Irwin at my office
in North Vancouver for approximately one hour. I did not yet have particulars
from the Crown, but was aware of the general nature of the spousal assault
allegation. We discussed in some detail the history of his relationship with
the complainant and various incidents which had occurred, including the one
alleged to have occurred on August 8th, 2012.
6. Our discussion and the retainers I quoted for him
anticipated either a trial on the merits or a peace bond resolution. Mr Irwin
was not interested in a possible guilty plea.
7. In discussing the allegations with Mr Irwin
initially and throughout my representation of him, he admitted that during a
confrontation on August 8th , 2012 the complainant was on a mattress on the
floor with a laptop nearby, and he was angry and kicked the laptop, which
struck the complainant in the face. Mr Irwin denied forcing the door open,
spitting or throwing food.
8. I discussed with Mr Irwin possible defences and
told him that I did not believe he could avoid conviction based on his own
evidence. Although I also told Mr. Irwin I believed the likelihood of a
s. 810 peace bond was small based on the severity of the injuries, I
discussed the peace bond generally.
9. Mr Irwin provided me with volumes of information
and email correspondence regarding the complainant and earlier incidents in
their relationship. I tried to encourage Mr Irwin to focus on the incident of
August 8th and told him that the Court, in the event of a trial, would not likely
consider the complainants character traits or earlier incidents.
10. On October 12th I forwarded him the copy of the
particulars and asked for his comments.
11. On October 25th, I attended to Provincial Court and
set a trial date for December 19th, 2012, with a trial confirmation hearing on
December 11th.
12. I again met with Mr Irwin at my office on December
6th where he provided a lengthy written response to the particulars. I found
our discussions once again frustrating, as Mr Irwin would not accept my advice
that the court, in the event of a trial, would not consider the previous
incidents or character traits of the complainant to be relevant.
13. I returned to court with Mr Irwin on December 11th
to confirm the trial date. At that point, I again talked to him about proposing
a peace bond as a resolution. I explained to him that a peace bond does not
involve entering a guilty plea or even an admission of guilt. The court must
simply be satisfied that the grounds for a peace bond are met, that being
grounds for the complainant fearing the party. I also explained that it would
involve entering a legal recognizance, a formal promise, for a year that he
keep the peace and have no contact with the complainant.
14. It was my firm impression that Mr Irwin understood
a s. 810 peace bond.
15. I then received instructions from Mr Irwin that I
propose to Crown a peace bond as a resolution of this matter.
16. On December 13th or 14th, 2012, I spoke with Crown
Counsel Nicole Gregoire, and proposed a resolution with regard to the charge of
assault against Mr Irwin, indicating that he would be prepared to enter into a
recognizance pursuant to s. 810 of the Criminal Code, and that a stay of
proceedings would be entered on the charge of assault by the Crown.
17. On December 17th, the Monday before the Wednesday
trial date, Mr Irwin contacted me by email to inquire if he would be required
in court past the morning of December 19th. I confirmed my previous
instructions that I was still hopeful the matter would be resolved by a peace
bond, but I had not heard yet. I advised him he would need the day off if the
matter was going to trial.
18. Approximately an hour later, Mr Irwin sent me an email
stating he now did not wish to proceed with a peace bond, and providing reasons
for that position, including questioning the credibility of the complainant. I
had pointed out to him on a number of previous occasions that this did not come
down to credibility, as he admitted kicking the laptop and causing the injuries
to the complainant.
19. I was concerned that Mr Irwin was unwilling to
accept my advice with regard to the relevant evidence or the appropriate
defence of the charge. I was also concerned that my instructions had changed. I
felt our solicitor/client relationship had suffered irreparable harm and he
should find new counsel. I indicated in a responding email that I was prepared
to withdraw without informing the court of the reason or in any way prejudicing
his position. I would request an adjournment to allow him to retain new
counsel.
20. Mr Irwin responded by email that he would like the
matter over, and since a peace bond required no guilty plea, he would be happy
with that.
21. I confirmed his advice in an email, but also
confirmed that if the proposed peace bond was not acceptable to the Crown, I
was still prepared to run the trial and have him tell his version of events.
22. On December 18th, the Crown advised me they were
prepared to accept the proposed resolution with Mr Irwin entering into a peace
bond. Mr Irwin seemed pleased when I advised him of this.
23. On December 19th, I appeared before the court with
Mr Irwin. My instructions were to proceed to a section 810 peace bond and not
challenge the grounds based upon his own admission that he kicked the laptop
computer causing injuries to the complainant.
24. I was concerned about Mr Irwin’s tendency to get
off topic with irrelevant information, and suggested he not make any submissions
to the court but allow me to do so. In the end, Mr Irwin did make submissions
to the court.
25. Mr Irwin appeared content with the result in the
case.
26. I believe that Mr Irwin
fully understood the nature of a s. 810 peace bond and with that knowledge,
freely entered into that peace bond.
The December 19, 2012 Provincial Court Appearance
[21]
When the matter was called in court on December 19, 2012, Mr. Irwin
did not appear on time. At Mr. Sudeykos request, the matter was stood
down. Later in the day, Mr. Irwin appeared, and the matter was recalled. Ms. Gregoire,
counsel for the Crown, said they were proceeding on the KC Information, that
is, the peace bond. Mr. Sudeyko told the Court that the defence was
prepared to proceed on that basis and were not challenging the grounds for it. The
Crown read in the circumstances and made submissions on the appropriate terms
of the recognizance:
MS. GREGOIRE: If I could call the Irwin matter,
Your Honour. That is numbers 12 and 13, and the Crown is proceeding on the KC
Information.
MR. SUDEYKO: Yes, Your Honour, for the record, Dan
Sudeyko appearing. This is Mr. Irwin beside me and we’re certainly
prepared to proceed on that basis, and I can indicate that we are not
challenging the grounds for that.
THE COURT: All right, thank you.
MS. GREGOIRE: Your Honour, this — this matter came
to the Crown office by way of an allegation of assault of [C.W.], who was in a
relationship with Mr. Irwin. They were residing together.
She advised —
she was not the initial complainant. What occurred was that Mr. Irwin had
attended the North Vancouver Detachment indicating he was concerned about Ms. [W.]
because of some texting that had taken place following an altercation on the
8th of August where he was concerned about her, he told the police, her being
suicidal.
As a result of
that, the police then attended and spoke to Ms. [W.], who was at that
point residing in Duncan, B.C. with her family.
So the police
attended there and took a statement from Ms. [W.] in which she relayed the
circumstances of an argument and assault that had occurred on August 8th — or
an allegation of assault that occurred on August 8th, 2012.
It appears that
both of them had been drinking and there was a lot of arguing. It turned out
that Mr. — she advised the police that Mr. Irwin kicked a laptop
computer while she was laying on a bed and the laptop struck her and there was
also circumstances related to the police that he threw Mr. Noodles and a
drink of juice throughout the apartment, and there was a lot of arguing.
She did tell
the police that following the kicking of the laptop that he appeared to be
regret — remorseful as to what had happened and indicated, as he did, that it
was an accident that the laptop had struck her.
In any event,
based on what occurred that day she left and she is in fear and does not wish
to have any further contact with Mr. Irwin.
She is not
living, obviously, in — in the area anymore. However, there appears to be some
property issues and some other civil issues that may arise in the future.
So I’m going to
suggest that there be a 12 month recognizance, and that include conditions that
he have no contact, directly or indirectly, with [C.W.], except that there may
be indirect contact through a third person for property issues or potential
civil — a civil dispute down the — down the road. I don’t think one has
actually been initiated at this point.
She advised me
on the — by email that she was going to have her mother perhaps arrange to get
some items back, so that’s why I’m suggesting there be a third party.
THE COURT: It’s just chattels though, it’s just moveable
property?
MS. GREGOIRE: Yes, just chattels.
MR. SUDEYKO: Yes.
MS. GREGOIRE: And I’m also going to ask that there
be a condition that he not attend anywhere any residence or place of
employment where he — I don’t want to provide a specific address where —
where he — she might work or reside.
THE COURT: Yes.
MS. GREGOIRE: Thanks. Those are my submissions.
THE COURT: Are you seeking counselling?
MS. GREGOIRE: Not on the 810. I don’t typically ask
for a counselling condition.
THE COURT: Okay, thank you.
[22]
Mr. Sudeyko then told the Court about Mr. Irwins background,
and stated that he accepts the basis for the peace bond:
MR. SUDEYKO: Yes, Your Honour, just quickly by way
of background, he’s 35. He grew up here in North Vancouver. He graduated. He
works for B.C. Ferries as I indicated earlier and I do offer his apologies. He
had a shift which caused him to miss the morning period here, but came up right
away.
This was a relationship
that lasted a number of months. It came through an introduction through a
mutual friend. It had some healthy times but there clearly was some unhealthy
periods as well.
Mr. Irwin
has no criminal background at all.
The incident
itself, giving rise to the charges my friend has, I think, fairly stated,
didn’t initially come forward really until Mr. Irwin made some inquiries
about her — really her mental health, and it was an incident in which there
were some unfortunate, I guess, physical aspects. But the actual incident
giving rise to this seemed to be an accident. He acknowledges he
inappropriately kicked the computer. It tumbled and struck her in what wouldn’t
have been the expected result.
But in any
event, he certainly accepts the basis for the peace bond. There is a
possibility of a civil proceeding in relation to some dispute over some
personal items, and as well, I think she will be making some contact through
her mother. I don’t know there that leads, but he certainly understands that he
can’t have any contact, direct or indirect, with the complainant, Ms. [W.],
and he’s prepared to accept that.
So subject to
any questions Your Honour may have, those are my submissions.
THE COURT: All right, thank you. Anything further, Ms. Gregoire?
MS. GREGOIRE: Nothing further,
Your Honour.
[23]
The Provincial Court Judge then asked Mr. Irwin if he wanted to say
anything, and this exchange took place:
THE COURT: Mr. Irwin, is there anything you wish to
say at this time?
THE ACCUSED: There’s a lot that I would like to say, but
I don’t think we have time to address it.
THE COURT: All right. Well, I’ll simply then impose the
peace bond, the Section 810 recognizance as requested, in the amount of $500.
It will be for a period of 12 months.
The terms will be that you will keep the peace and be of
good behaviour; appear before the court when required to do so by the court.
You must have no contact direct or indirect with [C.W.], save and except that
you may have indirect contact through a third party, legal counsel or family
justice counsellor, or when present in court for the purpose of resolving
matters relating to the recovery by Ms. [W.] of any of her personal
properties.
THE ACCUSED: Okay.
THE COURT: Actually — sorry?
MR. SUDEYKO: Just so it’s clear, he’s also alleging
that he may be owed something so it would be
THE COURT: Oh, I see. I’ll just say except for the
resolution of any personal property matters between them.
MR. SUDEYKO: Okay.
THE COURT: You are not to attend to any residence or
place of employment at which you know [C.W.] to reside or work.
THE ACCUSED: And because you asked if I had anything to
say, I would like to say something. I was introduced to her. She has addiction
issues and mental health issues, and I can provide six months of text messaging
history, 16 months of Facebook messaging history. That’s, of course, that I
have been encouraging her to see a psychiatrist, encouraging her to deal with
her issues, positive input and also it reveals, you know, how manipulative she
can be. There’s — it’s I should not be in here. She should — honestly, her
fearing me? She has a black belt in martial arts.
THE COURT: Okay. Well, Mr. Irwin, the fact of the
matter is this: zero tolerance —
THE ACCUSED: Mm hmm.
THE COURT: — for tossing things around.
THE ACCUSED: I agree.
THE COURT: And, you know, I don’t question for a moment
that she may have been a very different person. I don’t question for a moment
that you were attempting to support her. Or that I I won’t even question that
she’s manipulative. But through counsel you’ve agreed to enter into this.
THE ACCUSED: Yeah.
THE COURT: I’ve imposed it. It’s the minimum terms. As
long as you comply, that will be the end of it. There’s no criminal conviction.
THE ACCUSED: Yeah.
THE COURT: But the bottom line is, don’t toss stuff
around.
THE ACCUSED: Yeah.
THE COURT: Don’t kick stuff around. Doesn’t matter how
mad you get.
THE ACCUSED: Okay.
MR. SUDEYKO: Thank you, Your Honour.
THE COURT: Thanks.
[24]
The peace bond having been imposed by the Court, the Crown then entered
a stay of proceedings on the information charging Mr. Irwin with assault.
MS. GREGOIRE: And the Crown stays the assault
allegation.
THE COURT: All right. Good luck, Mr. Irwin.
THE ACCUSED: Thanks.
MS. GREGOIRE: The term of the recognizance was 12
months?
THE COURT: Yes, I’m sorry.
MR. SUDEYKO: Twelve months, okay, thank you.
THE COURT: Twelve months.
MR. SUDEYKO: Thank you.
Discussion
[25]
Because a s. 810 recognizance is not a conviction, the peace bond
process does not involve the entry of a plea. Similar to the case of a guilty
plea, however, where, as here, the peace bond is entered into by consent, there
is no need for a trial or hearing with evidence.
[26]
An application to set aside a consent peace bond on appeal is therefore
in some ways analogous to an application to withdraw a guilty plea.
[27]
In R. v. Daum, 2008 BCSC 1712, McEwan J. dismissed an appeal
from the terms of a peace bond on the basis that the order had gone by consent,
and nothing had been demonstrated that would vitiate the consent. He said at para. 17:
[17] Because the original
order went by consent, and nothing has been demonstrated that would vitiate
that consent despite
the less than ideal circumstances in which the order was made this appeal must be
dismissed.
[28]
With respect, I agree that that is the appropriate test on an appeal
from a consent peace bond.
[29]
Mr. Irwin raises a number of issues in his affidavit. He claims
that he was not properly represented by Mr. Sudeyko and that he was
pressured into accepting the peace bond. I do not agree with either of those
submissions.
[30]
Mr. Sudeyko considered the disclosure from the Crown and the
explanations offered to him by Mr. Irwin. He advised Mr. Irwin that he
faced a real possibility of being convicted of assault if the matter went to
trial. I find nothing improper in that advice, in light of the fact that Mr. Irwin
admits that he kicked the complainants laptop in anger, and that it hit her,
resulting in injury.
[31]
Mr. Sudeyko advised Mr. Irwin of the consequent benefit to him
of entering into a peace bond. By doing so, Mr. Irwin eliminated the risk
of a criminal conviction for assault.
[32]
Of course, no one can say for certain what the result would have been if
the assault trial had gone ahead, but that is not the test. The point is that
the there was a real risk of a criminal conviction if the matter went to trial,
and by agreeing to the peace bond, that litigation risk was eliminated.
[33]
As Rowles J.A. observed in R. v. Staples, 2007 BCCA 616 at paras. 61-62:
[61] If, after assessing the strength of a case, counsel
suggests pleading guilty, this does not make counsel incompetent, even if
others might have done things differently (R. v. Arcand, 2000 SKCA 60,
199 Sask.R. 4 at para. 11; R. v. Newman (1993), 12 O.R. (3d) 481,
79 C.C.C. (3d) 394 (C.A.)). The mere fact that counsel recommends a guilty plea
does not amount to undue pressure or threat (R. v. Clermont (1996), 150
N.S.R. (2d) 264, 31 W.C.B. (2d) 2 (C.A.); R. v. Klassen (1994), 125
Sask.R. 56, 25 W.C.B. (2d) 145 (C.A.)). Inducements inherent in plea
negotiations do not render a later plea involuntary (R. v. King (2004),
60 W.C.B. (2d) 577, [2004] O.J. No. 717 (C.A.) (QL).
[62] Here, as a result of
his preparation, counsel was of the opinion that conviction was likely. It was
his view that the applicant could achieve a favourable disposition if he
pleaded guilty, and he so advised the applicant accordingly. However, counsel
made it clear that in order to plead guilty the applicant had to admit the
elements of the offence, including the sexual nature of his contact with the
complainants. None of the foregoing can be construed as ineffective assistance
by counsel.
[34]
Although those remarks were made in the context of a conviction appeal
from a guilty plea, analogous principles apply here, where the appeal is
against a peace bond that was entered into by consent.
[35]
Mr. Irwin now seems to be submitting that he should have had the
benefit of a hearing with evidence before the peace bond was imposed. He
suggests that if there had been such a hearing, the judge may have found that
the complainant did not have reasonable grounds to fear him and therefore would
not have imposed the recognizance.
[36]
However, that submission ignores the process that led up to the Crown
agreeing to stay the assault charge. The negotiations between the Crown and the
defence were in the nature of plea negotiations. The Crown agreed to stay the
assault charge only on the condition that the defence would consent to the
peace bond. The Crown never agreed to unconditionally stay the assault charge
and then have a hearing with evidence to see whether a peace bond would be
imposed or not.
[37]
I find nothing in the material to support Mr. Irwins allegation that
he was pressured by Mr. Sudeyko. Mr. Sudeyko had to deal with a
difficult situation, namely, the vacillation of his client about his
instructions. Mr. Sudeyko dealt with that situation appropriately, by
telling Mr. Irwin that he could either continue with his initial
instructions to seek a peace bond, or Mr. Irwin could seek other counsel,
in which case, Mr. Sudeyko would withdraw from the case after obtaining an
adjournment from the Court. The latter procedure would not have prejudiced Mr. Irwin
in any way, and therefore, there was no improper pressure. In the end, Mr. Irwin
decided to go ahead with the peace bond and to continue to have Mr. Sudeyko
represent him in that process. The fact that he apparently changed his mind
again after the peace bond was imposed is not a basis for finding that the
imposition of the peace bond was improper, or that he was subject to undue
pressure.
[38]
Mr. Irwin now says that he did not understand the consequences of
entering into the peace bond. The terms of the peace bond and the consequences
of a breach are set out in writing on the recognizance itself. Mr. Irwin
signed that document. As well, the terms were discussed in Court in Mr. Irwins
presence. I do not accept that Mr. Irwin was under any misapprehension
about the nature or consequences of the recognizance.
[39]
Mr. Irwin says that he did not know that the fact of his entering
into a peace bond would be kept in police computers and might affect him when
he wants to cross the border. There is no clear evidence before me that the
peace bond in fact has these effects. In any event, these are not consequences
that follow by law from the imposition of a peace bond. At most, they are
incidental administrative consequences. What is clear is that as a matter of
law, the imposition of a peace bond does not result in a conviction being
registered, provided, of course, that there is no breach of the recognizance. I
am not satisfied that Mr. Irwin has shown that his displeasure about the
alleged administrative consequences provides a basis for setting aside the
recognizance that he signed.
[40]
Finally, Mr. Irwin submits that there is in fact no basis for the
peace bond because the complainant has no reasonable grounds to fear him.
[41]
The learned Provincial Court Judge was entitled to rely on the
submissions before her to the effect that Mr. Irwin consented to the
imposition of the peace bond. This concession obviated the need for her to
conduct a hearing to determine whether the evidence could support a reasonable
ground to fear. She was informed that Mr. Irwin was represented by Mr. Sudeyko,
and that they were prepared to proceed on the basis of entering into a
recognizance. Mr. Sudeyko then said, and I can indicate that we are not
challenging the grounds for that. The Provincial Court Judge was entitled to
rely on that statement as a basis for concluding that the complainant had
reasonable grounds to fear Mr. Irwin and that the requirements for a peace
bond were met.
[42]
In addition, the Crown read out the facts of the case, including that in
the context of an argument, Mr. Irwin kicked the complainants laptop
computer while she was lying on a bed and that it struck her. The Crown read
out that the complainant left the residence as a result, and she is in fear
and does not wish to have any further contact with Mr. Irwin. Following
Crown counsels submissions, Mr. Sudeyko told the Court that Mr. Irwin
acknowledges he inappropriately kicked the computer, and that in any event,
he certainly accepts the basis for a peace bond.
[43]
Later, the Provincial Court Judge asked Mr. Irwin if he had
anything to say, and he mentioned that the complainant has a black belt in
martial arts. The Judge told him that there is zero tolerance for tossing
things around. Mr. Irwin replied, I agree. The Provincial Court Judge
then said, But through counsel youve agreed to enter this. Mr. Irwin
replied, Yeah.
[44]
I do not accept Mr. Irwins submission on appeal that he could not
hear everything that was being said at the Provincial Court hearing. There is
nothing in the transcript to support that.
[45]
In all the circumstances, Mr. Irwin has not demonstrated any basis
for vitiating his consent to the imposition of the peace bond.
[46]
The appeal is dismissed.
The
Honourable Mr. Justice W.F. Ehrcke