NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald, 2016 NSCA 27. Between: James Malcolm Russell MacDonald. v. Her Majesty the Queen

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1 NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald, 2016 NSCA 27 Date: Docket: CAC Registry: Halifax Between: James Malcolm Russell MacDonald v. Her Majesty the Queen Appellant Respondent Judge: Appeal Heard: The Honourable Justice J.E. (Ted) Scanlan February 4, 2016, in Halifax, Nova Scotia Subject: Summary: Issue: Result: Withdrawal of guilty plea. Effectiveness of counsel The appellant was arrested on drug and weapons charges. He admitted producing and possessing marihuana and admitted the improper storage of firearms. He entered guilty pleas to the production charge and the weapons offences. He now wants the guilty pleas set aside, saying he was not effectively represented by counsel and that he did not intend to plead guilty to production of marihuana. He said his instruction to counsel was to plead guilty to possession only. Should the guilty pleas be set aside based on ineffective representation by counsel? The record is clear. The appellant was not misled by anything the court or his counsel said or did. The facts, as admitted, support the convictions. The appellant was effectively and appropriately represented by counsel. The record shows that guilty pleas were entered based on instructions the appellant gave to counsel. Those instructions were confirmed in writing. The appeal is dismissed.

2 This information sheet does not form part of the court s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 8 pages.

3 NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald, 2016 NSCA 27 Date: Docket: CAC Registry: Halifax Between: James Malcolm Russell MacDonald v. Her Majesty the Queen Appellant Respondent Judges: Appeal Heard: Beveridge, Bryson and Scanlan, JJ.A. February 4, 2016, in Halifax, Nova Scotia Held: Counsel: Appeal dismissed per reasons for judgment of Scanlan, J.A.; Beveridge and Bryson, JJ.A. concurring. Nicholaus Fitch, for the appellant Rachel Furey, for the respondent Stacey Gerrard for Lawyers Insurance Association of Nova Scotia (Robert Sutherland)

4 Page 2 Reasons for judgment: [1] Mr. MacDonald pled guilty to one count of production of marihuana pursuant to s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA) and three counts of careless storage of firearms and ammunition. He was sentenced to 60 days imprisonment, to be served continuously, plus twelve months probation on the production charge. A victim surcharge of $200 was imposed in relation to the CDSA conviction. He was fined $ plus victim surcharge of $90 on each of the firearms convictions. A 10 year plus 60 days weapons prohibition was imposed in accordance with s.109 of the Criminal Code of Canada, R.S.C. 1985, c-46. The court also ordered forfeiture of the weapons, drugs and growing equipment. [2] Mr. MacDonald appeals against conviction on the grounds that he was denied the effective assistance of counsel. He asserts that he unknowingly pled guilty to a production of marihuana charge believing he pled guilty to a charge of simple possession, pursuant to s. 4(1) of the CDSA. [3] Mr. MacDonald also asserts that his counsel did not explain certain legal defences and arguments available to him and that this affected the fairness of his trial. [4] Mr. MacDonald has requested leave from this Court to adduce fresh evidence related to the issue of the ineffectiveness of his counsel. Background [5] On February 20, 2014, the police searched Mr. MacDonald s residence in Stellarton, Nova Scotia. They located 10 marihuana plants, 225 grams of dried marihuana, 600 grams of marihuana shake, marihuana grow operation equipment, two shotguns, a handgun ammunition and brass knuckles. He gave a voluntary statement to the police in which he admitted possession of marihuana, and advised that he had an expired licence that had previously allowed him to grow 15 plants. Mr. MacDonald also admitted possession of the weapons. [6] Mr. MacDonald indicated to the police that he has Crohn s disease and suffered from anxiety and depression. He said he eats the marihuana to assist him in dealing with the symptoms associated with his diseases.

5 [7] Mr. MacDonald pled guilty to one charge under s. 7(1) of the CDSA and three firearms offences under the Criminal Code. Page 3 [8] He now asks that the guilty pleas be set aside based, on what he asserts was, ineffectiveness of his counsel at trial. Analysis [9] I start by noting that the Notice of Appeal enumerates a single ground of appeal: Trial counsel was incompetent in that he did not explain the defences available to the Appellant and the legal arguments by which The Appellant could have contested his guilt and this Affected the fairness of the Appellants trial. [10] In his written and oral submissions on appeal, Mr. MacDonald suggests that he did not understand that he was entering a guilty plea to a production charge pursuant to s. 7(1) of the CDSA. He says he thought he was pleading guilty to a simple possession charge under s. 4(1) of that Act. He argues that his counsel failed to make it clear to him that he was entering a plea to the production charge (s. 7(1)) and not a charge of simple possession (s. 4(1)) of the CDSA. [11] He argues that his counsel assured him that the sentencing judge would not impose a custodial sentence. He says he relies on sustenance hunting for his livelihood. He conceded on appeal that he understood that if he entered a guilty plea to the s. 7(1), as opposed to the s. 4(1) charge under the CDSA that he would be subjected to a firearms prohibition under s. 109 of the Criminal Code which would deny him of the ability to hunt. He says for that reason he would not have agreed to plead guilty on the s. 7(1) charge. [12] Mr. MacDonald s first appearance in Provincial Court on the charges was April 14, He had counsel during that appearance and at numerous subsequent court appearances. The charge pursuant to s. 7(1) of the CDSA is an indictable offence. Mr. MacDonald had originally elected trial by judge alone in the Supreme Court. On September 24, 2014, Mr. MacDonald re-elected to Provincial Court, but the matter of plea was adjourned to November 5, [13] On November 5, 2014, Mr. MacDonald s counsel advised the court that he had written instructions to enter guilty pleas to Count #1, which was the count under s. 7(1) of the CDSA, and the three charges for the improper storage of

6 Page 4 firearms. At that time counsel noted that Mr. MacDonald s guilty pleas were knowing volitional, unequivocal, and in compliance with Section 606(1.1) of the Criminal Code. Mr. MacDonald was queried by the Court whether this was correct and he replied yes. A pre-sentence report was ordered and a sentencing hearing was adjourned to January 8, Mr. Sutherland produced a copy of the written instructions from his file which confirm that Mr. MacDonald had instructed his counsel that he wanted to plead guilty to the s.7(1) CDSA offence. [14] During the November 5, 2014 appearance the court noted that a charge under s. 4(1) of the CDSA was withdrawn by the Crown. On appeal Mr. MacDonald said he knew the difference between s. 4(1) and s. 7(1) of the CDSA. That being the case then he would have known that, in his presence, and on the record, the judge indicated that the s. 4(1) charge was being withdrawn. [15] After November 5, a presentence report was prepared. On the cover page, it referenced the drug offence as CDSA 7(1). The report also states at page 6: Mr. James Malcolm Russel MacDonald is appearing before the court for charges including: Production of a Substance, contrary to Section 7(1) of the Controlled Drugs and Substances Act [16] On January 8, 2015, Mr. MacDonald was again present with counsel, and the court reviewed the charges to which the guilty pleas had been entered. The relevant facts were read into the record by the federal and provincial Crowns. The court noted that the CDSA charge was a single count of production of cannabis. (AB pg. 7) The court noted, after the Crown reviewed the evidence that the evidence supported a guilty plea and the court would record a conviction in relation to the 7(1) count. (emphasis added) All of this occurred in the presence of Mr. MacDonald. [17] In sentencing submissions the federal Crown noted Mr. MacDonald s significant health problems and lack of criminal record, suggesting the range of sentence was somewhere between a short period of jail, a fine and probation. The federal Crown asked for a sentence of 60 days, followed by12 months probation on the production charge. The provincial Crown asked for a fine of $300 on each of the firearms charges. [18] Mr. MacDonald s counsel requested a fine and probation. He referred to similar cases that had resulted in non-custodial dispositions in that jurisdiction. He also advised the court of Mr. MacDonald s Crohn s disease and the fact that he had

7 Page 5 previously had a medical marihuana licence, and that as of the day of the sentence he once again had a medical marihuana license. His counsel also suggested that the confession, guilty plea and absence of a criminal record should be substantial mitigating factors. Mr. Sutherland also noted that Mr. MacDonald was a sustenance hunter and he sought a s. 113 exemption in relation to any firearms prohibition. [19] Prior to the sentence being imposed Mr. MacDonald made a submission to the sentencing judge. He requested an absolute discharge and a direction from the court requiring the return of his cannabis and his growing gear. He said that the seizure of his equipment was a direct interference with my ability to control my own physical and psychological integrity. During that submission Mr. MacDonald also complained that the newspapers had erroneously reported that he had been charged with trafficking when, in fact, he had been charged with production and possession. That representation alone makes it obvious that, as of the date of sentencing, Mr. MacDonald was well aware of the offence to which he had pled guilty and for which he was about to be sentenced. [20] Mr. MacDonald was sentenced to 60 days in prison, plus 12 months probation and a $ victim surcharge on the production conviction. No part of the sentence is being appealed and as such this decision should not be interpreted as a comment on the sentence imposed. Fresh Evidence Application [21] I have admitted and considered the fresh evidence. I reproduce the relevant portions of Mr. MacDonald s affidavit he filed in support of his motion to introduce fresh evidence on appeal: 3. I was represented by Defense counsel, Robert Sutherland at trial in Pictou Provincial court before the Honourable Chief Justice Attwood. 4. Mr. Sutherland and I discussed the charges against me and a resolution with respect to my charges. 5. Mr. Sutherland advised me that once I was given my Medical Marijuana Card back, that it would take care of that charge meaning it would resolve my charges under section 7(1) of the Controlled Drugs and Substances Act by way of a fine should I plead guilty to section 4(1) of the Controlled Drugs and Substances Act. I retrieved my Medical Marijuana Card on July 24, 2014.

8 6. Mr. Sutherland also advised me to plead guilty to the charges under section 86(2) of the Criminal Code of Canada. I held various firearms licenses as well as a Range Membership when charged with these weapons offenses. 7. Mr. Sutherland assured me that there would be no prospect of incarceration should I follow his advice, as he would propose this plan to the Crown Attorney and receive a resolution resulting in a fine. 8. On the day of trial, I plead guilty to three counts of unsafe storage of a firearm and one count of simple possession. Mr. Sutherland advised that the remaining charge involving a hunting knife would be dismissed as well. 9. After my plea was entered, Mr. Sutherland then took me in a side room to sign an order with respect to the 4(1) charge. 10. Once I left the courthouse and reviewed the order a second time, I realized that in fact signed an order with respect to production rather than possession and that I plead guilty to charges that I did not agree to plead guilty to. 11. I attempted to contact Mr. Sutherland following reading the order a second time and was unable to reach him. I then attempted to contact Mr. Sutherland over the course of weeks by telephone and , again with no response. 12. Mr. Sutherland did not make any attempts to return my telephone calls or schedule a meeting to discuss this issue with me and I did not see Mr. Sutherland again until the day of Sentencing. 13. On the day of Sentencing, Mr. Sutherland asked me to step outside of the courtroom and advised me that the Crown was seeking 60 days imprisonment as sentencing. This came as a total surprise, as Mr. Sutherland assured me that I would not be imprisoned and would receive a fine and probation. 15. Mr. Sutherland mislead me to believe that by pleading guilty to the weapons charges and a simple possession charge while providing my Medical Marijuana card the end result for my matter would be a fine and probation. Page 6 [22] At the appeal hearing Mr. MacDonald also filed with the Court a copy of an dated December 6, 2014, that he directed to Mr. Sutherland, his counsel. The relevant portion of that states:

9 Also in the newspaper it said I had agreed to plead guilty to cultivation or production?, all I thought I had agreed to was possession and you told me my card would take care of that charge. Page 7 [23] Mr. Sutherland filed a lengthy affidavit which contradicts many of the assertions made by Mr. MacDonald. Mr. MacDonald, who had counsel on the appeal, chose not to challenge Mr. Sutherland through cross-examination on the affidavit that he had filed. In that affidavit Mr. Sutherland said it was clear that Mr. MacDonald instructed that a guilty plea was going to be entered in relation to the production of cannabis charge under s. 7(1) of the CDSA. He further indicated that he did not make any assurances to Mr. MacDonald that he would not be sentenced to any period of incarceration. He said that he would be attempting to keep Mr. MacDonald from being sentenced to any period of incarceration. Mr. Sutherland s affidavit suggests that everything that was done on the record was in accordance with instructions he had from Mr. MacDonald and that those instructions were pursuant to an agreed strategy. [24] Nothing on the record suggests that anybody said anything that would lead Mr. MacDonald to believe that he was at any time being charged, or only pleading guilty to simple possession as opposed to production. In fact every indication on the record was to the effect that the s. 7(1) CDSA charge was proceeding and the s. 4(1) charge had been withdrawn. [25] Mr. MacDonald s assertions are contradicted by the written instructions he gave to counsel. I do not accept Mr. MacDonald s assertion that he did not know that he was entering a guilty plea to the production charge. The record is replete with examples of references to the fact that the court was dealing with a production charge. I have noted already that the pre-sentence report referenced a production charge. At the beginning of the sentencing hearing on January 8, 2015, the sentencing judge made it clear that the court would be sentencing Mr. MacDonald on a single count of production of cannabis, a charge which Mr. MacDonald had pled guilty to. [26] Mr. MacDonald argued on appeal that he thought that on the day of the sentencing hearing he would not be able to withdraw his guilty plea and for that reason he did not raise the issue. [27] During his submissions on appeal Mr. MacDonald made it clear that he knew the difference between possession and production and the ramifications when it came to sentencing. He said he would never have agreed to a guilty plea on

10 Page 8 the production charge. I am satisfied that it is clear from the record that he in fact did knowingly enter a guilty plea on the production charge contrary to s. 7(1) of the CDSA. He did this with the benefit of counsel who in concert with Mr. MacDonald adopted a reasonable strategy to deal with the charges. [28] Mr. MacDonald has failed to convince me that there was any misunderstanding on his part as to what he intended to plead to. He instructed counsel saying he was willing to plead guilty to the production charge, s. 7(1). Second, nothing on the record or in the evidence convinces me that Mr. Sutherland was incompetent or ineffective in his representation of Mr. MacDonald. In fact I am convinced that the strategy employed by counsel and agreed to by Mr. MacDonald in this case was very reasonable. Essentially it was a strategy of delay, that allowed Mr. MacDonald time to have his medical marihuana licence reinstated. That was perhaps his best, if not his only chance to minimize his sentence.p [29] I am not convinced that counsel was ineffective nor that any miscarriage of justice resulted. The evidence, as read into the record, clearly indicates that he was guilty of the s 7(1) offence. There is nothing in the appellant s affidavit or on the record that would suggest that the possibility of the Crown accepting a plea on the simple possession charge was ever available. There is nothing to suggest that the opportunity to plead to the lesser charge was lost as a result of anything Mr. MacDonald may have understood or misunderstood in the court process or in his communications with counsel. [30] I would dismiss the appeal Scanlan, J.A. Concurring: Beveridge, J.A. Bryson, JJA