R. v. Alkhawaji (A.M.),

R. v. Alkhawaji (A.M.) (2013), 332 N.S.R.(2d) 297 (SC);

    1052 A.P.R. 297

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JL.047

Ali Mohammed Alkhawaji (appellant) v. Her Majesty the Queen (respondent)

(Hfx. No. 410617; 2013 NSSC 233)

Indexed As: R. v. Alkhawaji (A.M.)

Nova Scotia Supreme Court

LeBlanc, J.

July 22, 2013.

Summary:

The accused pleaded guilty to driving a motor vehicle without insurance (Motor Vehicle Act, s. 230(1)) and was sentenced. The accused appealed against conviction and sentence, seeking to withdraw his guilty plea on the ground that the Justice of the Peace erred in accepting the guilty plea where the accused did not fully appreciate the nature of the charge.

The Nova Scotia Supreme Court allowed the appeal, set aside the guilty plea and ordered a new trial. The Justice of the Peace erred in accepting the accused's guilty plea where it was apparent that he did not understand the nature of the guilty plea.

Civil Rights - Topic 2803

Language - Assistance of interpreter - Criminal proceedings - An accused charged with driving without motor vehicle insurance asked the Justice of the Peace (JP) whether he could have an interpreter because English was not his first language - The JP dismissed the request without inquiry, because the accused was enrolled in university in a Master's programme in English - The Nova Scotia Supreme Court, in obiter, stated that a court should usually conduct an inquiry into whether an interpreter is needed where an accused requested an interpreter or there was some other indication that an interpreter was needed (R. v. Tran (SCC)) - Once the accused requested an interpreter, it was not appropriate for the JP to dismiss the request out of hand - The court stated that "the mere fact that a person is studying for a Master's degree in English is not itself a sufficient indication that he or she does not need an interpreter in accordance with the Tran analysis. A more meaningful inquiry probably should have been conducted and [the JP] should have given reasons for rejecting [the accused's] request." - See paragraphs 49 to 53.

Criminal Law - Topic 4226

Procedure - Pleas - Acceptance of guilty plea - The Nova Scotia Supreme Court stated that "the duty of a judge or a presiding justice of the peace when inquiring into the validity of a guilty plea is only to satisfy himself or herself that the guilty plea is not deficient (i.e. it was voluntary, unequivocal, etc.). Once there is an indication that the guilty plea is deficient, the judge or presiding justice of the peace should reject the guilty plea, adjourn the proceedings to permit the accused to seek legal advice, and set the matter down for trial. Although it may be possible to correct minor misunderstandings on the spot, the judge or presiding justice of the peace should not take on the role of counsel for the accused." - See paragraph 48.

Criminal Law - Topic 4227

Procedure - Pleas - Change of plea from guilty to not guilty - The unrepresented accused admitted driving without motor vehicle insurance, it having been cancelled for nonpayment - He initially pleaded guilty before the Justice of the Peace (JP), but explained that because he was moving, he had advised his insurer that he would be unable to continue to automatically pay his insurance premium out of his bank account until changes were made - The accused told the JP that the insurer assured him that the status of his policy would not be affected and that he would be advised if that position changed - After receiving his ticket, the accused contacted his insurer and stated that he was told for the first time that his policy had been cancelled - The JP informed the accused that his explanation, if true, might constitute the defence of due diligence, but would require a trial - When the JP asked the accused if he still wished to plead guilty, the accused responded yes, as he believed that the police officer rightfully issued him a ticket because the insurer had cancelled his insurance - The JP accepted the guilty plea and fined the accused - The Nova Scotia Supreme Court allowed the accused's conviction appeal on the ground that the JP erred in accepting the guilty plea where it was apparent that the accused did not understand the nature of the guilty plea - The accused was unrepresented, English was not his first language, he did not understand the defence of due diligence and he did not understand that if due diligence applied he would be found not guilty - The accused's admission of the elements of the offence was equivocal, given his explanation that while he was in fact driving without insurance his insurer had assured him that the temporary payment problem would not affect his status - See paragraphs 31 to 48.

Criminal Law - Topic 4227

Procedure - Pleas - Change of plea from guilty to not guilty - The Nova Scotia Supreme Court stated that "I am unaware of any authority which allows a person to withdraw a plea solely because he or she no longer wishes to admit the facts he or she admitted when the plea was accepted. It will almost always be possible to argue that there is a reasonable doubt about something in a criminal matter. Part of the bargain in a guilty plea is that the accused agrees to waive his right to have such matters proved beyond a reasonable doubt. If an accused was permitted to withdraw his or her guilty plea on appeal only by showing that he might be able to argue there was a reasonable doubt, then a guilty plea would be meaningless. Absent other considerations, it is not usually manifestly unjust to believe an accused when he or she admits the elements of an offence." - See paragraph 28.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - [See first Criminal Law - Topic 4227 ].

Cases Noticed:

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 7].

R. v. McCollum (P.L.) (2008), 264 N.S.R.(2d) 273; 847 A.P.R. 273; 2008 NSCA 36, refd to. [para. 9].

R. v. Nevin (T.L.) (2006), 245 N.S.R.(2d) 52; 777 A.P.R. 52; 2006 NSCA 72, refd to. [para. 15].

R. v. R.T. (1992), 58 O.A.C. 81 (C.A.), refd to. [para. 15].

R. v. Riley (M.W.) (2011), 303 N.S.R.(2d) 321; 957 A.P.R. 321; 2011 NSCA 52, refd to. [para. 16].

R. v. Melanson (1983), 59 N.S.R.(2d) 54; 125 A.P.R. 54 (C.A.), refd to. [para.17].

R. v. Clermont (S.M.) (1996), 150 N.S.R.(2d) 264; 436 A.P.R. 264 (C.A.), refd to. [para. 18].

R. v. Laudisio (M.), [2009] B.C.T.C. Uned. 235; 2009 BCSC 235, refd to. [para. 19].

Patterson and Perry v. Gallant, [1994] 3 S.C.R. 1080; 174 N.R. 380; 125 Nfld. & P.E.I.R. 1; 389 A.P.R. 1, refd to. [para. 29].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 38].

R. v. Wells, [2003] O.J. No. 2025 (C.J.), refd to. [para. 40].

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81, refd to. [para. 50].

R. v. Messina, 2005 ONCJ 560, refd to. [para. 52].

Counsel:

Wayne Bacchus, for the appellant;

Jim Janson, for the respondent.

This appeal was heard on May 9, 2013, at Halifax, N.S., before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 22, 2013.