R. v. Riley (M.W.), (2011) 303 N.S.R.(2d) 321 (CA)

R. v. Riley (M.W.) (2011), 303 N.S.R.(2d) 321 (CA);

    957 A.P.R. 321

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JN.015

Michael William Riley (appellant) v. Her Majesty The Queen (respondent)

(CAC 312177; 2011 NSCA 52)

Indexed As: R. v. Riley (M.W.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.

June 7, 2011.

Summary:

The 47 year old accused and his wife were jointly charged with production of marijuana for growing a small amount of marijuana for personal use. After failed attempts to persuade the Crown to drop the charge against his wife, the accused pleaded guilty in exchange for proceedings against his wife being discontinued. The trial judge sentenced the accused to a conditional discharge, 18 months' probation, and the mandatory minimum 10 year firearms prohibition order under s. 109 of the Criminal Code. The accused appealed, seeking to withdraw his guilty plea on the ground that a miscarriage of justice resulted. The accused argued that his lawyer was incompetent for failing to advise him that he would be subject to a mandatory firearms prohibition order.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4227

Procedure - Pleas - Change of plea from guilty to not guilty - The accused and his wife were jointly charged with production of marijuana for growing a small amount of marijuana for personal use - After failed attempts to persuade the Crown to drop the charge against his wife, the accused pleaded guilty in exchange for proceedings against his wife being discontinued - The trial judge sentenced the accused to a conditional discharge, 18 months' probation and the mandatory minimum 10 year firearms prohibition order (Criminal Code, s. 109) - The accused appealed, seeking to withdraw his guilty plea on the ground of a miscarriage of justice - The accused argued that his lawyer was incompetent for failing to advise him that the mandatory minimum firearms prohibition order would be imposed - The Nova Scotia Court of Appeal dismissed the appeal - Assuming that counsel failed to advise the accused that the court had to impose at least the minimum prohibition order, no miscarriage of justice resulted - The accused got what he bargained for (discontinued proceedings against his wife) - Had the accused known of the mandatory minimum firearms prohibition order prior to changing his plea to guilty there was no reasonable possibility that he would not have chosen to plead guilty - Absent any prejudice to the accused there was no miscarriage of justice.

Criminal Law - Topic 4233

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

Cases Noticed:

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 19].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 81, refd to. [para. 19].

R. v. Hobbs (K.P.) (2010), 291 N.S.R.(2d) 340; 922 A.P.R. 340; 2010 NSCA 53, refd to. [para. 20].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 20].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 22].

R. v. Brousseau, [1969] S.C.R. 181; 13 C.C.C. 129, refd to. [para. 28].

R. v. Thibodeau, [1955] S.C.R. 646, refd to. [para. 28].

Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 28].

R. v. Melanson (1983), 59 N.S.R.(2d) 54; 125 A.P.R. 54 (C.A.), refd to. [para. 31].

R. v. Nevin (T.L.) (2006), 245 N.S.R.(2d) 52; 777 A.P.R. 52; 2006 NSCA 72, refd to. [para. 31].

R. v. Lamoureux (1984), 13 C.C.C.(3d) 101 (Que. C.A.), refd to. [para. 31].

R. v. Laperrière (Y.), [1996] 2 S.C.R. 284; 198 N.R. 81; 109 C.C.C.(3d) 347, refd to. [para. 31].

R. v. Djekic (C.) (2000), 135 O.A.C. 220; 147 C.C.C.(3d) 572 (C.A.), refd to. [para. 31].

R. v. Rajaeefard (A.R.) (1996), 87 O.A.C. 356; 104 C.C.C.(3d) 225 (C.A.), refd to. [para. 31].

R. v. Taillefer (B.) (2003), 313 N.R 1; 2003 SCC 70, refd to. [para. 34].

R. v. Stewart (A.E.), [2002] O.T.C. 999 (Sup. Ct.), dist. [para. 42].

R. v. Rulli (P.), [2008] O.T.C. Uned. 512 (Sup. Ct.), refd to. [para. 44].

R. v. B.D., [2009] O.T.C. Uned. 962 (Sup. Ct.), refd to. [para. 44].

R. v. Slobodan (M.L.) (1993), 135 A.R. 181; 33 W.A.C. 181 (C.A.), refd to. [para. 45].

R. v. Tyler (T.E.) (2007), 237 B.C.A.C. 312; 392 W.A.C. 312; 2007 BCCA 142, refd to. [para. 45].

R. v. Hunt (C.P.) (2004), 346 A.R. 45; 320 W.A.C. 45; 2004 ABCA 88, refd to. [para. 45].

R. v. Hoang (T.V.) (2003), 339 A.R. 291; 312 W.A.C. 291; 2003 ABCA 251, refd to. [para. 45].

R. v. Fegan (J.J.) (1993), 62 O.A.C. 146; 80 C.C.C.(3d) 356 (C.A.), refd to. [para. 45].

R. v. Claveau (L.F.) (2003), 260 N.B.R.(2d) 192; 684 A.P.R. 192; 2003 NBCA 52, refd to. [para. 45].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 606(1.1), sect. 606(1.2) [para. 28].

Counsel:

Mark T. Knox, for the appellant;

Ann Marie Simmons, for the respondent.

This appeal was heard on May 10, 2011, at Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On June 7, 2011, Beveridge, J.A., delivered the following judgment for the Court of Appeal.