The Court of Appeal for British Columbia has set aside guilty pleas and ordered a new trial in a Newton drug trafficking case heard in Surrey provincial court after finding that the accused likely would not have pleaded guilty if he knew that by doing so he would be forfeiting certain rights.
Justice Gail Dickson found that had the accused, Beverley Keith Klassen, been aware of the “direct and serious legal consequences” of his guilty pleas, there’s a “reasonable possibility” he would have pleaded otherwise.
“It follows that he has demonstrated subjective prejudice and that allowing his guilty pleas to stand would amount to a miscarriage of justice,” Dickson concluded in her March 6 reasons for judgment, with fellow appeal court judges Bruce Butler and Christopher Grauer concurring.
“For a guilty plea to be informed,” she noted, “the accused must be aware of the nature of the allegations, and the effect and legal consequences of the plea.”
“For Mr. Klassen’s guilty pleas to be informed he needed to know of their direct and serious legal consequences.”
By way of background, on Aug. 8, 2016, a Surrey RCMP constable on patrol in Newton spotted a car with a burnt-out tail light, threw on his emergency lights and pulled it over. Two people were in the car, the court heard: Klassen was the driver and owner, and his friend Janessa Rae Marchuk, was front seat passenger.
The court heard that while the officer was asking Klassen for his insurance papers he noticed there were multiple cell phones in the car, “frequent cell phone ringing,” and a paper he believed to be a score sheet.
“Based on his observations, he decided to detain Mr. Klassen and Ms. Marchuk for a drug investigation,” Dickson noted. The officer informed them of their Charter rights but failed to mention they could immediately contact a lawyer and that it wasn’t contingent on their ability to afford private counsel.
The constable asked Klassen if he had any drugs on him or in his car, to which Klassen replied no. He asked Marchuk the same, to which she replied “no” to the first question, and “yes, a joint, maybe a roach,” after which he arrested both for marijuana possession.
As he was reading Klassen his rights, the court heard, the officer noticed Marchuk throwing baggies of what appeared to be drugs onto the ground and in response arrested them for possession of drugs for the purpose of trafficking.
“Based on the change in Mr. Klassen’s jeopardy,” Dickson noted, the constable read him his rights again and then searched him and his car. “In Mr. Klassen’s car, he found the score sheet and various drugs. On his person, he found drugs, cash, and a cell phone.”
Klassen and Marchuk were charged with possession of heroin, fentanyl, cocaine, and methamphetamine for the purposes of trafficking. After their first appearance in court the case was adjourned for roughly two months to permit Marchuk to get lawyer but after she failed to appear on the return date a bench warrant was issued for her arrest.
Klassen and Marchuk were tried together for possessing controlled drugs for the purpose of trafficking. In the middle of the trial, Klassen pleaded guilty to all counts unaware that by doing so he wouldn’t be able to challenge the Surrey judge’s Charter rulings or apply for a stay of proceedings. Dickson noted the trial continued after he pleaded guilty and the Surrey judge convicted the co-accused but later stayed the proceedings against her, finding her right to be tried within a reasonable time had been infringed.
“He was unaware that by pleading guilty he would be unable to challenge the trial judge’s Charter rulings and/or apply for a stay of proceedings for the infringement of his right to be tried within a reasonable time under s. 11(b) of the Charter,” Dickson noted in her reasons. “Further, the appellant suffered prejudice giving rise to a miscarriage of justice because there is a reasonable possibility that he would not have pleaded guilty had he been properly informed.”
Dickson noted that on Feb. 25, 2019, Marchuk brought court application seeking a stay of proceedings for unreasonable delay. On April 23, 2019, the Surrey judge sentenced Klassen to 15 months in jail, heard Marchuk’s application on June 21, 2019 and on Sept. 16, 2019, granted her application and stayed the proceedings.