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 鈥渄irect and serious legal consequences鈥� of his guilty pleas, there鈥檚 a 鈥渞easonable possibility鈥� he would have pleaded otherwise.
鈥淚t follows that he has demonstrated subjective prejudice and that allowing his guilty pleas to stand would amount to a miscarriage of justice,鈥� Dickson concluded in her March 6 , with fellow appeal court judges Bruce Butler and Christopher Grauer concurring.
鈥淔or a guilty plea to be informed,鈥� she noted, 鈥渢he accused must be aware of the nature of the allegations, and the effect and legal consequences of the plea.鈥�
鈥淔or Mr. Klassen鈥檚 guilty pleas to be informed he needed to know of their direct and serious legal consequences.鈥�
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, 鈥渇requent cell phone ringing,鈥� and a paper he believed to be a score sheet.
鈥淏ased on his observations, he decided to detain Mr. Klassen and Ms. Marchuk for a drug investigation,鈥� Dickson noted. The officer informed them of their Charter rights but failed to mention they could immediately contact a lawyer and that it wasn鈥檛 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 鈥渘o鈥� to the first question, and 鈥測es, a joint, maybe a roach,鈥� 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.
鈥淏ased on the change in Mr. Klassen鈥檚 jeopardy,鈥� Dickson noted, the constable read him his rights again and then searched him and his car. 鈥淚n Mr. Klassen鈥檚 car, he found the score sheet and various drugs. On his person, he found drugs, cash, and a cell phone.鈥�
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鈥檛 be able to challenge the Surrey judge鈥檚 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.
鈥淗e was unaware that by pleading guilty he would be unable to challenge the trial judge鈥檚 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,鈥� Dickson noted in her reasons. 鈥淔urther, 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.鈥�
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鈥檚 application on June 21, 2019 and on Sept. 16, 2019, granted her application and stayed the proceedings.
tom.zytaruk@surreynowleader.com
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