



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1)
    or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2), the presiding judge or justice may
    make an
order
directing that any information that
    could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)
any
of the following offences;

(i)   an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162,
    163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01,
    279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to commit rape),
    149 (indecent assault on female), 156 (indecent assault on male) or 245 (common
    assault) or subsection 246(1) (assault with intent) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female
    under 14) or (2) (sexual intercourse with a female between 14 and 16) or
    section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse
    with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166
    (parent or guardian procuring defilement) or 167 (householder permitting
    defilement) of the
Criminal Code
, chapter C-34 of the Revised Statutes
    of Canada, 1970, as it read immediately before January 1, 1988; or

(b)
two
or more offences being dealt with in the same
    proceeding, at least one of which is an offence referred to in any of
    subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the
    offences referred to in paragraph (1
)(
a) or (b), the
    presiding judge or justice shall

(a)  at the first reasonable opportunity, inform any witness under the
    age of eighteen years and the complainant of the right to make an application
    for the order; and

(b)
on
application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3
)(
b).

486.6       (1)
Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order.
2005, c. 32, s. 15.






CITATION:
R. v. D.M.G., 2011
          ONCA 343



DATE: 20110502



DOCKET: C49549



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Simmons and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



D.M.G.



Appellant



Wayne A. Rumble, for the appellant



Alexander Hrybinsky, for the respondent



Heard: November 9, 2010



On appeal from a conviction of sexual interference entered by
          Justice R.J. Richards of the Ontario Court of Justice on February 21, 2008.



Watt J.A.



[1]

By pleading not guilty, an accused formally denies
    having committed the offence charged and requires the prosecutor to prove each
    essential element of the offence with which the accused is charged beyond a
    reasonable doubt.  To do so, the
    prosecutor introduces evidence that is relevant, material and admissible. The
    trier of
fact,
whether judge or jury, assesses the
    evidence and decides whether the prosecutors proof meets or falls short of the
    standard required of it.

[2]

G. (D.M.) (the appellant) pleaded not guilty to a
    charge of sexual interference. He thought he would have a trial where he could
    tell his side of the story.  He had a
    lawyer to help him out.  But the
    appellant didnt have a trial. He didnt get to tell his side of the story. And
    he didnt see or hear anyone else testify either.

[3]

As soon as the appellants lawyer pleaded not guilty on
    the appellants behalf, the prosecutor read out the allegations against him.
    The appellants lawyer said that he had no submissions. The prosecutor made no
    submissions either. The judge convicted the appellant and remanded him in
    custody for sentencing.

[4]

The appellant seeks a new trial. He says that his
    conviction was a miscarriage of justice because his lawyer didnt do his job
    properly. The respondent disputes the claim of ineffective assistance of
    counsel, but expresses some concern about the manner in which the proceedings
    played out on the trial date and their effect on the validity of the
    appellants conviction.

[5]

For reasons that I will develop, I would allow the
    appeal, set aside the conviction and order a new trial.

THE BACKGROUND FACTS

[6]

The
    issues that we are required to decide have nothing to do with the substance of
    the allegations made against the appellant, whether truthful or spurious. It is
    enough to say that the appellant and complainant were related and living in the
    same home. The allegations involve several incidents of similar conduct.

[7]

The
    procedural history of this case is of some importance to the issues raised. The
    sparse trial record has been supplemented, to our considerable advantage, by
    the materials required where ineffective assistance of trial counsel is raised
    as a ground of appeal.

The
    Charges

[8]

The
    information laid against the appellant contained four counts. The counts, two
    of sexual assault and two of sexual interference, referred to the same dates
    and place and involve the same complainant.

[9]

The
    complainant provided a videotaped statement that the prosecutor proposed to
    introduce at trial under s. 715.1 of the
Criminal
    Code
. Other witnesses also provided videotaped statements to investigators,
    but it is unclear whether those statements were ever transcribed for disclosure
    purposes.

[10]

The
    appellant was arrested with a warrant. After speaking with duty counsel, he was
    interviewed by the investigating officer. The interview was videotaped but not
    transcribed. During the interview, the appellant repeatedly denied the
    allegations.

The Appellant Retains Trial Counsel

[11]

The
    appellant took the advice of a fellow inmate and retained a lawyer the inmate
    recommended to defend him on the charges. The retainer was completed about one
    month after the appellants arrest.

The Judicial Interim Release Hearing

[12]

The
    appellant is over 60 years old with impaired hearing and several other health
    problems. As soon as the complainant reported her allegations, the appellant
    was evicted from the home where the offences were alleged to have occurred.  He moved to northern Ontario where he was
    arrested about five months after the complainant had reported her allegations.

[13]

Trial
    counsel for the appellant concluded early on that the appellant had no
    suitable release plan. On the instructions of trial counsel, duty counsel waived
    the judicial interim release hearing to which the appellant was entitled. The
    appellant remained in custody.

The Appearance of Trial Counsel

[14]

About
    one month after the appellants arrest, trial counsel first appeared on his
    behalf before a justice of the peace. He consented to a detention order and
    made inquiries about available dates for a two-day trial.

The Trial Dates are
Fixed

[15]

On
    December 3, 2007, trial counsel and the prosecutor appeared at a pre-trial
    before a judge of the Ontario Court of Justice. They were unable to agree on a
    suitable resolution of the charges.

[16]

The
    prosecutor elected to proceed by indictment and counsel elected trial by
    provincial court judge on the appellants behalf. The trial dates selected were
    February 21 and March 4, 2008. The prosecutor indicated that she would be
    calling four witnesses and relying on s. 715.1 of the
Criminal Code
to introduce the complainants videotaped interview.
    Videotaped interviews of prosecution witnesses other than the complainant had
    not yet been disclosed to trial counsel.

[17]

Trial
    counsel for the appellant asked that a speaker system be provided for the
    appellants trial so that the appellant would be able to hear the proceedings.
    He also acknowledged that the appellants videotaped interview following his
    arrest was voluntary. The interview had not been transcribed nor had counsel
    viewed it.


The Position of the Appellant

[18]

In
    his police interview and discussions with trial counsel, the appellant was
    adamant that he had not committed the offences alleged. If any touching had
    occurred, it was inadvertent as he attempted to prevent the complainant from
    jumping up and down on the bed in his room.

[19]

According
    to trial counsel, the appellant also expressed some concern about requiring the
    young complainant to testify. That said
,
the appellant
    never wavered from his denial of guilt and desire for a trial. Counsel did not
    explain to the appellant any of the procedural provisions available to assist
    the complainant in giving her evidence in trial proceedings.

The Resolution Proposal

[20]

On
    January 15, 2008, about five weeks before the first day scheduled for trial,
    the appellants trial counsel wrote to the prosecutor. Trial counsel proposed
    that the outstanding charges be resolved on the basis that the appellant would
    not contest the allegations of sexual interference in return for a sentence of
    imprisonment of six months, to be served in the community, followed by a
    probation order for 18 months.  Trial
    counsel also pointed out that the appellant did not wish to put the complainant
    through the stresses associated with a criminal trial.

[21]

About
    one week later, the prosecutor responded to trial counsels proposal. The
    prosecutor agreed to resolve the outstanding charges on the basis of a plea of
    guilty to sexual interference, a sentence of imprisonment of 15 to 18 months, a
    period of probation for three years, and several ancillary orders. The
    prosecutor did not make her proposed resolution contingent on a joint
    submission, rather expressly left it open for trial counsel to advocate for a
    conditional sentence.

[22]

About
    one week before the first date set for trial, the prosecutor repeated her
    intention to introduce the interview of the complainant under s. 715.1 and
    advised trial counsel that she would also apply to have the complainant testify
    from behind a screen with a support person seated beside her.

[23]

Trial
    counsel did not respond to the prosecutors correspondence.

The Trial Date

[24]

On
    February 21, 2008, the first date scheduled for trial, the appellant and trial
    counsel met before proceedings began. Their accounts about what happened during
    their discussions diverge remarkably.

[25]

Trial
    counsel recalls that he spoke with the prosecutor prior to meeting with the
    appellant. The prosecutor agreed that she would not seek a sentence of more
    than 15 months imprisonment if the case were to be resolved. Counsel conveyed
    this information to the appellant who repeated his desire not to put the
    complainant through a trial. According to trial counsel, the appellant agreed
    to resolve the outstanding charges on this basis.

[26]

Contrary
    to his usual practise, and at the suggestion of the prosecutor, trial counsel
    handwrote instructions for the appellant to sign:

I,
    [D.G.], hereby instruct you to resolve this matter on the basis that I will not
    dispute the Crowns allegations regarding my conduct
between
    Oct. 1
/06 and May 23/07.

I understand that the Crown will ask
    for 15 mos less pretrial time (2:1), probation (3 yrs), 20 years in the sexual
    registry, firearm prohibition and DNA sample.

According to trial counsel, the appellant signed these instructions.

[27]

The
    appellants recollection is different. In the holding cells at the courthouse,
    the appellant told trial counsel that he was not guilty and wanted to testify on
    his own behalf.  Trial counsel asked the
    appellant whether he thought
he
[trial counsel] was
    doing a good job for him [the appellant]. Trial counsel then asked the
    appellant to sign a handwritten memo that counsel had prepared attesting to the
    adequacy of counsels efforts on the appellants behalf. The appellant signed
    the memo. He did
not
sign the
    two-page direction about resolution of the charges.

The Trial Proceedings

[28]

On
    February 21, 2008, the appellant appeared with counsel before a judge of the
    Ontario Court of Justice.  It was the
    first date scheduled for trial. The audio enhancement system functioned
    intermittently, if at all.  As the
    proceedings were about to begin, the appellants trial counsel said:

Your
    Honour, my client [D.G.] will be entering a plea of not guilty to count 3 on
    the information.  My client has
    instructed me that he is content that the Crown read in the allegations with
    respect to this matter, that he will not be disputing the allegations.  He understands that normally the Crown would
    have to call witnesses to prove their case.  He is content that no witnesses be called in this matter, and hes
    content that  that this court will find that, based on the allegations, that
    he is guilty of count 3, and that there will be later a conviction with respect
    to these offences, or that offence, in connection with the subject charge.  Mr.  Ive spent a good deal of time with Mr.
    [G.]. So, he understands hes giving up his right to a full trial in connection
    with this matter. My instructions re that he wishes to resolve the matter. And
    he is also aware of all the further  further positions of the Crown in
    connection with this matter with respect to the appropriate sentence, with
    respect to the fact that hes going to be placed on a sexual registry in the future,
    and that theres going to be other requests by the Crown in connection with
    this matter. So, Mr. [G.] is prepared to proceed on that basis.

No one asked the appellant to confirm his understanding of and agreement
    with the proposed procedure.

[29]

Counsel
    entered a plea of not guilty on the appellants behalf and the appellant
    confirmed his plea.

[30]

The
    prosecutor read a summary of the allegations.  The appellant was not asked to confirm the accuracy of what the
    prosecutor had read to the judge.  Apart
    from trial counsels acknowledgement that the prosecutors summary of
    allegations would be the evidence for the Crown in this matter, neither the
    appellants trial counsel nor the prosecutor made any submissions. The
    presiding judge entered a conviction and remanded the appellant in custody for
    sentencing on the second scheduled trial date of March 4, 2008.

The Sentencing Proceedings

[31]

Before
    sentencing proceedings started on March 4, 2008, court staff encountered
    significant difficulty with the audio enhancement system in the courtroom. The
    difficulties continued during the sentencing hearing.

[32]

When
    asked whether he wished to say anything before the judge imposed sentence, the
    appellant said:

Just
    that Im sorry,
Your
Honour. I truthfully am. And I
    know her mom is in the court, so [K.] you can tell [E.] Ive never been mad at
    her, and Im truthfully sorry for hurting you. Thats all, Your Honour.

[33]

The
    trial judge concluded that a sentence of 15 months in jail followed by a
    three-year period of probation and several ancillary orders was a fit
    sentence.  After deducting a credit for
    pre-sentence custody, calculated on a 2:1 basis, the custodial sentence imposed
    was 168 days in jail.

The Notice of Appeal

[34]

About
    three weeks after the sentencing, the appellant, who again relied on the advice
    of a fellow inmate, filed an inmates notice of appeal against sentence
    only.  When the inmate appeal later
    became a solicitors appeal, the appellant challenged the validity of his
    conviction.

THE GROUNDS OF APPEAL

[35]

The
    only ground of appeal advanced on the appellants behalf by Mr. Rumble (who was
    not counsel at trial) was that the appellants conviction was a miscarriage of
    justice because he was denied the effective assistance of trial counsel. As a
    result of trial counsels ineffective assistance, Mr. Rumble says, the
    procedure followed at trial was unfair to the appellant and yielded a verdict
    that is unreliable.

[36]

For
    the respondent, Mr. Hrybinsky takes the position that the appellant suffered no
    prejudice at trial, thus it is neither necessary nor desirable to evaluate the
    adequacy or otherwise of the conduct of trial counsel.

[37]

Mr.
    Hrybinsky, in the best traditions of counsel for the Crown, invites us to
    examine critically the procedure followed at trial and determine its effect on
    the validity of the appellants conviction. After the appellant pleaded not
    guilty, the prosecutor read the allegations, but neither adduced evidence nor
    proposed that the allegations be taken as a formal admission under s. 655 of
    the
Criminal Code
.  Neither counsel made submissions.  The trial judge entered a conviction. Mr.
    Hrybinsky invites us to consider the propriety of this procedure and its effect
    on the validity on the appellants conviction.

ANALYSIS

Ground
    #1: The Trial Procedure

The Governing Principles

[38]

The
    issue raised by Crown counsel in his factum and oral argument requires us to
    examine critically the authority for the procedure followed here and whether that
    procedure caused a miscarriage of justice.  No specific statutory authority either permits or prohibits the
    procedure followed.  A brief reminder of
    some general principles is a helpful place to begin.

The Available Pleas

[39]

The
Criminal Code
describes the pleas
    available to an accused.  A plea
    represents an accuseds formal response to the allegations contained in an
    indictment or information. The only pleas available to an accused are the
    general
[1]
or special pleas authorized in Part XX of the
Criminal Code
.  No other
    pleas are permitted:
Criminal Code
,
    s. 606(1).

[40]

A
    general plea of not guilty is or represents an accuseds formal, in-court
denial
of having committed the offence
    to which the plea has been entered. A plea of not guilty provides notice to the
    prosecutor and to the trier of fact that the person charged requires the prosecutor
    to prove each essential element of the offence charged by evidence that is
    relevant, material and admissible at trial
[2]
.  A general plea of not guilty does
not
involve any admission about any
    essential element of any offence charged or its proof.

[41]

On
    the other hand, a plea of guilty is a formal, in-court admission by an accused
    that she or he committed the offence to which the plea has been entered. An
    accused who pleads guilty consents to entry of a finding of guilt, or
    conviction without a trial and relieves the prosecutor of the burden of proving
    guilt, by relevant, material and admissible evidence, beyond a reasonable
    doubt. An accused who pleads guilty abandons his or her non-compellability as a
    witness, as well the right to remain silent, and surrenders his or her right to
    offer full answer and defence to the charge:
Adgey v. The Queen
, [1975] 2 S.C.R. 426, at p. 440,
per
Laskin J., in dissent on other
    grounds.

[42]

The
    nature and effect of a plea of guilty makes it essential that the plea be
    unequivocal, voluntary and informed. To ensure that pleas of guilty meet these
    requirements, s. 606(1.1) imposes an obligation on the presiding judge to
    satisfy him or herself of the voluntary and informed nature of the plea.  For the plea to be informed, the accused must
    understand that the plea is an admission of the essential elements of the
    offence and that the presiding judge is not bound by any agreement made by the
    accused and the prosecutor.  The accused
    must also understand the nature and consequences of a guilty plea. Under s.
    606(1.2) the failure of the trial judge to
fully
inquire about the voluntary and informed nature of the accuseds plea does not
    affect the validity of that plea.  But an
    inquiry is mandatory nonetheless.

[43]

The
    exclusive language of s. 606(1) forecloses any formal pleas other than the
    general and special pleas authorized in Part XX.  This language prohibits entry of formal pleas,
    for example, of
nolo contendere
or of
    not criminally responsible on account of mental disorder.

[44]

Nolo contendere
is a formal plea available in some
    jurisdictions by express inclusion in the governing procedural law. Translated
    literally from the Latin,
nolo contendere
means I do not wish to contend.  By
    entry of the plea, a defendant neither contests nor admits guilt of the offence
    to which the plea relates.

[45]

The
    Federal Rules of Criminal Procedure, passed pursuant to s. 2072 of Title 28, United
    States Code,

govern procedure in the United
    States District Court, (Fed. R. Crim. P.).  A defendant may plead
nolo
    contendere
only with the consent of the court: Fed. R. Crim. P. 11(a
)(
1). Before accepting a plea of
nolo contendere
, the court must consider the parties and the
    public interest in the effective administration of justice: Fed. R. Crim. P. 11(a
)(
3).

[46]

Under
    Fed. R. Crim. P. 11(b
)(
1) and (2) a court must conduct
    a plea inquiry before acceptance of a plea of guilty or a plea of
nolo contendere
.  The same inquiry is required for both pleas
    and may involve requiring the defendants answers to be given under oath.

The Relationship
Between
the General Pleas and Admissions

[47]

In
    criminal proceedings, we recognize two kinds of formal admissions:

i.

a
    plea of guilty, other than an unaccepted plea of guilty under s. 606(4)
[3]
;
    and

ii.

an
admission of specific facts under s. 655 of
    the
Criminal Code
.

[48]

After
    a plea of guilty has been entered, and where necessary accepted by the
    prosecutor, the usual practice in this province is that the prosecutor reads
    into the record the allegations relied upon to establish the essential elements
    of the offence the accused is alleged to have committed. Defence counsel is
    asked whether the allegations read are correct or substantially correct.
[4]
Provided there is no dispute about the essential elements of the offence, and
    the judge is satisfied after inquiry of the accused that the plea of guilty is
    unequivocal, informed and voluntary, the trial judge enters a finding of guilt
    and records a conviction of the offence to which the plea of guilty was
    entered.  Apart from
the
requirement of a plea inquiry, the
Criminal Code
says nothing about the
    procedure to be followed after entry of a plea of guilty.

[49]

Where
    an accused pleads not guilty, the prosecutor bears the onus of proof. The
    manner in which the prosecutor chooses to prove the allegations contained in
an information
or indictment is up to the prosecutor, but
    subject to the supervision of the trial judge who must ensure that any evidence
    adduced is relevant, material and admissible.  The prosecutors case may include or consist entirely of admissions of
    fact under s. 655 of the
Criminal Code
.

The Principles Applied

[50]

In
    my view, for reasons that I will develop, the proceedings that followed the
    appellants plea of not guilty were sufficiently flawed that the conviction
    entered by the trial judge must be set aside and a new trial ordered.

[51]

No
    statutory provision or common law principle prohibits a procedure similar to
    what was followed here after an accused has entered a plea of not guilty. The
    flaw here was in the execution.

[52]

A
    plea of not guilty is an accuseds formal denial of having committed the
    offence charged. By this plea, an accused requires the prosecution to prove
    each essential element of the offence beyond a reasonable doubt by evidence
    that is relevant, material and admissible.

[53]

The
    manner in which the prosecutor attempts to establish an accuseds guilt varies.  In some instances, the prosecutor may rely on
    an agreed statement of facts, tendered as a formal admission under s. 655 of
    the
Criminal Code
.  Formal admissions, whether stated orally or
    reduced to writing, require
agreement
by or on behalf of an accused under s. 655 of the
Criminal Code
.

[54]

On
    the other hand, where an accused pleads guilty, the presiding judge must
    conduct an inquiry to ensure that the plea is voluntary and informed. The plea itself
    must be unequivocal. The plea inquiry must satisfy the judge that the accused
    understands that the plea is an admission of the essential elements of the
    offence and that the judge is not bound by any agreement that may have been
    made between the accused or counsel and the prosecutor. The judge must also be
    satisfied that the accused understands the nature and consequences of the plea,
    for example, that there will be no trial or challenge to the prosecutors case
    or right to testify in answer to the charge.

[55]

This
    case proceeded on the basis of a plea of
not
guilty, a plea by which the appellant denied having committed the offence
    charged and required the prosecutor to prove the essential elements of that
    offence by relevant, material and admissible evidence beyond a reasonable
    doubt.

[56]

After
    the plea of not guilty, the prosecutor adduced no evidence. No
viva voce
testimony. No real evidence.
    As a surrogate for evidence, the prosecutor read the allegations made against
    the appellant. It is fundamental that prosecutorial allegations are not
    evidence. Nor did they become admissions under s. 655 of the
Criminal Code
by the failure of the
    appellants trial counsel to make submissions.

[57]

To
    some it may seem a mere quibble, a swap of form for substance, to conclude that
    what occurred here was not at least a reasonable facsimile of a formal
    admission under s. 655.  I do not agree.
    To admit something is to accept it as valid or as true. By an admission under
    s. 655 an accused admits a fact or the facts alleged as true.

[58]

The
    allegation of ineffective assistance of counsel has provided us with
    information not available to the trial judge. That information makes it plain
    and obvious that the appellant consistently denied that the complainants
    allegations ever occurred, a position inconsistent with their formal admission
    before the trial judge. The appellant was never asked, nor did his counsel ever
    expressly admit on his behalf the prosecutors allegations. What occurred here
    did not amount to an admission of fact under s. 655.

[59]

The
    circumstances of this case also required the trial judge to conduct an inquiry
    of the appellant to ensure his (the appellants) understanding of the nature
    and effect of the procedure being followed after his plea of not guilty.

[60]

The
    procedure followed here was the functional equivalent of a plea of guilty (or,
    in other jurisdictions, a plea of
nolo
    contendere)
. The appellants conviction despite his plea of not
guilty,
was a certainty. Plea inquiries are mandatory where
    pleas of guilty have been entered, even where an accused is represented by
    counsel. Where what occurs is the functional equivalent of a guilty plea, an
    inquiry should be conducted to ensure that the accused understands the nature
    and effect of the procedure and has voluntarily participated in it. It is all
    the more so in the case of an accused who is hearing impaired.

[61]

In
    my view, at least in combination, the manner in which the prosecutor discharged
    her burden of proof after the appellants plea of not guilty, and the failure
    of the trial judge to conduct any inquiry into the voluntariness of the
    appellants participation and his understanding of the nature and effect of the
    procedure caused a miscarriage of justice.

[62]

To
    determine whether the procedure followed here caused a miscarriage of justice
    requires an examination of all the circumstances, including those revealed by
    the fresh evidence.

[63]

The
    procedure followed in this case was proposed by trial counsel for the
    appellant. In the minimal contact that occurred between the appellant and trial
    counsel prior to the controverted instructions of February 21, 2008, the
    appellant had been consistent in his denial of guilt and insistent on pleading
    not guilty and testifying at his trial.

[64]

The
    appellant did express concern to his trial counsel about subjecting the
    complainant to the trial process, yet remained constant in his denial of guilt.
    Trial counsel never explained to the appellant the procedural mechanisms
    available to accommodate the testimony of the young complainant that counsel knew
    the prosecutor intended to invoke.

[65]

The
    appellant had previously rejected a proposed resolution based on a guilty plea
    and
a joint or individual submissions
on
    sentence.  The judge presiding at the
    pre-trial, after hearing the positions proposed by counsel, indicated that he
    would have imposed a sentence of 12 months on a plea of guilty. The appellant
    rejected this resolution.

[66]

The
    instructions of February 21, 2008, are themselves problematic. Neither
    version as to their origin inspires confidence. The appellants claim that
    trial counsel asked him to sign and he signed a single page great job memo
    makes no sense. His explanations for a signature that bears at least some
    physical resemblance to his proffered samples vary from outright denial and
    assertion of a forgery to allowance of the possibility of authorship. On the
    other hand, the content of the instructions provides no fuel for trial
    counsels claim that

I
    am sure that I discussed with him the option whereby a not guilty plea is
    entered, the Crown reads in its case rather than calling viva voce evidence and
    the defence does not dispute the allegations. This allows for what is
    effectively plea negotiation without a formal admission of guilt.

[67]

After
    anxious consideration, I am satisfied that the procedure followed in the
    proceedings of February 21, 2008, caused a miscarriage of justice through
    procedural unfairness. The appellants unwavering denial of guilt was
    sideswiped by a procedure that resulted in a
de facto
admission of guilt without any inquiry into voluntariness
    or the
appellants understanding
of the nature and
    effect of this procedure.

[68]

Neither
    the appellant nor trial counsel ever admitted the truth or accuracy of the
    prosecutors allegations.  Neither
    acknowledged that the prosecutor was in a position to adduce credible evidence
    to establish those allegations.  Nor
    could either do so.  The appellant denied
    the allegations.  The materials filed to
    support the claim of ineffective assistance of counsel make it plain and
    obvious that trial counsel had not even reviewed the videotaped statements that
    formed the core of the prosecutors case and served as the source of the
    allegations the prosecutor read after the appellants plea of not guilty.

[69]

Persons
    who admit their guilt should plead guilty.  The plea inquiry that s. 606(1.1) requires ensures that the plea is
    unequivocal, voluntary and informed.

[70]

Persons
    who deny guilt should plead not guilty and have a trial at which proper proof
    may be offered and its sufficiency or inadequacy assessed by the
trier
of fact.  The
    cannibalized procedure followed here blurs the distinction between admissions
    and denials of guilt, is unauthorized and, as this case demonstrates, is
    capable of great mischief.

Ground
    #2: Ineffective Assistance of Counsel

[71]

The
    appellants submissions concentrated on his claim of ineffective assistance of
    trial counsel. He alleged several discrete deficits in the conduct of trial
    counsel that, in combination, rendered the assistance counsel provided
    ineffective. The respondent takes the position that the appellants claim rests
    on an unsound footing: he seeks to adjudge trial counsels assessment as if the
    proceedings were a contested trial, something that never occurred. According to
    the respondent, the focus should be on the assistance provided in the
    resolution that actually happened on February 21, 2008.

[72]

To
    determine this ground of appeal requires further background that emerges from
    the fresh evidence filed in support and in opposition to the claim.

The Additional Background

[73]

The
    principal sources of the essential background are the affidavits of the
    appellant and trial counsel, cross-examinations on those affidavits and several
    documents attached or filed as exhibits.

[74]

It
    is worth observation at the outset, as the respondent points out, that the
    appellants affidavits contain innumerable references to conclusions that the
    appellant has drawn after lengthy discussions with appellate counsel. These
    conclusions are neither evidence nor helpful. They constitute argument and have
    no place in any affidavit, much less one proffered in support of a claim of
    ineffective assistance of trial counsel.

[75]

The
    appellants claim of ineffective assistance of trial counsel begins with a
    complaint about counsels failure to obtain the appellants release pending
    trial, followed by inadequate preparation for trial, a failure to ensure the
    adequate functioning of a supplementary audio system and concludes with a
    failure to adhere to the appellants instructions on the trial date.

The Failure to Obtain Judicial Interim Release

[76]

The
    appellant was arrested on a warrant of first instance on October 16, 2007. The
    arrest occurred at the appellants residence in Kirkland Lake, a significant
    distance away from the place at which the offences charged
are
alleged to have been committed.

[77]

The
    appellant retained trial counsel about a week after his arrest, although a
    legal aid certificate was not issued until November 13, 2007. Trial counsel
    instructed duty counsel to waive the appellants bail hearing and consented to
    a detention order when counsel first appeared on the appellants behalf on
    November 13, 2007.

[78]

Trial
    counsel did not seek the appellants release from custody pending trial.  Although the appellant was 62 years old, had
    no previous convictions, lived a considerable distance away from the
    complainant, didnt drive a car and suffered from several health-related
    conditions including a significant hearing impairment, trial counsel never
    solicited the prosecutors position on release, in particular, whether release
    would be opposed (the onus was on the prosecutor) or release on the appellants
    own recognizance with reporting conditions would be sufficient.

[79]

The
    appellant denied having any discussions with trial counsel about waiver of his
    judicial interim release hearing and consent to a detention order. The
    appellant provided the names of some potential sureties to trial counsel, but
    trial counsel considered them
as  unsuitable
in the circumstances after
    minimal inquiries.

Trial Preparation

[80]

Before
    he attended a judicial pre-trial where resolution was discussed and elected
    trial by provincial court judge on the appellants behalf, trial counsel had
    not received, let alone reviewed the prosecutors disclosure. As it happened,
    the disclosure consisted of videotaped interviews of the complainant and other
    witnesses, as well as a videotaped interview of the appellant by the
    investigating officer. None of the interviews was transcribed.

[81]

Trial
    counsel considered this prosecution to be a she said/he said case that the
    appellant had instructed him to move along. The notes of trial counsel
    contained no reference to any instructions about an expedited hearing.

[82]

Before
    February 21, 2008, the appellant made it clear to trial counsel that he had
    committed no crime and was not guilty of any offence with which he was charged.
    The case was to proceed to trial on February 21 and March 4, 2008. Trial
    counsel had not transcribed or even reviewed the videotaped interviews prior to
    February 21, 2008. He could not recall whether he had prepared any outline of
    proposed cross-examinations. He had
not
prepared the appellant to give evidence, because he considered it unlikely that
    the appellant would testify on the first day of trial.

The Audio System
    Malfunction

[83]

The
    appellant is hearing impaired, although the precise nature and scope of his
    impairment has not been disclosed. During some of his preliminary appearances,
    the appellant indicated that he was unable to hear some of the things said by
    various participants. It is unclear whether his ability to hear was because of
    what was said or the volume with which the words were spoken.

[84]

Trial
    counsel indicated that the appellant required an enhanced audio system so that
    he could hear the proceedings. On both February 21 and March 4, 2008, the
    appellant sat at counsel table beside his lawyer. The record of proceedings is
    barren of any voiced concern by the appellant about his ability to hear
    anything anybody said. He asked no one to speak up and responded to the judges
    question when asked whether he had anything to say prior to sentence.

[85]

In
    his affidavit filed on appeal, the appellant asserts that he did not hear most
    of what was said on February 21, 2008.



The Trial Date

[86]

What
    happened on February 21, 2008 is critical to the appellants claim of
    ineffective assistance of counsel.

[87]

The
    appellant acknowledged that he was reluctant to have the complainant testify at
    trial, but he denied instructing trial counsel to resolve the charges because
    of this reluctance or otherwise. In any discussions he had with trial counsel,
    the appellant reiterated his intention to proceed to trial. He did
not
authorize trial counsel to resolve
    the case at the pre-trial or otherwise.

[88]

Trial
    counsel maintained few notes of his discussions with the appellant. He had no
    note that indicated anything other than that the appellant wanted to have the
    case tried.  He never explained to the
    appellant any of the procedural mechanisms available to the prosecutor to
    assist in the presentation of the complainants testimony, in part because they
    were complex and not easily understood by those charged with sexual offences.

[89]

The
    appellant and his trial counsel agree that they had a brief discussion before
    court proceedings began on February 21, 2008. During those discussions the appellant
    signed a piece of paper, handwritten by trial counsel. There the agreement
    ends.

[90]

The
    appellant says that he signed a single page good efforts memo prepared by
    trial counsel. He did not read it before signing it. He never signed a two-page
    document at any time. At different times the appellant described the signature
    on this two-page document as a forgery, a signature that does not look like
his,
or one that could be his.

[91]

Trial
    counsels version is different. He says the appellant signed the two-page
    document because he (the appellant) did not want the complainant to have to
    testify in court. Trial counsel had no recollection of explaining to the
    appellant the procedure that would follow the plea of not guilty or the
    contents of the allegations to be read by the prosecutor of which trial counsel
    was completely unaware.

The Positions of the Parties

[92]

For
    the appellant, Mr. Rumble says that the ineffective assistance provided by
    trial counsel caused a miscarriage of justice. In essence, trial counsel took
    advantage of a hearing-impaired client who had consistently denied the
    complainants allegations and wanted to trial at which he could testify and
    demonstrate his innocence. Instead, trial counsel countermanded the appellants
    instructions by entry of a plea of not guilty, followed by an uncontested
    recital of allegations with which he knew the appellant disagreed, in the
    knowledge that a conviction would inevitably follow.

[93]

Mr.
    Rumble contends that the ineffective assistance of trial counsel was obvious
    throughout his relationship with the appellant. Trial counsel made no
    application for the appellants release although the appellant was 62 years
    old, without prior convictions and lived in northern Ontario far removed from
    the complainant and her family. Trial counsel did not even find out the
    prosecutors position on release, rather simply concluded that the appellant
    had no viable release plan and consented to a detention order.

[94]

Mr.
    Rumble assails trial counsels failure to adequately prepare for the appellants
    trial. Counsel did not review the disclosure provided by the prosecutor,
    prepare for cross-examination of the complainant, watch or transcribe the
    videotaped interviews or prepare the appellant to testify on his own behalf.

[95]

Mr.
    Rumble submits that trial counsels assistance to the appellant fell below the
    applicable standard of reasonable competence, because counsel failed to inform
    the appellant about the procedural mechanisms available for a youthful
    complainant to testify, thus assuaging the appellants expressed concern about
    requiring the complainant to testify. But more importantly, trial counsel never
    explained to the appellant that, despite his insistence on a trial, the
    procedure that was to be followed was not a trial, but rather would lead to the
    appellants immediate conviction and a probable jail sentence.

[96]

In
    the end, Mr. Rumble says, the ineffective assistance of trial counsel caused a
    miscarriage of justice. The proceedings on February 21, 2008 were unfair and yielded
    a verdict that is unreliable in the absence of any testing of the prosecutors
    case.

[97]

For
    the respondent, Mr. Hrybinsky says that the complaint about ineffective
    assistance of trial counsel should focus on what occurred on February 21, 2008.
    To be more specific, we should examine whether a miscarriage of justice
    resulted from the manner in which trial counsel conducted the proceedings on
    the first date scheduled for trial.

[98]

Mr.
    Hrybinsky contends that the failure of trial counsel to seek the appellants
    release from pre-trial
custody,
or to adequately
    prepare for a trial that never occurred did not cause the appellant any
    prejudice or result in a miscarriage of justice.

[99]

Mr.
    Hrybinsky acknowledges that the accounts of the principals about what happened
    on February 21,
2008,
to convert the proceedings from
    a trial to the functional equivalent of a plea of not guilty or
nolo contendere
are remarkably
    divergent. He submits that, in the end, the appellants account lacks
    credulity. His explanation of the origin and nature of the document he signed
    is beyond belief. His conduct during and after the proceedings of February 21,
    2008, including but not only his apology to the complainants mother and his
    original notice of appeal contesting only the fitness of his sentence,
    demonstrate his understanding of the nature of those proceedings. The failure
    of trial counsel to more fully explain the procedure that was followed caused
    no miscarriage of justice.

The Governing Principles

[100]

Where a claim of ineffective
    assistance of counsel is advanced on appeal, we follow a three-stage approach
    to scrutinize the claim. The appellant must establish:

i.          the
    facts that underpin the claims;

ii.         the
    incompetence of the representation provided by trial counsel (the performance
    component); and

iii.
a
miscarriage of justice as a result of the incompetent
    representation (the prejudice component).

R. v. B. (M.)

(2009), 68 C.R. (6th) 55 (Ont.
    C.A.), at para.

8;
R. v. Joanisse
(1995), 102 C.C.C.
    (3d) 35 (Ont. C.A.), at p. 59, leave to appeal refused, [1996] S.C.C.A. No.
    347, at p. 57.

[101]

The burden of establishing ineffective representation
    at trial that warrants appellate intervention rests upon the appellant who
    urges it.  The burden is not easily
    discharged.  Our approach to these claims
    requires caution:
B. (M.)
at para. 7.

[102]

Once the facts that underpin the claim have been
    established, we begin with an examination of the prejudice component to
    determine whether a miscarriage of justice has occurred.  In the absence of prejudice, it is superfluous
    to consider the performance or competence component:
B. (M.)
at para. 7;
R. v. B.
    (G.D.)
, [2000] 1 S.C.R. 520, at paras. 29 and 34.

[103]

The prejudice component acknowledges that, in the
    context of ineffective assistance of counsel, miscarriages of justice may take
    several forms.  Counsels inadequacies
    may cause procedural unfairness in the proceedings or compromise the
    reliability of the result reached at first instance:
B. (G.D.)
at para. 28.

[104]

In large measure, the nature of any demonstrated
    incompetence will dictate the kind of inquiry required to determine the effect
    of that incompetence on the fairness of the trial. Pervasive incompetence
    demands that the focus of the inquiry be on the effect of that incompetence on
    the fairness of the adjudicative process:
Joanisse
at pp. 62-63.

[105]

Claims of incompetence may fasten upon discrete
    decisions made or actions taken by trial counsel in the course of the defence.
    These claims reduce to an assertion that, because of trial counsels
    incompetence, the defence position was not properly advanced, or the
    prosecutions case not properly challenged. We measure the effect of counsels
    incompetence on the fairness of the trial by reference to the impact of any
    error on the reliability of the result:
Joanisse
at p. 64.

[106]

Some discrete decisions that have been advanced as
    demonstrative of trial counsels incompetence that have compromised the
    reliability of the result have included failure to prepare an accused for
    cross-examination, a failure to cross-examine a critical prosecution witness, a
    failure to obtain or review videotaped statements of witnesses, and a failure
    to have a transcript of prior inconsistent statements on which to cross-examine
    a witness:
Joanisse
at pp. 63-64; and
R. v. T. (P.)
(2002), 165 C.C.C. (3d)
    281 (Ont. C.A.), at paras. 18 and 27-28.

[107]

The performance component has to do with incompetence
    on the part of trial counsel. We determine incompetence according to a standard
    of reasonableness that begins from a strong presumption that trial counsels
    conduct falls within the vast expanse of reasonable professional assistance. We
    place the onus on the appellant to establish the conduct of counsel, whether
    acts or
omissions, that
are alleged not to have been
    the result of reasonable professional skill. We eschew the role of the Monday
    morning quarterback. The omniscience of hindsight occupies no place in our
    analysis:
B. (G.D.)
at para. 27.

[108]

It is critical to keep in mind that, during the course
    of criminal proceedings, defence
counsel make
many
    decisions in good faith and in the best interests of his or her client. We
    ought
not
look behind every decision counsel makes,
    except where it is essential to prevent a miscarriage of justice. Defence
    counsel need not always obtain approval for each and every decision they make
    in the conduct of an accuseds defence:
B.
    (G.D.)
at para. 34.

[109]

On the other hand, some decisions, like whether to
    enter a plea of guilty or whether to testify, require instructions from the
    client. It is for the client, not for counsel to make these decisions. The
    failure to discuss these issues with the client and to obtain the necessary
    instructions may raise questions of procedural fairness and the reliability of
    the trial result and lead to a miscarriage of justice:
B. (G.D.)
at para. 34.

The
    Principles Applied

[110]

The appellant has undertaken a painstaking analysis of
    almost every act or omission of trial counsel from initial retainer to final
    account.  I do not propose to do so.  At least as it seems to me, our focus ought
    to be on whether a miscarriage of justice occurred on February 21, 2008,
    because of the manner in which trial counsel conducted the case on the
    appellants behalf.

[111]

The failure of trial counsel to apply for judicial
    interim release and the reasonableness of his assessment of the viability of
    the appellants plan for release had no say in what occurred on February 21,
    2008.  The custodial status of the
    appellant, indeed whether a failure to seek the appellants judicial interim
    release reflected ineffective assistance, had disappeared into the background months
    before the trial date occurred.

[112]

In one sense, as the respondent argues, the complaints
    about inadequate preparation for trial seem destined for the same refuse heap.
    After all, inadequate
trial
preparation
    is linked to counsels conduct at
trial
,
    an event that never occurred here.

[113]

Despite the first impression attraction of this
    argument, persuasively packaged by Mr. Hrybinsky, I am unable to say that the
    inadequacies of trial counsels preparation for trial were without influence on
    the proceedings that unfolded on February 21, 2008.

[114]

The prosecutor and trial counsel were unable to resolve
    the case before trial. They estimated that trial proceedings would require two
    days of court time. The dates selected for trial were February 21 and March 4,
    2008.  The appellant denied the
    allegations.  When the parties arrived at
    the courthouse on February 21, 2008, the appellant was to enter a plea of not
    guilty. The prosecutions case would follow and then an opportunity for the
    appellant to answer.

[115]

On February 21, 2008, the first day of what was to be a
    two-day trial, trial counsel for the appellant had not reviewed or had
    transcribed the video statements of the complainant and other witnesses that
    were the core of the prosecutions case against the appellant. Nor had he taken
    similar steps in connection with the appellants videotaped interview by the
    investigating officer that he had earlier acknowledged was voluntary, at least
    for the purposes of cross-examination of the appellant.

[116]

Trial counsel had not prepared the appellant to testify
    as a witness in his own defence despite the appellants repeated assertions
    that he wished to do so. Nor had counsel developed any meaningful strategy to
    defend the case or an outline of potential cross-examination of the prosecution
    witnesses.

[117]

As it turned out, no trial took place. We have no trial
    transcript to review in order to assess whether trial counsels lack of
    preparation made the trial unfair or contributed to an unreliable verdict. On
    the other hand, only the stunningly naïve among us would not connect the dots
    between the lack of preparation and the fortuitous turn of events that
    terminated the trial proceedings by a
de
    facto
guilty plea, a procedure of which the appellant was not fully
    informed.

[118]

A miscarriage of justice occurred in this case. The
    proceedings were encumbered by procedural unfairness. The practical effect of
    what occurred was that the appellant, who pleaded not guilty, essentially admitted
    the full sweep of the prosecutors allegations that he had consistently denied
    since arrest. Yet none of the safeguards that we associate with either formal
    admissions or pleas of guilty were evident in the rush to judgment that
    occurred here. A hasty, ill-informed
volte
    face
from an outright denial to a veiled acceptance of everything alleged
    in the blink of an eye as trial proceedings were about to begin.

[119]

What occurred here also raises questions about the
    reliability of the conclusion of guilt that rests upon allegations untested in
    the crucible of cross-examination because of inadequate trial preparation by
    the appellants former counsel.

CONCLUSION

[120]

For these reasons, I would allow the
    appeal, set aside the conviction of sexual interference and order a new trial.



RELEASED:  May 2, 2011
    DOC

David
    Watt J.A.

I
    agree D. OConnor A.C.J.O.

I
    agree Janet Simmons J.A.





[1]
The term
    general plea is not used in the
Criminal
    Code
.



[2]
The
    evidence may include admissions under s. 655 of the
Criminal Code
and any facts of which judicial notice may be taken.



[3]
The
    rejected plea would be admissible as an informal admission.



[4]
Sometimes the allegations may be reduced to writing, signed by the prosecutor,
    counsel for the accused and accused, and tendered under s. 655 of the
Criminal Code
.


