



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, 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. (3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13,
    s. 18.

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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simpson-Fry, 2022 ONCA 108

DATE: 20220203

DOCKET: C62658

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamie Simpson-Fry

Appellant

Jamie Simpson-Fry, acting in person

Avene Derwa, for the respondent

Heard: January 13, 2022 by video conference

On appeal from the convictions entered
    by Justice Joseph A. De Filippis of the Ontario Court of Justice, dated December
    19, 2014.

REASONS
    FOR DECISION

[1]

The appellant was convicted of sexual assault,
    forcible confinement, uttering threats, and breach of probation arising from an
    unprovoked attack on a stranger. The sentencing judge found the appellant to be
    a dangerous offender and sentenced him to indeterminate custody.

[2]

The appellant appealed both his conviction and
    sentence. His sentence appeal was bifurcated and was heard on September 17,
    2021, after which it was dismissed:
R. v. Simpson-Fry
, 2021 ONCA 647.

[3]

Before this panel, only the conviction appeal
    was pursued. The appellant initially advanced two main grounds of appeal, both
    on the basis of a wrongly procured guilty plea, resulting in his conviction on
    the current charges.

[4]

His first ground of appeal was that of
    ineffective assistance of counsel. Under this ground, the appellant asserted
    that he was misled by his trial counsel to follow a trial process and procedure
    that impeded his rights to a full answer and defence. In his notice of appeal,
    he claimed that at trial he wanted to challenge the statement of facts that was
    read into evidence by the Crown, but he was advised against doing so. As a
    result, he acceded to the incorrect facts and did not take the stand in his
    defence, nor call any evidence, leaving no opportunity to contest the charges
    against him. In oral argument before this panel, the appellant indicated that
    he was no longer pursuing his ineffective assistance of counsel claim but still
    argued that he was misled in proceeding with his trial in the way that it
    unfolded, by not contesting the statement of facts read into evidence by the
    Crown. The core of his argument is an attack on the trial procedure advanced by
    both the defence and the Crown at trial and accepted by the trial judge.

[5]

Second, the appellant claims that the trial
    judge was biased and misapprehended the evidence. He claims that the trial judge
    essentially rubberstamped comments and opinions from the complainant, the
    police, and two psychiatrists.

[6]

We would not give effect to any of the
    appellants arguments, and as such, for the following reasons, we dismiss the
    appeal.

[7]

The underlying facts which give rise to this
    appeal are not in dispute. On October 13, 2013, at 2:30 a.m., the complainant
    was walking home alone. The complainant observed a stranger, who later turned
    out to be the appellant, stumbling, and he appeared drunk. He asked her for
    directions and a cigarette, and the complainant attempted to evade him. He then
    grabbed her from behind. The appellant threatened to break her neck if she
    screamed, pushed her onto a nearby front lawn, and brutally raped her. During
    the assault, the appellant was mumbling and stated that he was very drunk.
    Following the assault, he told her to get up and said he would kill her if she
    ever told anyone about what happened.

[8]

The complainant reported the incident to her parents
    and the police. She was then transported to a hospital where a sexual assault
    examination was conducted. Swabs of her skin and clothing were taken for DNA
    comparisons, which subsequently matched the DNA profile of the appellant.

[9]

At trial, the appellant attempted to plead
    guilty, but he indicated that he had been too intoxicated at the time to
    remember the incident and what happened. As such, he was not in a position to
    contest the Crowns evidence. The trial judge refused to accept the guilty plea
    on those terms. The appellant then changed his plea to not guilty, and he
    consented to a process in which the Crown would read out a statement of facts
    on which the prosecutions case was based, after which defence counsel would decline
    to make submissions contesting the charges. At the trial, defence counsel
    explained that the appellant was severely intoxicated and blacked out as a
    result of excessive drinking combined with the drug GBH. As a result, the appellant
    submitted that he was not in a position to contest the charges, raise the
    defence of consent, or contest the DNA evidence implicating him. The appellant
    waived the reading of the formal election, called no evidence, and made no
    submissions.

[10]

The trial judge summarized the trial procedure that
    was followed at trial, at para. 2 of the sentencing decision:

The defendant had indicated he wished to plead
    guilty to the charges on the basis that he could not confirm or deny the facts
    alleged because of intoxication. I declined to accept such a plea On consent,
    the Crown read in the evidence that would have been given by witnesses and
    filed photographs and other exhibits. The Defence elected not to challenge the
    prosecution evidence, or call other evidence or make submissions. On this basis
    I was satisfied that the Crown had proven guilt beyond a reasonable doubt.
    [Citations omitted.]

[11]

In essence, the hearing proceeded by way of what
    this court has described as the functional equivalent of
nolo contendre
.
    While a formal plea of
nolo contendre
is not possible under the
Criminal
    Code
, R.S.C. 1985, c. C-46, its functional equivalence has developed in
    Ontario courts, as explained in
R. v. Anderson
, 2021 ONCA
    333, at para. 53:

The procedure is invoked frequently, but not
    exclusively, when the adequacy of the case for the Crown depends on certain
    evidence the admissibility of which is contested by the accused and is subject
    to pre-trial challenge and a ruling on admissibility. If the evidence is
    admitted, under a plea of not guilty, the accused accepts the case for the
    Crown, whether based on an agreed statement of facts or otherwise, and adduces
    no defence evidence. A finding of guilt follows. When this occurs, the accused
    preserves the right to challenge the evidentiary ruling on appeal, a right
    foreclosed if the plea had been guilty and could not be set aside on appeal.

[12]

As advised by this court in
Anderson
,
    at para. 54, the presiding judge confirmed with the appellant that he
    understood the potential legal risks of proceeding in this fashion. The purpose
    of doing so is to protect the fairness of the proceedings and prevent an
    unreliable verdict: see
R. v. R.P
., 2013 ONCA 53, 295 C.C.C. (3d) 28,
    at para. 66; see also
R. v. D.M.G.
, 2011 ONCA 343, 105 O.R. (3d) 481,
    at para. 59. Under s. 655 of the
Criminal Code
, the appellant admitted
    to the facts as read in by the Crown. The Crown also tendered photographic evidence
    and the complainants statement to police.

[13]

The trial record reflects considerable efforts
    by the parties to ensure that the appellant understood the legal ramifications
    of the process followed. As mentioned, at a pre-trial meeting, the trial judge explained
    the option for the appellant to plead not guilty but admit to evidence read in
    by the Crown and waive his right to challenge it. The appellant would be
    convicted if the trial judge was satisfied that the essential elements had been
    proven. At the hearing, the Crown again explained the process that would be
    followed and its implications. At trial, the trial judge reminded the appellant
    of their discussion at the pre-trial meeting, and the appellant confirmed that
    he remembered the discussion. The appellant also confirmed that he did not have
    any questions about the process as it was explained by the Crown.

[14]

We therefore cannot agree that the appellant was
    unaware of the impact of admitting the facts. Accordingly, we see no error in
    the way the trial proceeded or on the part of the trial judge.

[15]

It follows that we equally reject the
    appellants submission that the trial judge was biased or rubberstamped
    evidence from witnesses. The appellant chose not to challenge the evidence,
    adduce other evidence, or make any submissions. The appellant cannot now
    complain that the trial judge accepted uncontested evidence. The trial judge
    was entitled to do so in the circumstances, and we see no error in his
    decision.

[16]

The appeal is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

A.
    Harvison Young J.A.


