



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    that could identify the complainant or a witness shall not be published in any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.




COURT OF APPEAL FO R ONTARIO

CITATION:
R. v. R.P., 2013
    ONCA 53

DATE: 20130130

DOCKET: C53141

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. P.

Appellant

Delmar Doucette, for the appellant

Grace Choi, for the respondent

Heard:  October 3, 2012

On appeal from the convictions entered on April 13, 2010
    by Justice John R. McIsaac of the Superior Court of Justice, sitting without a
    jury, and from the sentence imposed by Justice McIsaac on December 16, 2010.

Watt
    J.A.:

[1]

At the end of the first day of his jury trial, things were not going
    well for R.P. (the appellant).

[2]

R.P.s problems began with the indictment, which required him to respond
    to 19 counts, each alleging sexual offences committed over several years.  Each
    of the four complainants was a male or female relative of the appellant. The
    offences spanned nearly two decades and ended more than 15 years prior to the
    appellants trial.

[3]

The second problem concerned the evidence given on the first day of
    trial.  The first complainant completed his testimony. According to the
    appellants counsel at trial, the first complainant did well in the witness
    box.

[4]

The third problem had to do with the remaining complainants. Each was
    waiting to testify. Each had testified at the preliminary inquiry. As even the
    appellant recognized in written instructions provided to his trial counsel, the
    Crowns case [was] strong.

[5]

The fourth problem resided in the appellants ability to respond to the case
    advanced by the Crown. For all practical purposes, only the appellant could
    answer that case. Each complainant alleged that the offences occurred while he
    or she was alone with the appellant in the appellants home. The appellants
    wife was at work or elsewhere. The appellant had health problems that he
    acknowledged would render it difficult for him to give evidence and withstand
    cross-examination. He conceded that his wife would not be a particularly
    effective witness for a variety of reasons.

[6]

And so it was in these circumstances, on the second day of trial, that
    the appellant, with the benefit of independent legal advice, instructed his
    trial counsel to alter course. He instructed counsel not to contest the Crowns
    case, and to seek a conditional sentence based on the appellants fragile
    health, unblemished record, and contribution to his community.

[7]

On appeal, represented by different counsel, the appellant seeks a new
    trial. He now says that the procedure in which he freely participated was
    fatally flawed, and that his counsel failed to provide him with the effective
    legal assistance to which he was entitled. If unsuccessful on the appeal from
    conviction, the appellant seeks a substantial reduction in the five-year prison
    term imposed upon him.

[8]

The reasons that follow explain why I would dismiss the appeals from
    conviction and sentence.

The background facts

[9]

The grounds of appeal advanced do not require any elaboration of the
    circumstances of the offences alleged by each complainant but do command a detailed
    recital of the procedure followed at trial.

The Allegations in
    Overview

[10]

The
    complainants, all of whom were mature adults at the time of trial, alleged serial
    sexual abuse by the appellant over several years. The abuse began when each
    complainant was between 3 and 5 years of age and continued until he or she
    reached the ages of 9 to 12. The offences took place in the appellants home
    while his wife was away and consisted of acts of genital fondling and fellatio
    for the male complainants, and vaginal rubbing, digital penetration, and
    exposure for the female complainants. No complainant alleged coercion or
    threats.

The First Day of
    Trial

[11]

The
    appellant was represented at trial by experienced counsel whom he had retained
    two years earlier shortly after his arrest. Counsel had appeared on the
    appellants behalf at the preliminary inquiry, held 14 months before the trial,
    and there cross-examined each of the four complainants who testified as Crown
    witnesses.  The appellant elected trial by judge and jury.

[12]

On
    the first day of the appellants trial, the first complainant, the eldest of
    the four, testified before the jury.  At the end of the day, counsel for the
    appellant at trial thought that the complainant did well in the witness box.
    The remaining complainants were scheduled to testify the next and subsequent
    days.

[13]

Trial
    counsel for the appellant was concerned about the appellants ability to make
    it through the trial proceedings. Counsel had already alerted the trial judge
    to the prospect that frequent adjournments might be required because of the
    appellants compromised condition. During and at the end of the first day of
    trial, the appellant had poor colour and was ill-composed.

The Second Day of
    Trial

[14]

Before
    the trial resumed the following day, counsel and the appellant met at the court
    house. The appellant had better colour and seemed better composed than he had
    been on the previous day. Trial counsel asked the appellant how he was holding
    up.

[15]

During
    their discussions, counsel gave the appellant some legal advice. The appellant
    gave counsel some instructions. As a result, counsel approached the Crown with
    a proposal. A plea of guilty was not part of the proposal nor had the
    appellants instructions been reduced to writing prior to discussions between
    Crown counsel and the appellants trial counsel.

[16]

Counsel
    advised the trial judge in a general way about their discussions and asked that
    the jury be excused until the afternoon. The trial judge excused the jury and
    arranged for a mid-trial before another judge.

The Written
    Instructions

[17]

Trial
    counsel obtained written instructions from the appellant about the procedure to
    be followed at trial. Counsel reviewed the instructions with the appellant and
    had a second lawyer from the local Bar repeat the procedure. The appellant
    signed the instructions which the other lawyer witnessed.

[18]

The
    instructions signed by the appellant indicated that he would re-elect trial by
    judge alone and not contest the counts upon which the Crown would be
    proceeding. Attached to or accompanying the instructions was a list of the
    relevant counts and a detailed statement of facts concerning the allegations of
    each complainant, except the first complainant who had already testified before
    the jury and for whom the facts were to be as disclosed in his evidence. The
    appellant acknowledged that the Crown had a strong case and that neither he nor
    his wife, for different reasons, would be able to offer much of a response.

[19]

The
    instructions also noted that none of the offences on which the Crown was
    proceeding required the imposition of a minimum sentence of imprisonment. 
    Trial counsel for the appellant would seek a conditional sentence, but Crown
    counsel would not be joining in that submission. The appellant further
    acknowledged that the final result would be in the judges discretion after a
    sentencing hearing.

The Procedure
    Followed

[20]

In
    the absence of the jury, counsel advised the trial judge of the procedure they
    proposed to follow. The appellant re-elected trial by judge alone with Crown
    counsels consent and, after the trial judge had discharged the jury and
    declared a mistrial, pleaded not guilty to each count in the indictment.

[21]

During
    the discussions with the trial judge in the absence of the jury, trial counsel
    for the appellant said:

We have agreed on a statement of facts that we anticipate will
    be followed through.

Trial counsel made it clear that the appellant would
    not be entering guilty pleas but that both counsel would be inviting the trial
    judge to make findings of guilt and to enter convictions on specified counts,
    and to record conditional stays in connection with the remaining counts.

[22]

In
    accordance with the written instructions of the appellant, counsel agreed to have
    the evidence given by the first complainant before the jury apply to the
    proceedings before the trial judge. Crown counsel then read the statement of
    facts appended to the appellants instructions in connection with the remaining
    complainants. Trial counsel indicated that those facts were not contested. The
    trial judge entered findings of guilt on all counts and recorded convictions in
    conformity with the agreement of counsel. Conditional stays were entered on the
    remaining counts.

The Sentencing
    Proceedings

[23]

Over
    six months later, the trial judge heard sentencing submissions.  Counsel filed
    a pre-sentence report in which the appellant challenged the complainants
    allegations as a fantasized and dramatized story and told the pre-sentence
    reporter that he couldnt fathom why the complainants had made their
    allegations.

[24]

During
    sentencing submissions by Crown counsel, the trial judge queried the effect of
    the appellants comments in the pre-sentence report challenging the complainants
    allegations. Neither counsel suggested that the proceedings were procedurally
    flawed as a result of the appellants subsequent rejection of the complainants
    accounts.

[25]

Trial
    counsel for the appellant sought a conditional sentence. Crown counsel submitted
    that a fit sentence was a term of imprisonment in a federal penitentiary of
    four to five years, coupled with several ancillary orders to which the
    appellant took no objection.

the grounds of appeal

[26]

The
    appellant advances two grounds of appeal against the convictions entered by the
    trial judge.  He submits:

i.

that the
    procedure followed, the functional equivalent of a plea of
nolo contendere
,
    was illegal, and thus the convictions should be set aside; and

ii.

that the
    proceedings constituted a miscarriage of justice because the appellants trial
    counsel provided ineffective assistance.

[27]

The
    appellant also seeks leave to appeal the sentence imposed by the trial judge.
    He says that the trial judge gave insufficient weight to his age, medical
    condition, and unblemished antecedents in imposing a sentence of five years
    imprisonment in a federal penitentiary.

the appeal against conviction

Ground #1: The
Nolo Contendere
Ground

[28]

An
    assessment of this allegation of error requires some further background
    information including information gathered from materials filed on appeal that
    were not before the trial judge.

The Additional
    Background

[29]

When
    he appeared before the trial judge, the appellant was 70 years old.  English
    was his first language. His education included college programs. He had worked
    in a provincial training school and had been a member of the military. He
    reported several health concerns. He maintained his innocence in his
    discussions with trial counsel, but did not want to require the remaining three
    complainants to testify before the jury.

[30]

In
    his affidavit, the appellant swears that he did not know that he would
    necessarily be found guilty as a result of the proposed procedure. He did know
    that the formal process in which the complainants were to testify, and in which
    he could testify,

would end the formal contest whether or not I was guilty, but
    in my ignorance of criminal procedure I thought that I would still be able to
    dispute the charges in a less formal way.

He experienced shock that he had no opportunity to
    dispute the allegations.

[31]

In
    cross-examination on his affidavit, the appellant repeatedly acknowledged the
    following:

i.        that he did not want
    to continue with the trial and the testimony                      of the
    complainants;

ii.       that he did not want
    to testify;

iii.      that he knew he
    would be found guilty as a result of the    procedure                        followed;
    and

iv.      that he did not want
    to be sentenced to a term of imprisonment.

[32]

Trial
    counsel for the appellant gave evidence that it did not occur to him that the
nolo
    contendere
-like procedure followed here was unavailable as a matter of
    law. The appellant expressed no concerns to counsel about being found guilty in
    the proceedings. Trial counsel knew that the prospects of a conditional
    sentence were very, very remote. Counsel expected that the appellant would
    dispute the allegations when asked by the pre-sentence reporter because the
    appellant had maintained his innocence with counsel.

The Arguments on
    Appeal

[33]

For
    the appellant, Mr. Doucette says that a formal plea of
nolo contendere
is foreclosed by s. 606(1) of the
Criminal Code
. He submits that what
    occurred here was the functional equivalent of a plea of
nolo contendere
.
    Although he acknowledges that authority does permit the conduct of proceedings
    in such a way as to amount to the functional equivalent of a plea of
nolo
    contendere
, Mr. Doucette reminds us that two critical safeguards were
    lacking here:

i.        a plea inquiry to
    ensure that the appellants participation was     voluntary, unequivocal, and
    reflected an understanding of the           nature and consequences of the
    procedure; and

ii.       a
    formal admission of the facts that underpinned the findings      of guilt.

[34]

In
    the end, Mr. Doucette urges, the procedure was fatally flawed and amounted to a
    miscarriage of justice. The proceedings were unfair and resulted in a verdict
    that is unreliable. The only appropriate disposition, he submits, is to set
    aside the convictions and order a new trial.

[35]

For
    the respondent, Ms. Choi says that the procedure followed here did not cause a
    miscarriage of justice. The proceedings were fair and transparent, the verdict
    reliable.  Ms. Choi points out that recent authority does not create a bright-line
    rule that prohibits all
nolo contendere
-like procedures. The
    overarching concern is whether what was done caused a miscarriage of justice.
    That, she submits, did not happen here.

[36]

Ms.
    Choi contends that the appellants participation in the procedure followed here
    was voluntary, unequivocal, and informed. The appellant knew the effect of his
    re-election and discharge of the jury, and that his failure to contest the
    facts alleged by the Crown would mean that no witnesses would testify and that
    he would be found guilty of the offences specified in the written instructions.
    He was fully aware of the specific facts alleged because he reviewed them twice
    and initialled each page.

[37]

Ms.
    Choi submits that the appellants claim that he thought his counsel would
    dispute the facts alleged is simply not credible, belied by his conduct
    throughout. He well knew that findings of guilt would follow and he hoped to
    leverage his decision to not require the remaining complainants to testify at
    trial into a non-custodial sentence.

The Governing
    Principles

[38]

Section
    606(1) describes the pleas available to an accused who is called  upon to plead.
    The section makes it clear that, apart from the general pleas of guilty and not
    guilty and the special pleas authorized by Part XX, no other pleas are
    available. Thus, a formal plea of
nolo contendere
, literally I am
    unwilling to contest, is not available under our procedural law.

[39]

A
    plea of guilty is a formal admission of guilt and constitutes a waiver, not
    only of an accuseds right to require the Crown to prove its case by admissible
    evidence beyond a reasonable doubt, but also of various related procedural
    safeguards, including those constitutionally protected:
R. v. T. (R.)
(1992), 10 O.R. (3d) 514 (C.A.), at p. 519;
Korponay v. Canada (Attorney
    General)
, [1982] 1 S.C.R. 41, at p. 49.

[40]

A
    plea of guilty must be voluntary, unequivocal, and informed.  A
voluntary
plea is a conscious, volitional decision by an accused to plead guilty for
    reasons that he or she considers appropriate:
T. (R.)
, at p. 520.  An
informed
plea is a plea entered by an accused who is aware of the nature of the
    allegations made against him or her, the effect of his or her plea, and the
    consequences of that plea:
T. (R.)
, at p. 519;
R. v. Lyons
,
    [1987] 2 S.C.R. 309, at p. 371-372.

[41]

On
    the other hand, an accused who pleads not guilty puts the Crown on notice that
    she or he requires the Crown to prove every essential element of the offence
    charged, by evidence that is relevant, material, and admissible, to the
    exclusion of reasonable doubt, and in accordance with applicable procedural
    safeguards:
R. v. G. (D.M.)
, 2011 ONCA 343, 275 C.C.C. (3d) 295, at
    para. 52. The manner in which the Crown proves its case is for the Crown to
    decide, subject to the authority of the trial judge to determine issues of
    relevance, materiality, and admissibility of the evidence, and to ensure that
    the proceedings comply with any applicable procedural requirements and
    constitutional standards.

[42]

Among
    the methods of proof available to the Crown are admissions of fact governed by
    s. 655 of the
Criminal Code
. Under that provision, it is for the
    Crown, not the defence, to state the fact or facts that it alleges against the
    accused and of which it seeks admission. The accused may choose to admit the
    facts, or decline to do so. Admissions require action by two parties, one who
    makes the allegation and the other who admits it. Once the admission is made,
    no other proof of the facts admitted need be offered:
Castellani v. The
    Queen
, [1970] S.C.R. 310, at pp. 315-317.

[43]

Sometimes,
    formal admissions of fact under s. 655 may constitute the entirety of the
    Crowns case.  For example, in
R. v. Cooper
, [1978] 1 S.C.R. 860, the
    Crowns case-in-chief consisted of an agreed statement of facts. The Supreme
    Court of Canada described the procedure as unusual, but did not suggest that it
    was legally impermissible or procedurally flawed. A similar procedure is
    followed by some courts in one-stage trials on the issue of criminal
    responsibility.

[44]

A
    procedure similar to what happened here came under scrutiny in
G. (D.M.)
.
    There, as here, the accused pleaded not guilty to a sexual offence.  Crown
    counsel read out a synopsis of the allegations against the accused. The trial
    judge made no inquiry of the accused to ensure that he understood the nature
    and effect of the procedure that was being followed.  Neither Crown nor defence
    counsel made any submissions. The trial judge convicted the accused and
    remanded him in custody for sentencing.

[45]

In
G. (D.M.)
a combination of two errors caused a miscarriage of justice
    and warranted a new trial. The first had to do with the manner in which Crown
    counsel discharged her burden of proof after the accused had pleaded not
    guilty.  And the second was 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:
G. (D.M.)
, at
    para. 61.

[46]

In
G. (D.M.)
, Crown counsel read a synopsis of the allegations on which
    the Crown relied.  Defence counsel said nothing about whether he agreed with or
    did not dispute the allegations. Nothing said or done by counsel could be
    construed as bringing the case within the reach of s. 655 of the
Criminal
    Code
.

[47]

In
G. (D.M.)
, the trial judge did not conduct any inquiry of the accused,
    similar to the inquiry mandated by s. 606(1.1) for pleas of guilty, to ensure
    that the accused was a voluntary participant in the procedure and understood
    the nature and effect of the procedure being followed. The fresh evidence in
    that case did not establish the scope of any advice counsel may have provided
    to the accused, more specifically, whether counsel told the appellant about the
    procedure that would be followed when proceedings resumed.

[48]

In
G. (D.M.)
, as in this case, the appellant, in discussions with
    counsel, denied having committed the offences with which he was charged and on
    which he was being tried.

[49]

In
R. v. Hector
(2000), 146 C.C.C. (3d) 81 (Ont. C.A.), the appellant
    pleaded guilty to three counts of first degree murder.  On appeal, he argued
    that his guilty pleas should be set aside and a new trial ordered because he
    had never admitted his guilt to trial counsel, indeed had protested his
    innocence on several occasions. It followed, the argument continued, that trial
    counsel should have refused to permit the appellant to plead guilty or try to
    talk him out of it. The court rejected the argument because the failure of the
    appellant to acknowledge guilt or, put another way, the appellants denial of
    guilt, did not compromise any of the essential elements of a valid plea of
    guilty, that is to say, that the plea is voluntary, unequivocal, and informed:
Hector
,
    at paras. 7-8;
R. v. Pivonka
, 2007 ONCA 572, 228 O.A.C. 227, at para.
    16; and
R. v. Khaja
, 2010 ONCA 246, at para. 11.

[50]

To
    determine whether the procedure followed in cases like this caused a
    miscarriage of justice requires a case-specific examination of all relevant
    circumstances, including those revealed by the fresh evidence:
G. (D.M.)
,
    at para. 62.

The Principles
    Applied

[51]

Despite
    several similarities between what occurred here and what happened in
G.
    (D.M.)
, I am satisfied that the principles stated there yield a different
    result in this case.  I would not give effect to this ground of appeal.

[52]

To
    take first, the common ground between this case and
G. (D.M.)
.

[53]

Each
    appellant pleaded not guilty. Each maintained their innocence in discussions
    with counsel. Neither expressed his denial in open court. In both proceedings,
    Crown counsel adduced no
viva voce
evidence, rather read the factual
    allegations made by the complainants against the appellants (in addition in
    this case, the evidence given by the eldest complainant was incorporated by
    reference). These allegations were not filed as an exhibit, nor were they
    expressly characterized as a factual admission under s. 655 of the
Criminal
    Code
.  Defence counsel did not expressly acknowledge the accuracy or admit
    the truth of the allegations, nor was either appellant asked to do so.

[54]

In
    both cases the appellant recounted some health problems. Each appellant wished
    to avoid having the complainants testify although, in this case, the first and
    eldest complainant did testify before the jury. Both appellants had no previous
    convictions. Neither trial judge conducted any inquiry to determine whether the
    appellant understood the consequences of the procedure followed and voluntarily
    participated in it.

[55]

But
    important differences distinguish this case from
G. (D.M.)
.

[56]

First,
    in this case, experienced defence counsel obtained detailed written
    instructions from the appellant in advance of the appellants re-election and
    the subsequent proceedings. He had represented the appellant for over two years
    between arrest and trial and had conducted the preliminary inquiry where all
    four complainants had testified and been cross-examined.

[57]

Defence
    counsel reviewed the circumstances of the case and the instructions with the
    appellant. Another local lawyer reviewed the instructions with the appellant
    and witnessed the appellants signature. The instructions included:

i.

an
    agreement to re-elect trial by a judge sitting alone;

ii.

an agreement
not
to contest the counts listed in the instructions;

iii.

an acknowledgement
    that participation in the procedure was free and voluntary, without any threats
    or inducements from anyone including trial counsel;

iv.

an acknowledgement of the
    strength of the Crowns case and of the likely impact of his health
    difficulties on his ability to give evidence and those of his wife who would
    not be a particularly effective witness;

v.

an appreciation
    of the positions that counsel would advance on sentence and an acknowledgement
    that 
the final result will be in the Judges discretion after a sentencing
    hearing
 (emphasis in original); and

vi.

an understanding that a
    pre-sentence report would be ordered and would include information about the
    appellants medical condition, lack of criminal record, work record, and community
    involvement, along with his wifes medical condition.

[58]

Together
    with the written instructions was a second document, drafted by the Crown
    Attorney, that listed the counts that would not be contested and set out the
    circumstances relied upon in respect of each complainant.  Apart from the first
    complainant whose evidence at trial was incorporated by reference, the document
    contained the specific circumstances to be relied upon for each of the other
    complainants. Trial counsel reviewed this document with the appellant twice.
    The appellant initialled each page and signed the last page. The second review
    took place in the presence of the same local lawyer who had witnessed the
    appellants written instructions. This lawyer initialled each page of the factual
    allegations and signed the last page.

[59]

Before
    the Crown had read the allegations contained in the document initialled and
    signed by the appellant, trial counsel for the appellant said:

We have
agreed on a statement of facts
that we
    anticipate will be followed through. Then obviously after that we will be
    talking about a sentencing hearing some time in the future, sir. So thats kind
    of the outline of what we have.  (Emphasis added)

The trial judge confirmed with the appellant his
    understanding of the procedure of re-election.

[60]

Immediately
    before the appellant re-entered pleas of not guilty to each count in the
    indictment, trial counsel expressed his understanding of what would follow:

[DEFENCE COUNSEL]:   Theres not to be a plea.  Basically the
    counts that are going to be dealt with here, sir, are basically not to be
    contested, and were content that the facts be read in and ultimately there be
    a finding on that basis.

THE COURT:        So hes going to plead not guilty. There will
    be facts alleged, which will be the evidence of [the first complainant]

[DEFENCE COUNSEL]:   Yes

THE COURT:         and then statements for the other three
    complainants, and the defence will not be contesting and inviting me to make a
    finding of guilty.

[DEFENCE COUNSEL]:   Thats correct, sir.

[61]

The
    subsequent discussions between the trial judge and counsel contain repeated
    references to findings of guilt and the absence of any contest about the facts
    read into the record by the Crown. The trial judge made findings of guilt,
    recorded convictions, and entered stays in accordance with the agreement of
    counsel.

[62]

Third,
    despite procedural similarities to
G. (D.M.)
, this case involves
    substantive differences from
G. (D.M.)
. The factual matrix put before
    the trial judge in this case consisted of the referential incorporation of the
    trial evidence of the complainant (thus making it
evidence
in the
    proceedings), and allegations based on the preliminary inquiry testimony of the
    remaining complainants that trial counsel for the appellant on at least one occasion
    characterized as an agreed statement of facts. Unlike in
G. (D.M.)
,
    this appellant had reviewed with counsel and initialled the precise factual
    assertions read by Crown counsel in the proceedings under review.

[63]

Fourth,
    unlike
G. (D.M.)
where trial counsel made no submissions, counsel for
    the appellant expressly indicated that the factual allegations read by the
    Crown were not contested and that counsel was content with the procedure being followed.
    It was also clear that counsel
invited
the trial judge to make
    findings of guilt based on the factual allegations with which he took no issue.

[64]

Further,
    it is abundantly clear that this appellant well knew the inevitability of
    findings of guilt for specific offences. The written instructions contain
    several references to sentence and a sentencing hearing. The appellant
    acknowledged the strength of the Crowns case and the problematic nature of any
    response by the defence. In his cross-examination on the affidavit filed on the
    fresh evidence application, the appellant repeatedly acknowledged that he knew
    he would be found guilty, but hoped he would not be sent to prison. In the
    harsh light of day, his periodic rejoinder that he thought trial counsel would
    look into it and speak on my behalf rings rather hollow. As the court said in
Lyons
, at p. 372:

Subsequent dissatisfaction with the "way things turned
    out" or with the sentence received is not, in my view, a sufficient reason
    to move this Court to inquire into the reasons behind the election or plea of
    an offender, particularly where there is nothing to suggest that these were
    anything other than informed and voluntary acts.

[65]

Finally,
    we are left with an appellant who voluntarily participated in a procedure
    without statutory warrant (or prohibition, except against entry of a formal
    plea of
nolo contendere
), well aware of the consequences (a finding of
    guilt and conviction), in the hope of gaining a desired sentencing disposition
    without having to utter an express admission of guilt of sexual offences. That he
    asserted innocence and did not admit guilt to his counsel does not invalidate
    these proceedings any more than it would vitiate a plea of guilty. Unlike the
    appellant in
G. (D.M.)
, this appellant does not say he wanted to
    testify to deny the allegations, but the procedure followed denied him that
    opportunity.

[66]

As
G. (D.M.)
points out, at para. 51, there is no statutory provision or
    common law principle that prohibits the procedure at issue in that case and in
    this case after an accused has entered a plea of not guilty. The flaw in
G.
    (D.M.)
was in the execution. The execution in this case was materially
    different. I am satisfied that in the circumstances of this case, the procedure
    followed did not cause a miscarriage of justice. The procedure here did not
    compromise the fairness of the hearing or contribute to an unreliable verdict. 
    I would not give effect to this ground of appeal.

Ground #2: The Ineffective Assistance of
    Counsel

[67]

The
    appellant advances a second ground of appeal related to but independent of the
    first. He says that his trial counsel failed to provide the effective legal
    assistance to which he was entitled.  Some additional background is essential
    to an understanding of this ground and its determination.

The Additional
    Background

[68]

Trial
    counsel for the appellant is a barrister who has practised in the community in
    which the appellant was tried for about four decades. In the latter half of his
    professional life, the emphasis in his practice has been the defence of
    criminal cases. His practice in the Superior Court of Justice consists entirely
    of the defence of charges of sexual offences.

[69]

Trial
    counsel agreed to proceed on allegations that did not attract a minimum
    punishment on conviction, thus leaving open the prospect of a conditional sentence.
    Counsel expected to achieve some benefit on sentence from the procedure
    adopted, which did not require three of the four complainants to testify, as
    well as from the age, compromised medical condition, and unblemished record of
    the appellant.

[70]

Trial
    counsel was unaware of the impropriety of the
nolo contendere
-like
    procedure followed here, which was calculated to achieve some benefit for the
    appellant on sentence. He agreed that proceedings should likely have begun anew
    when the trial judge raised the effect of the appellants denial of culpability
    in discussions with the pre-sentence reporter.

[71]

Trial
    counsel testified that he had a general knowledge of conditional sentences and
    the principles that governed their application. He knew that the chances of the
    trial judge imposing a conditional sentence in this case were very, very
    remote, especially in the absence of pleas of guilty. Four complainants had
    been subjected to multiple acts of sexual abuse from a very young age. In each
    case, the abuse continued for years, over a cumulative period of nearly two
    decades. Counsel advanced the conditional sentence submission in accordance
    with the appellants instructions that he did not want to go to jail.

The Arguments on
    Appeal

[72]

For
    the appellant, Mr. Doucette argues that the incompetence of trial counsel is
    established on two bases:


i.

that trial counsel led the appellant to participate in a process, the
nolo
    contendere
-like procedure, which was obviously illegal even prior to the
    decision in
G. (D.M.)
, and fundamentally at odds with the appellants
    denials of guilt; and


ii.

that trial counsel sought a conditional sentence of imprisonment that
    was completely unrealistic in the circumstances.

As a result, Mr. Doucette says, a miscarriage of
    justice occurred and can only be rectified by an order for a new trial.

[73]

For
    the respondent, Ms. Choi reminds us that an analysis of a claim of ineffective
    assistance of counsel has two components. The first has to do with the
    performance of counsel, and the second, which is examined first, concerns
    prejudice.

[74]

Ms.
    Choi submits that the appellants claim, whether its constituents are examined
    individually or cumulatively, fails to establish prejudice. The appellant was
    fully informed and voluntarily participated in the procedure that resulted in
    the convictions. Nothing said on sentence, which implemented the appellants
    instructions, rendered a fair process unfair or contributed to an unreliable
    verdict. Thus, she submits, we do not reach the performance aspect of the
    inquiry.

[75]

In
    the event that we consider the performance component, Ms. Choi says implementation
    of the procedure followed here was not unusual prior to the decision in
G.
    (D.M.)
and, at all events, is not
per se
invalid even after that
    decision. That counsel participated in a procedure later said to require
    scrutiny and made submissions on sentence that had no realistic chance of
    success do not constitute incompetence, whether considered alone or in
    combination.

The Governing
    Principles

[76]

The
    principles applicable to this ground of appeal are uncontroversial.

[77]

It is made clear in
R. v. G.B.D.
2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26 that our approach to claims of
    ineffective assistance of counsel requires us to consider two components:


i.

performance; and


ii.

prejudice

To succeed an appellant must establish that counsels
    conduct, whether acts, omissions, or both, amounted to incompetence and that a
    miscarriage of justice resulted:
G.B.D.
, at para. 26.

[78]

An
    appellant who alleges ineffective assistance of counsel as a ground of appeal
    must establish a factual basis for the claim. The facts relied upon must
    establish incompetence and the incompetence must cause a particular result, a
    miscarriage of justice. Thus, we require an appellant who advances an
    ineffective assistance of counsel claim to establish:


i.

the facts that ground the claim of incompetence;


ii.

the representation provided by trial counsel was incompetent (the
    performance component); and


iii.

the incompetent representation resulted in a miscarriage of justice (the
    prejudice component).

See
R. v. Joanisse
(1995),
    102 C.C.C. (3d) 35 (Ont. C.A.), at p. 59;
R. v. Archer
(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120.

[79]

Once
    the facts underpinning the claim of ineffective assistance have been
    established on a balance of probabilities, we consider first whether the
    alleged incompetence resulted in a miscarriage of justice. A failure of the
    claim on this ground relieves the appellate court of assessing the adequacy of
    counsels performance:
Archer
, at para. 121;
G.B.D.
, at para.
    29. Where the prejudice standard has been met, we proceed to consider the
    performance component.

[80]

The
    inquiry into prejudice examines the nature and seriousness of counsels alleged
    errors from two perspectives: the reliability of the verdict and the fairness
    of the process leading to that verdict:
Joanisse
, at p. 62. The nature
    of any incompetence demonstrated exerts a significant influence on the kind of
    inquiry required to determine the effect of that incompetence on the fairness
    of the trial:
Joanisse
, at p. 62. Where, as here, the claim of
    incompetence relates to specific decisions made or actions taken by trial
    counsel, the effect on the fairness of the trial is measured by the impact of
    the errors on the reliability of the verdict:
Joanisse
, at p. 63. The
    appellant must show that, with competent legal representation, there is a real
    probability that the appellant would not have been convicted:
Joanisse
,
    at p. 64;
Strickland v. Washington
, 104 S.Ct. 2052 (1984), at p. 2068.

[81]

We
    determine incompetence by a standard of reasonableness, which we measure by
    reference to counsels performance in the specific circumstances of the case
    and, importantly here, at the point in time when counsel made the decisions
    challenged on appeal. The wisdom of hindsight occupies no place in this
    assessment:
Joanisse
, at p. 61. The reasonableness standard proceeds
    from a strong presumption that counsels conduct fell within the range of
    reasonable professional assistance:
G.B.D.
, at para. 27. This onus is
    settled on the appellant to establish, on a balance of probabilities, that the
    conduct of counsel was not the result of reasonable professional judgment:
G.B.D.
,
    at para. 27.

The Principles
    Applied

[82]

This
    ground of appeal falls on barren ground.

[83]

The
    facts on which the claim is advanced are uncontroversial. Trial counsel
    participated in a procedure that would lead inevitably to findings of guilt and
    entry of convictions that, in another case decided after these proceedings took
    place, caused a miscarriage of justice. Counsel made submissions on sentence
    advocating for a disposition that was legally available but virtually certain
    not to be viable in the circumstances of this case.

[84]

The
    rejection of the first ground of appeal is dispositive of the issue of
    prejudice in association with the procedure followed at trial. In the
    circumstances of this case, that procedure did not compromise the reliability
    of the verdict or the fairness of the process that resulted in or led to that
    verdict.

[85]

The
    sentencing submissions made by trial counsel, in accordance with the
    appellants instructions that he did not want a jail sentence, followed the
    findings of guilt and entry of convictions, thus could not have affected the
    reliability of those findings or the fairness of the process that resulted in
    those findings.

[86]

The
    failure of the appellant to establish prejudice renders it unnecessary to
    consider the performance component of the analysis:
G.B.D.
, at para.
    26. That said, some observations about the foundation for the claim are apt since
    they proceed from a premise commonly invoked.

[87]

First,
    to be fair to counsel at trial and the experienced trial judge who presided
    over the proceedings, none had our reasons in
G. (D.M.)
at hand. That
    decision was not rendered until about 13 months after the trial proceedings and
    6 months after sentence had been passed.

[88]

Second,
    the practice followed here and in
G. (D.M.)
, while not authorized or
    prohibited by statute, was scarcely novel. See, for example,
R. v.
    Sherret-Robinson
, 2009 ONCA 886, 86 W.C.B. (2d) 4, at para. 3;
R. v.
    Ohenhen
, 2008 ONCA 838, at para. 2; and
R. v. Fegan
(1993), 13
    O.R. (3d) 88 (C.A.), at pp. 93-94. It is also worthy of reminder that the
Criminal
    Code
is not an exhaustive catalogue of criminal procedure.

[89]

Third,
G. (D.M.)
does not create a bright-line rule that, without more,
    nullifies every proceeding in which an equivalent or similar procedure is
    followed.
G. (D.M.)
, invoking s. 606(1) of the
Criminal Code
,
    forecloses a formal plea of
nolo contendere
and mandates an inquiry,
    specific to the circumstances of the case at hand, to determine whether a
    procedure that is
nolo contendere
-like caused a miscarriage of
    justice. There it did. Here it did not.

[90]

Fourth,
    as a matter of general principle, it does not follow from subsequent appellate
    disapproval or rejection of a practice that prior use of that practice equates
    with ineffective assistance of counsel or warrants attachment of the label
    incompetent to counsel who participates in that practice.

[91]

Appellate
    counsel should think twice about labelling as incompetent, or as providing
    ineffective legal assistance, trial counsel who participate in a procedure
    only later determined to be unauthorized. Such an argument constitutes
    overreach, is unfair to trial counsel, ignores the point-in-time requirement of
Joanisse
, and invokes the counterfeit wisdom of hindsight as its
    currency.

[92]

I
    would not give effect to this ground of appeal.

the appeal against sentence

Introduction

[93]

The
    appellant applies for leave to appeal sentence and, if leave is granted, appeals
    his cumulative sentence of five years in the penitentiary. The sentence
    resulted from sentences of 15 months for the offences against each complainant
    and the trial judges determination that the sentences should be served
    consecutively. The trial judge made several ancillary orders that were not
    contested at trial and are not in issue here.

The Positions of
    Counsel at Trial

[94]

Trial
    counsel for the appellant sought a conditional sentence of imprisonment. Crown
    counsel at trial submitted that the appropriate range of sentence was a
    sentence of imprisonment in a federal penitentiary for a term of four to five
    years.

The Reasons of the
    Trial Judge

[95]

The
    trial judge considered the starting point for a fit sentence in this case as
    five years in the penitentiary. He described the circumstances as those of
    marathon sexual abuse by a person in a position of trust. In mitigation, the
    trial judge considered the appellants age, unblemished record, health, his
    contributions to society, and his no contest plea that spared three of the
    four complainants from having to testify.

The Arguments on
    Appeal

[96]

For
    the appellant, Mr. Doucette seeks a reduction of the total sentence to three
    years because the trial judge, he submits, gave insufficient weight in his
    sentencing analysis to the appellants age and compromised health.

[97]

For
    the respondent, Ms. Choi says that the sentence imposed reflects no error in
    principle and is not manifestly unfit. She emphasizes the number of
    complainants, four, and the lengthy time over which the offences occurred. The
    offences involved breach of trust, invasive conduct, and caused serious harm to
    each of the complainants. The trial judge, she submits, gave adequate weight to
    the appellants age and compromised health, indeed more weight perhaps than was
    due when the true state of the appellants health emerged from additional 
    materials filed in this court.

The Governing
    Principles

[98]

The
    parties agree that, as a general rule, when adult offenders, in a position of
    trust, sexually abuse innocent young children on a regular and persistent basis
    over substantial periods of time, the range of sentence that is fit is a
    penitentiary sentence of mid to upper single digit length:
R. v. D. (D.)
(2002), 163 C.C.C. (3d) 471 (Ont. C.A.), at para. 44.

The Principles
    Applied

[99]

I
    would not interfere with the sentence imposed.

[100]

This case
    involves serial sexual abuse of four family members from an early age, 3-5
    years, over several years, to ages 9-12. The total length of time during which
    the offences occurred approached two decades. The conduct was invasive and
    caused significant psychological harm to each complainant. The appellant was in
    a position of trust.

[101]

The trial judge
    took into account as mitigating factors the age and compromised health of the
    appellant, as well as his decision not to subject three of the four
    complainants to the rigours of having to testify about these events in a public
    forum. The sentence imposed is well within the applicable range of sentence for
    these offences and the offender who committed them. It was and remains fit.

conclusion

[102]

For these
    reasons, I would dismiss the appeal from conviction. I would grant leave to
    appeal sentence but dismiss the appeal from sentence.

Released:
January 30, 2013  RJS

David
    Watt J.A.

I
    agree Robert J. Sharpe J.A.

I
    agree E.E. Gillese J.A


