



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Shea, 2016 ONCA 53

DATE: 20160119

DOCKET: C58667

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn OShea

Appellant

Michael Davies, for the appellant

Alexander Hrybinsky, for the respondent

Heard: January 15, 2016

On appeal from the conviction entered on February 7, 2013
    and the sentence imposed on February 6, 2014 by Justice Johanne
    Lafrance-Cardinal of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant pleaded guilty to a single count of possession of child
    pornography. He was sentenced to one year imprisonment and two years
    probation. He appeals the conviction and sentence.

[2]

On the conviction appeal, the appellant contends that his guilty plea
    was not informed by accurate information from his counsel. He believed, when he
    entered his guilty plea, that the matter of sentence was settled and that he
    would receive the then minimum custodial term for the offence, namely 45 days,
    followed by probation. His belief was supported by his mother and was based on
    advice from his trial counsel.

[3]

We do not accept this submission. Based on the information the appellant
    received from his counsel, the appellant knew that he would receive a custodial
    sentence if he pleaded guilty to the offence of possession of child pornography
    because that offence had a minimum sentence of 45 days.

[4]

There is no suggestion that Crown counsel did anything wrong in seeking
    a sentence above the statutory minimum. The Crown indicated its position to
    defence counsel well before the guilty plea was entered.  The sentencing
    hearing was contested.

[5]

Nor can it be suggested that the trial judge was not entitled to impose
    a sentence of one year imprisonment. Even accepting that the appellants
    counsels notation written at the first pre-trial (a pre-trial conducted by the
    same judge who ultimately accepted the guilty plea and imposed the sentence) to
    the effect that a proposed 45 day sentence would be reasonable, it was
    entirely permissible for the trial judge to change her mind once she had seen
    the evidence of the volume and nature of the child pornography possessed by the
    appellant. This is reflected in the exchange between the trial judge and
    defence counsel immediately after she imposed sentence:

THE COURT: Any questions [counsel]?

[Counsel]: Uhm, other than the fact, Your Honour that there had
    been some judicial pre-trials with respect to resolving the matters, I take it
    Your Honour was aware of that? Is that correct?

THE COURT: I may have been aware of that, but I havent viewed
    the videos and I havent seen the pictures when the position was given. Theres
    a big difference between [Mr. B.s] case where its young adults, no, Im
    sorry, older teens, and what was seen on those particular pictures, images and
    videos.

[6]

The problem here is that the appellants counsel may well have been
    overly optimistic about the potential sentence after the first pre-trial and
    may not have properly communicated to the appellant and his mother that a 45
    day sentence was being opposed by the Crown and was not a certainty with the
    trial judge who ultimately took the plea. However, absent an allegation of
    ineffective assistance of counsel, which the appellant fairly does not make,
    this is not enough to clear the informed hurdle in the voluntary,
    unequivocal and informed test for the validity of a guilty plea: see
R. v.
    R.T.
, (1992), 10 O.R. (3d) 514 (C.A.). Through the advice of his counsel,
    the appellant knew that he would not face a trial and would receive a custodial
    sentence if he pleaded guilty. Through the advice of his counsel, he may have
    expected a lower sentence than the one he received. This dichotomy is not
    sufficient to call into question the validity of his guilty plea. As LaForest
    J. said in
R. v. Lyons
, [1987] 2 S.C.R. 309, at para. 107:

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.

[7]

On the sentence appeal, the appellant submits that the trial judge did
    not give sufficient weight to the appellants unique background, including,
    especially, the brain injury he sustained as a teenager.

[8]

We are not persuaded by this submission. The trial judge considered the
    appellants circumstances with the aid of a pre-sentence report, sexual
    behaviour assessment, and submissions of counsel. She specifically, and in some
    detail, referred to the consequences of the brain injury in a section of her
    reasons titled
Medical condition
. She also identified it as a mitigating
    factor under the heading
Mitigating Factors
:

3.       The personal circumstances of the accused. He is  on
    long term disability for a severe traumatic brain  injury following a motor
    vehicle accident.

[9]

The conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


