



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alabi, 2014
    ONCA 195

DATE: 20140313

DOCKET: C55299

Feldman, Lauwers and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Franca Alabi

Appellant

Lori-Anne Thomas, for the appellant

Michael Fawcett, for the respondent

Heard: March 13, 2014

On appeal from the conviction entered on July 27, 2011
    and the sentence imposed on March 15, 2012 by Justice Elinore A. Ready of the Ontario
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks to set aside her guilty plea to the offence of
    participation in a criminal organization contrary to s. 467.12 of the
Criminal
    Code
. She received a sentence of 20 months in addition to presentence
    custody of 82 days.

[2]

The basis for the appeal is that the appellant did not make an informed
    decision to plead because she was wrongly informed by her trial counsel that a
    conditional sentence was available for the offence and that there was a strong
    likelihood that she would receive a conditional sentence. He also told her that
    90 days intermittent was the maximum she would receive.

[3]

As Crown counsel before us fairly conceded, everyone in the courtroom
    believed that a conditional sentence was available for the offence. Crown
    counsel had offered a plea deal based on a conditional sentence in exchange for
    certain testimony that the appellant could not provide. The trial judge did not
    realize that the submission for a conditional sentence was for an illegal
    sentence until she reserved her decision.

[4]

In our view, the plea should be set aside. Similar to the case
R. v.
    Al-Diasty,
2003 CanLII 41570 (OCA), the appellant entered her plea based on
    a misunderstanding of the available sentence that was shared by all counsel and
    the trial judge at the time. Her evidence is that she would not have pled
    guilty had she known that a conditional sentence was not available. Her
    evidence as to the extent of her involvement in the criminal organization
    supports a belief that a conditional sentence would not have been inappropriate
    had it been an available sentence.

[5]

In the exceptional circumstances of this case, where the appellant was
    informed that a sentence was available that was illegal, and where Crown
    counsel and the trial judge were under the same misunderstanding, in our view
    the plea should be set aside and a new trial ordered.

[6]

The sentence appeal is therefore moot.


