



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Brien, 2017 ONCA 929

DATE: 20171130

DOCKET: C62654

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert OBrien

Appellant

Sam Goldstein, for the appellant

Rebecca De Filippis, for the respondent

Heard and released orally: November 24, 2017

On appeal from the conviction entered on August 15, 2016
    and the sentence imposed on August 15, 2016 by Justice Paul F. Monahan of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks to withdraw his guilty pleas to one count of fail to
    remain causing death and one count of fail to remain causing bodily harm, contrary
    to s. 252(1.3) and s. 252(1.2) of the
Criminal Code
, on the ground
    that he did not understand that he was pleading to
Criminal Code
offences where he would have a criminal record and thought he was pleading
    guilty to
Highway Traffic Act
offences.

[2]

The onus is on an appellant seeking to withdraw a guilty plea to show
    that his plea was not voluntary, unequivocal and informed. The appellant has
    not met the onus to demonstrate that his plea was not informed. The highest his
    evidence goes is that he developed a subjective misunderstanding that the
    charges he was pleading to were under the
Highway Traffic Act
.

[3]

However all of the objective evidence of what occurred: (1) during plea
    negotiations in which he was represented by experienced counsel; (2) during the
    plea inquiry by the trial judge; (3) during the plea itself where the charges
    were stated to be under the
Code
; and (4) at the sentencing hearing
    where the
Code
and the criminal record were referred to, was that the
    charges were
Criminal Code
charges.

[4]

In the case of
R. v. Krzehlik
, 2015 ONCA 168 at paras. 37 and
    38, this court addressed a similar issue as follows:

As previously noted, in his affidavit the appellant asserts
    that he understood that if he pleaded guilty, so long as he appealed within 30 days
    of the date of convictions, the pleas would be automatically overturned. Duty
    counsel denies that she would have said this to the appellant. There is no
    evidence to support a finding that the appellants alleged misunderstanding was
    induced by duty counsel or by any action on the part of the state. During the
    plea comprehension inquiry by the trial judge, the appellant stated that he
    understood that he was surrendering his right to a trial and that he would be
    sentenced for a serious crime. And there can be no doubt that the appellant
    knew the charges he was pleading guilty to.

In my view, the appellant has not met the onus of establishing
    that his pleas did not meet the legal threshold for being informed.

[5]

In our view, a similar analysis applies to this case. Based on the
    record, the appellant has not met his onus. The appeal is dismissed.

K. Feldmand J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


