R. v. D.M.G.,

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., Simmons and Watt, JJ.A.
• Neutral Citation: 2011 ONCA 343
• Citation: (2011), 281 O.A.C. 85 (CA),2011 ONCA 343,105 OR (3d) 481,275 CCC (3d) 295,84 CR (6th) 420,[2011] OJ No 1966 (QL),281 OAC 85,97 WCB (2d) 151,(2011), 281 OAC 85 (CA),281 O.A.C. 85,105 O.R. (3d) 481,[2011] O.J. No 1966 (QL)
• Date: 09 November 2010
• Court: Court of Appeal (Ontario)

R. v. D.M.G. (2011), 281 O.A.C. 85 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.041

Her Majesty the Queen (respondent) v. D.M.G. (appellant)

(C49549; 2011 ONCA 343)

Indexed As: R. v. D.M.G.

Ontario Court of Appeal

O'Connor, A.C.J.O., Simmons and Watt, JJ.A.

May 2, 2011.

Summary:

The accused was convicted of sexual interference and sentenced to 15 months' jail less time spent on remand and three years' probation. The accused appealed, arguing that his conviction was a miscarriage of justice because he was denied the effective assistance of counsel.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4220.1

Procedure - Pleas - Whether voluntary - By the agreement of counsel, the accused's counsel pled not guilty to sexual interference on the accused's behalf and the accused confirmed his plea - The Crown then read a summary of the allegations - As had been agreed to by counsel, the trial judge convicted the accused - The accused appealed, arguing that his conviction was a miscarriage of justice because he was denied the effective assistance of counsel - The elderly accused was hearing impaired - The Ontario Court of Appeal allowed the appeal - Prosecutorial allegations were not evidence - They did not become admissions of fact under s. 655 of the Criminal Code by the failure of the accused's trial counsel to make submissions - The accused had consistently denied his guilt, but was concerned about making the young complainant testify - He was not made aware of procedural mechanisms available to accommodate such testimony - He was never asked, nor did his counsel ever expressly admit on his behalf the prosecutor's allegations - The procedure adopted caused a miscarriage of justice through procedural unfairness - The accused's unwavering denial of guilt was sideswiped by a procedure that resulted in a de facto admission of guilt without any inquiry into voluntariness or the accused's understanding of the nature and effect of this procedure - The inadequate preparation of the accused's former counsel for trial may have influenced the procedure that was adopted.

Criminal Law - Topic 4226

Procedure - Pleas - Acceptance of guilty plea - [See Criminal Law - Topic 4220.1 ].

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See Criminal Law - Topic 4220.1 ].

Cases Noticed:

Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 41].

R. v. M.B. (2009), 251 O.A.C. 81; 68 C.R.(6th) 55 (C.A.), refd to. [para. 100].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1997), 208 N.R. 79; 99 O.A.C. 79 (S.C.C.), refd to. [para. 100].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 102].

R. v. T.P. (2002), 160 O.A.C. 118; 165 C.C.C.(3d) 281 (C.A.), refd to. [para. 106].

Counsel:

Wayne A. Rumble, for the appellant;

Alexander Hrybinsky, for the respondent.

This appeal was heard on November 9, 2010, before O'Connor, A.C.J.O., Simmons and Watt, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the Court of Appeal on May 2, 2011.