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

• Judge: Sharpe, Gillese and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 03, 2012
• Jurisdiction: Ontario
• Citations: 2013 ONCA 53;(2013), 302 O.A.C. 78 (CA)

R. v. R.P. (2013), 302 O.A.C. 78 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.014

Her Majesty the Queen (respondent) v. R.P. (appellant)

(C53141; 2013 ONCA 53)

Indexed As: R. v. R.P.

Ontario Court of Appeal

Sharpe, Gillese and Watt, JJ.A.

January 30, 2013.

Summary:

The appellant faced 19 counts alleging sexual offences against four complainants spanning nearly two decades. The appellant elected trial by judge and jury. On the second day of the trial, the appellant, with the benefit of independent legal advice, instructed his trial counsel not to contest the Crown's case, and to seek a conditional sentence based on the appellant's fragile health, unblemished record, and contribution to his community. The appellant re-elected trial by judge alone with Crown counsel's consent and, after the trial judge had discharged the jury and declared a mistrial, pled not guilty to each count. The trial judge entered findings of guilt on all counts and recorded convictions in conformity with the agreement of counsel. At the sentencing, trial counsel for the appellant sought a conditional sentence. The trial judge imposed five years' imprisonment. The appellant appealed, seeking a new trial. He argued that the procedure 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 conviction appeal, the appellant sought a substantial reduction in the five-year prison term.

The Ontario Court of Appeal dismissed the appeal from conviction and sentence.

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 4234

Procedure - Pleas - Nolo contendere - The appellant faced 19 counts alleging sexual offences against four complainants spanning nearly two decades - The appellant elected trial by judge and jury - On the second day of the trial, the appellant, with the benefit of independent legal advice, instructed his trial counsel not to contest the Crown's case, and to seek a conditional sentence based on the appellant's fragile health, unblemished record, and contribution to his community - The appellant re-elected trial by judge alone with Crown counsel's consent and, after the trial judge had discharged the jury and declared a mistrial, pled not guilty to each count - The trial judge entered findings of guilt on all counts and recorded convictions in conformity with the agreement of counsel - At the sentencing over six months later, the trial judge queried the effect of the appellant's comments in the pre-sentence report which challenged the complainants' allegations - Neither counsel suggested that the proceedings were procedurally flawed as a result of the appellant's subsequent rejection of the complainants' accounts - Trial counsel for the appellant sought a conditional sentence - The trial judge imposed five years' imprisonment - The appellant appealed, seeking a new trial - He argued that the procedure followed, the functional equivalent of a plea of "nolo contendere", was illegal, and thus the convictions should be set aside - The appellant's counsel said that a formal plea of nolo contendere was foreclosed by s. 606(1) of the Criminal Code - Although he acknowledged that authority did permit the conduct of proceedings in such a way as to amount to the functional equivalent of a plea of nolo contendere, he said critical safeguards were lacking here - He argued that the procedure was fatally flawed and amounted to a miscarriage of justice - He said the proceedings were unfair and resulted in a verdict that was unreliable - The Ontario Court of Appeal dismissed the appeal - The procedure followed did not cause a miscarriage of justice - It did not compromise the fairness of the hearing or contribute to an unreliable verdict - See paragraphs 38 to 66.

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See Criminal Law - Topic 4234 and second Criminal Law - Topic 4964 ].

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - The Ontario Court of Appeal stated that "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) ... 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 counsel's performance: ... Where the prejudice standard has been met, we proceed to consider the performance component" - See paragraphs 78 to 79.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - The appellant faced 19 counts alleging sexual offences against four complainants - The appellant elected trial by judge and jury - On the second day of the trial, the appellant, with the benefit of independent legal advice, instructed his trial counsel not to contest the Crown's case, and to seek a conditional sentence based on the appellant's fragile health, unblemished record, and contribution to his community - At the sentencing over six months later, the trial judge queried the effect of the appellant's comments in the pre-sentence report which challenged the complainants' allegations - Neither counsel suggested that the proceedings were procedurally flawed as a result of the appellant's subsequent rejection of the complainants' accounts - Trial counsel for the appellant sought a conditional sentence - The trial judge imposed five years' imprisonment - The appellant appealed, seeking a new trial - He argued, inter alia, that the proceedings constituted a miscarriage of justice because his trial counsel provided ineffective assistance - He contended that the incompetence of trial counsel was established on two bases: i. that trial counsel led the appellant to participate in a process which was "obviously illegal" and fundamentally at odds with the appellant's denials of guilt; and ii. trial counsel sought a conditional sentence of imprisonment that was completely unrealistic in the circumstances - The Ontario Court of Appeal dismissed the appeal - The court found that the procedure followed did not compromise the reliability of the verdict or the fairness of the process that resulted in that verdict - The appellant therefore failed to establish prejudice, which rendered it unnecessary to consider the performance component of the analysis with respect to the ineffective assistance of counsel ground - However, the court made some observations about the foundation for the claim - See paragraphs 67 to 92.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - The Ontario Court of Appeal stated that "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. 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" - See paragraphs 90 to 91.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.3

Sentencing - Considerations on imposing sentence - Medical - [See Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children - The appellant was convicted of sexual offences which spanned nearly two decades - Each of the four complainants was a male or female relative of the appellant - 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 consisted 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 trial judge imposed a total sentence of five years' imprisonment - The appellant appealed the sentence, arguing that the trial judge gave insufficient weight to his age, medical condition, and unblemished record - The Ontario Court of Appeal dismissed the appeal - The appellant was in a position of trust - The trial judge took into account as mitigating factors the appellant's age and compromised health - The sentence imposed was well within the applicable range of sentence for these offences - It was fit - See paragraphs 93 to 101.

Cases Noticed:

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R.(3d) 514 (C.A.), refd to. [para. 39].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 39].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 40].

R. v. D.M.G. (2011), 281 O.A.C. 85; 275 C.C.C.(3d) 295; 2011 ONCA 343, dist. [para. 41].

R. v. Castellani, [1970] S.C.R. 310, refd to. [para. 42].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 43].

R. v. Hector (M.J.) (2000), 132 O.A.C. 152; 146 C.C.C.(3d) 81 (C.A.), refd to. [para. 49].

R. v. Pivonka (D.) (2007), 228 O.A.C. 227; 2007 ONCA 572, refd to. [para. 49].

R. v. Khaja (N.), [2010] O.A.C. Uned. 172; 2010 ONCA 246, refd to. [para. 49].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 77].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 78].

R. v. Archer - see R. v. R.W.A.

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 78].

Strickland v. Washington (1984), 104 S. Ct. 2052, refd to. [para. 80].

R. v. Sherret-Robinson (S.), [2009] O.A.C. Uned. 638; 86 W.C.B.(2d) 4; 2009 ONCA 886, refd to. [para. 88].

R. v. Ohenhen (J.), [2008] O.A.C. Uned. 589; 2008 ONCA 838, refd to. [para. 88].

R. v. Fegan (J.J.) (1993), 62 O.A.C. 146; 13 O.R.(3d) 88 (C.A.), refd to. [para. 88].

R. v. D.D. (2002), 157 O.A.C. 323; 58 O.R.(3d) 788; 163 C.C.C.(3d) 471 (C.A.), refd to. [para. 98].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 606(1) [para. 33].

Counsel:

Delmar Doucette, for the appellant;

Grace Choi, for the respondent.

This appeal was heard on October 3, 2012, before Sharpe, Gillese and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Watt, J.A., and was released on January 30, 2013.