DATE: 20060407

DOCKET: C41996

COURT OF APPEAL FOR ONTARIO

LASKIN, SIMMONS and LAFORME JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

G.G.

Appellant

Lance Carey Talbot for the appellant

Lucy Cecchetto for the respondent

Heard: February 23, 2006

On appeal from the convictions entered and from the sentence imposed by Justice L.T.G. Collins of the Ontario Court of Justice on January 22, 2004.

BY THE COURT:

[1] The appellant pleaded guilty to gross indecency and sexual touching and was sentenced to a global sentence of 21 months’ imprisonment and three years’ probation. Both offences involved the appellant’s stepson. At the guilty plea hearing, the Crown relied primarily on two incidents that the complainant remembered in detail, which occurred in 1983 and 1988.

[2] On appeal, in addition to requesting leave to appeal sentence, the appellant asks to strike his guilty pleas. The appellant claims that he did not commit the acts relied on by the Crown, that his trial counsel was incompetent, and that his pleas were involuntary.

[3] Fresh evidence was filed on appeal with the Crown’s consent. In his fresh evidence affidavit, the appellant states that, even though he did not commit the acts relied on by the Crown, he pleaded guilty because he did not believe that he would go to jail and because he wanted to save his elderly parents the expense of a trial. In addition, the appellant claims that his trial counsel failed to identify a s. 10(b) Charter breach that would have rendered his statement to the police inadmissible, and then pressured him into pleading guilty. Finally, the appellant filed an expert’s report indicating that he is of low average intelligence, has below average communications skills and suffers from a psychological condition that makes him highly suggestible.

[4] The test for demonstrating the incompetence of counsel includes two components: a performance component, involving an assessment of counsel’s conduct on a reasonableness standard; and a prejudice component, requiring an appellant to establish that counsel’s conduct occasioned a miscarriage of justice: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520. In our view, the appellant has not satisfied either component of that test, nor has he established a proper basis for striking his guilty pleas.

[5] We will deal first with the appellant’s claim that his trial counsel was incompetent in failing to identify a s. 10(b) Charter breach. The appellant acknowledges that he spoke to duty counsel prior to being interviewed by the police, but claims that the police breached his s. 10(b) Charter rights by refusing his request to speak to his own lawyer and by failing to re-caution him following a substantial change in his jeopardy during the course of his videotaped statement. We are not persuaded that the appellant has established that his trial counsel was incompetent in failing to identify a s. 10(b) Charter breach in relation to these claims.

[6] On our review of the appellant’s cross-examination on his fresh evidence affidavit, the appellant acknowledges telling his trial counsel that it was during the videotaped portion of his interview with the police that he asked to speak to his own lawyer, but claims he was mistaken in believing that the videotape was running when he made that request.[^1] The transcript of the appellant’s videotaped statement does not bear out the appellant’s claim that he asked to speak to his own lawyer during the videotaped portion of his interview. Moreover, the appellant does not say that he advised his trial counsel that he was mistaken about whether the videotape was running when he asked to speak to his own lawyer.

[7] Further, on our review of the transcript of the appellant’s videotaped statement to the police, it does not disclose any change in the appellant’s jeopardy during the course of the interview. In addition, we reject the appellant’s claim that the police were required to re-caution him before encouraging him, during the course of the videotaped interview, to write a letter of apology containing inculpatory statements. In these circumstances, we fail to see how trial counsel was incompetent in failing to identify a s. 10(b) Charter breach.

[8] Accordingly, we are not satisfied that the appellant has demonstrated that trial counsel fell below the reasonableness standard in failing to identify a potential s. 10(b) Charter breach.

[9] However, even if the appellant is correct and his trial counsel fell below the reasonableness standard by failing to identify a potential s. 10(b) Charter breach, we are not persuaded that any miscarriage of justice occurred as a result.

[10] As part of the fresh evidence, the appellant provided an audiotape and transcript of his August 22, 2003 meeting with trial counsel in which the appellant instructed his trial counsel that he (the appellant) wished to plead guilty. On our review of the audiotape and transcript, we agree that it appears that trial counsel’s objective at the August 22, 2003 meeting was to obtain instructions to enter guilty pleas. We also agree that at the August 22, 2003 meeting the appellant did not admit the two specific incidents relied on by the Crown.

[11] However, we conclude that during the course of the August 22, 2003 meeting, the appellant unequivocally acknowledged sexually touching the complainant on at least one occasion. Moreover, based on trial counsel’s comments, it is apparent that trial counsel understood that the appellant had made one or more similar acknowledgements to trial counsel in the past. In these circumstances, we see no basis for concluding that any failure on the part of defence counsel to identify a potential s. 10(b) Charter breach in relation to the appellant’s statement to the police occasioned a miscarriage of justice.

[12] Further, in our view, trial counsel’s advice to the appellant that in the event of a trial he would likely be convicted did not fall below the standard of reasonableness. Given his professional responsibilities, trial counsel could not properly have adduced evidence at a trial indicating that the appellant did not sexually touch the complainant. Particularly in light of our review of the audiotape of the August 22, 2003 meeting, we see nothing unreasonable about trial counsel’s assessment that, if the appellant contested the complainant’s allegations but acknowledged he had engaged in some sexual touching, he would likely be convicted in relation to the two incidents relied on by the Crown in any event.

[13] Finally, we are not satisfied that the appellant has demonstrated that his guilty pleas should be struck, either because he did not understand the consequences of his pleas or because they were involuntary. In particular, we see no air of reality in the appellant’s claim that he did not believe he would go to jail if he pleaded guilty. During the course of the August 22, 2003 meeting, trial counsel advised the appellant repeatedly that while he would ask for a conditional sentence on a guilty plea, he did not expect that would be the result. Rather, trial counsel told the appellant that, in his opinion, the appellant would likely be sentenced to a term of imprisonment in the range of eight to eighteen months.

[14] Further, even accepting that the appellant is of low average intelligence, has below average communications skills and suffers from a psychological condition that makes him highly suggestible, we are not persuaded that the appellant’s guilty pleas were involuntary.

[15] Following the August 22, 2003 meeting with trial counsel, the appellant did not plead guilty until September 3, 2003; however, because the judge who took the pleas believed he might have a conflict, those pleas were later struck on October 29, 2003. Ultimately, the appellant did not enter the guilty pleas on which he was sentenced until January 22, 2004.

[16] Accordingly, even if the appellant felt pressured into providing instructions to plead guilty at the August 22, 2003 meeting, he had ample opportunity to reconsider his decision; in our view, there is nothing in the record that supports the suggestion that his psychological condition made him incapable of doing so.

[17] Turning to the sentence appeal, we reject the appellant’s submission that the trial judge erred by failing to take account of the appellant’s guilty plea. While we acknowledge that the trial judge did not identify specifically the appellant’s guilty plea as a mitigating factor in relation to the sentence he imposed, the trial judge noted that the appellant relied on his guilty plea in support of his request for a conditional sentence. Accordingly, we see no basis for concluding that he failed to take account of the guilty plea in passing sentence.

[18] Finally, in our view, the sentence imposed was neither manifestly unfit nor outside the range of what was appropriate based on the facts of this case and the appellant’s circumstances.

[19] Accordingly, the conviction appeal is dismissed; while leave to appeal sentence is granted, the sentence appeal is also dismissed.

RELEASED: April 7, 2006 “JL”

“John Laskin J.A.”

“Janet Simmons J.A.”

“Harry S. LaForme J.A.”

[^1]: At pp. 34-35 of the transcript of the appellant’s cross-examination on his fresh evidence affidavit, the following exchange occurred:

Q. And you told [appellant’s trial counsel] that the Newfoundland statement—the police had refused to let you talk to your lawyer?

A. M’hmm.

Q. Right? Is that correct?

A. Yes.

Q. And you told him that you made the request to speak to your lawyer on tape?

A. I believed the tape was running when he—they asked me that question, but the—but the tape was not going. There was a lot of conversation going on in that room between the police and me before the tape ever started up. I thought it was, so that’s the time I said, “I would like to have my own lawyer”, but the tape wasn’t running at that time. I didn’t know.