DATE: 20060524

DOCKET: C41598

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ALLAN SAUNDERS (Appellant)

BEFORE:

MOLDAVER, FELDMAN and GILLESE JJ.A.

COUNSEL:

Gregory Lafontaine and Vincenzo Rondinelli

for the appellant

Roger A. Pinnock

for the respondent

HEARD & ENDORSED:

May 23, 2006

On appeal from conviction by Justice Richard Lajoie of the Ontario Court of Justice dated February 15, 2000 and sentence imposed January 23, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] Unlike many cases that come to this court where the appellant seeks to have his plea struck, in this case, the trial judge held a full hearing (on May 20, 2000) several weeks after the pleas were entered, in which he fully canvassed all issues relating to the validity of the appellant’s pleas.

[2] At that hearing, duty counsel who appeared on the appellant’s behalf on February 15, 2000, when the pleas were entered, testified as to the circumstances surrounding the pleas. In particular, he swore that the appellant fully appreciated the nature of the offences, the severe consequences that could follow should the Crown succeed on its proposed dangerous offender application, and the fact that it was highly unlikely that the matter would be resolved “that day”. Nonetheless, the appellant instructed him to go ahead.

[3] At the hearing to strike the plea, the appellant did not testify, nor did he file an affidavit. Beyond that, no evidence (medical or otherwise) was led to counter the evidence of duty counsel. The trial judge gave clear and compelling reasons for concluding that the pleas were voluntary, fully informed and unequivocal. Those findings are amply supported by the evidence and we see no basis for interferring with them. Accordingly, we would dismiss the appeal from conviction.

[4] With respect to sentence, the Crown concedes that there must be a new sentence hearing because the dangerous offender proceeding occurred without the consent of the Attorney General as mandated by s. 754 of the Code.

[5] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the matter is remitted to the Ontario Court of Justice for a new sentence hearing. That hearing will be presided over by a judge other than Justice Lajoie.