WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court of Appeal for Ontario
Doherty, Tulloch and Benotto JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Robert Meadus Appellant
Counsel: Anthony Moustacalis and Anida Chiodo, for the appellant Avene Derwa, for the respondent
Heard and orally released: June 2, 2014
On appeal from the conviction entered by Justice J.A. Payne of the Ontario Court of Justice, dated June 4, 2012 and the sentence imposed on August 27, 2012.
ENDORSEMENT
1The appellant pled guilty to a single charge of sexual interference involving a 14-year old girl (A.B.). The Crown also read into evidence on the plea allegations relating to an act of sexual interference with a second young girl, A.M. She was 15 years of age.
2The trial judge imposed a sentence of two years less a day followed by probation.
3The appellant appeals his conviction. He seeks to have his guilty plea struck on the basis that he did not receive competent legal advice and, therefore, his plea was not voluntary and not fully informed.
4The appellant filed an extensive affidavit on the appeal as did trial counsel. It is fair to say that they have a different view of some of the relevant events. Both were capably cross-examined. The material filed on this appeal also included many communications between defence counsel and the appellant in the approximately one year and a one half leading up to the guilty plea. We have relied on the contents of those documents to resolve some of the conflicts in the affidavits filed by the appellant and trial counsel.
5Perhaps most significantly, the material placed before the courts included the detailed written instructions provided by the appellant to trial counsel on the day he pled guilty. Those instructions, on their face, belie any claim that the plea was not voluntary and fully informed. The appellant’s cross-examination on his affidavit confirmed the contents of the instructions given to defence counsel.
6We have also placed some considerable reliance on the thorough and careful plea inquiry conducted by the trial judge before accepting the appellant’s guilty plea. The answers given by the appellant on that inquiry tend to confirm the validity of his plea.
7We will address each of the four arguments advanced by counsel for the appellant in his oral submissions.
8First, counsel argues that trial counsel did not make it clear to the appellant that the facts relating to the alleged interference with A.M. would be read into the record on sentencing so that the trial judge could take those facts into account as an aggravating factor on sentence. The appellant apparently thought they were being read as “narrative.”
9The appellant knew that the allegations relating to A.M. would be read into the record on sentencing and he knew that he would be required as part of his plea to admit those facts. He did so. The appellant is an adult of apparently normal intelligence who was not operating under any kind of disability at the time he pled guilty. We find it impossible to believe that he did not understand that at a minimum his admission of sexual interference with a second young girl would not help him on sentencing.
10In any event, the appellant knew before he was sentenced that he would likely receive a sentence of two years less a day based on the facts he was prepared to admit. The appellant received exactly that sentence. It is impossible to say that any misconception he may have been under as to the impact of the facts relating to A.M. on his sentence had any effect on his decision to plead or his appreciation of the consequences of his plea. Those consequences were exactly what he anticipated they would be.
11Counsel next argues that trial counsel should have determined the status of the co-accused, who was apparently going to plead guilty, and received full disclosure of the co-accused’s anticipated evidence before proceeding with the appellant’s guilty plea.
12We see no basis upon which to conclude that the status of the co-accused was material to the appellant’s decision to plead guilty. He made that decision before he was advised of the co-accused’s decision to plead. Nor, in our view, was trial counsel wrong in telling the appellant that the co-accused’s decision to plead guilty and potentially testify for the Crown could not help the appellant’s case and could, if the matter proceeded to trial, change tactical considerations. In our view, the decision by the appellant to proceed with his guilty plea was in no way tainted by any uncertainty there may have been as to what the co-accused might do, or what the co-accused might say if called as a Crown witness.
13Counsel’s third argument is as follows. He submits that the appellant was not aware of the case against him when he decided to plead guilty because trial counsel had not thoroughly reviewed the Crown disclosure with the appellant. Counsel puts particular emphasis on the failure to review the complainants’ lengthy statements with the appellant before he chose to plead guilty.
14The appellant’s cross-examination on his affidavit effectively undermines this submission. The appellant clearly knew the substance of the allegations that the Crown would be putting forward on the guilty plea. He was also aware of the damning confirmatory evidence in the forms of emails between himself and A.B. A line-by-line analysis of the statements given by the complainants was not necessary for the appellant to have a full appreciation of the jeopardy he was in, the evidence the Crown had and the case the appellant would have to meet should he choose to go to trial.
15Finally, counsel submits that the appellant’s decision to plead guilty was not voluntary because the appellant pled guilty under considerable pressure. Counsel observes that the trial date was coming quickly and the appellant knew that if he went to trial he faced the potential of convictions on all charges before a trial judge who might well impose a sentence of considerably more than the two years less a day that the appellant knew he was likely to receive if he entered a plea based on the facts as the Crown alleged.
16There is no doubt that the appellant was under a great deal of pressure. The circumstances giving rise to the pressure were not, however, the result of anything that trial counsel did or failed to do. The pressure the appellant was under was a direct result of the circumstances in which the appellant had put himself. By his own admission he had committed a serious offence. He faced the very real risk of convictions in respect of both complainants and a potential jail term of four or five years.
17The decision to plead guilty was made by the appellant. He acknowledged in his cross-examination that he was in no way pressured by his counsel to plead guilty. The pressure he did feel was, as indicated above, the product of the very serious predicament he had put himself in. In our view, the plea was entirely voluntary in the legally relevant sense.
18We are satisfied that the plea was voluntary and fully informed.
19We cannot leave this appeal without indicating that having read the material we see no merit to the allegations that the appellant did not receive effective assistance from counsel at trial.
20We see no other reason to interfere with the conviction and the appeal is dismissed.
21The appellant has also appealed his sentence. The trial judge’s reasons for sentence are thorough and, as we indicated in the course of the conviction appeal, we think the sentence imposed was very much within the appropriate range. The sentence appeal is dismissed.
“Doherty J.A.”
“M. Tulloch J.A.”
“M.L. Benotto J.A.”