DATE: 20011120 DOCKET: C35750

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. C., N. (Appellant)

BEFORE:

DOHERTY, CHARRON and MACPHERSON JJ.A.

COUNSEL:

D. Ian Kilgour

for the appellant

Philip Perlmutter

for the respondent

HEARD:

November 14, 2001

RELEASED ORALLY:

November 14, 2001

On appeal from the conviction entered by Justice Timothy C. Whetung on November 2, 2000.*

E N D O R S E M E N T

[1] The appellant pleaded guilty to a charge of sexual interference involving his twelve year old granddaughter. He now appeals that conviction, seeks to withdraw his guilty plea and asks for a new trial. Counsel filed two affidavits by the appellant and the appellant was cross-examined on those affidavits. We also received a letter from trial counsel detailing his recollection of the relevant events. Counsel was not cross-examined.

[2] The appellant claims that he was not told and he did not understand that in pleading guilty to the charge he was admitting that he touched his granddaughter “for a sexual purpose”. The charge was read to the appellant prior to his plea. The charge includes the phrase “for a sexual purpose”. There was no further reference to that phrase in the proceedings. After describing two incidents in which the appellant hugged his granddaughter and touched her “lower back/buttocks area”, Crown counsel says:

Your Honour, that is a brief summary of the facts of what occurred. The essential gravamen of the offence is that the grandfather touched the body of the granddaughter in an inappropriate way, making her feel uncomfortable at the time.

[3] Trial counsel for the appellant indicated that his client took the position that he had hugged his granddaughter from behind and touched her in the stomach area. Counsel then added the following comment:

… He describes the incident as going to her from behind and placing her hands around on the front of her tummy area, but he concedes that there was a touching that was inappropriate on those two occasions. He sensed on the second occasion that she felt uncomfortable. He didn’t on the first occasion, but in retrospect, looking back at hindsight, he can see that she would feel uncomfortable.

[4] When asked if he had anything to say after the charges had been read and counsel had made their submissions, the appellant said:

I would like to say I am sorry that I made [the complainant] feel uncomfortable.

[5] The appellant had intended to plead not guilty to the charge. On the day on which the preliminary inquiry was to be held, Crown and defence counsel had certain plea discussions with the trial judge. The appellant was aware of these discussions. He came to know that in exchange for a guilty plea, the Crown would “water down” the factual allegations by removing any reference to what was apparently the most serious of three factual allegations. The appellant pleaded guilty in open court, was convicted and received the sentence that he understood he would receive upon his guilty plea. He claims that he first realized that he had pleaded guilty to an offence involving touching his granddaughter for a sexual purpose when he read it in the paper the next day.

[6] To be valid, a plea must be informed. The accused must be aware of the nature of the allegations to which he or she is pleading: R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 17 C.R. (4th) 247 at 252 (Ont. C.A.). Where an accused is charged with sexual interference contrary to s. 151, his or her purpose is an essential, if not the most important, element of the offence. It is the sexual purpose which makes the contact criminal. If the appellant did not understand that his plea constituted an admission that he touched his granddaughter for a sexual purpose, his plea was not an informed one and cannot stand. The appellant has the onus of demonstrating that he lacked the necessary understanding.

[7] We have no doubt that the appellant knew from the outset that he was charged with an offence that arose out of the hugging of his granddaughter and that the charge contained an allegation of sexual impropriety. He discussed the charge at length with his lawyer and it would appear that those discussions contained reference to the sexual purpose component of the charge. The appellant had denied that he had any such purpose. The appellant knew that he was pleading guilty to the charge for which he had originally been arrested.

[8] The real question, however, is whether the appellant understood that as a result of the plea discussions, he would plead to that charge based on what he did combined with how it made his granddaughter feel and without in any way acknowledging any sexual purpose on his part. The position taken by the appellant finds support in the following:

• There is no mention of sexual purpose in the proceedings after the charge is read. The equivocal word “inappropriate” is used by both counsel.
• The Crown’s description of the essence of the offence makes no reference to sexual purpose or to any other culpable state of mind.
• Defence counsel’s reply to the Crown’s recitation of the facts significantly changes those facts and again makes no reference to the appellant’s state of mind.
• It is acknowledged that on the very day of the plea, the appellant had denied any sexual purpose.
• Although counsel believed that his client understood the charges, he did not explain to the appellant, after the appellant chose to plead guilty, that by pleading guilty he was admitting that he touched his granddaughter for a sexual purpose.

[9] In our view, the appellant has met the onus of demonstrating that the plea was not an informed one. The appeal should be allowed, the plea set aside, the conviction quashed and a new trial ordered.

[10] We add the following observation. The trial judge has the power to conduct an inquiry into the validity of a plea entered before that judge. In these circumstances, we think that the trial judge should have conducted such an inquiry. The facts accepted by the defence were very different from the facts relied on by the Crown. The trial judge knew that on the day of the plea the accused had insisted he was not guilty. Finally, defence counsel did not clearly admit the essential elements of the offence. These circumstances combined should have raised sufficient concern to cause the trial judge to inquire into the validity of the plea.

“Doherty J.A.”

“Louise Charron J.A.”

“J.C. MacPherson J.A.”

• The non-publication order made at trial remains in effect.