DATE: 2001-05-15

DOCKET: C32285

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. THOMAS GURNEY (Appellant)

BEFORE: ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL: Michael W. Lacy, For the appellant Christine Tier, For the respondent

HEARD: May 4, 2001

On appeal from the conviction imposed by The Honourable Justice R.D. Clarke (O.C.J.) on December 9, 1998

E N D O R S E M E N T

Released Orally May 4, 2001

[1] On the basis of the amplified record before us, we are satisfied that the appellant's pleas were both voluntary and unequivocal and that he understood the true effect of pleading guilty. We are equally satisfied that his request to withdraw those pleas was part of a calculated scheme on his part, designed to manipulate the system so that he could be free on bail over the Christmas holidays to see his new-born daughter and also to cajole his alibi witness into sticking to the story she had given at his bail hearing. The fact that he had such a scheme does not in our view undercut the unequivocal nature of his plea.

[2] While we agree that the trial judge should have allowed the appellant to make submissions through duty counsel as requested, his failure to do so occasioned no prejudice to the appellant in the circumstances. This is so because if the record before us had been before the trial judge, he too would have recognized the appellant's request to withdraw his pleas as a blatant attempt to manipulate the system and he would have rejected it.

[3] As for the fresh evidence tendered by the appellant in support of his position that he is innocent of the charges, including his evidence and that of Ms. Bodnar, we find that evidence to be incredible and as such, it does not meet the third branch of the Palmer test. In particular, we reject Ms. Bodnar's evidence as incredible in view of her motive to fabricate evidence harmful to the complainant, as well as certain glaring contradictions within her testimony.

[4] In the result, the application to receive fresh evidence relating to the innocence of the appellant is dismissed. The fresh evidence relating to the circumstances surrounding the appellant's plea is admitted under the Joanisse test but the appeal from conviction is dismissed.

Signed: "Marc Rosenberg J.A." "M.J. Moldaver J.A." "S. T. Goudge J.A."