DATE: 20011113 DOCKET: C33638

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. LIONEL EASTMOND (Appellant)

BEFORE:

DOHERTY, ROSENBERG and BORINS JJ.A.

COUNSEL:

Seth Weinstein

for the appellant

Riun Shandler

for the respondent

HEARD:

November 2, 2001

RELEASED ORALLY:

November 2, 2001

E N D O R S E M E N T

[1] The appellant pleaded guilty to a charge of assaulting his former girlfriend with a machete. Two other charges were withdrawn. There does not appear to have been any agreement between counsel as to the appropriate sentence. The facts read in by Crown counsel after the plea were accepted by defence counsel as accurate. They fully supported the plea and the trial judge found the appellant guilty. The matter was adjourned for the preparation of a pre-sentence report.

[2] The appellant told the probation officer preparing the pre-sentence report that he knew his actions were “inappropriate”. He also denied significant portions of the police statements and said that he “pled guilty only because my lawyer told me to”.

[3] In light of the allegations in the pre-sentence report, trial counsel moved before the trial judge to be removed from the record. Prior to sentence, new counsel brought a motion to strike the guilty plea. He expressly disavowed any claim that former trial counsel had acted improperly or unprofessionally. Counsel argued that the plea should be struck because the appellant did not understand the proceedings at which he pleaded guilty and was confused when he entered his guilty plea. The appellant testified on the motion to strike the plea and indicated that he was confused and upset when he pleaded guilty. Apparently he had a bad headache.

[4] The appellant has about a grade six education and his ability to read and write English is limited. He is not from Canada, but has worked in Canada for many years. He has been before the criminal courts on four previous occasions.

[5] In cross-examination, the appellant acknowledged that when he was arrested very shortly after the alleged incident, he knew that he was charged with hitting the complainant with a machete. He also acknowledged that he told the probation officer that he pled guilty only because his lawyer told him to. The appellant said that he was confused when he made this statement to the probation officer.

[6] A guilty plea entered in open court, particularly by an accused represented by counsel, is presumed to be a valid plea. An accused seeking to set aside that plea bears the onus of demonstrating that the plea is not valid. There is nothing in the record of the proceedings in which the plea was entered that raises any concern about the validity of the plea, or which would have necessitated that the trial judge make some specific inquiries of the appellant personally to satisfy himself that the plea was valid. The facts read in by the Crown were straightforward, simple and fully supported the allegation. The accused pleaded guilty personally and was represented by experienced counsel who acknowledged in open court the correctness of the facts referred to by the Crown.

[7] We read the trial judge’s reasons as making a finding that the appellant comprehended what he was being asked when he pleaded guilty. In coming to that conclusion, the trial judge said that he was entitled to infer that counsel, who it was agreed had acted properly and professionally in representing the appellant on the plea, had taken the necessary steps to ensure that the appellant understood the nature and consequences of his plea. We think the inference drawn by the trial judge is an appropriate one where it is accepted that counsel acted in accordance with his professional obligations. We see no reason to interfere with the trial judge’s finding that the appellant had not discharged the onus of demonstrating the invalidity of his guilty plea.

[8] The appeal is dismissed.

“Doherty J.A.”

“M. Rosenberg J.A.”

“S. Borins J.A.”