DATE: 20010510

DOCKET: C34407

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. RHEAL DALLAIRE (Appellant)

BEFORE: WEILER, AUSTIN AND BORINS JJ.A.

COUNSEL: Alan G. Gold for the appellant

Erika Chozik for the respondent

HEARD: May 7, 2001

On appeal from conviction dated March 30, 2000 and the sentence imposed on June 8, 2000 by Justice Dianne M. Nicholas, sitting without a jury.

E N D O R S E M E N T

Released Orally: May 7, 2001

[1] The appellant pleaded guilty to three counts of fraud and was sentenced to a term of three years in the penitentiary. The guilty pleas followed extensive plea negotiations initiated by him in which the trial judge participated. The appellant appeals his convictions and asks that his guilty pleas be set aside on the ground of alleged procedural irregularities, or in the alternative on the ground that a miscarriage of justice has occurred.

[2] We are satisfied that there was no miscarriage of justice arising from the circumstances in which the appellant pleaded guilty in this case. His guilty pleas arose out of plea negotiations at a time when he was represented by experienced counsel. The record, together with the extensive fresh evidence, establishes that his guilty pleas were informed, voluntary and intended. Although it would have been preferable if the facts on which the pleas were based had been read into the record and had the appellant’s agreement with the facts been obtained, this resulted in no prejudice to the appellant. Indeed, in the context of submissions seeking an adjournment of the appellant’s sentencing, his counsel advised the court on June 6, 2000 as follows:

. . . Mr. Dallaire has pled guilty. He accepts responsibility for what he’s done. There’s a joint position. He’s not swaying from that. There’s never going to be an argument that he was not properly advised or instructed when he entered into that.

Earlier, in the same proceeding, his counsel had said: “Mr. Dallaire takes absolutely no issue with the joint position . . . . The agreement stands.”

[3] Moreover, when cross-examined on his affidavit prepared for this court, the appellant acknowledged that he knew the factual basis of each count and that the effect of his pleas was to admit those allegations.

[4] The trial judge’s failure to comply with s. 726 of the Criminal Code resulted in no prejudice to the appellant. As s. 726 applies to the sentencing phase of a trial, her failure to ask the appellant whether he had anything to say respecting the sentence she was to impose had no effect on the guilty pleas. Given that his counsel had advised the trial judge that the appellant’s position was that the agreement as to sentence stood, there is nothing that the appellant could have said that would have resulted in a different sentence. In any event, the appellant’s counsel, although invited to do so, did not advise this court what the appellant would have said had the trial judge complied with s. 726. As well, there is no longer an appeal from sentence.

[5] We agree with the respondent’s submission that this is not a case of an innocent person pleading guilty out of expedience. Rather, it is a case of an experienced fraud artist abandoning an earlier position that did not play out in a way that met his satisfaction and convenience.

[6] It was only when the appellant unsuccessfully sought an adjournment of his sentencing until after the birth of his first child, that he sought to resile from his pleas of guilt. The fact that the trial judge exercised her discretion not only to refuse a lengthy adjournment, but to proceed with the appellant’s sentencing, is not a denial of the appearance of justice. The record does not support the appellant’s contention that the trial judge “strategically and intentionally” prevented him from challenging the facts underlying the charges upon which he had pleaded guilty.

[7] While there may have been some procedural irregularities, the procedure that was followed was not so lacking in fairness, or the appearance of fairness, that the proceedings can be said to have constituted a miscarriage of justice. The appellant has not met the heavy onus that rests on him to establish that any of his guilty pleas should be set aside on the ground that they were not informed, involuntary and not unequivocal.

[8] Accordingly, the appeal from conviction is dismissed. The appeal from sentence is dismissed as abandoned.

“K. M. Weiler J.A.”

“Austin J.A.”

“S. Borins J.A.”