Court of Appeal for Ontario

Date: 2004-08-23

Docket: C40660

Re: Her Majesty the Queen (Respondent) – and – Frederick Abotossaway (Appellant)

Before: Rosenberg, Armstrong and Blair JJ.A.

Counsel: Timothy E. Breen for the appellant Christine Tier for the respondent

Heard: August 12, 2004

Released Orally: August 12, 2004

On appeal from conviction by Justice L. T. Montgomery of the Ontario Court of Justice dated December 9, 2002.

Endorsement

[1] In our view, the appeal must be allowed, the guilty plea struck out, the conviction quashed and a new trial ordered.

[2] We are satisfied that the appellant has shown that the plea was not voluntary. Taking into account the very difficult circumstances under which counsel had to deal with his client and the apparently formidable Crown case, it nevertheless appears that the appellant probably told his lawyer he was innocent and pleaded guilty only because he perceived, no doubt incorrectly, that he had no alternative. He almost immediately sought to withdraw the plea prior to sentencing and the trial Crown did not oppose the plea being set aside.

[3] These reasons should not be taken as a criticism of defence counsel. As we have said, the conditions under which the interview took place were difficult, the appellant was apparently depressed having spent considerable time in jail before he was able to retain counsel, and there would have been some difficulty in communication with the client. Nevertheless, in our view, the plea must be set aside in the interests of justice.

Signed: "M. Rosenberg J.A." "Robert P. Armstrong J.A." "R. A. Blair J.A."