DATE: 20040205

DOCKET: C39140

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GREGORY DWAYNE HARKNESS (Applicant)

BEFORE:

DOHERTY, LASKIN and ROSENBERG JJ.A.

COUNSEL:

Nicholas Xynnis for the applicant

Roger Shallow for the respondent

HEARD:

January 22, 2004

RELEASED ORALLY:

January 22, 2004

On appeal from the conviction imposed by Justice M.A. Cadsby of the Ontario Court dated March 5, 1997.

E N D O R S E M E N T

[1] The appellant pleaded guilty to a charge of possession of stolen property valued at less than $5,000. The property consisted of certain stickers, which were taken from the appellant’s employer’s place of business. The plea was the result of joint discussions between the Crown and counsel for the appellant.

[2] On appeal, counsel argues that the plea was not unequivocal. He contends that in the course of submissions on sentence, counsel for the appellant took the position that the appellant had an honest belief that he was entitled to take the stickers from his employer and therefore, that the stickers were not stolen. Counsel contends that the trial judge should have struck the plea once counsel advanced the submission. He contends that we should do so now.

[3] We have reviewed the transcript. In our view, the plea was not equivocal. The facts read in by the Crown fully supported the plea. The explanation offered by appellant’s counsel in mitigation amounted to the assertion that it was common practice for employees, even supervisors, to take stickers from the employer and that in light of this common practice, the appellant believed that it was acceptable for him to do so. This does not amount to a defence in law.

[4] The trial judge specifically asked counsel in the course of the submissions whether she was suggesting that the appellant had permission from the employer to take the stickers. Counsel made it clear that no such suggestion was being advanced on behalf of the appellant.

[5] The plea was entered with the full advantage of the assistance of counsel.

[6] There is an onus on the appellant in this court to demonstrate that the plea was equivocal. Some of the comments in the transcript made by counsel in the course of the submissions may be considered ambiguous. However, considering the transcript in its entirety, we are not persuaded that the plea was equivocal in the manner alleged by the appellant. In coming to this conclusion, we note that no attempt was made in this court to file an affidavit from either the appellant or trial counsel to address the alleged “defence” counsel contends was put forward in the course of submissions on sentence.

[7] The appeal is dismissed.

“Doherty J.A.”

“John Laskin J.A.”

“M. Rosenberg J.A.”