W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court File and Parties

CITATION: R. v. G.N.D., 2007 ONCA 274

DATE: 20070416

DOCKET: C43867

COURT OF APPEAL FOR ONTARIO

MacPHERSON, CRONK and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

(Respondent)

and

G. N. D.

(Appellant)

Counsel:

G.N.D., in person

Richard Litkowski, as duty counsel

Charmaine M. Wong, for the respondent

Heard: April 13, 2007

On appeal from the conviction entered by Justice S. Rogin of the Superior Court of Justice dated June 6, 2005.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals against conviction on the ground that his guilty plea was not voluntary and informed. On the appellant’s behalf, duty counsel submits that this is supported by the evidence of defence counsel’s conduct in this case, including his alleged lack of preparedness for trial and his failure to obtain appropriate written instructions from his client to enter a guilty plea.

Page : 2

[2] In our view, the appeal must be dismissed for the following reasons.

[3] There is no dispute that the incompetence of trial counsel is a very serious allegation that should be made only after very careful reflection. There is a presumption of competence of counsel. The test to displace this presumption is a high one.

[4] In this case, written instructions to enter a guilty plea were taken by defence counsel at trial. Those instructions, however, provided for a guilty plea on a charge of breaking and entering only. In fact, the charge in issue was breaking and entering a dwelling house and committing therein the indictable offence of sexual assault.

[5] Notwithstanding this important defect in the language of the written instructions received, to the appellant’s knowledge throughout, there was only one charge at issue. When the facts were read-in at trial, including the facts surrounding the allegation of sexual assault, the appellant made no objection, nor any comment indicating that he was not pleading to sexual assault or that he disputed the facts read-in.

[6] The trial proceeding, including the sentence hearing, continued thereafter for several days, during which evidence was led regarding the sexual assault and the appellant himself testified. Again, at no time did the appellant indicate that he had not intended to plead guilty to sexual assault or that he did not understand his plea. Nor did he dispute the facts relevant to the sexual assault.

[7] Finally, the appellant addressed the court prior to sentence being imposed. Once again, there was no suggestion of any kind by him that his plea was uninformed or involuntary. To the contrary, his comments to the court can be understood as indicating that he never intended that the complainant should be required to testify because he had intended to enter an early guilty plea.

[8] In our view, therefore, the appellant’s own conduct throughout this multi-day trial belies his claim that he did not intend to enter a guilty plea to the offence as charged and that he did not understand that he had done so.

[9] Accordingly, the appeal against conviction is dismissed. We note that the appellant has abandoned his sentence appeal.