CITATION: R. v. Trout, 2007 ONCA 633
DATE: 20070917
DOCKET: C44391
COURT OF APPEAL FOR ONTARIO
SIMMONS, ARMSTRONG AND LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
DENNIS TROUT
Appellant
John Bilton for the appellant
Michal Fairburn for the respondent
Heard and released orally: September 10, 2007
On appeal from the conviction entered by Justice Helen M. Pierce of the Superior Court of Justice dated March 24, 2005.
ENDORSEMENT
[1] The appellant pleaded guilty to second degree murder and was sentenced to life imprisonment with no eligibility for parole for a period of ten years. He raises what we consider are three issues on his conviction appeal.
[2] First, in our view, the appellant effectively challenges the validity of the proceedings because of a failure to comply with ss. 471 and 473 of the Criminal Code. We do not accept this assertion.
[3] Section 471 of the Criminal Code requires that every accused charged with an indictable offence be tried by a court composed of a judge and jury "except where otherwise expressly provided by law". Section 473 of the Criminal Code permits an accused charged with second degree murder to be tried by a judge of a superior court of criminal jurisdiction without a jury where the accused and the Attorney General consent.
[4] The transcript of the guilty plea proceedings discloses that counsel for the Crown and the appellant consented to the matter proceeding before Pierce J., a judge of the Ontario Superior Court, prior to the plea being taken. Although the Crown referred erroneously to s. 472 of the Criminal Code as the authority for this procedure, in our view, it is clear from the circumstances that both counsel intended to consent in accordance with s. 473 of the Criminal Code. Moreover, while the appellant did not expressly re-elect to be tried by a Superior Court judge sitting alone, his re-election is implicit in his s. 473 consent and his plea of guilty.
[5] Second, the appellant expressly claims that in the absence of evidence of a clear and unequivocal waiver of his rights to be presumed innocent until proven guilty in a fair and public hearing and to be tried by a jury, his rights under s. 7, 11(d) and 11(f) of the Charter were violated by the proceedings in the Superior Court. In particular the appellant contends that in the absence of a preliminary inquiry and the misstatement of the appropriate section of the Criminal Code, the trial judge was obliged to make inquiries concerning whether he intended to waive his rights to a jury trial. The appellant also relies on the facts read in by the Crown, particularly about the level of intoxication of the participants in the alleged offence, to support his claim that the trial judge was obliged to make inquiries concerning his intent to waive his right to a jury trial.
[6] We reject this argument. As noted, the appellant consented through his counsel to the matter proceeding before a Superior Court judge under s. 473 of the Criminal Code. In addition, the appellant entered a plea of guilty to the charge of second degree murder in open court. Further, the appellant's counsel acknowledged that the facts read in by the Crown supporting the charge of second degree murder were accurate. Given these circumstances, in the absence of evidence undermining the validity of his guilty plea or a successful claim of incompetence of counsel, the appellant waived his right to a trial and there is no air of reality to the appellant's claim that his Charter rights were breached.
[7] The appellant's third ground of appeal is an allegation of incompetence of counsel. In our view, the appellant has not filed a scintilla of evidence which would support this very serious allegation. The only evidence filed by the appellant is the affidavit of David
Gibson, the lawyer who filed the solicitor's notice of appeal. Mr. Gibson does not identify the factual basis upon which the claim is advanced, but rather states that he has reviewed trial counsel's file, the disclosure that was made and has taken note of certain matters. On cross-examination, he conceded that there were aspects of the file that raised questions for him but that without speaking to trial counsel or the appellant he was unable to say whether a particular issue exists.
[8] The appellant's main argument on this issue is that the plea agreement form signed by him was deficient in that it failed to explain specifically that he was waiving the right to a jury trial and waiving the right to test specific areas of the Crown's case.
[9] We see no merit in this claim. The consent signed by the appellant specifies that he consents to entering a guilty plea and that he understands both that he is giving up his right to a trial in which the Crown must prove that he is guilty beyond a reasonable doubt and the right to cross-examine witnesses. The appellant has filed no evidence to establish that he did not understand that he was waiving the right to a jury trial or that he would have done anything differently if he had known. Moreover, no evidence has been filed to demonstrate that the appellant had any arguable defence. In the absence of such evidence, there is simply no air of reality to the appellant's claim of incompetence of counsel.
[10] The appeal is therefore dismissed.
"Simmons J.A."
"Robert P. Armstrong J.A."
"Susan E. Lang J.A."