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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. K.G., 2009 ONCA 131
Date: 20090211
Docket: C48309
COURT OF APPEAL FOR ONTARIO
Goudge, MacFarland and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
K. G.
Respondent
Chris Dwornikiewicz, for the appellant
Paul Burstein, for the respondent
Heard: November 25, 2008
On appeal from a stay of proceedings ordered January 9, 2008 by Justice Paul Rivard of the Superior Court of Justice.
MacFarland J.A.:
[1] This is an appeal by the Crown from a stay of proceedings ordered January 9, 2008 by the Honourable Mr. Justice Rivard in Sault Ste. Marie, Ontario.
OVERVIEW
[2] The respondent was an Anglican Minister in Chapleau and Elliot Lake, Ontario between 1967 and 1976.
[3] On October 7, 2005, the respondent was arrested on three charges of indecent assault allegedly committed against one complainant in Elliot Lake, between January 1, 1971 and December 31, 1976. By December 2005, six other complainants had come forward and additional charges were laid. Following a five day preliminary hearing, the respondent was committed on nine counts of indecent assault involving six complainants. All of the complainants, one of whom was the respondent’s own adopted daughter, were young girls, well below the age of fourteen when the assaults allegedly took place. The assaults allegedly occurred at various locations, including the respondent’s church and residence.
[4] Following committal on these charges on January 24, 2007, a trial date was eventually set for October 22, 2007 and thereafter adjourned to December 3, 2007. On that date, because of a scheduling error, the case was further adjourned to January 7, 2008 when an application for a stay of proceedings was heard.
[5] On January 9, 2008 the trial judge stayed all nine charges of indecent assault, including three charges to which the respondent had entered a plea of guilty, immediately prior to the hearing of the stay application.
[6] The Crown submits that while the trial judge was correct in determining that the 27 month total delay invited judicial scrutiny, he nevertheless erred in law in characterizing the delay that occurred in this case as constituting an unreasonable delay and violation of the respondent’s rights under section 11(b) of the Charter.
[7] For the reasons that follow, I agree with the Crown’s submission and would allow the appeal, set aside the stay of proceedings and remand this matter to the Superior Court at Sault Ste. Marie to set a trial date on those charges to which the respondent entered a plea of not guilty, and a sentencing date on the three charges to which he entered pleas of guilty.
THE FACTS
[8] In general terms, this case originally involved some 12 counts of indecent assault, historical in nature, alleged to have occurred some 30 to 34 years before the respondent’s arrest.
[9] The particulars of the allegations are set out in the Crown’s factum as follows:
• J.H. lived in Elliot Lake between 1971 and 1976. The Respondent was the Minister at her church. The Respondent allegedly touched and fondled J.H.’s breasts and vagina, penetrated her vagina with his fingers, and placed his penis in her hands. The inappropriate touching allegedly took place approximately once a week over the course of 4-5 years while J.H. was between the ages of 6 and 11.
• N.G. is the adopted daughter of the Respondent. The family lived in Elliot Lake between 1971 and 1976. The Respondent allegedly touched N.G.’s vagina with his fingers on several occasions while at the family’s home. It is alleged that approximately 6 to 8 incidents of inappropriate touching took place while N.G. was between the ages of 3 and 8.
• M.P. lived in Elliot Lake between 1976 and 1979. The Respondent was the Minister at her church. During her time as an alter server, the Respondent allegedly touched M.P’s breasts on numerous occasions over a two year period. M.P. was between the ages of 11 and 13 when the inappropriate touching allegedly took place.
• N.C. lived in Elliot Lake between 1971 and 1976. The Respondent was the Minister at her church. N.C.’s family routinely visited the Minister’s family on Sundays after service. N.C. would also occasionally spend the night at the Respondent’s residence. It was during these visits that the Respondent allegedly touched N.C.’s vagina with his fingers under the pretext of playing a tickling game. This occurred on approximately 40 separate occasions over a 10 month period. On those occasions when N.C. spend the night at the Minister’s residence, the Respondent also allegedly touched N.C.’s vagina while tucking her into bed. N.C. was between the ages of 6 and 7 when the inappropriate touching allegedly took place.
• D.K. lived in Chapleau from 1967 to 1971. The Respondent was the Minister at her church. During her time as part of the church’s youth group, the Respondent allegedly touched D.K. inappropriately on her breast and vagina while she was between the ages of 8 and 9. On one occasion, the Respondent allegedly reached across a table to grab the young girl’s breasts, squeezing them in a forceful manner.
• K.K. lived in Chapleau from 1967 to 1971 and is the sister of D.K. The Respondent was the Minister at her church. As with her sister, the Respondent allegedly touched K.K.’s breasts (over her clothing) on approximately 20 separate occasions over a two year period while K.K. was between the ages of 10 and 12.
[10] The respondent was arrested October 7, 2005 and his trial was to have commenced January 7, 2008 – some 27 months later. The Crown acknowledges that this period of time is sufficient to invite judicial scrutiny.
[11] The appellant does not take serious issue with the trial judge’s conclusion that of the 27months it took this case to reach trial, 16 and one-half months could be classified as institutional delay (the Crown does suggest this number should be corrected to 16 and one-quarter months, but in my view this difference, overall, is immaterial). It is conceded that the Crown is directly responsible for two and one-half months of institutional delay. On the trial judge’s findings, the defence is probably responsible for about one and one-half to two months of that delay.
[12] In these circumstances, it is unnecessary to review in specific detail the various appearances before both levels of court the Provincial and Superior Courts – the breakdown was about even – eight months – in each court.
ANALYSIS
[13] The appellant Crown submits that the trial judge erred in law by:
Finding that the total institutional delay of 16 and one-half months was excessive;
Equating the respondent’s “travel prejudice” with the effects of being charged with serious criminal offences, thereby improperly finding that actual prejudice flowed from the delay;
According too much weight to the finding of prejudice given that it was primarily confined to one short, discreet period; and
Finding that a stay of proceedings was in the public interest.
EXCESSIVE TOTAL INSTITUTIONAL DELAY
[14] In R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, at p. 799, Sopinka J. found that with regard to institutional delay:
[I]t is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in [R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199].
[15] The 16 and one-half months of institutional delay here falls within the Morin guidelines. This was a case of historical indecent assault where the investigation, at the time of the arrest, was only just beginning. After the initial charges were laid in October, other complainants came forward resulting in further charges – all of which required further investigation.
[16] The preliminary inquiry took five days to complete, following which on January 27, 2007 the accused was committed to stand trial on nine of the twelve charges.
[17] On July 11, 2007, a trial date of October 22, 2007 was set. The Crown who set the October 22 date was unaware at the time that the Crown who had carriage of the case was scheduled to attend a Crown Attorney’s convention on that date.
[18] On August 8, 2007 the matter returned to the assignment court at the request of Crown counsel to advise of the Crown’s intention to seek an adjournment to have the matter adjourned (from the October 22, 2007 date). A Notice of Application by Crown counsel, dated August 20, 2007, returnable August 29, 2007, was issued requesting the matter be adjourned on two basis:
That the Crown who selected the October 22, 2007 trial date was unaware that the Crown with carriage had previously committed to attend the Crown Attorney’s convention which was to be held October 24-26, 2007, and;
That the case was unlikely to be heard on October 22, 2007, in any event, in that it would require five days to try and was listed on October 22 as a backup case.
[19] On August 29, 2007, the motion for adjournment was heard by Tranmer J. Mr. Baxter, agent for Mr. Berthelot, counsel for the respondent, opposed the adjournment on the basis that the respondent, not present at the time, wished to have the matter resolved. The respondent who suffers from post-polio syndrome, preferred that the matter not be heard in the winter. His illness had caused weakening of the muscles in his arms, legs and back and required him to walk with a cane. His family physician in a letter dated June 6, 2007 reported that the respondent:
[I]s unable to walk or stand for prolonged periods of time. His balance and reaction time is slow due to weakened muscles and it is dangerous for him to walk on slippery or uneven surfaces.
and further offered her opinion that she:
[F]eel[s] very strongly that Mr. [G.] should not be required to travel during the winter months under any circumstances.
[20] Counsel on behalf of the respondent advised the court that if the case were to be adjourned, he would be asking that the case go over to the warmer weather in the spring, unless a date could be found in November for warmer weather.
[21] The trial co-ordinator offered several dates including:
September 10, 2007 - 1^st^ case on list
September 17, 2007 - 1^st^ case on list
October 8, 2007 - 1^st^ case on list
December 3, 2007 - 1 of 3 cases scheduled
December 17, 2007 - 1^st^ case on list
[22] After consulting with Mr. Berthelot, his agent, Mr. Baxter, reported to the court that only the December 3, 2007 date worked for Mr. Berthelot. In the course of his remarks to the court, Mr. Baxter stated:
But if it is going to be moved, the logistics are such that he would very much prefer to be first, and if he can’t be first on the week of December 3^rd^ he would quite frankly prefer that it be referred back to the Assignment Court and go to 2008.
If your Honour decides not to adjourn it, then it stays on October 22, and if your Honour is disinclined – disinclined to make this first, my instructions are to request that it go back to Assignment Court and [K.G.] will just have to come up in the spring.
[23] The adjournment was granted and the matter adjourned to the assignment court of September 12, 2007 where Pardu J. at the Crown’s request, ordered that the matter proceed first on December 3, 2007.
[24] On November 30, 2007, the Friday preceding the Monday, December 3 trial date, a conference call took place among the Crown, defence counsel and Whalen J. At this time it was learned that in addition to this case, another case involving an accused by the name of Perdue, was also scheduled to proceed. While a second judge had been secured for the week, unfortunately the same Crown had carriage of both cases.
[25] As the accused Perdue was incarcerated and the respondent free on bail, the court felt compelled to proceed with the Perdue matter first and this case was adjourned to January 7, 2008 as the sole case on the list.
[26] On December 11, 2007 the respondent filed his application for a stay of proceedings on the grounds of unreasonable delay contrary to section 11(b).
[27] In my view, it is important to note that in August 2007, the respondent was offered trial dates in September and early October but instead chose the December 3 date, knowing this case was one of three on the list. When the date was being set, counsel for the respondent indicated that if the October 22 date were lost and the case could not be first on the December 3 date, he would “prefer” the matter go over to the spring of 2008. Counsel for the respondent indicated that even if the case were to remain on the October 22 list, if it could not be listed as first, he still wished the case to be adjourned to the spring of 2008.
[28] In my view the delay does not exceed the range set out in Morin and is not in and of itself excessive in the context of this case. But whether that guideline is to be applied or not will depend on the presence or absence of prejudice.
Prejudice to the Respondent
[29] The second, third and fourth grounds of appeal raised all fall to be considered under the prejudice factor. As Sopinka J. stated in Morin at p. 798:
The application of the guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court’s concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact.
[30] The trial judge appears to have concluded that a stay of the charges against the respondent was the appropriate remedy not only because of the inferred prejudice, which arose from the delay itself, but also because of actual prejudice to the respondent.
[31] In his reasons, the trial judge recites the respondent’s physical difficulties arising from the fact that he suffers post-polio syndrome, the result of having suffered poliomyelitis as a small child. Now 75 years of age, living in Belleville, Ontario, some 850 kilometres from Sault Ste. Marie, he observed:
[K.G.] testified he was required to use a cane since 1998 and began using a walker last year. He suffers from fatigue, general weakness and a fear of falling. He can drive a motor vehicle but finds winter driving very difficult because if he has to stop for gas or to go to the washroom, it is very difficult to do so in icy conditions without his walker.
[K.G.] described the difficult time he had in driving to Elliot Lake to attend his preliminary hearing in January of 2007. His doctor provided a letter strongly recommending that he not be required to travel during the winter months. The court tried to accommodate this by assigning a fall date for the trial but the delays resulted in the trial being adjourned to January 7, 2008, the middle of winter. Although Sault Ste. Marie is currently enjoying mild weather, I accept that the thought of having to drive from Belleville to Sault Ste. Marie in January caused [K.G.] a great deal of anxiety. [K.G.] testified that he is completely stressed out and anxious due to his inability to have these matters dealt with as soon as possible. He is now taking medication to relieve this anxiety. [K.G.’s] application is supported, in part, by his affidavit which describes the additional financial burden to him caused by the delays.
On all of the evidence, I am satisfied [K.G.] has suffered not only inferred prejudice from the delays but actual prejudice.
Having regard to the nature and seriousness of the charges, the length of the delay, the reasons for the delay and the resulting prejudice to [K.G.] it is my view that [K.G.’s] rights under s. 11(b) of the Charter outweigh the societal interest in bringing him to trial, particularly since there is a real societal interest in seeing accused persons dealt with fairly. The appropriate remedy is to stay the charges against [K.G.].
[32] As this court noted in R. v. Qureshi (2004) 2004 40657 (ON CA), 190 C.C.C. (3d) 453 at para. 14:
Two kinds of prejudice are relevant [on a s. 11(b) application]. First, the court may infer prejudice from the delay itself and is more likely to do so the longer the delay. On the other hand, an accused’s action or inaction that shows a desire to avoid a trial on the merits may negate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show either prejudice or an absence of prejudice.
[33] The trial judge concluded that the respondent suffered not only inferred prejudice from the delay but actual prejudice. In considering the prejudice occasioned by the delay, the trial judge reviewed the respondent’s health history including the difficulties it poses for him when he must travel in winter, as well as his doctor’s strong recommendation that he not travel in winter and concluded:
I accept that the thought of having to drive from Belleville to Sault Ste Marie in January caused [K.G.] a great deal of anxiety. [K.G.] testified that he is completely stressed out and anxious due to his inability to have these matters dealt with as soon as possible. He is now taking medication to relieve this anxiety. [K.G.’s] application is supported in part by his affidavit which describes the additional financial burden to him caused by the delays.
[34] In the respondent’s affidavit filed in support of his s. 11(b) motion, there is no mention of stress occasioned to him by reason of the delay in bringing his charges to trial. That affidavit speaks only to his difficulties travelling during the winter months and the costs he has incurred as the result of his trial date being adjourned.
[35] However, in his evidence before the trial judge, the respondent did complain about the stress the delay in dealing with the charges had caused. The first exchange with his counsel in this respect is found in his evidence-in-chief:
MR. BERTHELOT: Q. Now, can you advise the court, because you were advised by me, were you not, that the – after this matter had been set to the assignment court and I had been advised that the Crown was opposing the trial date, I brought this to your attention, I believe it was in July, am I – approximately, or …
A. Yes
Q. And what was your reaction to that?
A. It caused me to be stressed out because now we’re being prolonged and it looks like I have to come up in the winter, so I spoke to my cardiologist about the stress, and he advised me to take some medication that would calm me down and maybe help me to sleep.
Q. Is this the medication that had been prescribed for you after the – after your arrest in October?
A. Yes, it’s the Aprolorazepam – it’s Lorazepam, one milligram, take one tablet by mouth twice daily when required. I’ve been trying to take just half, but because of the stress I - lately, I’m having to take it during the day, not just to get to sleep.
Q. So what were the nature of your complaints that initially – that you brought to your doctors?
A. Well, I’m – I feel totally stressed out and anxious, and of course these things are rolling all over in my mind and the inability to have this done as soon as possible and get it over with. This is the thing that has stressed me out and has caused some family disruptions between my wife and it is a very serious situation.
Q. Did you instruct me to oppose the application for adjournment?
A. Absolutely; the sooner the better is what I said.
And further:
Q. Right. Now, the matter as you know did not proceed and the Crown had the matter returned to assignment court and again it was opposed, and at that time the Crown brought an application for adjournment and you were kept aware of all these situations?
A. Yes, I was, and I was completely amazed that the Crown Attorney would have to attend a conference and leave me languishing, not in jail, but languishing nevertheless.
Q. And did this – with respect to the medication we talked about, did it have any effect on the medication you were taking?
A. I took more of the medication.
And:
Q. But when I advised you of this on November 30^th^, that the matter might possibly not go ahead, what was your reaction at that time?
A. Well, to travel all that way and be told to go home, that’s outrageous, absolutely outrageous. I was prepared to stay at the hotel for the week. But the surprise was there was another person on the docket. He was supposed to be …
and there followed yet another discussion about the snow and ice in front of the court building and how difficult it was physically for the respondent to attend his trial.
[36] In cross-examination, the respondent said that he had not been made aware that his case was scheduled as a back-up case for the week of October 22, 2007. And while December 3, 2007 was not an appropriate date for him because it was in the winter which causes him a lot of stress, he stated that he did not want the matter adjourned to the spring of 2008 because:
I wanted it over as soon as possible.
[37] This evidence, of course, conflicts with the position taken by counsel on his behalf when the adjournment of the October 22, 2007 trial date was before the court. At that time counsel advised the court that if the case were to be adjourned, he would be asking that it go over to the warmer weather in the spring. In addition, three dates were offered – prior to October 22, 2007 – when the trial could proceed as first case on the list, but none were apparently convenient to the respondent’s counsel.
[38] The respondent’s physical disability and the particular stress that causes for him when he is required to travel in the winter months does not arise as the result of the criminal charges he faces, nor does it arise from any delay in bringing those charges to trial. These particular difficulties would be present even if K.G. had been tried in December 2005, shortly after the charges were laid. It does not give rise to actual prejudice. In reading the trial judge’s reasons as a whole, I accept the Crown’s submission that the trial judge did equate the respondent’s “travel prejudice” with the effects of being charged with serious criminal offences, and in so doing improperly found that actual prejudice flowed from the delay.
[39] Clearly there is evidence that the fact of these charges has caused stress to the respondent and has been a source of friction between him and his wife, a fact true of anyone facing serious criminal charges. Institutional delay does not cause this stress – it can only at best prolong, or exacerbate it. The respondent was prescribed medication for stress shortly after his arrest. On his evidence, only the amount he took increased when the case was adjourned. In other words, his need for medication to deal with the stress did not arise out of the delay – at best it was somewhat exacerbated by it.
[40] No issue of delay was raised before October 22, 2007. The real delay about which complaint is made amounts to some two and one-half months – from October 22, 2007 to January 7, 2008. Although the respondent mentions the continued stress of having these charges outstanding against him for this further period of time, again, it must be noted that he did not avail himself of the earlier dates offered at the time the matter was adjourned to December 3, 2007.
[41] In my view, the trial judge placed too much weight on the finding of prejudice, given that the contentious delay was primarily confined to this one short period.
[42] In so far as the respondent’s liberty interest is concerned, there was minimal interference in this case. The respondent was released on his Promise to Appear for both court and fingerprinting and gave an undertaking to attend court in Elliot Lake on November 15, 2005. The respondent was to advise the investigating officer of any change of address, abstain from communicating with the complainant J. H. and to abstain from alcohol or other intoxicants, except as prescribed. The respondent filed a designation of counsel and accordingly did not personally appear – nor was he required to – on several of the occasions when his case was spoken to. He was not incarcerated, had no curfew and was not subject to any reporting requirements.
[43] There is no evidence, nor is it contended, that the delay has in any way impacted on the respondent’s fair trial rights in the sense that evidence has been lost or witnesses become unavailable because of delay.
[44] In considering the societal interest the trial judge’s reasons are conclusory. He merely stated:
[I]t is my view that [K.G.’s] rights under s. 11(b) of the Charter outweigh the societal interest in bringing him to trial, particularly since there is a real societal interest in seeing accused persons dealt with fairly.
[45] Again, as this court stated in R. v. Qureshi, at para. 41:
The marginal prejudice to the respondents caused by the delay must be weighed against the considerable prejudice to society’s interest caused by a stay. The trial judge did not consider society’s interest. Yet the charges are serious – attempted murder and aggravated assault – which heightens society’s interest in having a trial on the merits.
[46] Here the only societal interest considered by the trial judge was, as he put it, “the societal interest in seeing accused persons dealt with fairly”. Nowhere does he mention the societal interest in seeing those charged with serious offences brought to trial and dealt with according to law. In failing to consider this aspect of the societal interest, he erred.
[47] Any prejudice to the respondent by reason of the delay here was slight. In the circumstances it is appropriate that the guideline as expressed in Morin be applied to reflect this fact.
[48] In the absence of any real prejudice beyond that experienced by all accused persons, and the important public interest in a trial on the merits, I am of the view that the delay in this case was not unconstitutional.
Charges to Which the Respondent Pled Guilty before the Stay was Imposed
[49] Following the granting of the stay of proceedings, the trial judge invited defence counsel to make submissions as to whether the stay should also apply to the three counts to which the respondent pled guilty earlier in the day.
[50] The respondent’s responses at the time of his arraignment, which took place moments before the 11(b) application, bear repetition:
COURT REGISTRAR: [K.G.] , [K.G.G.] on count one stands charged that he on or between the 1^st^ day of January, 1971 and the 31^st^ day of December 1976 at the City of Elliot Lake, in the said region, did indecently assault[J.H.], a female person, contrary to section 149 of the Criminal Code of Canada, 1953-56, c. 51, s. 141; 1972, c. 13, s. 70. On count one, how do you plead guilty or not guilty?
K.G.: There’s more to it than that.
MR. BERTHELOT: There’s two other counts.
K.G.: Oh, okay, guilty.
THE COURT: The plea is guilty? Okay. Thank you.
COURT REGISTRAR: On count two, [K.G.G.] stands further charged that he on or between the 1^st^ day of January, 1971 an the 31^st^ day of December 1976 at the City of Elliot Lake, in the said Region, did indecently assault [J.H.], a female person, contrary to section 149, of the Criminal Code of Canada, 1953-56, c. 51, s. 141; 1972, c. 13, s. 70. On count two, how do you plead, guilty or not guilty?
K.G.: Guilty.
COURT REGISTRAR: On count three, [K.G.G.] stands further charged that he on or between the 1^st^ day of January, 1971 and the 31s day of December, 1976, at the City of Elliot Lake, in the said Region, did indecently assault [J.H.], a female person, contrary to section 149 of the Criminal Code of Canada, 1953-56, c. 51, s. 141; 1972, c. 13, s. 70. On count three, how do you plead, guilty or not guilty?
K.G.: Guilty.
[51] There followed a reading of counts four through nine and to all of those charges the respondent entered a plea of not guilty. After taking the respondent’s plea on the last charge the court registrar, as is usual, said to the respondent:
Listen to your plea as the court has recorded it: you plead guilty to count one, guilty to count two, guilty to count three, not guilty to count four, not guilty to count five, not guilty to count six, not guilty to count seven, not guilty to count eight and not guilty to count nine. Is that correct?
K.G.: Absolutely correct.
[52] It is clear from his comment after the first count was read to him that the respondent was informed and aware of what he was pleading guilty to. After that first count was read, he said that “there’s more to it than that”. His lawyer then explained that there were two – not eight – other counts, in obvious reference to the second and third counts, about to follow and to which he was also about to enter a plea of guilty.
[53] The record here discloses no basis upon which those pleas of guilty should be struck. The respondent was represented by counsel throughout. It is apparent the pleas were both informed and voluntary. On these charges the respondent should be remanded to the Superior Court for sentencing.
[54] In result, the appeal is allowed. The stay of proceeding is set aside. The respondent is remanded to the Superior Court at Sault Ste. Marie for trial on counts four through nine of the indictment and for sentencing on counts one through three.
RELEASED: February 11, 2009 “STG”
“J. MacFarland J.A.”
“I agree S.T. Goudge J.A.”
“I agree David Watt J.A.”