WARNING

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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.P., 2013 ONCA 53

DATE: 20130130

DOCKET: C53141

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. P.

Appellant

Delmar Doucette, for the appellant

Grace Choi, for the respondent

Heard: October 3, 2012

On appeal from the convictions entered on April 13, 2010 by Justice John R. McIsaac of the Superior Court of Justice, sitting without a jury, and from the sentence imposed by Justice McIsaac on December 16, 2010.

Watt J.A.:

[1] At the end of the first day of his jury trial, things were not going well for R.P. (the appellant).

[2] R.P.’s problems began with the indictment, which required him to respond to 19 counts, each alleging sexual offences committed over several years. Each of the four complainants was a male or female relative of the appellant. The offences spanned nearly two decades and ended more than 15 years prior to the appellant’s trial.

[3] The second problem concerned the evidence given on the first day of trial. The first complainant completed his testimony. According to the appellant’s counsel at trial, the first complainant “did well” in the witness box.

[4] The third problem had to do with the remaining complainants. Each was waiting to testify. Each had testified at the preliminary inquiry. As even the appellant recognized in written instructions provided to his trial counsel, the “Crown’s case [was] strong.”

[5] The fourth problem resided in the appellant’s ability to respond to the case advanced by the Crown. For all practical purposes, only the appellant could answer that case. Each complainant alleged that the offences occurred while he or she was alone with the appellant in the appellant’s home. The appellant’s wife was at work or elsewhere. The appellant had health problems that he acknowledged would render it difficult for him to give evidence and withstand cross-examination. He conceded that his wife “would not be a particularly effective witness” for a variety of reasons.

[6] And so it was in these circumstances, on the second day of trial, that the appellant, with the benefit of independent legal advice, instructed his trial counsel to alter course. He instructed counsel not to contest the Crown’s case, and to seek a conditional sentence based on the appellant’s fragile health, unblemished record, and contribution to his community.

[7] On appeal, represented by different counsel, the appellant seeks a new trial. He now says that the procedure in which he freely participated was fatally flawed, and that his counsel failed to provide him with the effective legal assistance to which he was entitled. If unsuccessful on the appeal from conviction, the appellant seeks a substantial reduction in the five-year prison term imposed upon him.

[8] The reasons that follow explain why I would dismiss the appeals from conviction and sentence.

The background facts

[9] The grounds of appeal advanced do not require any elaboration of the circumstances of the offences alleged by each complainant but do command a detailed recital of the procedure followed at trial.

The Allegations in Overview

[10] The complainants, all of whom were mature adults at the time of trial, alleged serial sexual abuse by the appellant over several years. The abuse began when each complainant was between 3 and 5 years of age and continued until he or she reached the ages of 9 to 12. The offences took place in the appellant’s home while his wife was away and consisted of acts of genital fondling and fellatio for the male complainants, and vaginal rubbing, digital penetration, and exposure for the female complainants. No complainant alleged coercion or threats.

The First Day of Trial

[11] The appellant was represented at trial by experienced counsel whom he had retained two years earlier shortly after his arrest. Counsel had appeared on the appellant’s behalf at the preliminary inquiry, held 14 months before the trial, and there cross-examined each of the four complainants who testified as Crown witnesses. The appellant elected trial by judge and jury.

[12] On the first day of the appellant’s trial, the first complainant, the eldest of the four, testified before the jury. At the end of the day, counsel for the appellant at trial thought that the complainant “did well” in the witness box. The remaining complainants were scheduled to testify the next and subsequent days.

[13] Trial counsel for the appellant was concerned about the appellant’s ability to “make it through” the trial proceedings. Counsel had already alerted the trial judge to the prospect that frequent adjournments might be required because of the appellant’s compromised condition. During and at the end of the first day of trial, the appellant had poor colour and was ill-composed.

The Second Day of Trial

[14] Before the trial resumed the following day, counsel and the appellant met at the court house. The appellant had better colour and seemed better composed than he had been on the previous day. Trial counsel asked the appellant how he was holding up.

[15] During their discussions, counsel gave the appellant some legal advice. The appellant gave counsel some instructions. As a result, counsel approached the Crown with a proposal. A plea of guilty was not part of the proposal nor had the appellant’s instructions been reduced to writing prior to discussions between Crown counsel and the appellant’s trial counsel.

[16] Counsel advised the trial judge in a general way about their discussions and asked that the jury be excused until the afternoon. The trial judge excused the jury and arranged for a “mid-trial” before another judge.

The Written Instructions

[17] Trial counsel obtained written instructions from the appellant about the procedure to be followed at trial. Counsel reviewed the instructions with the appellant and had a second lawyer from the local Bar repeat the procedure. The appellant signed the instructions which the other lawyer witnessed.

[18] The instructions signed by the appellant indicated that he would re-elect trial by judge alone and not contest the counts upon which the Crown would be proceeding. Attached to or accompanying the instructions was a list of the relevant counts and a detailed statement of facts concerning the allegations of each complainant, except the first complainant who had already testified before the jury and for whom the facts were to be as disclosed in his evidence. The appellant acknowledged that the Crown had a strong case and that neither he nor his wife, for different reasons, would be able to offer much of a response.

[19] The instructions also noted that none of the offences on which the Crown was proceeding required the imposition of a minimum sentence of imprisonment. Trial counsel for the appellant would seek a conditional sentence, but Crown counsel would not be joining in that submission. The appellant further acknowledged that the final result would be in the judge’s discretion after a sentencing hearing.

The Procedure Followed

[20] In the absence of the jury, counsel advised the trial judge of the procedure they proposed to follow. The appellant re-elected trial by judge alone with Crown counsel’s consent and, after the trial judge had discharged the jury and declared a mistrial, pleaded not guilty to each count in the indictment.

[21] During the discussions with the trial judge in the absence of the jury, trial counsel for the appellant said:

We have agreed on a statement of facts that we anticipate will be followed through.

Trial counsel made it clear that the appellant would not be entering guilty pleas but that both counsel would be inviting the trial judge to make findings of guilt and to enter convictions on specified counts, and to record conditional stays in connection with the remaining counts.

[22] In accordance with the written instructions of the appellant, counsel agreed to have the evidence given by the first complainant before the jury apply to the proceedings before the trial judge. Crown counsel then read the statement of facts appended to the appellant’s instructions in connection with the remaining complainants. Trial counsel indicated that those facts were not contested. The trial judge entered findings of guilt on all counts and recorded convictions in conformity with the agreement of counsel. Conditional stays were entered on the remaining counts.

The Sentencing Proceedings

[23] Over six months later, the trial judge heard sentencing submissions. Counsel filed a pre-sentence report in which the appellant challenged the complainants’ allegations as a “fantasized and dramatized story” and told the pre-sentence reporter that he couldn’t “fathom why” the complainants had made their allegations.

[24] During sentencing submissions by Crown counsel, the trial judge queried the effect of the appellant’s comments in the pre-sentence report challenging the complainants’ allegations. Neither counsel suggested that the proceedings were procedurally flawed as a result of the appellant’s subsequent rejection of the complainants’ accounts.

[25] Trial counsel for the appellant sought a conditional sentence. Crown counsel submitted that a fit sentence was a term of imprisonment in a federal penitentiary of four to five years, coupled with several ancillary orders to which the appellant took no objection.

the grounds of appeal

[26] The appellant advances two grounds of appeal against the convictions entered by the trial judge. He submits:

i. that the procedure followed, the functional equivalent of a plea of nolo contendere, was illegal, and thus the convictions should be set aside; and

ii. that the proceedings constituted a miscarriage of justice because the appellant’s trial counsel provided ineffective assistance.

[27] The appellant also seeks leave to appeal the sentence imposed by the trial judge. He says that the trial judge gave insufficient weight to his age, medical condition, and unblemished antecedents in imposing a sentence of five years imprisonment in a federal penitentiary.

the appeal against conviction

Ground #1: The Nolo Contendere Ground

[28] An assessment of this allegation of error requires some further background information including information gathered from materials filed on appeal that were not before the trial judge.

The Additional Background

[29] When he appeared before the trial judge, the appellant was 70 years old. English was his first language. His education included college programs. He had worked in a provincial training school and had been a member of the military. He reported several health concerns. He maintained his innocence in his discussions with trial counsel, but did not want to require the remaining three complainants to testify before the jury.

[30] In his affidavit, the appellant swears that he did not know that he “would necessarily be found guilty” as a result of the proposed procedure. He did know that the formal process in which the complainants were to testify, and in which he could testify,

… would end the formal contest whether or not I was guilty, but in my ignorance of criminal procedure I thought that I would still be able to dispute the charges in a less formal way.

He experienced “shock” that he had no opportunity to dispute the allegations.

[31] In cross-examination on his affidavit, the appellant repeatedly acknowledged the following:

i. that he did not want to continue with the trial and the testimony of the complainants;

ii. that he did not want to testify;

iii. that he knew he would be found guilty as a result of the procedure followed; and

iv. that he did not want to be sentenced to a term of imprisonment.

[32] Trial counsel for the appellant gave evidence that it did not occur to him that the nolo contendere-like procedure followed here was unavailable as a matter of law. The appellant expressed no concerns to counsel about being found guilty in the proceedings. Trial counsel knew that the prospects of a conditional sentence were very, very remote. Counsel expected that the appellant would dispute the allegations when asked by the pre-sentence reporter because the appellant had maintained his innocence with counsel.

The Arguments on Appeal

[33] For the appellant, Mr. Doucette says that a formal plea of nolo contendere is foreclosed by s. 606(1) of the Criminal Code. He submits that what occurred here was the functional equivalent of a plea of nolo contendere. Although he acknowledges that authority does permit the conduct of proceedings in such a way as to amount to the functional equivalent of a plea of nolo contendere, Mr. Doucette reminds us that two critical safeguards were lacking here:

i. a plea inquiry to ensure that the appellant’s participation was voluntary, unequivocal, and reflected an understanding of the nature and consequences of the procedure; and

ii. a formal admission of the facts that underpinned the findings of guilt.

[34] In the end, Mr. Doucette urges, the procedure was fatally flawed and amounted to a miscarriage of justice. The proceedings were unfair and resulted in a verdict that is unreliable. The only appropriate disposition, he submits, is to set aside the convictions and order a new trial.

[35] For the respondent, Ms. Choi says that the procedure followed here did not cause a miscarriage of justice. The proceedings were fair and transparent, the verdict reliable. Ms. Choi points out that recent authority does not create a bright-line rule that prohibits all nolo contendere-like procedures. The overarching concern is whether what was done caused a miscarriage of justice. That, she submits, did not happen here.

[36] Ms. Choi contends that the appellant’s participation in the procedure followed here was voluntary, unequivocal, and informed. The appellant knew the effect of his re-election and discharge of the jury, and that his failure to contest the facts alleged by the Crown would mean that no witnesses would testify and that he would be found guilty of the offences specified in the written instructions. He was fully aware of the specific facts alleged because he reviewed them twice and initialled each page.

[37] Ms. Choi submits that the appellant’s claim that he thought his counsel would dispute the facts alleged is simply not credible, belied by his conduct throughout. He well knew that findings of guilt would follow and he hoped to leverage his decision to not require the remaining complainants to testify at trial into a non-custodial sentence.

The Governing Principles

[38] Section 606(1) describes the pleas available to an accused who is called upon to plead. The section makes it clear that, apart from the general pleas of guilty and not guilty and the special pleas authorized by Part XX, no other pleas are available. Thus, a formal plea of nolo contendere, literally “I am unwilling to contest”, is not available under our procedural law.

[39] A plea of guilty is a formal admission of guilt and constitutes a waiver, not only of an accused’s right to require the Crown to prove its case by admissible evidence beyond a reasonable doubt, but also of various related procedural safeguards, including those constitutionally protected: R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519; Korponay v. Canada (Attorney General), 1982 12 (SCC), [1982] 1 S.C.R. 41, at p. 49.

[40] A plea of guilty must be voluntary, unequivocal, and informed. A voluntary plea is a conscious, volitional decision by an accused to plead guilty for reasons that he or she considers appropriate: T. (R.), at p. 520. An informed plea is a plea entered by an accused who is aware of the nature of the allegations made against him or her, the effect of his or her plea, and the consequences of that plea: T. (R.), at p. 519; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 371-372.

[41] On the other hand, an accused who pleads not guilty puts the Crown on notice that she or he requires the Crown to prove every essential element of the offence charged, by evidence that is relevant, material, and admissible, to the exclusion of reasonable doubt, and in accordance with applicable procedural safeguards: R. v. G. (D.M.), 2011 ONCA 343, 275 C.C.C. (3d) 295, at para. 52. The manner in which the Crown proves its case is for the Crown to decide, subject to the authority of the trial judge to determine issues of relevance, materiality, and admissibility of the evidence, and to ensure that the proceedings comply with any applicable procedural requirements and constitutional standards.

[42] Among the methods of proof available to the Crown are admissions of fact governed by s. 655 of the Criminal Code. Under that provision, it is for the Crown, not the defence, to state the fact or facts that it alleges against the accused and of which it seeks admission. The accused may choose to admit the facts, or decline to do so. Admissions require action by two parties, one who makes the allegation and the other who admits it. Once the admission is made, no other proof of the facts admitted need be offered: Castellani v. The Queen, 1969 57 (SCC), [1970] S.C.R. 310, at pp. 315-317.

[43] Sometimes, formal admissions of fact under s. 655 may constitute the entirety of the Crown’s case. For example, in R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860, the Crown’s case-in-chief consisted of an agreed statement of facts. The Supreme Court of Canada described the procedure as unusual, but did not suggest that it was legally impermissible or procedurally flawed. A similar procedure is followed by some courts in one-stage trials on the issue of criminal responsibility.

[44] A procedure similar to what happened here came under scrutiny in G. (D.M.). There, as here, the accused pleaded not guilty to a sexual offence. Crown counsel read out a synopsis of the allegations against the accused. The trial judge made no inquiry of the accused to ensure that he understood the nature and effect of the procedure that was being followed. Neither Crown nor defence counsel made any submissions. The trial judge convicted the accused and remanded him in custody for sentencing.

[45] In G. (D.M.) a combination of two errors caused a miscarriage of justice and warranted a new trial. The first had to do with the manner in which Crown counsel discharged her burden of proof after the accused had pleaded not guilty. And the second was the failure of the trial judge to conduct any inquiry into the voluntariness of the appellant’s participation and his understanding of the nature and effect of the procedure: G. (D.M.), at para. 61.

[46] In G. (D.M.), Crown counsel read a synopsis of the allegations on which the Crown relied. Defence counsel said nothing about whether he agreed with or did not dispute the allegations. Nothing said or done by counsel could be construed as bringing the case within the reach of s. 655 of the Criminal Code.

[47] In G. (D.M.), the trial judge did not conduct any inquiry of the accused, similar to the inquiry mandated by s. 606(1.1) for pleas of guilty, to ensure that the accused was a voluntary participant in the procedure and understood the nature and effect of the procedure being followed. The fresh evidence in that case did not establish the scope of any advice counsel may have provided to the accused, more specifically, whether counsel told the appellant about the procedure that would be followed when proceedings resumed.

[48] In G. (D.M.), as in this case, the appellant, in discussions with counsel, denied having committed the offences with which he was charged and on which he was being tried.

[49] In R. v. Hector (2000), 2000 5725 (ON CA), 146 C.C.C. (3d) 81 (Ont. C.A.), the appellant pleaded guilty to three counts of first degree murder. On appeal, he argued that his guilty pleas should be set aside and a new trial ordered because he had never admitted his guilt to trial counsel, indeed had protested his innocence on several occasions. It followed, the argument continued, that trial counsel should have refused to permit the appellant to plead guilty or try to talk him out of it. The court rejected the argument because the failure of the appellant to acknowledge guilt or, put another way, the appellant’s denial of guilt, did not compromise any of the essential elements of a valid plea of guilty, that is to say, that the plea is voluntary, unequivocal, and informed: Hector, at paras. 7-8; R. v. Pivonka, 2007 ONCA 572, 228 O.A.C. 227, at para. 16; and R. v. Khaja, 2010 ONCA 246, at para. 11.

[50] To determine whether the procedure followed in cases like this caused a miscarriage of justice requires a case-specific examination of all relevant circumstances, including those revealed by the fresh evidence: G. (D.M.), at para. 62.

The Principles Applied

[51] Despite several similarities between what occurred here and what happened in G. (D.M.), I am satisfied that the principles stated there yield a different result in this case. I would not give effect to this ground of appeal.

[52] To take first, the common ground between this case and G. (D.M.).

[53] Each appellant pleaded not guilty. Each maintained their innocence in discussions with counsel. Neither expressed his denial in open court. In both proceedings, Crown counsel adduced no viva voce evidence, rather read the factual allegations made by the complainants against the appellants (in addition in this case, the evidence given by the eldest complainant was incorporated by reference). These allegations were not filed as an exhibit, nor were they expressly characterized as a factual admission under s. 655 of the Criminal Code. Defence counsel did not expressly acknowledge the accuracy or admit the truth of the allegations, nor was either appellant asked to do so.

[54] In both cases the appellant recounted some health problems. Each appellant wished to avoid having the complainants testify although, in this case, the first and eldest complainant did testify before the jury. Both appellants had no previous convictions. Neither trial judge conducted any inquiry to determine whether the appellant understood the consequences of the procedure followed and voluntarily participated in it.

[55] But important differences distinguish this case from G. (D.M.).

[56] First, in this case, experienced defence counsel obtained detailed written instructions from the appellant in advance of the appellant’s re-election and the subsequent proceedings. He had represented the appellant for over two years between arrest and trial and had conducted the preliminary inquiry where all four complainants had testified and been cross-examined.

[57] Defence counsel reviewed the circumstances of the case and the instructions with the appellant. Another local lawyer reviewed the instructions with the appellant and witnessed the appellant’s signature. The instructions included:

i. an agreement to re-elect trial by a judge sitting alone;

ii. an agreement not to contest the counts listed in the instructions;

iii. an acknowledgement that participation in the procedure was free and voluntary, without any threats or inducements from anyone including trial counsel;

iv. an acknowledgement of the strength of the Crown’s case and of the likely impact of his “health difficulties” on his ability to give evidence and those of his wife who “would not be a particularly effective witness”;

v. an appreciation of the positions that counsel would advance on sentence and an acknowledgement that “the final result will be in the Judge’s discretion after a sentencing hearing” (emphasis in original); and

vi. an understanding that a pre-sentence report would be ordered and would include information about the appellant’s medical condition, lack of criminal record, work record, and community involvement, along with his wife’s medical condition.

[58] Together with the written instructions was a second document, drafted by the Crown Attorney, that listed the counts that would not be contested and set out the circumstances relied upon in respect of each complainant. Apart from the first complainant whose evidence at trial was incorporated by reference, the document contained the specific circumstances to be relied upon for each of the other complainants. Trial counsel reviewed this document with the appellant twice. The appellant initialled each page and signed the last page. The second review took place in the presence of the same local lawyer who had witnessed the appellant’s written instructions. This lawyer initialled each page of the factual allegations and signed the last page.

[59] Before the Crown had read the allegations contained in the document initialled and signed by the appellant, trial counsel for the appellant said:

We have agreed on a statement of facts that we anticipate will be followed through. Then obviously after that we will be talking about a sentencing hearing some time in the future, sir. So that’s kind of the outline of what we have. (Emphasis added)

The trial judge confirmed with the appellant his understanding of the procedure of re-election.

[60] Immediately before the appellant re-entered pleas of not guilty to each count in the indictment, trial counsel expressed his understanding of what would follow:

DEFENCE COUNSEL: There’s not to be a plea. Basically the counts that are going to be dealt with here, sir, are basically not to be contested, and we’re content that the facts be read in and ultimately there be a finding on that basis.

THE COURT: So he’s going to plead not guilty. There will be facts alleged, which will be the evidence of [the first complainant] …

THE COURT: … and then statements for the other three complainants, and the defence will not be contesting and inviting me to make a finding of guilty.

DEFENCE COUNSEL: That’s correct, sir.

[61] The subsequent discussions between the trial judge and counsel contain repeated references to findings of guilt and the absence of any contest about the facts read into the record by the Crown. The trial judge made findings of guilt, recorded convictions, and entered stays in accordance with the agreement of counsel.

[62] Third, despite procedural similarities to G. (D.M.), this case involves substantive differences from G. (D.M.). The factual matrix put before the trial judge in this case consisted of the referential incorporation of the trial evidence of the complainant (thus making it evidence in the proceedings), and allegations based on the preliminary inquiry testimony of the remaining complainants that trial counsel for the appellant on at least one occasion characterized as an “agreed statement of facts”. Unlike in G. (D.M.), this appellant had reviewed with counsel and initialled the precise factual assertions read by Crown counsel in the proceedings under review.

[63] Fourth, unlike G. (D.M.) where trial counsel made no submissions, counsel for the appellant expressly indicated that the factual allegations read by the Crown were not contested and that counsel was content with the procedure being followed. It was also clear that counsel invited the trial judge to make findings of guilt based on the factual allegations with which he took no issue.

[64] Further, it is abundantly clear that this appellant well knew the inevitability of findings of guilt for specific offences. The written instructions contain several references to “sentence” and a “sentencing hearing”. The appellant acknowledged the strength of the Crown’s case and the problematic nature of any response by the defence. In his cross-examination on the affidavit filed on the fresh evidence application, the appellant repeatedly acknowledged that he knew he would be found guilty, but hoped he would not be sent to prison. In the harsh light of day, his periodic rejoinder that he thought trial counsel would “look into it and speak on my behalf” rings rather hollow. As the court said in Lyons, at p. 372:

Subsequent dissatisfaction with the "way things turned out" or with the sentence received is not, in my view, a sufficient reason to move this Court to inquire into the reasons behind the election or plea of an offender, particularly where there is nothing to suggest that these were anything other than informed and voluntary acts.

[65] Finally, we are left with an appellant who voluntarily participated in a procedure without statutory warrant (or prohibition, except against entry of a formal plea of nolo contendere), well aware of the consequences (a finding of guilt and conviction), in the hope of gaining a desired sentencing disposition without having to utter an express admission of guilt of sexual offences. That he asserted innocence and did not admit guilt to his counsel does not invalidate these proceedings any more than it would vitiate a plea of guilty. Unlike the appellant in G. (D.M.), this appellant does not say he wanted to testify to deny the allegations, but the procedure followed denied him that opportunity.

[66] As G. (D.M.) points out, at para. 51, there is no statutory provision or common law principle that prohibits the procedure at issue in that case and in this case after an accused has entered a plea of not guilty. The flaw in G. (D.M.) was in the execution. The execution in this case was materially different. I am satisfied that in the circumstances of this case, the procedure followed did not cause a miscarriage of justice. The procedure here did not compromise the fairness of the hearing or contribute to an unreliable verdict. I would not give effect to this ground of appeal.

Ground #2: The Ineffective Assistance of Counsel

[67] The appellant advances a second ground of appeal related to but independent of the first. He says that his trial counsel failed to provide the effective legal assistance to which he was entitled. Some additional background is essential to an understanding of this ground and its determination.

The Additional Background

[68] Trial counsel for the appellant is a barrister who has practised in the community in which the appellant was tried for about four decades. In the latter half of his professional life, the emphasis in his practice has been the defence of criminal cases. His practice in the Superior Court of Justice consists entirely of the defence of charges of sexual offences.

[69] Trial counsel agreed to proceed on allegations that did not attract a minimum punishment on conviction, thus leaving open the prospect of a conditional sentence. Counsel expected to achieve some benefit on sentence from the procedure adopted, which did not require three of the four complainants to testify, as well as from the age, compromised medical condition, and unblemished record of the appellant.

[70] Trial counsel was unaware of the “impropriety” of the nolo contendere-like procedure followed here, which was calculated to achieve some benefit for the appellant on sentence. He agreed that proceedings should likely have begun anew when the trial judge raised the effect of the appellant’s denial of culpability in discussions with the pre-sentence reporter.

[71] Trial counsel testified that he had a general knowledge of conditional sentences and the principles that governed their application. He knew that the chances of the trial judge imposing a conditional sentence in this case were very, very remote, especially in the absence of pleas of guilty. Four complainants had been subjected to multiple acts of sexual abuse from a very young age. In each case, the abuse continued for years, over a cumulative period of nearly two decades. Counsel advanced the conditional sentence submission in accordance with the appellant’s instructions that he did not want to go to jail.

The Arguments on Appeal

[72] For the appellant, Mr. Doucette argues that the incompetence of trial counsel is established on two bases:

i. that trial counsel led the appellant to participate in a process, the nolo contendere-like procedure, which was “obviously illegal” even prior to the decision in G. (D.M.), and fundamentally at odds with the appellant’s denials of guilt; and

ii. that trial counsel sought a conditional sentence of imprisonment that was completely unrealistic in the circumstances.

As a result, Mr. Doucette says, a miscarriage of justice occurred and can only be rectified by an order for a new trial.

[73] For the respondent, Ms. Choi reminds us that an analysis of a claim of ineffective assistance of counsel has two components. The first has to do with the performance of counsel, and the second, which is examined first, concerns prejudice.

[74] Ms. Choi submits that the appellant’s claim, whether its constituents are examined individually or cumulatively, fails to establish prejudice. The appellant was fully informed and voluntarily participated in the procedure that resulted in the convictions. Nothing said on sentence, which implemented the appellant’s instructions, rendered a fair process unfair or contributed to an unreliable verdict. Thus, she submits, we do not reach the performance aspect of the inquiry.

[75] In the event that we consider the performance component, Ms. Choi says implementation of the procedure followed here was not unusual prior to the decision in G. (D.M.) and, at all events, is not per se invalid even after that decision. That counsel participated in a procedure later said to require scrutiny and made submissions on sentence that had no realistic chance of success do not constitute incompetence, whether considered alone or in combination.

The Governing Principles

[76] The principles applicable to this ground of appeal are uncontroversial.

[77] It is made clear in R. v. G.B.D. 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26 that our approach to claims of ineffective assistance of counsel requires us to consider two components:

i. performance; and

ii. prejudice

To succeed an appellant must establish that counsel’s conduct, whether acts, omissions, or both, amounted to incompetence and that a miscarriage of justice resulted: G.B.D., at para. 26.

[78] An appellant who alleges ineffective assistance of counsel as a ground of appeal must establish a factual basis for the claim. The facts relied upon must establish incompetence and the incompetence must cause a particular result, a miscarriage of justice. Thus, we require an appellant who advances an ineffective assistance of counsel claim to establish:

i. the facts that ground the claim of incompetence;

ii. the representation provided by trial counsel was incompetent (the performance component); and

iii. the incompetent representation resulted in a miscarriage of justice (the prejudice component).

See R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 59; R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120.

[79] Once the facts underpinning the claim of ineffective assistance have been established on a balance of probabilities, we consider first whether the alleged incompetence resulted in a miscarriage of justice. A failure of the claim on this ground relieves the appellate court of assessing the adequacy of counsel’s performance: Archer, at para. 121; G.B.D., at para. 29. Where the prejudice standard has been met, we proceed to consider the performance component.

[80] The inquiry into prejudice examines the nature and seriousness of counsel’s alleged errors from two perspectives: the reliability of the verdict and the fairness of the process leading to that verdict: Joanisse, at p. 62. The nature of any incompetence demonstrated exerts a significant influence on the kind of inquiry required to determine the effect of that incompetence on the fairness of the trial: Joanisse, at p. 62. Where, as here, the claim of incompetence relates to specific decisions made or actions taken by trial counsel, the effect on the fairness of the trial is measured by the impact of the errors on the reliability of the verdict: Joanisse, at p. 63. The appellant must show that, with competent legal representation, there is a real probability that the appellant would not have been convicted: Joanisse, at p. 64; Strickland v. Washington, 104 S.Ct. 2052 (1984), at p. 2068.

[81] We determine incompetence by a standard of reasonableness, which we measure by reference to counsel’s performance in the specific circumstances of the case and, importantly here, at the point in time when counsel made the decisions challenged on appeal. The wisdom of hindsight occupies no place in this assessment: Joanisse, at p. 61. The reasonableness standard proceeds from a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance: G.B.D., at para. 27. This onus is settled on the appellant to establish, on a balance of probabilities, that the conduct of counsel was not the result of reasonable professional judgment: G.B.D., at para. 27.

The Principles Applied

[82] This ground of appeal falls on barren ground.

[83] The facts on which the claim is advanced are uncontroversial. Trial counsel participated in a procedure that would lead inevitably to findings of guilt and entry of convictions that, in another case decided after these proceedings took place, caused a miscarriage of justice. Counsel made submissions on sentence advocating for a disposition that was legally available but virtually certain not to be viable in the circumstances of this case.

[84] The rejection of the first ground of appeal is dispositive of the issue of prejudice in association with the procedure followed at trial. In the circumstances of this case, that procedure did not compromise the reliability of the verdict or the fairness of the process that resulted in or led to that verdict.

[85] The sentencing submissions made by trial counsel, in accordance with the appellant’s instructions that he did not want a jail sentence, followed the findings of guilt and entry of convictions, thus could not have affected the reliability of those findings or the fairness of the process that resulted in those findings.

[86] The failure of the appellant to establish prejudice renders it unnecessary to consider the performance component of the analysis: G.B.D., at para. 26. That said, some observations about the foundation for the claim are apt since they proceed from a premise commonly invoked.

[87] First, to be fair to counsel at trial and the experienced trial judge who presided over the proceedings, none had our reasons in G. (D.M.) at hand. That decision was not rendered until about 13 months after the trial proceedings and 6 months after sentence had been passed.

[88] Second, the practice followed here and in G. (D.M.), while not authorized or prohibited by statute, was scarcely novel. See, for example, R. v. Sherret-Robinson, 2009 ONCA 886, 86 W.C.B. (2d) 4, at para. 3; R. v. Ohenhen, 2008 ONCA 838, at para. 2; and R. v. Fegan (1993), 1993 8607 (ON CA), 13 O.R. (3d) 88 (C.A.), at pp. 93-94. It is also worthy of reminder that the Criminal Code is not an exhaustive catalogue of criminal procedure.

[89] Third, G. (D.M.) does not create a bright-line rule that, without more, nullifies every proceeding in which an equivalent or similar procedure is followed. G. (D.M.), invoking s. 606(1) of the Criminal Code, forecloses a formal plea of nolo contendere and mandates an inquiry, specific to the circumstances of the case at hand, to determine whether a procedure that is nolo contendere-like caused a miscarriage of justice. There it did. Here it did not.

[90] Fourth, as a matter of general principle, it does not follow from subsequent appellate disapproval or rejection of a practice that prior use of that practice equates with ineffective assistance of counsel or warrants attachment of the label “incompetent” to counsel who participates in that practice.

[91] Appellate counsel should think twice about labelling as “incompetent”, or as providing “ineffective legal assistance”, trial counsel who participate in a procedure only later determined to be unauthorized. Such an argument constitutes overreach, is unfair to trial counsel, ignores the point-in-time requirement of Joanisse, and invokes the counterfeit wisdom of hindsight as its currency.

[92] I would not give effect to this ground of appeal.

the appeal against sentence

Introduction

[93] The appellant applies for leave to appeal sentence and, if leave is granted, appeals his cumulative sentence of five years in the penitentiary. The sentence resulted from sentences of 15 months for the offences against each complainant and the trial judge’s determination that the sentences should be served consecutively. The trial judge made several ancillary orders that were not contested at trial and are not in issue here.

The Positions of Counsel at Trial

[94] Trial counsel for the appellant sought a conditional sentence of imprisonment. Crown counsel at trial submitted that the appropriate range of sentence was a sentence of imprisonment in a federal penitentiary for a term of four to five years.

The Reasons of the Trial Judge

[95] The trial judge considered the starting point for a fit sentence in this case as five years in the penitentiary. He described the circumstances as those of “marathon sexual abuse by a person in a position of trust”. In mitigation, the trial judge considered the appellant’s age, unblemished record, health, his contributions to society, and his “no contest” plea that spared three of the four complainants from having to testify.

The Arguments on Appeal

[96] For the appellant, Mr. Doucette seeks a reduction of the total sentence to three years because the trial judge, he submits, gave insufficient weight in his sentencing analysis to the appellant’s age and compromised health.

[97] For the respondent, Ms. Choi says that the sentence imposed reflects no error in principle and is not manifestly unfit. She emphasizes the number of complainants, four, and the lengthy time over which the offences occurred. The offences involved breach of trust, invasive conduct, and caused serious harm to each of the complainants. The trial judge, she submits, gave adequate weight to the appellant’s age and compromised health, indeed more weight perhaps than was due when the true state of the appellant’s health emerged from additional materials filed in this court.

The Governing Principles

[98] The parties agree that, as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, the range of sentence that is fit is a penitentiary sentence of mid to upper single digit length: R. v. D. (D.) (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.), at para. 44.

The Principles Applied

[99] I would not interfere with the sentence imposed.

[100] This case involves serial sexual abuse of four family members from an early age, 3-5 years, over several years, to ages 9-12. The total length of time during which the offences occurred approached two decades. The conduct was invasive and caused significant psychological harm to each complainant. The appellant was in a position of trust.

[101] The trial judge took into account as mitigating factors the age and compromised health of the appellant, as well as his decision not to subject three of the four complainants to the rigours of having to testify about these events in a public forum. The sentence imposed is well within the applicable range of sentence for these offences and the offender who committed them. It was and remains fit.

conclusion

[102] For these reasons, I would dismiss the appeal from conviction. I would grant leave to appeal sentence but dismiss the appeal from sentence.

Released: January 30, 2013 “RJS”

“David Watt J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree E.E. Gillese J.A”