COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walford, 2016 ONCA 355

DATE: 20160509

DOCKET: C59061

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Navida Nadine Walford

Appellant

James Carlisle and Haran Aruliah, for the appellant

Roger Shallow, for the respondent

Heard: April 25, 2016

On appeal from the conviction entered on December 20, 2012 by Justice Simon Armstrong of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] In addition to pleading guilty to one count of theft under, the appellant pleaded not guilty to a charge of aggravated assault but, with the Crown’s consent, guilty to the included offence of assault causing bodily harm. The appellant now appeals her conviction for assault causing bodily harm.

[2] In the unusual circumstances of this case, we accept the appellant's submission that her guilty plea to the charge of assault causing bodily harm was invalid. On the record before us, we cannot be satisfied it was unequivocal. Four factors lead us to draw this conclusion.

[3] First, during the guilty plea proceedings, the nature of the assault alleged by the Crown was a moving target. As a result, the facts on which the Crown relied, and therefore on which the guilty plea was based, were never fully clarified on the record.

[4] Initially, the appellant pleaded guilty to aggravated assault. The facts read in by the Crown, which the appellant acknowledged, were that, during the course of an altercation outside a store, the appellant bit a Walmart security officer on the inside of his elbow causing significant bleeding and that, during the course of the altercation, the appellant was yelling that she was HIV positive. Based on these acknowledged facts, the plea judge found the appellant guilty of aggravated assault.

[5] During a break, the Crown contacted the victim and learned that the bite did not break the victim’s skin. Further, a doctor had advised the victim that, in these circumstances, the chances of HIV transmission were .001 per cent.

[6] Armed with this information, the Crown was of the view that the appellant could not be found guilty of aggravated assault but asked that she be found guilty of assault causing bodily harm. The plea judge and defence counsel agreed and the plea to aggravated assault was therefore struck. The appellant was re-arraigned and pleaded not guilty to aggravated assault, but guilty to the included offence of assault causing bodily harm. No further facts were read in. The Crown indicated its position remained the same and the plea judge stated the facts would be the same and that he would find the appellant guilty of theft and assault causing bodily harm. Patently, however, the allegation that the bite caused significant bleeding was no longer available.

[7] The second factor is that when making submissions on sentence following the finding of guilt for aggravated assault, defence counsel (not the same as appeal counsel) asserted that six years earlier, the appellant had contracted HIV as a result of being raped. Further, defence counsel asserted that the appellant had been denied access to her anti-viral drugs since being incarcerated 78 days earlier – despite a prior judge’s order that she be given her medications forthwith. Defence counsel indicated the appellant had been sick while in jail and was concerned about becoming sick again.

[8] The third factor is that when addressing the court prior to sentence for aggravated assault, the appellant said, “the way [the security officer] came at [her], out of the blue in the dark, … it was the same kind of attack [she] received when [she] was raped”. She said, “it was just a reaction to him. I didn’t really mean to attack him like that.”

[9] The fourth factor is that after the Crown disclosed to the plea judge that the bite did not break the skin, defence counsel indicated she knew about this but “following my client’s instructions, I did not want to not be able to enter a plea today and so that’s why we agreed to go forward.”

[10] On the record before us, it appears that the appellant wished to plead guilty on that day so that she could be released from jail; that she intended to do so despite any advice from counsel regarding potential defences or flaws in the Crown’s case; and that, in her own statements to the plea court, she raised issues concerning mens rea that should have prompted further inquiry – but none was made.

[11] We agree that it would have been preferable had the appellant and her trial counsel filed affidavits on appeal regarding the events. Nonetheless, given the unusual manner in which this case unfolded in the court below, we cannot be satisfied a miscarriage of justice has not occurred. It is therefore in the interests of justice that this appeal be allowed.

[12] In the result, the appeal is allowed, the appellant’s guilty plea to assault causing bodily harm is set aside and a new trial on that charge is ordered. As the appellant has served her sentence, the Crown may wish to consider whether this is an appropriate case for re-prosecution.

[13] Further, as defence counsel at trial alleged that the appellant had been deprived of her anti-viral drugs despite a judge’s order that they be provided, we request that the Crown make inquiries to determine, if possible: i) whether such an order was made; ii) if such an order was made, whether it was complied with; and iii) if the order was not complied with, the explanation, if any, for the non-compliance, including whether any existing protocols were or were not adhered to. We also request that the Crown report the results of any inquiries to this panel and make any recommendations considered appropriate concerning actions we should take.

“K.M. Weiler J.A.”

“Janet Simmons J.A.”

“Gloria Epstein J.A.”