COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Shea, 2016 ONCA 53

DATE: 20160119

DOCKET: C58667

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn O’Shea

Appellant

Counsel:

Michael Davies, for the appellant

Alexander Hrybinsky, for the respondent

Heard: January 15, 2016

On appeal from the conviction entered on February 7, 2013 and the sentence imposed on February 6, 2014 by Justice Johanne Lafrance-Cardinal of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant pleaded guilty to a single count of possession of child pornography. He was sentenced to one year imprisonment and two years’ probation. He appeals the conviction and sentence.

[2] On the conviction appeal, the appellant contends that his guilty plea was not informed by accurate information from his counsel. He believed, when he entered his guilty plea, that the matter of sentence was settled and that he would receive the then minimum custodial term for the offence, namely 45 days, followed by probation. His belief was supported by his mother and was based on advice from his trial counsel.

[3] We do not accept this submission. Based on the information the appellant received from his counsel, the appellant knew that he would receive a custodial sentence if he pleaded guilty to the offence of possession of child pornography because that offence had a minimum sentence of 45 days.

[4] There is no suggestion that Crown counsel did anything wrong in seeking a sentence above the statutory minimum. The Crown indicated its position to defence counsel well before the guilty plea was entered. The sentencing hearing was contested.

[5] Nor can it be suggested that the trial judge was not entitled to impose a sentence of one year imprisonment. Even accepting that the appellant’s counsel’s notation written at the first pre-trial (a pre-trial conducted by the same judge who ultimately accepted the guilty plea and imposed the sentence) to the effect that a proposed 45 day sentence would be “reasonable”, it was entirely permissible for the trial judge to change her mind once she had seen the evidence of the volume and nature of the child pornography possessed by the appellant. This is reflected in the exchange between the trial judge and defence counsel immediately after she imposed sentence:

THE COURT: Any questions [counsel]?

[Counsel]: Uhm, other than the fact, Your Honour that there had been some judicial pre-trials with respect to resolving the matters, I take it Your Honour was aware of that? Is that correct?

THE COURT: I may have been aware of that, but I haven’t viewed the videos and I haven’t seen the pictures when the position was given. There’s a big difference between [Mr. B.’s] case where it’s young adults, no, I’m sorry, older teens, and what was seen on those particular pictures, images and videos.

[6] The problem here is that the appellant’s counsel may well have been overly optimistic about the potential sentence after the first pre-trial and may not have properly communicated to the appellant and his mother that a 45 day sentence was being opposed by the Crown and was not a certainty with the trial judge who ultimately took the plea. However, absent an allegation of ineffective assistance of counsel, which the appellant fairly does not make, this is not enough to clear the “informed” hurdle in the “voluntary, unequivocal and informed” test for the validity of a guilty plea: see R. v. R.T., 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.). Through the advice of his counsel, the appellant knew that he would not face a trial and would receive a custodial sentence if he pleaded guilty. Through the advice of his counsel, he may have expected a lower sentence than the one he received. This dichotomy is not sufficient to call into question the validity of his guilty plea. As LaForest J. said in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at para. 107:

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.

[7] On the sentence appeal, the appellant submits that the trial judge did not give sufficient weight to the appellant’s unique background, including, especially, the brain injury he sustained as a teenager.

[8] We are not persuaded by this submission. The trial judge considered the appellant’s circumstances with the aid of a pre-sentence report, sexual behaviour assessment, and submissions of counsel. She specifically, and in some detail, referred to the consequences of the brain injury in a section of her reasons titled Medical condition. She also identified it as a mitigating factor under the heading Mitigating Factors:

3. The personal circumstances of the accused. He is on long term disability for a severe traumatic brain injury following a motor vehicle accident.

[9] The conviction and sentence appeals are dismissed.

“J.C. MacPherson J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”