Court of Appeal for Ontario

Date: 2017-11-30 Docket: C62654

Judges: Feldman, Tulloch and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert O'Brien Appellant

Counsel

Sam Goldstein, for the appellant Rebecca De Filippis, for the respondent

Heard and released orally: November 24, 2017

On appeal from: the conviction entered on August 15, 2016 and the sentence imposed on August 15, 2016 by Justice Paul F. Monahan of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks to withdraw his guilty pleas to one count of fail to remain causing death and one count of fail to remain causing bodily harm, contrary to s. 252(1.3) and s. 252(1.2) of the Criminal Code, on the ground that he did not understand that he was pleading to Criminal Code offences where he would have a criminal record and thought he was pleading guilty to Highway Traffic Act offences.

[2] The onus is on an appellant seeking to withdraw a guilty plea to show that his plea was not voluntary, unequivocal and informed. The appellant has not met the onus to demonstrate that his plea was not informed. The highest his evidence goes is that he developed a subjective misunderstanding that the charges he was pleading to were under the Highway Traffic Act.

[3] However all of the objective evidence of what occurred: (1) during plea negotiations in which he was represented by experienced counsel; (2) during the plea inquiry by the trial judge; (3) during the plea itself where the charges were stated to be under the Code; and (4) at the sentencing hearing where the Code and the criminal record were referred to, was that the charges were Criminal Code charges.

[4] In the case of R. v. Krzehlik, 2015 ONCA 168 at paras. 37 and 38, this court addressed a similar issue as follows:

As previously noted, in his affidavit the appellant asserts that he understood that if he pleaded guilty, so long as he appealed within 30 days of the date of convictions, the pleas would be automatically overturned. Duty counsel denies that she would have said this to the appellant. There is no evidence to support a finding that the appellant's alleged misunderstanding was induced by duty counsel or by any action on the part of the state. During the plea comprehension inquiry by the trial judge, the appellant stated that he understood that he was surrendering his right to a trial and that he would be sentenced for a serious crime. And there can be no doubt that the appellant knew the charges he was pleading guilty to.

In my view, the appellant has not met the onus of establishing that his pleas did not meet the legal threshold for being informed.

[5] In our view, a similar analysis applies to this case. Based on the record, the appellant has not met his onus. The appeal is dismissed.

K. Feldman J.A. M. Tulloch J.A. M.L. Benotto J.A.