Court of Appeal for Ontario

Date: 2018-11-13 Docket: C62181

Judges: Feldman, Roberts and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Christopher Nguyen Appellant

Counsel

Christopher Nguyen, in person Danielle Robitaille, duty counsel Hannah Freeman, for the Crown

Heard and released orally: November 6, 2018

Reason for Decision

[1] The appellant seeks leave to appeal from the decision of the summary conviction appeal judge Douglas J., which upheld the conviction based on the appellant's guilty plea before Tetley J., and where Douglas J. refused to admit new evidence to set aside the plea.

[2] We agree with the submission made by Ms. Robitaille and accepted by Ms. Freeman that the summary conviction appeal judge erred in law by applying the Palmer test in rejecting the affidavit of the applicant on his application to set aside his guilty plea. See R. v. Rajaeefard, [1996] O.J. No. 108, at para 3.

[3] On that basis, we grant leave to appeal. However, on an examination of the record, including the detailed and extensive plea inquiry conducted by the original trial judge, both on the original plea and again on the motion to set aside the plea, it is clear that the appellant fully understood and agreed to the plea and to the underlying facts that were read in.

[4] The applicant also submits that he had a misunderstanding regarding whether he would be subject to a mandatory weapons prohibition if he were granted an absolute discharge based on an email from his second lawyer. However, the record shows that Tetley J. made it clear on the second occasion, as did the appellant's lawyer in an email before the first plea that the weapons prohibition would be mandatory, including if an absolute discharge were given.

[5] In the result, while leave to appeal is granted, the appeal is dismissed.

K. Feldman J.A.

L.B. Roberts J.A.

Fairburn J.A.