Her Majesty the Queen v. Tara Irene Brennan, 2021 ONCA 132

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210303 DOCKET: C68316

Doherty, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Tara Irene Brennan Applicant (Appellant)

Counsel: Richard Fedorowicz, for the appellant Rick Visca, for the Public Prosecution Service of Canada Alex Hrybinsky, for the Attorney General of Ontario

Heard: In writing

On appeal from convictions entered by Justice P.H.M. Agro of the Ontario Court of Justice, dated August 21, 2019.

Reasons for Decision

[1] The appellant was convicted of several serious offences and sentenced to a lengthy prison term. The respondents, the federal and provincial Crowns, concede the appeal must be allowed.

[2] We agree.

[3] The appellant sought to withdraw an undertaking given earlier in the proceedings by counsel to plead guilty to certain charges if a pretrial motion to exclude evidence under s. 24(2) failed. There is some uncertainty as to what undertaking was given, but we proceed on the basis there was an undertaking to plead guilty.

[4] The trial judge wrongly held she had no jurisdiction to allow the appellant to resile from the undertaking to plead guilty. The trial judge can, in appropriate circumstances where the interests of justice so dictate, permit an accused to withdraw an undertaking or admission previously given in the proceedings. The trial judge should have considered the appellant’s explanation for the apparent change in position as well as the Crown’s indication that it did not oppose the appellant’s request. Had the trial judge not incorrectly held she had no jurisdiction to entertain the appellant’s request, we are confident she would have allowed the appellant to proceed to trial.

[5] The appeal is allowed, the convictions are quashed, and a new trial is ordered.

“Doherty J.A.”

“David Watt J.A.”

“K. van Rensburg J.A.”