WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. (3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

Court of Appeal for Ontario Date: 2022-02-03 Docket: C62658 Judges: Tulloch, Pardu and Harvison Young JJ.A.

Between: Her Majesty the Queen, Respondent and Jamie Simpson-Fry, Appellant

Counsel: Jamie Simpson-Fry, acting in person Avene Derwa, for the respondent

Heard: January 13, 2022 by video conference

On appeal from the convictions entered by Justice Joseph A. De Filippis of the Ontario Court of Justice, dated December 19, 2014.

Reasons for Decision

[1] The appellant was convicted of sexual assault, forcible confinement, uttering threats, and breach of probation arising from an unprovoked attack on a stranger. The sentencing judge found the appellant to be a dangerous offender and sentenced him to indeterminate custody.

[2] The appellant appealed both his conviction and sentence. His sentence appeal was bifurcated and was heard on September 17, 2021, after which it was dismissed: R. v. Simpson-Fry, 2021 ONCA 647.

[3] Before this panel, only the conviction appeal was pursued. The appellant initially advanced two main grounds of appeal, both on the basis of a wrongly procured guilty plea, resulting in his conviction on the current charges.

[4] His first ground of appeal was that of ineffective assistance of counsel. Under this ground, the appellant asserted that he was misled by his trial counsel to follow a trial process and procedure that impeded his rights to a full answer and defence. In his notice of appeal, he claimed that at trial he wanted to challenge the statement of facts that was read into evidence by the Crown, but he was advised against doing so. As a result, he acceded to the incorrect facts and did not take the stand in his defence, nor call any evidence, leaving no opportunity to contest the charges against him. In oral argument before this panel, the appellant indicated that he was no longer pursuing his ineffective assistance of counsel claim but still argued that he was misled in proceeding with his trial in the way that it unfolded, by not contesting the statement of facts read into evidence by the Crown. The core of his argument is an attack on the trial procedure advanced by both the defence and the Crown at trial and accepted by the trial judge.

[5] Second, the appellant claims that the trial judge was biased and misapprehended the evidence. He claims that the trial judge essentially “rubberstamped” comments and opinions from the complainant, the police, and two psychiatrists.

[6] We would not give effect to any of the appellant’s arguments, and as such, for the following reasons, we dismiss the appeal.

[7] The underlying facts which give rise to this appeal are not in dispute. On October 13, 2013, at 2:30 a.m., the complainant was walking home alone. The complainant observed a stranger, who later turned out to be the appellant, stumbling, and he appeared drunk. He asked her for directions and a cigarette, and the complainant attempted to evade him. He then grabbed her from behind. The appellant threatened to break her neck if she screamed, pushed her onto a nearby front lawn, and brutally raped her. During the assault, the appellant was mumbling and stated that he was very drunk. Following the assault, he told her to get up and said he would kill her if she ever told anyone about what happened.

[8] The complainant reported the incident to her parents and the police. She was then transported to a hospital where a sexual assault examination was conducted. Swabs of her skin and clothing were taken for DNA comparisons, which subsequently matched the DNA profile of the appellant.

[9] At trial, the appellant attempted to plead guilty, but he indicated that he had been too intoxicated at the time to remember the incident and what happened. As such, he was not in a position to contest the Crown’s evidence. The trial judge refused to accept the guilty plea on those terms. The appellant then changed his plea to not guilty, and he consented to a process in which the Crown would read out a statement of facts on which the prosecution’s case was based, after which defence counsel would decline to make submissions contesting the charges. At the trial, defence counsel explained that the appellant “was severely intoxicated” and “blacked out… as a result of excessive drinking combined with the drug GBH.” As a result, the appellant submitted that he was not in a position to contest the charges, raise the defence of consent, or contest the DNA evidence implicating him. The appellant waived the reading of the formal election, called no evidence, and made no submissions.

[10] The trial judge summarized the trial procedure that was followed at trial, at para. 2 of the sentencing decision: The defendant had indicated he wished to plead guilty to the charges on the basis that he could not confirm or deny the facts alleged because of intoxication. I declined to accept such a plea… On consent, the Crown read in the evidence that would have been given by witnesses and filed photographs and other exhibits. The Defence elected not to challenge the prosecution evidence, or call other evidence or make submissions. On this basis I was satisfied that the Crown had proven guilt beyond a reasonable doubt. [Citations omitted.]

[11] In essence, the hearing proceeded by way of what this court has described as the functional equivalent of nolo contendre . While a formal plea of nolo contendre is not possible under the Criminal Code, R.S.C. 1985, c. C-46, its functional equivalence has developed in Ontario courts, as explained in R. v. Anderson, 2021 ONCA 333, at para. 53 : The procedure is invoked frequently, but not exclusively, when the adequacy of the case for the Crown depends on certain evidence the admissibility of which is contested by the accused and is subject to pre-trial challenge and a ruling on admissibility. If the evidence is admitted, under a plea of not guilty, the accused accepts the case for the Crown, whether based on an agreed statement of facts or otherwise, and adduces no defence evidence. A finding of guilt follows. When this occurs, the accused preserves the right to challenge the evidentiary ruling on appeal, a right foreclosed if the plea had been guilty and could not be set aside on appeal.

[12] As advised by this court in Anderson, at para. 54 , the presiding judge confirmed with the appellant that he understood the potential legal risks of proceeding in this fashion. The purpose of doing so is to protect the fairness of the proceedings and prevent an unreliable verdict: see R. v. R.P., 2013 ONCA 53, 295 C.C.C. (3d) 28, at para. 66 ; see also R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481, at para. 59 . Under s. 655 of the Criminal Code , the appellant admitted to the facts as read in by the Crown. The Crown also tendered photographic evidence and the complainant’s statement to police.

[13] The trial record reflects considerable efforts by the parties to ensure that the appellant understood the legal ramifications of the process followed. As mentioned, at a pre-trial meeting, the trial judge explained the option for the appellant to plead not guilty but admit to evidence read in by the Crown and waive his right to challenge it. The appellant would be convicted if the trial judge was satisfied that the essential elements had been proven. At the hearing, the Crown again explained the process that would be followed and its implications. At trial, the trial judge reminded the appellant of their discussion at the pre-trial meeting, and the appellant confirmed that he remembered the discussion. The appellant also confirmed that he did not have any questions about the process as it was explained by the Crown.

[14] We therefore cannot agree that the appellant was unaware of the impact of admitting the facts. Accordingly, we see no error in the way the trial proceeded or on the part of the trial judge.

[15] It follows that we equally reject the appellant’s submission that the trial judge was biased or “rubberstamped” evidence from witnesses. The appellant chose not to challenge the evidence, adduce other evidence, or make any submissions. The appellant cannot now complain that the trial judge accepted uncontested evidence. The trial judge was entitled to do so in the circumstances, and we see no error in his decision.

[16] The appeal is dismissed.

“M. Tulloch J.A.”

“G. Pardu J.A.”

“A. Harvison Young J.A.”