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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 2023-01-23 Docket: C69040

MacPherson, Pardu and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Robert Francis Fox Appellant

Counsel: Howard L. Krongold, for the appellant Elena Middelkamp, for the respondent

Heard: January 12, 2023

On appeal from the convictions entered on June 7, 2017 by Justice Graeme Mew of the Superior Court of Justice.

Reasons for Decision

[1] On June 5, 2017, the appellant was tried before Mew J. of the Superior Court of Justice on one count of sexual assault and one count of sexual exploitation in relation to a 16-year-old complainant. At the time of the trial, the appellant resided with his partner and their four-year-old daughter.

[2] The court heard two days of evidence, including the complainant’s testimony. The trial was nearly finished.

[3] On June 7, 2017, following a mid-trial conference with a different judge, the appellant and his defence counsel had a discussion in the court parking lot. During this discussion, trial counsel advised the appellant that, if he were convicted of a sexual offence, it was likely that any contact between him and his child would be governed by the Children’s Aid Society. In addition, she told the appellant that, if his risk was clearly identified and he received targeted treatment, he was “far more likely to have some form of access with his daughter in a timely fashion at the completion of his sentence”.

[4] After this discussion, the appellant pleaded guilty to sexual assault. A sentence hearing was set for November 6, 2017, to allow time for a pre-sentence report and a sex offender risk assessment to be prepared.

[5] Between his conviction and the sentence hearing, the appellant came to regret his decision to plead guilty. The circumstances leading up to the guilty plea and, in particular, the discussion between the appellant and his trial lawyer in the courthouse parking lot, led to the appellant’s application to withdraw his guilty plea.

[6] The appellant was self-represented on his application. The main thrust of his complaint was that his plea was involuntary because he felt coerced by the threat that he would never see his four-year-old daughter again if he were convicted after trial. The appellant supported his application with an affidavit, on which he was cross-examined.

[7] The appellant’s trial counsel also gave evidence on the application. She acknowledged that the appellant was under a remarkable amount of stress, but said she gave him the choice about what to do. She denied telling the appellant that he would never see his daughter again unless he pleaded guilty.

[8] The trial judge dismissed the appellant’s application. He said:

[Defence counsel] is an experienced member of the criminal bar, whose account of the events leading up to Mr. Fox instructing her that he would plead guilty, I accept. I find that she raised with Mr. Fox appropriate factors for him to consider, including the effect that a guilty plea might have on Mr. Fox’s ability to see his daughter. He knew that his name would be recorded in the National Sex Offender Registry and that this would raise child protection concerns and the probable involvement of the Children’s Aid Society.

I see no reasonable basis for any conclusion other than that Mr. Fox’s guilty plea was voluntary.

[9] The appellant contends that his guilty plea was involuntary and should be set aside.

[10] The leading case dealing with the withdrawal of a guilty plea on the basis of involuntariness is R. v. Wong, 2018 SCC 25, wherein Moldaver, Gascon and Brown JJ. said, jointly, at paras. 3 and 4:

The plea resolution process is also central to the criminal justice system as a whole. The vast majority of criminal prosecutions are resolved through guilty pleas and society has a strong interest in their finality. Maintaining their finality is therefore important to ensuring the stability, integrity, and efficiency of the administration of justice. Conversely, the finality of a guilty plea also requires that such a plea be voluntary, unequivocal and informed. And to be informed, the accused “must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea” (R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519).

We agree with our colleague Wagner J. that for a plea to be informed, an accused must be aware of the criminal consequences of the plea as well as the legally relevant collateral consequences. A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused. [Emphasis added.]

[11] We agree with the appellant that he was improperly informed by his trial counsel about a vital collateral consequence of a criminal conviction for sexual assault on a minor.

[12] We begin with an important factual point. The appellant was charged, in 2014, with the sexual assault of a 16-year-old girl. At the time, he was living with his partner and their child, a four-year-old girl. In short, the complainant was a teenage girl who lived in the community; the daughter was four years old and lived with her parents.

[13] There is an obvious and significant difference between these two girls. Trial counsel recognized this difference. In her affidavit on the plea withdrawal application, she said:

I explained to Mr. Fox the difference between a hebephile (attracted to pubescent children) and a pedophile (attracted to pre-pubescent children).

She went on to further state:

I correlated all of that information [about the effect of a guilty plea and the need for, and content of, a pre-sentence report] to Mr. Fox's family situation. Mr. Fox has a very young child. If convicted of a sex offence it is likely that any contact between he and his child would be governed by the Children's Aid Society.

I explained to Mr. Fox that if his risk was clearly identified, if he received targeted and effective treatment and if the origins of his offending behaviour were known, he was far more likely to have some form of access with his daughter in a timely fashion at the completion of his sentence. [Emphasis added.]

[14] From the record, it is clear that this advice had an immediate and crucial effect on the appellant. In his affidavit on the plea withdrawal application, the appellant said:

[Trial counsel] reiterated that I will get convicted if I do not take this plea deal and that I will not be allowed near my daughter.

As a result of this conversation, I truly believed that, in order to be able to see my daughter again, my only option was to plead guilty to this offence.

[B]ased on the conversation I had with my lawyer, I did finally agree to plead guilty believing that it was the only way that I would be able to see my daughter.

[15] In our view, on the basis of the trial lawyer’s own description of her advice to her client in the mid-trial parking lot conversation, we have concerns about the content of that advice. On the basis of the court record, it appears that Family and Children’s Services of Lanark, Leeds and Grenville had contact with the Fox family only once in the three-year period between the charge (2014) and the conviction (2017). This was in 2014, shortly after the criminal charge relating to the 16-year-old complainant was made. Against this factual backdrop, coupled with the obvious substantial difference between a four-year-old daughter and a 16-year-old non-family member, the trial lawyer’s advice, at a moment of great stress for the appellant, strikes us as wrong and exaggerated.

[16] We are supported in this conclusion by the fresh evidence tendered by the appellant on this appeal. The fresh evidence is an affidavit prepared by a family and criminal lawyer who stated, in her affidavit, that “[b]etween 2010 and 2018, my practice was very much concentrated in the areas of family law and child protection, mostly acting as parents’ counsel”.

[17] To its credit, and relying on several leading cases, including R. v. Cherrington, 2018 ONCA 653, the Crown did not object to the admission of this affidavit as fresh evidence. Importantly, the trial judge did not have the benefit of this fresh evidence.

[18] In her affidavit, the lawyer stated:

It is my understanding that the complainant in the matter before the Court involved a youth who was 16 years old at the time of the incident in question. If the investigating officer felt that the young daughter of Mr. Fox was at risk of being sexually molested or sexually exploited, the officer would have had a duty pursuant to the Act to immediately report that risk to a children's aid society.

In fact, the Frontenac Children's Aid Society was involved with Mr. Fox and his family in 2014. It would appear that, having investigated, the Frontenac Children's Aid Society determined that there was no ongoing risk to Mr. Fox's daughter at that time.

Had Frontenac Children's Aid Society determined that there was an ongoing risk to Mr. Fox's daughter, it would not have waited to take action, up to and including initiating child protection proceedings pursuant to the Child and Family Services Act.

It is my experience that the Family Court and the child welfare system do not wait for the outcome of Criminal Court matters when it comes to the protection and best interests of children. The two systems operate in tandem, with different timelines and different burdens of proof.

It would appear that, in June of 2017, Mr. Fox had no ongoing involvement with any children's aid society, suggesting that the allegations in the Criminal Court proceeding had not raised significant concerns with respect to the wellbeing of his daughter. There was nothing to suggest that a finding of guilt in the Criminal Court proceeding, involving a 16-year old, would have subsequently caused that issue to be re-opened, absent new information pertinent to the child in his care.

[19] Notably, these statements are not challenged.

[20] Based on the record, legal submissions and, crucially, the fresh evidence admitted, the appeal is allowed, the appellant’s guilty plea is set aside, and a new trial is ordered. We note that the appellant served the sentence imposed prior to the appeal hearing. It will be for the Crown to determine whether, in those circumstances, the interests of justice require a new trial.

“J.C. MacPherson J.A.”

“G. Pardu J.A.

“S. Coroza J.A.”