Court File and Parties

Court of Appeal for Ontario Date: 2024-03-20 Docket: C68645

Fairburn A.C.J.O., Zarnett and Favreau JJ.A.

Between

His Majesty the King Respondent

and

Darcy Sheppard Appellant

Counsel: Paul Slansky, for the appellant Dena Bonnet, for the respondent

Heard and released orally: March 19, 2024

On appeal from the convictions entered by Justice R. Dan Cornell of the Superior Court of Justice, dated May 28, 2019.

Reasons for Decision

[1] The appellant pleaded guilty to second degree murder, indignity to human remains, and arson. The plea was accepted following a plea comprehension inquiry. Counsel advanced a joint submission of 17-years’ parole ineligibility, a submission that was accepted at sentencing. The appellant seeks to have his guilty plea set aside on the basis that he says that he was unaware of the consequences of his plea.

[2] The appellant gave an incriminating statement to the police, where he confessed to having murdered the deceased, cutting him up, and setting fire to his remains. After a contested voluntariness voir dire, the trial judge ruled the statement admissible. After this ruling, the appellant decided to plead guilty. The appellant maintains that when he made that decision, he did not understand that if he went to trial and was convicted, that he could appeal his conviction, including by challenging the voluntariness ruling.

[3] The appellant’s fresh evidence on this point is not reasonably capable of belief. Indeed, we find that it is untrue.

[4] The appellant’s trial lawyer contradicts the appellant on this point. In the trial lawyer’s fresh evidence on appeal, he recounts how, after the voluntariness ruling, he specifically explained to the appellant that if he went to trial and was convicted, then he could appeal. The appellant argues that his counsel lacks a reliable memory on this point, a position that is said to be supported by counsel’s lack of notes about the alleged discussion. We conclude that trial counsel’s recollection on this point is both credible and reliable.

[5] Counsel’s recollection accords with common sense. Both the appellant and trial counsel agree that the appellant inquired whether he could challenge the voluntariness ruling. Counsel’s recollection of how he responded to that inquiry is the only answer that makes legal and practical sense. Moreover, the written instructions that the appellant signed demonstrate his understanding of the finality of his decision to plead guilty.

[6] The fact is that with or without the police statement being found admissible, this was a formidable Crown case. By pleading guilty to second degree murder, the appellant was avoiding the near inevitability of a much higher period of parole ineligibility. This was a strategic call on the appellant’s part, one that was, in our view, voluntary, unequivocal, and informed.

[7] The appeal is dismissed.

“Fairburn A.C.J.O.”

“B. Zarnett J.A.”

“L. Favreau J.A.”