Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241104 DOCKET: COA-23-CR-0671

Rouleau, Roberts and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Matthew Keizer Appellant

Counsel: John Scott Cowan, for the appellant David N. Tice, for the respondent

Heard: November 1, 2024

On appeal from the conviction entered and the sentence imposed on August 2, 2020 by Justice Robert Wadden of the Ontario Court of Justice.

Reasons for Decision

[1] In this appeal, the appellant seeks to strike his plea of guilty to one count of possession of a loaded restricted firearm on the basis that his plea was uninformed because of material non-disclosure.

[2] The circumstances surrounding the guilty plea are as follows. The appellant had planned on bringing a motion under the Canadian Charter of Rights and Freedoms to challenge the admissibility of evidence. When the parties appeared on the day set for the hearing of the appellant’s Charter motion, the trial Crown applied to adjourn the hearing due to the unavailability of the arresting police officer. The Crown indicated that the officer was unavailable because of a medical issue and that the officer’s evidence was necessary as he was involved in the vehicle stop that led to the discovery of the restricted firearm. The officer had dealt directly with the appellant during the traffic stop in which the firearm was found, and when the appellant was later arrested. It was after being informed of the Crown’s request for an adjournment that the guilty plea and a joint submission on sentence were negotiated.

[3] The appellant seeks to tender two affidavits as fresh evidence. That evidence shows that the unavailable officer was in fact not on medical leave but rather was facing outstanding charges of sexual assault and breach of trust at the time of the plea. Those charges were not disclosed to the defence.

[4] In the affidavits, the appellant asserts that he was unaware of the officer’s outstanding criminal charges at the time of his guilty plea and, had he known of them, he would not have pleaded guilty but instead would have instructed his lawyer to proceed with the Charter motion and trial. The appellant has further indicated that his trial lawyer was also unaware of the officer’s charges.

[5] The Crown concedes the admissibility of the fresh evidence. The Crown further acknowledges that the information about the charges against the officer was not disclosed and that this omission constitutes material non-disclosure because this information would have been probative to the issue of the officer’s credibility when testifying on the Charter motion.

[6] The Crown also concedes that the fact of the charges against the officer would likely have influenced the appellant’s decision to plead and that there is a reasonable possibility that, had the appellant known of the non-disclosed charges, he would not have entered the plea and would have run the risk of a trial.

[7] Accordingly, the Crown agrees that it is in the interests of justice that the appeal be allowed, the guilty plea set aside, and the matter remitted to the trial court.

[8] We accept the Crown’s concessions. As a result, we grant the application to file fresh evidence, allow the appeal, and order a new trial.

“ Paul Rouleau J.A. ” “L.B. Roberts J.A.” “ L. Favreau J.A. ”