Court File and Parties

Ontario Court of Justice

Date: 2014-05-27

Court File No.: Halton 12-1858

Between:

Her Majesty the Queen

— and —

Tracy Fleming

Before: Justice L.M. Baldwin

Heard on: March 10, 2014

Reasons for Judgment released on: May 27, 2014

Counsel:

• A. Khoorshed, counsel for the Crown
• The defendant Tracy Fleming, on her own behalf

BALDWIN J.:

[1] Introduction

This hearing to strike guilty pleas proceeded before me on March 10, 2014 marked pre-emptory on the Applicant. At the end of the hearing, I concluded that the Applicant had not met her onus and that the guilty pleas were valid.

The matter was adjourned to May 27, 2014 for delivery of these reserved reasons, for the Applicant to retain counsel, and for the imposition of sentence.

Background

[3] The victim, Iain Fleming (dob 19-Nov-1975) and the accused, Tracy Fleming (dob 2-Aug-1976) had been involved in a relationship for approximately fourteen years, and married for the past five years, at the time the charges were laid. They have two children together: Keigan (then aged 3) and Paisley (then aged 1).

The parties are currently in contested Family Court proceedings in the Superior Court of Justice concerning custody, access and support issues.

History of the Proceedings

[4] The matter has a very lengthy history before the Ontario Court of Justice.

On June 20, 2012, Ms. Fleming was charged with assault, assault with a weapon and a threat to cause death to the complainant Iain Fleming.

[5] She was held for a bail hearing and released on recognizance of bail, with surety, on June 21, 2012.

[6] On September 9, 2012, she was arrested on two counts of breaching her recognizance on the 30th day of July 2012 and the 8th day of September 2012, by contacting Iain Fleming.

[7] She was again held for a bail hearing and released on a recognizance dated September 10th, 2012, with her father as surety.

[8] On the trial date of January 29, 2013, the Applicant pled guilty to 3 of the 6 domestic charges (assault; utter death threat; and breach of recognizance) arising from incidents on the 20th day of June 2012 and the 30th day of July 2012.

[9] A Presentence Report was ordered and the matter was put over to April 30, 2013 for sentencing before Justice Brian Stead.

[10] On April 30, 2013, the Applicant appeared before Justice Brian Stead and indicated that she was considering bringing an Application to strike her guilty pleas and would be retaining counsel (Gina DaFonte).

[11] On July 10, 2013, Ms. Gina DaFonte appeared as counsel of record and stated that she would be bringing an Application to strike the guilty pleas. The matter was adjourned to August 28, 2013.

[12] On August 28, 2013, Ms. Fleming appeared. Ms. DaFonte did not. Ms. DaFonte sent a letter to the Crown stating that she was on a medical leave from August 21st until September 13th. The matter was adjourned to October 4, 2013.

[13] On October 4, 2013, Ms. DaFonte appeared but the Application had not been perfected. The matter was adjourned to January 28, 2014.

[14] On January 28, 2014, both Justice Stead and Ms. DaFonte were ill. The matter was adjourned again to February 4, 2014.

[15] On February 4, 2014, Ms. DaFonte did not attend. Ms. Fleming was present and she could not contact her. Duty counsel's efforts to contact Ms. DaFonte also failed.

[16] Almost 10 months later, on February 10, 2014, the Crown brought a motion before me, as the Local Administrative Judge, for an order compelling defence counsel to appear on the matter and for me to assume case management functions pursuant to s. 551.1 of the Criminal Code.

[17] The Crown's request was based on the following:

(1) the Applicant's motion material to strike the pleas had not been perfected;

(2) the failure of Ms. DaFonte to attend scheduled court dates;

(3) the fact that the Superior Court had adjourned the family proceedings to await the outcome of these criminal proceedings;

(4) the fact that the per diem judge who had received the pleas would reach his mandatory retirement date on March 19, 2014 and had very few sitting days left.

[18] I assumed case management functions with respect to this matter and ordered Ms. DaFonte to appear with Ms. Fleming on February 11, 2014 and respond to the Crown's motion.

[19] On February 11, 2014, Ms. Fleming and Ms. DaFonte were present. Ms. DaFonte was ordered to perfect the Application to strike the guilty pleas and the matter was marked for a pre-emptory hearing on March 10, 2014 with counsel again ordered to appear.

[20] In the written Application material, the Applicant alleges:

(1) that her pleas were not fully informed, voluntary or unequivocal;

(2) that she was not fully informed as to what her pleas were, what the joint submission proposed by the parties consisted of and what the consequences of a sentence of a conditional discharge were;

(3) that a plea inquiry was not conducted;

(4) that she believed that by pleading guilty she would no longer be subject to her bail conditions;

(5) that she maintains her innocence and wishes the matters to go to trial;

(6) ineffective assistance of counsel.

The Guilty Plea Process

[21] The guilty pleas were entered on the day scheduled for trial. Ms. Fleming was representing herself that day as she had throughout the proceedings. Mr. Darrel Hotz was present as he had been appointed s. 486.3 counsel on September 19, 2012 and again on January 25, 2013. Mr. Hotz's appointment was for the purposes of cross-examining the complainant at trial only.

s. 486.3 (1) In any proceedings against an accused, on application of the prosecutor or a witness who is under the age of eighteen years, the accused shall not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.

(2) In any proceedings against an accused, on application of the prosecutor or a witness, the accused shall not personally cross-examine the witness if the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.

(3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1 (3).

s. 486.1 (3) …the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant. (underlining added)

[22] A judicial pre-trial was held in this matter on December 7, 2012 before Her Honour Justice S. O'Connell. A 10-page judicial pre-trial form was completed by Her Honour and signed by Mr. Chiera for the Crown and Mr. Hotz as s. 486 counsel. These notes were filed as Exhibit #1 on this hearing. Ms. Fleming was present throughout and the proceedings took place on the record. It is clear from the JPT notes and the transcript of the proceedings that Ms. Fleming intended to represent herself at trial. She understood what Mr. Hotz's limited role at trial was.

[23] Ms. Fleming was also provided a 13-page document titled "Memorandum for the Accused Without Counsel" to assist her in understanding the trial process and how to prepare for her trial date. This document was filed as Exhibit #2 at this hearing.

[24] Exhibit #2, page 2, states that "the trial judge will provide you with information and reasonable assistance to understand the trial procedure that is either required or normally followed in this court…Do not hesitate to ask the judge for directions."

[25] The trial date of January 29, 2013 was confirmed.

[26] Justice Stead, a per diem judge at the time, was the trial judge.

[27] The transcript of the guilty plea is part of the Applicant's material in this matter.

The January 29, 2013 Guilty Pleas

[28] Mr. Hotz stated that he has been appointed as s. 486 counsel in the matter and that he has been providing some assistance to Ms. Fleming.

[29] Mr. Apel, for the Crown, stated that he understands that Ms. Fleming will be pleading guilty to one count of assault, one count of uttering threats and one count of breach of recognizance. "The request is that sentencing not occur today but a Presentence Report be ordered and then it go to a future date."

[30] On the record Mr. Apel and Mr. Hotz confirmed that s. 606 of the Criminal Code had been complied with.

s. 606(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused

(a) is making the plea voluntarily; and

(b) understands

(i) that the plea is admission of the essential elements of the offence,

(ii) the nature and consequences of the plea, and

(iii) that the court is not bound by any agreement made between the accused and the prosecutor.

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.

[31] Tracy Fleming was then arraigned on counts of assault and uttering a death threat as set out in the Information:

Tracy Fleming stands charged on or about the 20th day of June 2012, at the Town of Oakville in the said region did commit an assault on Iain Fleming contrary to section 266 of the Criminal Code, and further that Tracy Fleming on or about the 20th day of June, 2012, at the Town of Oakville in the said region did by verbal means knowingly utter a threat to Iain Fleming to cause death to Iain Fleming contrary to section 264.1(1)(a) of the Criminal Code. Crown has elected to proceed summarily. How do you plead to these two charges guilty or not guilty?

[32] Tracy Fleming replied "Guilty".

[33] Tracy Fleming was then arraigned on the breach of recognizance charge as set out in the Information:

On a separate Information, Tracy Fleming stands charged on or about the 30th day of July, 2012, at the Town of Oakville in the said region did being at large on her recognizance entered into before a justice, being bound to comply with a condition of the recognizance directed by said justice, fail without lawful excuse to comply with a condition to wit: no contact or communication directly or indirectly with Iain Fleming, contrary to section 145(3) of the Criminal Code. Crown has elected to proceed summarily. How do you plead to this charge guilty or not guilty?

[34] Tracy Fleming replied "Guilty". (pp. 2 and 3 of the Jan. 29/13 transcript)

[35] Mr. Apel then filed with the Court an agreed statement of fact/synopsis and stated that Ms. Fleming was in agreement with all the facts. Mr. Hotz confirmed that it had been reviewed by Ms. Fleming and "she is in substantial agreement with it". (Exhibit #1 on the guilty pleas – which is the Crown synopsis with respect to the 6 charges originally laid)

[36] His Honour registered findings of guilt on counts # 1 and #4 on the June 20th, 2012 Information and count #1 on the second Information.

[37] The facts set out in the synopsis filed as Exhibit #1 on the pleas read as follows:

On June 20, 2012, at approximately 3:00 am, the victim was asleep in his home. The accused came upstairs and woke the victim. A verbal argument ensued between the two parties. It escalated when the accused slapped the victim on his face twice. The victim got up to leave the room. The accused followed him to the doorway and struck him again with an open hand on the back of his head multiple times… On June 20, 2012 the victim came home from work at approximately 6 pm. A verbal argument ensued with the accused. The accused stated to the victim 'I want you dead. I will kill you in your sleep'…Halton Regional Police Constable Tansley and Sergeant Craig attended in the response to a 911 call placed by the victim. The accused was arrested for assault. When placed in the cruiser, the accused repeatedly banged her head on the cruiser partition, causing a large lump to her forehead. The accused was transported to Oakville Trafalgar Memorial Hospital and treated for the self-inflicted injury. Following the release from hospital, the accused was transported to 20 division…The accused was held pending a bail hearing…On June 21st, 2012, the accused entered into recognizance of bail before a Justice in the Provincial Court of Justice in Milton. The recognizance of bail directed Tracy Fleming to comply with numerous conditions including item number 2: no contact directly or indirectly with Iain Fleming. On September 9th, 2012 (Iain Fleming) advised that on July 30th, 2012 the accused contacted him on his cell phone at approximately 23:30 hours while he was sleeping. The victim stated that accused wanted to know where their relationship stood. Victim admitted that at the time he thought that it was as fair question of her to ask. However the conversation soon became unpleasant when the accused denied hitting him in front of the children. Victim did not contact police at that time hoping to keep things amicable between him and the accused for the sake of the children….On September 9th, 2012…the accused was arrested…She was lodged pending a bail hearing on September 10th, 2012.

[38] A joint request was made for a Presentence Report. The matter was adjourned to April 30, 2013 for sentence.

[39] Mr. Apel stated that with regard to sentencing:

I can advise Your Honour right now that the accused does not have a criminal record. I anticipate the issue is going to be whether she receives a conditional discharge or not. It's the Crown's position that if a Presentence Report is positive and she undertakes some counselling between now and then that there may very well be a joint submission for a conditional discharge. A Victim Impact Statement will also be provided on the return date.

[40] On April 30, 2013, the matter returned. At that time a Presentence Report had been prepared and was filed as an Exhibit. It shows that Ms. Fleming does have a criminal record: 1999-12-06 (Milton) Fraud X2 – Suspended Sentence and probation 36 months; 2002-03-25 (Milton) Fail to Comply with Probation Order - $200.00 fine.

[41] A Victim Impact Statement prepared by Iain Fleming was filed as an Exhibit.

[42] The matter was then adjourned numerous times for the purposes of hearing the Application to strike the guilty pleas.

Proceeding on March 10, 2014

[43] On March 10, 2014, Gina DaFonte failed to attend for the hearing contrary to the court order I made compelling her attendance on February 11, 2014. I removed Ms. DaFonte as counsel of record. (Ms. DaFonte's failure to attend is the subject of a separate proceeding).

[44] The hearing of this motion, marked pre-emptory on Ms. Fleming to proceed, commenced in the early afternoon and was completed by 4:30 pm. During the course of the hearing, Ms. Fleming was cross-examined on the affidavit filed in her motions material; her father, Mr. Gilbert Mellon, was cross-examined on his affidavit filed in the motions material; Mr. Darrel Hotz, who had been subpoenaed to attend court that day, was called by the Crown; Ms. Fleming's family law lawyer unexpectedly attended court during the course of the hearing and she requested to give testimony in the matter.

Summary of the Testimony of Tracy Fleming

[45] Ms. Fleming agreed that she was representing herself at all times.

[46] Ms. Fleming agreed that she understood all along that she had a right to a trial.

[47] Ms. Fleming agreed that she had disclosure and that she had read it.

[48] Ms. Fleming was shown Exhibit #1 on her guilty pleas and she agreed that she knew what the allegations against her were.

[49] Ms. Fleming understood that January 29, 2013 was her trial date.

[50] Ms. Fleming stated, "I didn't plead guilty to anything. Darrel (Mr. Hotz) advised me that the Crown Attorney never gives this kind of deal, it was a conditional discharge or something he said, and they had it in writing and that it would be the best thing for me to do because it would just all go away just to plead guilty." (p. 13) "I was giving up my right to a trial because of what Mr. Hotz had informed me that would save a lot of time and everything and there wouldn't be any repercussions and that it would basically just go away." (pp. 15, 32)

[51] Ms. Fleming stated that she did not know what she was pleading to. She was under stress. (pp. 15, 21, 22) Today she does not agree to anything in the synopsis. (p. 23)

[52] Ms. Fleming agreed that she met with Mr. Hotz both at the judicial pre-trial and the morning before she entered her guilty pleas.

[53] Mr. Hotz told her that a conditional discharge meant she would not have a criminal record. (p. 28)

[54] Ms. Fleming subsequently came to believe that the criminal proceedings would affect the matters in Family Court. (p. 28)

[55] I asked Ms. Fleming questions with respect to her participation at the judicial pre-trial. (pp. 33, 34) Ms. Fleming agreed that she participated in the process, understood what she was charged with, and was provided with the memorandum to assist her in preparing for trial.

Summary of the Testimony of Gilbert Mellon

[56] Mr. Mellon is Tracy Fleming's father. He is the surety on her bail and he supervises her access to the children. Ms. Fleming lives with her mother and father as required by her bail. Her father has driven her to every court appearance.

[57] Mr. Mellon agreed that at some point he read the synopsis of the charges his daughter was facing in these matters.

[58] He was present when Mr. Hotz spoke to his daughter before she entered the guilty pleas. (p. 46) It was a long discussion and he did not listen to the whole thing. It was for his daughter to take it all in. (p. 47)

[59] Mr. Mellon testified that the only reason his daughter pled guilty was because Mr. Hotz said that there would be no negative outcome. (p. 47)

[60] Despite the fact that he was not present for the alleged assaults, Mr. Mellon maintains that his daughter is "not guilty" of the offences, "because she's my daughter". (pp. 42, 44) He hasn't really discussed what happened with her and he doesn't know what actually happened. (p. 57, 58)

[61] Mr. Mellon does not know if his daughter has had problems abusing alcohol and drugs. (p. 45) He does not know if she has any mental health problems.

[62] Mr. Mellon testified that he does not know why he has to supervise his daughter's access to the children. (p. 52)

[63] Mr. Mellon testified that he did not know what Mr. Hotz's role was in the matter. (p. 65)

[64] Mr. Mellon did not know about counselling that the CAS has recommended for his daughter. (p. 65)

[65] Mr. Mellon does not know why his daughter is not employed. (p. 66)

Summary of the Testimony of Darrel Hotz

[66] Mr. Hotz is a lawyer with a private practice in Halton.

[67] He was appointed 486 counsel in the Fleming case and had obtained disclosure to prepare for the cross-examination of the complainant at trial.

[68] He was present with Ms. Fleming at the judicial pre-trial and again on the date set for trial.

[69] Ms. Fleming was aware of the allegations. She had received the synopsis and disclosure prior to the pre-trial.

[70] Mr. Hotz testified that he took Ms. Fleming through s. 606 before she entered her guilty pleas on the day of trial. That discussion included the following:

(1) by pleading guilty, she was giving up her right to a trial and her right to assert a defence;

(2) she was voluntarily acknowledging the veracity of the allegations;

(3) the final say as to sentence was up to the judge, despite a joint submission as to sentence. (p. 69)

[71] The Crown was prepared to take a plea to 3 of the 6 charges laid and this was discussed with Ms. Fleming at the judicial pre-trial and before the guilty pleas were entered.

[72] Mr. Hotz testified that he may have told Ms. Fleming that her guilty plea would have no impact as far as the custodial issues were concerned in family court. "And I advised her that once the matter was finally disposed of, the bail provisions would no longer be in effect, she would then be subject to probationary terms which may or may not mirror the surety. But that to a large extent could be disposed of by way of the family court decision down the road." (p. 70)

Summary of the Testimony of Vivian Rerri

[73] Ms. Rerri stated that she was the one who had referred Ms. Fleming to Ms. DaFonte for representation in this proceeding to strike her guilty pleas. Ms. DaFonte previously rented office space from her. Ms. Rerri stated that she has been trying to reach Ms. DaFonte today and she has been unable to.

[74] Ms. Rerri testified that sometime after January 29, 2013, she had a meeting with Ms. Fleming respecting her family law matters. During the course of that meeting Ms. Fleming advised her that the criminal case was over. She was given a conditional discharge and she had pleaded to "nothing". (p. 72)

[75] Ms. Rerri explained to Ms. Fleming that it was not possible to be sentenced without there being a finding of guilt. Ms. Fleming told her that she had a lawyer at the time of the plea and gave Mr. Hotz's name as her lawyer.

[76] Ms. Rerri called Mr. Hotz and spoke to him. Then she referred Ms. Fleming to Ms. DaFonte to represent her on an application to have the guilty pleas struck. (p. 73)

[77] Ms. Rerri testified that Ms. Fleming has always maintained her innocence to her. (p. 73)

[78] In cross-examination, Ms. Rerri testified that she made a "snap decision" to come to court today to testify after learning from Ms. Fleming that Ms. DaFonte had not shown up.

[79] In re-examination, Ms. Rerri testified that Ms. Fleming's pleas in the criminal case will have no significant bearing in the family court case. (p. 93)

Legal Principles

[80] To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must be informed, that is, that the accused must be aware of the nature of the allegations against her, the effect of her plea, and the consequences of her plea.

[81] A guilty plea entered in open court, particularly on a trial date, with the assistance of counsel, is presumed to be valid.

[82] The Applicant bears the onus of proving that there is a real doubt that the pleas were not valid.

[83] Cases that inform the issue include: R. v. Meade, [2005] O.J. No. 1007 (OCA); R. v. Eastmond, [2001] O.J. No. 4353 (OCA); R. v. Moser, [2002] O.J. No. 552 (Ont. SCJ).

Findings of Fact

[84] I accept as accurate, reliable and true the evidence of Mr. Hotz that he had taken Ms. Fleming through the comprehensive plea inquiry set out in s. 606.1 of the Criminal Code. His evidence on this Application is consistent with the transcript of proceedings dated January 29, 2013.

[85] It is significant to note that this was not an early plea entered by an accused with little experience with the court system.

[86] Ms. Fleming had appeared 9 times on the first Information before the Court before her pleas were entered on January 29, 2013. (June 21/12; July 20/12; Aug. 17/12; Sept. 10/12; Sept. 19/12; Oct. 3/12; Oct. 10/12; Dec. 7/12).

[87] Ms. Fleming had appeared 8 times (3 additional dates) on the second Information before the Court before her pleas were entered on January 29, 2013. (Sept.10/12; Sept. 19/12; Oct. 3/12; Oct. 10/12; Dec. 7/12; Jan. 4/13; January 18/13; January 25/13).

[88] These guilty pleas were entered on a date set for trial, after a very thorough judicial pre-trial had been earlier held. The Crown witnesses were present.

[89] Ms. Fleming has been before the criminal courts twice in the past as indicated by her criminal record for fraud and breach of probation.

[90] Ms. Fleming has testified at this hearing that she was aware at all times that she was representing herself; she understood all along that she had a right to a trial; she had full disclosure and she had read it and the synopsis filed as Exhibit #1 on her guilty pleas; the pre-trial judge gave her a memorandum to assist her to prepare for trial; she was aware that a conditional discharge would mean she would not have a criminal record (which of course ignores the fact that she does already have a criminal record, which came to light for the first time in the Presentence Report).

[91] There was no evidence at this hearing that Ms. Fleming was forced or coerced into pleading guilty. Her evidence was that she was stressed. Many accused persons who admit their guilt in the formality of a public courtroom are stressed. There was nothing unusual in this case that would elevate Ms. Fleming's stress to a degree where I am concerned that she was not aware of what was happening in court on January 29, 2013.

[92] At this hearing Ms. Fleming testified that she thought that Mr. Hotz was her lawyer for trial. That is simply not the case and Ms. Fleming, who at all times was representing herself, was fortunate indeed to have the friend-of-the-court (amicus) assistance of Mr. Hotz before she chose to enter guilty pleas. Mr. Hotz did not have to provide this assistance as court appointed 486 counsel. The written submissions alleging ineffective assistance of counsel are completely devoid of merit in this matter.

[93] I completely reject Ms. Fleming's evidence that she thought she had pled guilty to "nothing". This testimony defies all common sense.

[94] I reject her self-serving statements later made to family law counsel, that everything was over and she was given a conditional discharge. The matter had not yet returned for sentencing. Ms. Fleming knew that. She was in the process of being interviewed by the probation office for the preparation of a Presentence Report.

[95] I find as a fact that after the guilty pleas were entered, Ms. Fleming started to worry about the implications that these events could have in the family proceedings. That is why Ms. Fleming started to change her mind about how she had proceeded in the criminal court. In order to do that, she tried to blame Mr. Hotz for inducing her to enter guilty pleas. I have already rejected that contention.

[96] The testimony of Ms. Fleming's father did not advance the merits of this Application. Ms. Mellon does not seem to really know what is going on with his daughter.

[97] The evidence of Ms. Rerri also does not advance the merits of this Application. Self-serving statements made to counsel in preparation for the family law case do not assist me with respect to what happened in the criminal court on January 29, 2013.

[98] Justice Stead did not conduct an independent inquiry pursuant to s. 606(1) of the Criminal Code before he accepted the pleas and registered findings of guilt. Although it would have been the best practice to do so, he was not required to pursuant to s. 606(1.2).

[99] The record is clear that s. 606(1) had been complied with, the synopsis was acknowledged in its entirety and there would be a joint submission for a conditional discharge based on the contents of a Presentence Report for the Court's consideration.

[100] I have taken into consideration the fact that after the 3 guilty pleas were entered, Mr. Hotz speaking for Ms. Fleming stated that the facts set out in Exhibit #1 are "substantially correct." It would have been best practice for Justice Stead to clarify what, if anything, was not being agreed to as correct.

[101] Accordingly, I will take the 3 guilty pleas to be an acknowledgement of the truth of the essential elements of those offences only. The allegations set out in the synopsis pertaining to the 3 charges the Crown did not proceed on will not be considered as aggravating factors on sentence. (Reference R. v. Tran, 2010 ONCA 471)

[102] The record is also clear that Ms. Fleming at no time voiced any concern about the proceeding on January 29, 2013. She asked no questions of the Court, knowing in advance that she was entitled to do so.

Decision

[103] For these reasons the guilty pleas entered on January 29, 2013 are found to be valid in law and the matter will proceed to sentencing.

Released: May 27, 2014

Signed: "Justice L.M. BALDWIN"