R. v. MacRobbie, 2015 ONSC 1246
COURT FILE: GUELPH 14-0278
DATE: 2015 02 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Brian MacRobbie
BEFORE: Justice Hill
COUNSEL: J. MacDonald, for the Respondent
D. Moore, for the Appellant
HEARD: November 13, 2014
ENDORSEMENT
[on appeal from conviction by
Douglas, J. on January 21, 2014]
HILL J.
[1] On January 21, 2014, the appellant, while represented by counsel, pled guilty in the summary conviction trial court to an “over .80” charge. He was sentenced to 15 days’ imprisonment and a 2-year driving prohibition.
[2] On appeal, the appellant seeks to have his plea of guilt set aside based upon an assertion of ineffective assistance of trial counsel, in particular a failure to advise as to the consequential penalties of such a plea and to discuss with the appellant pending relevant changes in the law. On appeal, the appellant filed his own affidavit in support of what transpired prior to his plea.
[3] The Crown did not exercise its right to cross-examine the appellant upon his submitted affidavit. The respondent’s factum conceded that the relief sought by the appellant, a setting aside of the guilty plea and an order for a new trial, ought to be ordered.
[4] On the date scheduled for the hearing of the appeal, the court declined to grant the order jointly sought by the parties in the absence of information from the appellant’s trial solicitor as to his position on the advice given his client prior to the guilty plea. In the circumstances, the appeal was adjourned.
[5] By a letter dated February 19, 2015, copied to respondent’s counsel, supplementary materials were filed including an affidavit from appellant’s trial counsel in which counsel deposes that he does not dispute the contents of the appellant’s affidavit.
[6] There is no requirement for a re-attendance for an oral hearing. The appeal is allowed. The guilty plea is set aside and a new trial is ordered before a differently constituted summary conviction trial court.
[7] It is expected that the parties will arrange, by mutual agreement, a date and courthouse location for the appellant to appear to set a new date for trial, failing which the Crown may apply for process to compel the appellant’s appearance.
Hill J.
DATE: February 25, 2015
CITATION: R. v. MacRobbie, 2015 ONSC 1246
COURT FILE: GUELPH 14-0278
DATE: 2015 0225
SUPERIOR COURT OF JUSTICE - ONTARIO
(Summary Conviction Appeal Court)
RE: R. v. BRIAN MACROBBIE
BEFORE:
COUNSEL: J. MacDonald, for the Respondent
D. Moore, for the Appellant
HEARD: November 13, 2014
ENDORSEMENT
[on appeal from conviction by
Douglas, J. on January 21, 2014]
Hill J.
DATE: February 25, 2015