Court File No. CR-17-00000154-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ryan gomboc
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE M.K. FUERST
on June 11, 2018 at BARRIE, Ontario
APPEARANCES:
A. Jodouin Public Prosecution Service of Canada
K. Hetherington Counsel for R. Gomboc
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESSES
Examination in-Chief
Cross- Examination
Re- Examination
GOMBOC, Ryan 17 22
By the Court 19
E X H I B I T S
EXHIBIT NUMBER
ENTERED ON PAGE
1 Affidavit of Ryan Gomboc 11
2 Application record 12
Reasons for Ruling ...................................... 27
Legend [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered: ....................... April 12, 2019
Transcript Completed: ..................... April 21, 2019
Sent for Judicial Review: ................. April 15, 2019
Ordering Party Notified: .................. April 21, 2019
MONDAY, JUNE 11, 2018
THE COURT: Good morning.
MS. JODOUIN: Good morning, Your Honour.
MR. HETHERINGTON: Morning, Your Honour.
MS. JODOUIN: Good morning, Your Honour. It's Jodouin, for the Federal Crown.
THE COURT: Pardon me? I'm sorry, I just didn't hear.
MS. JODOUIN: I said, good morning, Your Honour. It's Jodouin, initial A, for the Federal Crown.
THE COURT: Thank you.
MS. JODOUIN: We're here on Mr. Gomboc's [indiscernible] application to strike his guilty plea. I have reviewed the application. The Crown disputes any allegation by my friend that there was any Crown misconduct at all in the matter....
THE COURT: Well, before we go any further, I don't have a proper application in front of me. I have materials that contain an unsworn affidavit, so I don't know what materials you're referring to.
MS. JODOUIN: To -- yes, the material that was filed. The affidavit was unsworn. But based on material that was filed and the history of the -- of the guilty plea proceeding, I indicated to my friend that the Crown's going to be consenting to the application to strike the plea.
THE COURT: Well, that may be the case, but I'm the person who has to be satisfied.
MS. JODOUIN: Yes.
THE COURT: And at the moment, I have an unsworn affidavit in front of me, which is not a proper application. So, that's all I'm pointing out, as a starting point before we go any further.
MR. HETHERINGTON: Yes, so, Your Honour, good morning. It's Hetherington, initial K. These conversations between Ms. Jodouin and myself occurred very shortly after the last appearance. It became clear that the Crown was going to consent to the striking of the plea application. I didn't have Mr. Gomboc at that point draft another affidavit, which I would have done, had I thought this was going to be a contested hearing.
THE COURT: Well, this is not just the kind of case where you stand up and say, the Crown's consenting, judge, rubber stamp it. So, it's your application. I don't think that I need to say more, than that there needs to be a proper application in front of me, and all I'm pointing out is, at the moment there is not, because the affidavit is essentially a draft...
MR. HETHERINGTON: It is.
THE COURT: ...since it hasn't been sworn.
MR. HETHERINGTON: That's correct. I'm in a position right now, Mr. Gomboc's here, to draft an affidavit that can be sworn by him. I don't think that will take much time to complete the application. That's -- that's all I can offer to the courts at this -- this moment, Your Honour.
THE COURT: It's your application. I'm not telling to you do or not to do. It's your application. You'll proceed as you think best. But at the end of the day, Crown consent or no Crown consent, I have to be satisfied as a judge that the application should be granted, and I can't deal with an application that has, in support, essentially nothing, because an unsworn affidavit, as you know, is a nothing.
MR. HETHERINGTON: Well, that's fine. So, if we could hold the matter down and I'll -- and I'll get an affidavit sworn by Mr. Gomboc right now.
THE COURT: I would have thought it's just a matter of swearing the one that's in the material. Again, I'm not trying to interfere, but all I'm pointing out is, you provided one...
MR. HETHERINGTON: Correct.
THE COURT: ...that was unsworn. My understanding, from the last date, was that...
MR. HETHERINGTON: And so, there's....
THE COURT: ...on this occasion there would....
MR. HETHERINGTON: He's -- sorry, Your Honour, I don't mean to interject.
THE COURT: My understanding was that on today's occasion, that affidavit would be before me as a sworn affidavit.
MR. HETHERINGTON: There was materials that I went through with Mr. Gomboc that morning in the affidavit, and he wasn't comfortable with signing even though we had spoken about it over the phone and drafted it together. So, I'm not comfortable and I certainly don't think he's comfortable with signing that particular affidavit you have in front of you. I'm happy to draft one right now, and have him sign it and swear it in front of me. It just can't be that particular one, for perhaps the reasons that will affect this matter going forward.
THE COURT: And again, I'm not sure how -- because I don't know the basis of the Crown's consent, but I don't know how the Crown can consent on the basis of an unsworn draft affidavit.
MS. JODOUIN: Looking at the material and the history of the case in its totality, the Crown believes that it's in the public interest to strike the plea and move the matter forward. But assuming....
THE COURT: But I'm raising with you, it's your friend's application. He has to file materials...
MS. JODOUIN: Yes.
THE COURT: ...in support. I don't understand how the Crown can determine to consent on the basis of an unsworn affidavit.
MS. JODOUIN: Talking to my friend, he indicated that he was going to file a modified version of the -- it's substantially the same. The Crown assess case at -- taking my friend's word that he's relying on these facts.
THE COURT: Okay, but there are no facts, is what I'm trying to say, until there's....
MS. JODOUIN: Correct, correct. I understood my friend was going to file a signed copy. He chose not to, but in discussing with my friend, he indicated that he was going to file a sworn copy, and the Crown assessed the application based on the facts that were presented, assuming they are sworn.
THE COURT: All right. But, so that's what I'm saying. I'm not trying to tell you how to do your job, but there has to be proper materials. If you want to consent based on improper materials that are essentially a nothing, because nothing is before me either through viva voce evidence or a sworn affidavit, that's for you to determine.
MS. JODOUIN: Yes.
THE COURT: I have some difficulty understanding how a Crown counsel can do that. That's all I'm saying.
MS. JODOUIN: Based on the transcripts of the guilty plea and the history of the proceeding.
THE COURT: Based on the transcripts -- I'm sorry, I thought I heard you say that you were relying on facts that your friend had put forward in the draft affidavit?
MS. JODOUIN: Put in the affidavit, and also the transcripts of the guilty plea so far, the -- preceding today.
THE COURT: Well, I'm sorry but....
MS. JODOUIN: The issues -- the issues with the pre-sentence report and the issues with the matter in which the hearing proceeded to date, and Your Honour has invited Mr. Gomboc to strike his plea and proceed in that fashion.
THE COURT: But on reflection, he doesn't have to strike his plea.
MS. JODOUIN: No, correct. It is his choice.
THE COURT: He can proceed -- he can proceed. There was -- there's no credibility issues based on the facts that were read in. He can proceed on the sentencing portion before a different judge.
MS. JODOUIN: Yes, Your Honour, and I had -- I had extensive conversation with my friend that I believe all -- any of the issues that are raised can be remedied. They are not fatal. And we discussed that, and I urged him on different options and possibility to complete this matter and get it done, but Mr. Gomboc does not want to avail himself of those options. And he's indicating that delay is not an issue before....
THE COURT: Well, then if -- I'm sorry, you're not his counsel, but if the request is to strike the guilty plea, then this needs to proceed as a proper application. I set the entire day aside for that purpose, expecting that there would be proper materials filed, and we could do what we need to do. There have been some -- on the basis of the draft materials, some fairly serious allegations made. Maybe they're just draft and they're never going to come to mean anything. But I am not going to hear this matter absent a proper record. So....
MR. HETHERINGTON: And Your Honour, that can be remedied in just a few minutes.
THE COURT: That's fine.
MR. HETHERINGTON: If you give me a few minutes with Mr. Gomboc, and my friend can correct me if I'm wrong, but the consent seems to be in relation to the argument of the apprehension of -- a reasonable apprehension of bias. Is that correct?
MS. JODOUIN: Yes, that is correct.
MR. HETHERINGTON: Okay. So, if that -- that is the case, those materials can be drafted in moments with Mr. Gomboc sworn, signed.
THE COURT: All right. But I'm just pointing out to you...
MR. HETHERINGTON: Yes.
THE COURT: ...that that does not give rise, necessarily, to a remedy that involves the striking of a plea. It may give rise to a remedy that is, go before another judge based on the transcript of the guilty plea and have fresh sentencing proceedings. So, you'd best think this through.
MR. HETHERINGTON: Well, I believe in some of the materials I've provided, at least in some of the case law I'm relying on, that was one of the remedies, is once the plea is struck, you start fresh.
THE COURT: If I strike the plea.
MR. HETHERINGTON: If you strike the plea.
THE COURT: But I'm pointing out to you, I may choose not to strike the plea. It's my discretion. I'm not saying what I'm going to do at this stage, because I keep emphasizing, the application before me isn't a proper and complete application.
MR. HETHERINGTON: Certainly.
THE COURT: So, I've -- and I haven't heard submissions. So, my mind is completely open. I simply point out to you that it is not a foregone conclusion that the plea is struck just because there's a problem with things like pre-sentence reports and so on. This....
MR. HETHERINGTON: I agree.
THE COURT: So, I think you'd best be clear as to what option you're seeking. If the option you're seeking is to strike the plea, then there is potentially more involved. That's all I'm trying, in fairness to you, to point out. Just like in fairness to Mr. Gomboc, I raised, on a previous occasion, that there was a possibility that another judge could take the proceedings. It's a matter of fairness.
MR. HETHERINGTON: Okay. If I could take a few moments with my client, and draft what I think will, well, with him, draft materials that would complete the application before Your Honour.
THE COURT: Okay. But I'm trying to point out to you that just because there's a problem with material being put forward on the sentencing hearing, that doesn't translate to striking the guilty plea. So, I want to be very, very clear about that in terms of what you're going to put forward.
MR. HETHERINGTON: Certainly, and that wasn't -- I don't think the argument that was put forward is that this is based on the pre-sentence reports. Your Honour, I think the argument being made is that it was based on comments made after those pre-sentence reports were received, regardless of what was in them. It was comments that were made, by Your Honour, that he advised there was reasonable apprehension of bias with Mr. Gomboc.
THE COURT: Right. And I'll simply say that's unfortunate, because my only intention all along has to try to be fair to him. But my point, and again, I emphasize it is, the remedy -- if you want to seek a striking of the guilty plea then you have to meet the preconditions that have been set out in the case law for that.
MR. HETHERINGTON: Correct.
THE COURT: So, it's not just a matter of saying, "Oh, Your Honour said this in the transcript and now I have a reasonable apprehension of bias". I'm just trying to be very fair with you, because I don't want us to lose the benefit of the day that's been set aside to deal with this.
MR. HETHERINGTON: Right.
THE COURT: So, if the concern is that the guilty plea was entered on a basis that does not meet the requirements, then that has to be addressed through evidence.
MR. HETHERINGTON: Agreed.
THE COURT: But there's no reasonable apprehension of bias, absent -- absent any problems of that sort, I don't see how the fact that Mr. Gomboc entered a guilty plea based on facts that were read into the record, creates a reasonable apprehension of bias. The concern you raise about a reasonable apprehension of bias has to do with the pre-sentence reports and so on.
MR. HETHERINGTON: That's a facet of it, but I think it has to do with comments that were made, moreso than anything. It came back multiple times to -- with an intention to move ahead. The pre-sentence reports didn't stop that from happening, even the first time when it wasn't appropriate. But it was comments that were made that then lead to these concerns about fairness or bias, which then led Mr. Gomboc to reach out to get counsel. And then a whole other world of issues came up.
THE COURT: Well, all I'm saying is, you're talking about two very different things here.
MR. HETHERINGTON: Yes.
THE COURT: Striking a guilty plea is an application. You've got -- you've got the case law. You know what's involved. But an allegation of reasonable apprehension of bias is similarly a very serious allegation to make. So, you best take some time with Mr. Gomboc and make sure that you have proper materials to put forward, because to reiterate, what is before me at the moment is an unsworn affidavit, and I can't do anything based on an unsworn affidavit. But you're riding two different horses here, and there may well be different legal components for each of those arguments. So, if you're abandoning one and going in favour of the other, that's fine, but the two may not be mixable, is all I'm trying to point out to you.
MR. HETHERINGTON: Very well, thank you.
THE COURT: If the guilty plea meets the preconditions in the case law for a guilty plea, then it doesn’t necessarily have to be struck in order for the sentencing proceedings to continue.
MR. HETHERINGTON: I understand.
THE COURT: So, how long do you need?
MR. HETHERINGTON: I'd ask for half an hour?
THE COURT: That's fine. So, we'll plan to come back at 9:45?
MR. HETHERINGTON: Thank you, Your Honour.
THE COURT: All right, thank you.
R E C E S S
U P O N R E S U M I N G:
THE COURT: Good morning again.
MR. HETHERINGTON: Thank you for that, Your Honour. My apologies, I was having some printing issues in the library.
THE COURT: No, no, that's fine.
MR. HETHERINGTON: So, I do have a copy of a signed affidavit, some slight changes from the one in the materials filed.
THE COURT: Yes.
MR. HETHERINGTON: I provided my friend with a copy, one for Your Honour.
THE COURT: All right, thank you. So, I'll just take a moment and read it, and then we'll mark it as a stand-alone exhibit, I presume?
MR. HETHERINGTON: Yes.
THE COURT: All right. So, thank you for the affidavit. We'll mark that as Exhibit 1, then, if you're agreeable, on the proceedings today?
MS. JODOUIN: Yes.
EXHIBIT NUMBER 1: Affidavit of Ryan Gomboc - produced and marked.
THE COURT: So, I'll just give that to you, Madam Registrar, to mark, and then you can return it to me. And maybe -- there's in fact an application record, so I'm wondering if we should maybe mark that application record as well?
MR. HETHERINGTON: Yes.
THE COURT: I know it's got the unsworn version of the affidavit. I don't know if you want that removed, if you want to leave it in as-is?
MS. JODOUIN: You should remove it.
MR. HETHERINGTON: Preferably removed, yes.
THE COURT: Sorry?
MR. HETHERINGTON: Removed, I think, is the best course of action, Your Honour.
THE COURT: Remove it? All right. So, if you don't mind, then, I will just take it out of Tab 3 and pass it back to you.
MR. HETHERINGTON: Yes, thank you very much.
THE COURT: All right. So, that can go back, please, to Mr. Hetherington. And we'll mark the application record, please, as Exhibit 2.
EXHIBIT NUMBER 2: Application record - produced and marked.
CLERK REGISTRAR: [Indiscernible].
THE COURT: Yes. So, then based on the affidavit, the now sworn affidavit, I just want to make this observation for the record. Mr. Gomboc is clearly seeking to strike his guilty plea on the basis that it was not voluntary.
MR. HETHERINGTON: That's correct, Your Honour.
THE COURT: And I don't know if Crown counsel is prepared to accept what's in here at face value on that point or not. I'm simply asking because if, for example, there's a request to hear from Mr. Wilcox, it seems to me that certain allegations have been made against him. Counsel may or may not wish to hear from him on the record.
MS. JODOUIN: The Crown does not seek to hear from him. The Crown accepts the affidavit.
THE COURT: All right. My next question is, there was a plea inquiry, of course, conducted by me, and voluntariness was one of the issues canvassed. That's not addressed in the affidavit. Again, I'm not trying to find fault, but I think it's important that matters be very clear. I am concerned about that matter, as the judge who conducted the plea inquiry. Questions were asked, answers were given, that would seem to be at odds with the affidavit. So, over to you, Mr. Hetherington.
MR. HETHERINGTON: Yes, I don't agree with that, Your Honour. I think Your Honour was thorough and asked the appropriate questions, but in terms of him being fully informed when he was making his plea, that's the argument here, and that had nothing to do with Your Honour, for example, asking him, "Are you aware of the defences available to you come trial?" That's the issue that Mr. Gomboc's raising, and it's an issue that he was only led to after concerns at the second round of sentencing, he reached out to other counsel, and other counsel tells him this. That's the uninformed part that makes it involuntary, in our respectful submission. Not in relation to you actually going through the plea inquiry on the record.
THE COURT: No, no, but informed and voluntary are two separate things, in a sense.
MR. HETHERINGTON: Okay.
THE COURT: If you look back at the case law such as T. (R.). So, that's why I'm trying to be very clear about what the basis for the request to strike the plea is, and that's why I suggested it was the voluntariness issue. What you're telling me is that it's the informed issue.
MR. HETHERINGTON: Well, and the position that the defence is taking, Your Honour, was that it wasn't voluntary because it wasn't informed.
THE COURT: All right. Well, before we go any further, then, I would just like to hear from Mr. Gomboc on that narrow point, about his answers to the questions that he was asked in court at the time of the plea inquiry. Again, I do that because I think it's very important. Judges are told by statute to conduct the plea inquiry, and we operate based on the answers that we get at that time.
MR. HETHERINGTON: Of course.
THE COURT: So, I leave it to you.
MR. HETHERINGTON: Sorry, you want....
THE COURT: Well, I think I have to ask you to address that through some viva voce evidence, then.
MR. HETHERINGTON: Okay. Certainly, I can do that.
THE COURT: Just, again, so that the record down the road is crystal clear.
MR. HETHERINGTON: That's absolutely fine. Again, I would ask for a brief adjournment. Mr. Gomboc certainly -- I don't think was anticipating going on the stand today. And I just need five minutes at this point, Your Honour.
THE COURT: Sure.
MR. HETHERINGTON: Just to let him know what it is that you're asking, and to make sure that he's aware of what's about to happen.
THE COURT: Of course.
MR. HETHERINGTON: So, I'd ask for a brief, brief recess right now.
THE COURT: That's fine. And that's all I'm interested in, is...
MR. HETHERINGTON: Certainly.
THE COURT: ...the questions that were asked at the time of the plea inquiry.
MR. HETHERINGTON: Yes.
THE COURT: And the answers that were given.
MR. HETHERINGTON: Of course.
THE COURT: And my next question is this, in the event the guilty plea is struck, what is the position about Jordan?
MR. HETHERINGTON: There's -- pursuant to discussions with my friend and instructions from Mr. Gomboc, there's going to be an express waiver of 11(b), should it be granted, from the date of the plea to a trial date in the future. We came here ready to set JPT today. That will be addressed formally on the record, should it be granted.
THE COURT: Well, we can hold the pre-trial today, to move things along, or set a target trial date at least. I am concerned about the passage of time. That's the only reason I make that suggestion.
MR. HETHERINGTON: Certainly. I can understand that. I can indicate to Your Honour, it's not me who's looking to be counsel for trial.
THE COURT: Right.
MR. HETHERINGTON: It's Ms. Goldlist. She's provided me with some dates, dates that my friend and I have canvassed with the trial coordinator. I understand Your Honour's concern. I think it's Mr. Gomboc's concern too.
THE COURT: Right.
MR. HETHERINGTON: It's been going on for forever. I'm not in a position to make any sort of estimates today in terms of knowing the file well enough to do that. So, I'll flag that issue with Your Honour, but it wouldn't be me. Ms. Goldlist gave me dates for her to come and do the JPT. There's also an issue of retainer as well, insofar as it relates to moving this matter forward.
THE COURT: All right. Well, we'll -- one step at a time, but that answers one of my questions in any event. All right. So, why don't you take a few minutes with...
MR. HETHERINGTON: Thank you.
THE COURT: ...Mr. Gomboc, and then as I say, that's -- it's a narrow area and I'm not asking you to go too far afield here. And I take it that Crown counsel has nothing that you wish to cross-examine Mr. Gomboc about, based on his affidavit?
MS. JODOUIN: No.
THE COURT: All right.
MR. HETHERINGTON: Thank you.
THE COURT: All right. So, you'll let me know when you're ready through the court staff?
MR. HETHERINGTON: Yes.
THE COURT: All right. Thank you.
R E C E S S
U P O N R E S U M I N G:
MR. HETHERINGTON: Thank you for that indulgence, Your Honour. If we could have Mr. Gomboc come up to the stand [indiscernible].
THE COURT: Yes.
RYAN LOUIS GOMBOC: SWORN
EXAMINATION IN-CHIEF BY MR. HETHERINGTON:
Q. Mr. Gomboc, you heard Her Honour before the break. I'm going to ask you a few questions about your plea on November the 3rd of 2017. Do you recall that date?
A. Yes.
Q. Do you recall Her Honour asking you several questions in the beginning of that court appearance?
A. I do.
Q. Okay. So, the first question Her Honour asked you would have been, "You have a right to plead not guilty and to have a trial". Do you remember that?
A. Yes, I do.
Q. Okay. And you answered, "Yes", you understood that right, correct?
A. Yes.
Q. Okay. And you filed materials today, an affidavit. You signed that earlier today, correct?
A. Yes.
Q. And in that you indicated that you wished to go to trial, correct?
A. Yes.
Q. So, the question then, is why -- why did you say that on that day? Why did you indicate to the court yes, that you were ready to give up your right to a trial?
A. Because I was advised that I had no other option.
Q. Okay. And you filed some further materials. Her Honour has that before her. I understand you were given some numbers in terms of a potential sentence you may receive?
A. Yes.
Q. Okay. And you also indicated, further, in your materials, that you didn't think you had a choice, correct?
A. Exactly.
Q. Okay. Did you understand what Her Honour was saying, though, when she said, "you have a right to a trial"?
A. Yes.
Q. Okay. And what did you think that meant?
A. I was just advised that I had no choice, and that I'd be -- I would be looking at a higher sentencing if I -- if I didn't take the plea that I was offered.
Q. And then Her Honour went on to ask you some further questions. She asked you if you understood that you were pleading guilty to a specific charge, trafficking in cocaine. Do you recall that?
A. Yes.
Q. And did you understand what that meant? Did you know what the charge of trafficking in cocaine was?
A. I did, yes.
Q. Okay. And was there a certain agreed statement of facts that you looked at? Or that you pled to, or were willing to plead to at that time? I asked you a series of questions there. Was there an agreed statement of facts that you were pleading to, that you understood you were pleading to?
A. Yes.
Q. Okay. And you're now indicating today that you wish to go to trial. Why did you agree to those facts?
A. I was agreeing to those facts so that my plea would be accepted.
Q. Okay. And it's your intention today that you wish to go to trial in relation to those facts, correct?
A. Correct.
Q. And so, then I take it the only reason you
agreed to those facts, Mr. Gomboc, was so that your plea would be accepted, correct?
A. Yes.
Q. And Her Honour lastly asked you if you understood that, regardless of whatever discussions Mr. Wilcox and Ms. Jokinen had at the time, that it was going to be her who made the final decision, Her Honour?
A. Yes.
Q. And you understood that?
A. Yes.
MR. HETHERINGTON: Your Honour, I don't have any further questions. Mr. Gomboc, Her Honour may have some of her own.
THE COURT: Anything by way of cross-examination?
MS. JODOUIN: No.
QUESTIONS BY THE COURT:
THE COURT: So, Mr. Gomboc, I just want to make sure I understand you correctly. You told your lawyer, then, that you agreed to the facts in the agreed statement of facts only so that your plea would be accepted?
A. Yes.
THE COURT: All right. And I'm looking at the transcript of your guilty plea proceedings, on page 16, just for counsel's assistance. I said to you, "And I want to be clear, Mr. Gomboc, you admit that those facts are what happened? That those facts are accurate?" And you replied, "Yes, Your Honour". Why did you say that, when I specifically asked you if the facts were accurate?
A. That's what I was advised to do by my lawyer.
THE COURT: Right, so you lied to me, is what you're saying?
A. No.
THE COURT: Well, were the facts accurate? I asked you -- just to be clear, I asked you the question, "I want to be clear, Mr. Gomboc, you admit that those facts are what happened? That those facts are accurate?" Your response was, "Yes, Your Honour".
A. Yes. Yes, Your Honour.
THE COURT: So, you lied to me, is what you're saying.
A. I'm sorry, I'm confused.
THE COURT: I asked you the -- I asked you, "You admit that those facts are what happened? That those facts are accurate?" And you said to me, "Yes, Your Honour".
A. No, I did not lie to you.
THE COURT: All right. So, were the facts accurate?
A. The facts were accurate then, yes.
THE COURT: And I just want to make sure, do you understand that if I strike your guilty plea, then based on what I've heard today, your case is going to trial and you will be pleading not guilty? Is that your intention?
A. Yes, Your Honour.
THE COURT: Do you understand that it is not unusual, and some people might say typical, that if you go to trial and you get convicted after a trial, your sentence is generally going to be higher than if you pleaded guilty?
A. Yes, Your Honour.
THE COURT: I just am asking that because I don't want there to be any misunderstanding about that. You do understand that?
A. Yes.
THE COURT: And that's something that you have had a chance now to consider carefully?
A. Yes, Your Honour.
THE COURT: It's also been said on the record that you will be waiving your s.11(b) right from the date of your guilty plea forward to whatever your trial date might be?
A. Yes, Your Honour.
THE COURT: Did you hear that?
A. I did, yes.
THE COURT: And what do you understand that to mean?
A. For the 11(b)?
THE COURT: Yes.
A. I understand that from the date that -- so there's no more hold up on my behalf. Sorry.
THE COURT: No, again...
A. Well, not that I was [indiscernible]....
THE COURT: ...and I'm not trying to interfere in any discussions you've had with your lawyer, but because this was said on the record, I think it's important that there be no confusion about it. What do you understand it to mean if you give up your s.11(b) right from the date of your guilty plea through to whenever your trial now ends?
A. Yes.
THE COURT: What do you understand that means?
What is it you're giving up?
A. Giving up my rights to the amount of time that I've been given by the courts to deal with my case?
THE COURT: Okay. Do you understand it means, for that period of time, you are giving up your Charter of Rights right to say that you did not get a trial within a reasonable period of time?
A. Yes, yes.
THE COURT: For that time span?
A. Yes, Your Honour.
THE COURT: You understand that?
A. Yes.
THE COURT: And is your decision to give that up something that you have had a chance to think about carefully and to get legal advice about?
A. Yes, Your Honour.
THE COURT: And is there any confusion in your mind about that?
A. No.
THE COURT: All right. Is there -- there's something that follows on what I've asked, please, feel free to follow up.
MR. HETHERINGTON: Perhaps just some slight clarification, Your Honour.
THE COURT: Sure.
RE-EXAMINATION BY MR. HETHERINGTON:
Q. Her Honour asked you a series of questions, Mr. Gomboc...
A. Yes.
Q. ...about the facts. She pointed out a part where asked you specifically on November the 3rd...
A. Yes.
Q. ...about the facts of the case. I just want to be clear about what your answer is there. Initially, you had said that you agreed to those facts to get your plea in, and then Her Honour asked you again, you're admitting that those facts are correct?
A. Yes.
Q. Okay, thank you.
THE COURT: All right, thanks very much, Mr. Gomboc. You can step down. All right. So, just anything then, by way of submissions?
MR. HETHERINGTON: Your Honour, I think just to summarize, it's clear that, at least from the defence perspective in this particular situation, the plea was not fully informed, therefore not voluntary. Mr. Gomboc, on the evidence that we've received, did not think he had any other option but to plead guilty, and went ahead with the plea, based on that point of view. On the evidence we have received as well, certainly that's -- one facet of the argument is that it should be struck because it was not fully informed, because he was not told the particular defences available to him and triable issues. My friend is not contesting that. That's included in his -- in his affidavit that's been filed as an exhibit today. Above and beyond that, we heard evidence from him on the stand that he was entering this plea because he didn't think he had an option. It was between the lesser of two evils for him. It was five to seven years he was going to get at that trial, and that he was advised, well, perhaps something lesser that was going to be suggested if he entered a plea of guilt. So, it's not that he didn't understand what he was saying at the time that he entered his plea, but the reasoning behind that was not fully informed, and he did that because he didn't think he had any other choice. Above and beyond that, you do have an affidavit before you, Your Honour, discussing concerns that were raised after comments made by Your Honour, on the February 9 sentencing date. Concerns that only really arose after that point. There is some indication that he obviously was unhappy with the contents of the two pre-sentence reports, but any sort of concern as to fairness moving forward and -- a sentence he would receive, at least, didn't arise until the comments made by the court on February the 9th, and it's at that point that he reaches out to other counsel and becomes aware of these triable issues, and determines that there were options available to him other than entering a guilty plea. So, in my respectful submission, the only option is to A) strike the plea, due to the lack of informed, or information that he had at the time of entering the plea, or B), for Your Honour to recuse herself and have the plea struck, and the matter start afresh. I know there was some discussion of remedy before we broke earlier this morning. In the case -- just a brief indulgence, Your Honour -- and this was, I think, specifically -- you can correct me if I'm wrong, Your Honour -- the remedy was more specifically addressed towards the reasonable apprehension of bias issue.
THE COURT: Well, what I was trying to get at is this. If there's nothing wrong with the underlying guilty plea, and the concern is that because of information in a pre-sentence report that, on the face of it, would seem to be inappropriate, the remedy in that situation, particularly in the post-Jordan world, would seem to be that the guilty plea stands based on the transcript of the plea proceedings, but that another judge can conduct the sentencing hearing and sentence the accused person. And that takes care of the reasonable apprehension of bias. Because there's no problem with the underlying plea.
MR. HETHERINGTON: Mm-hmm.
THE COURT: What you're saying to me is, there's a problem with the underlying plea.
MR. HETHERINGTON: Yes.
THE COURT: And that's the basis on which you're asking for it to be struck?
MR. HETHERINGTON: Certainly, and I think it's evident in the application record, but it's a two-pronged argument that I'm making. That was the main one, is that it should be struck as it was not a fully informed and voluntary plea.
THE COURT: Right, but if I had -- if I were of the view that it was, then the next thing to consider is...
MR. HETHERINGTON: The reasonable apprehension of bias.
THE COURT: ...right, and all I'm saying is that when you turn to that, the plea doesn't, in fact, have to be struck, and there are many instances in which pleas are not struck because there is nothing wrong with the underlying plea. The concern is information that has come to the attention of the judge conducting the plea proceedings, that may be viewed as having an impact on sentence. That's the scenario we would be into, is all I'm saying. And then what is the remedy? The remedy, it doesn't have to be to strike the plea. The accused person would still get the benefit, so to speak, the mitigating benefit, of having entered a guilty plea, but a different judge would conduct the sentencing proceeding. Here Mr. Gomboc is saying, "I don't -- I don't want that benefit because...
MR. HETHERINGTON: Correct.
THE COURT: ..."now that I have had a chance to speak to another lawyer, I wouldn't have pleaded guilty had to known what I know now".
MR. HETHERINGTON: Correct.
THE COURT: So, I'm sorry, that's my simplistic way of viewing it.
MR. HETHERINGTON: I just wanted to make sure we touched on that issue that you had before, but you're -- we weren't abandoning any part of the application that we had, so I don't have any further submissions at this point, Your Honour.
THE COURT: And on behalf of the Crown?
MS. JODOUIN: I have no submissions, Your Honour, subject to any questions from Your Honour.
THE COURT: To be clear, you had said earlier the Crown was consenting to the application.
MS. JODOUIN: Yes.
THE COURT: And you clarified that you didn't wish
an opportunity to hear from Mr. Wilcox, so that remains the case?
MS. JODOUIN: Correct. And I did discuss with my friend other options to remedy any potential issue that -- of apprehension bias, and it is possible to conclude this matter in front of another Honour -- another justice, but here's a -- the totality of the circumstance is Mr. Gomboc doesn't want to avail himself of those other options, and therefore the matter should be moved forward [indiscernible].
THE COURT: All right. So, just give me a few minutes. We'll come back at 10:45 and I'll give you my decision, and we'll do whatever we need to do as a result of that. Mr. Hetherington, I know you had told me, as I recall, you had a meeting to go to?
MR. HETHERINGTON: Board meeting, yes.
THE COURT: So, hopefully that will still get you on your way in time.
MR. HETHERINGTON: Thank you, Your Honour.
R E C E S S
U P O N R E S U M I N G:
R E A S O N S F O R R U L I N G
FUERST J. (Orally):
THE COURT: Mr. Gomboc seeks to strike his guilty plea. The Crown consents.
To be valid, a guilty plea must be unequivocal, voluntary and informed, as set out by the Ontario Court of Appeal in R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 17 C.R. (4th) 247.
An informed guilty plea means that the accused understands the nature of the charges, the legal effect of a guilty plea, and the consequences of such a plea. A voluntary plea means a plea that is a conscious, volitional decision of the accused to plead guilty, for reasons he or she regards as appropriate.
In this case, I am satisfied that Mr. Gomboc did not subjectively fully understand his options, and in that sense, his plea was not informed and voluntary.
I wish to be clear that neither Crown nor defence counsel chose to call Mr. Wilcox to testify on this application, and my comments and conclusion should not be taken as a criticism of his professional conduct, nor that of Crown counsel, Ms. Jokinen. Both of them appear regularly in the Superior Court. It would be most unfair to impute any impropriety to them, on the basis of allegations to which they have been given no opportunity to respond.
Mr. Gomboc's guilty plea is struck, simply because, on the material before me, I have a real doubt as to its validity.
He was clear in his testimony that he wishes to proceed to trial, and that he understands the waiver of his s.11(b) rights, from the date of his plea to the conclusion of his trial, which was stated on the record by Mr. Hetherington as his counsel. I offered to hold a judicial pre-trial today and identify a trial date, but Mr. Hetherington told me that he does not have Ms. Goldlist's trial schedule, and that in any event, there are retainer issues.
Mr. Gomboc should be aware that as the Regional Senior Judge, I intend to move this matter ahead without delay, and on his next appearance I will set a trial date on a with or without counsel basis, peremptory to the defence.
So, could I please see the indictment? And we need to talk about a next date, then.
MR. HETHERINGTON: Your Honour, the date was canvassed at the trial coordinator, it was available to both Ms. Goldlist and the Crown, it was August the 7 for a judicial pre-trial.
THE COURT: No, that's two months down the road. That's -- I'm sorry. I appreciate there's been an 11(b) waiver, but in the post-Jordan era that's just not appropriate.
MS. JODOUIN: Your Honour, I can indicate the dates that the trial coordinator provided, the first date was July 5.
THE COURT: Yes.
MS. JODOUIN: Starting at 9:30 and some options throughout the day. Then July 26 starting at 11:30 with some options throughout the morning, I believe, and then August 7. The Crown is available for the July 5, or any of those 3 dates.
MR. HETHERINGTON: I'll have to ask you to hold it down just briefly.
THE COURT: All right.
MR. HETHERINGTON: And I can try to contact Ms. Goldlist. She was forwarded the email with those dates and August 7 was the one that she came back with. I suppose I should ask before I reach out to her, Your Honour, what date of those my friend -- I guess we don't even know if those dates are still available, do we?
THE COURT: I have the availability list.
MR. HETHERINGTON: Okay.
THE COURT: So, I can tell you that July 5 is still available, and that would be my intention to set it to that date. Now, I appreciate the 11(b) waiver, but as I say, there's a public interest at play here, too, in getting this case moved forward....
MR. HETHERINGTON: So, I should ask, is that the only option that Your Honour....
THE COURT: Let me just take a look. It's the next open pre-trial date. I am here on June 15 and June 29, and I'd be happy to come at 9:00 o'clock one of those days, and fit this matter in at 9:00 o'clock, if that works better. I'm also here on June 14...
MR. HETHERINGTON: I can indicate....
THE COURT: ...which is later this week for something else, but.
MR. HETHERINGTON: Yeah, the 14th and 15th are this week.
THE COURT: Which is perhaps too early for your office.
MR. HETHERINGTON: In light of the retainer issues. Above and beyond that, there's some further materials that, I think, defence are going to want to order and have in hand, prior to a judicial pre-trial.
THE COURT: So, then I think the options are June 29 at 9:00 o'clock, or at some point on July the 5th, because we do have to move this ahead.
MR. HETHERINGTON: If I could ask for a brief indulgence?
THE COURT: Sure.
MR. HETHERINGTON: Thank you for that, Your Honour.
THE COURT: Yes.
MR. HETHERINGTON: So, Your Honour, Ms. Goldlist's position is that August 7 is her first available date. She indicated to me she's out of the country for the next two weeks, and then she'll be in trial on July the 5th, as will I. You know, these were discussions that took place. Mr. Gomboc is expressly waiving 11(b), so there's no prejudice, I don't think, on either side here. Those were the dates that were unfortunately discussed with the trial coordinator and agreed to by counsel.
THE COURT: Well, I'm sorry, but I'm just not prepared to have a two-month delay, 11(b) or no 11(b). It just, quite frankly, from the perspective of the administration of justice, after Jordan, does not look good. So, I think that someone will have to be here. A properly instructed agent will have to be here on July the 5th, with Ms. Goldlist's available trial dates and with a pre-trial form filed. That gives her about three weeks or so to bring herself up to speed and obviously she's had discussions with Mr. Gomboc leading up to today. But we need to get this moving ahead, because already, although I may be able to offer some dates in the fall of this year, we're otherwise, in this jurisdiction, setting dates well into 2019.
MR. HETHERINGTON: I understand that, Your Honour. Just again, I can indicate that Ms. Goldlist is the counsel of choice for Mr. Gomboc. That is her availability. We don't work in a large office, such there isn't that many people working for her. I'm an associate of hers, but I'm in trial that day as well.
THE COURT: Well, as I say, I'm prepared to do it at 9:00 o'clock. I'm prepared to have defence counsel participate by conference call, as long as there's somebody here on the ground to speak to it in court.
MR. HETHERINGTON: I'm just concerned about preparation of the file. It's not exactly -- it's a serious matter. Straight indictable offences here for Mr. Gomboc. To be caught up to speed, to have all the proper materials that we need in order to set a trial, and make proper estimates, I'm not even sure that July 5 is enough time based on the schedule of both myself and Ms. Goldlist.
THE COURT: Well....
MR. HETHERINGTON: As I indicated, again, she's away. With the express waiver I -- it's our position that it should just be set on counsel's availability. He's not....
THE COURT: Okay, Mr. Hetherington, Jordan and Cody make it very clear, the defence has an obligation to cooperate. What I have said is, I'm happy to accommodate defence counsel by doing this at 9:00 o'clock in the morning. I'm prepared to do it by conference call, if necessary, as long as there's someone here to speak to it on the record afterwards. I'm trying to accommodate you that way. But to wait now another two months -- this is a May 2016 offence date. It's 2 years old, over 2 years old at this point. So, we've got to get this moving. A delay doesn't benefit anybody.
MR. HETHERINGTON: I agree, Your Honour, but before today and the striking of the plea, it wasn't certain whether this was going to go ahead, in that particular direction. Now we need to worry about retainer, prior to then.
THE COURT: Well....
MR. HETHERINGTON: We need to worry about reviewing the file and getting up to speed, in order to set a trial date. I mean, the concern I guess, Your Honour, would be coming back here, or doing the judicial pre-trial, not being ready to make those estimates, and having to do it again.
THE COURT: Well, I'm afraid someone is going to have to do what is necessary to get ready for the pre-trial, because I'm putting it to July the 5th. If there's a particular time that day, you can tell me, and I'm happy to try to accommodate you that way.
MR. HETHERINGTON: Well, certainly, both of us being in trial, it would have to be some time during recess or prior to trial -- court beginning.
THE COURT: That's why I say, I'm happy to do it at 9:00 o'clock. We can have an initial judicial pre-trial discussion. What I want to do is come to a meeting of the minds about how much trial time will be needed, and set a new trial date. Or, a trial date, since there hasn't been a trial date, to be fair. So, I take it someone can be here for the federal Crown?
MS. JODOUIN: Yes.
THE COURT: On that date? So, 9:00 o'clock a.m. If you speak to the trial coordinator, he can -- well, we can do this in one of two ways. Either you can provide Crown counsel with a phone number where you or Ms. Goldlist can be reached, or he can give you a dial-in number, whichever is easier for counsel.
MR. HETHERINGTON: I think a dial-in number would make the most sense, since we aren't sure who's going to be taking of that at this point in time.
THE COURT: All right. So, if you would speak to Mr. Colomvakos, he can give you that information.
MS. JODOUIN: And I can indicate, if afterwards it's just a matter of putting dates on the record, the next appearance of Crown can assist my friend in speaking to it on the record for him. It's a non-contentious, simply...
THE COURT: Right.
MS. JODOUIN: ...putting next dates on the record.
MR. HETHERINGTON: Thank you for this. Thank you.
THE COURT: At least that way, as I say, we can have an initial discussion and we can come to a trial time estimate, and I can set the trial, even if it means we have to have a follow-up judicial pre-trial, as is often done.
Right, so I've endorsed, Mr. Gomboc moves to strike his guilty plea. After a brief hearing, the plea is struck. Mr. Gomboc waives s.11(b) from November 3, 2017 to the conclusion of his trial. Defence counsel suggested that the judicial pre-trial be held on August 7, 2018, although earlier dates are available. I am not prepared to have this case wait that long for a trial date to be set. Adjourned to July 5, 2018, at 9:00 o'clock a.m. for a telephone judicial pre-trial and to set a date for trial, all with or without counsel.
MR. HETHERINGTON: Thank you very much, Your Honour.
THE COURT: All right? So, 9:00 o'clock, then. We'll do it by telephone, and that way you or Ms. Goldlist or whomever can still honour your trial commitments.
MR. HETHERINGTON: Thank you.
THE COURT: All right. Thank you, all. And I believe that completes everything. Now, one thing I should ask, the pre-sentence reports were filed as exhibits, both of them. So, they'll be in the exhibits folder. But, that normally isn't in the trial folder. I'm just concerned that it be clear that that material shouldn't be kept in the trial folder, because obviously it shouldn't be before whichever judge is going to take the trial. So, you'll make sure of that?
CLERK REGISTRAR: Yes.
THE COURT: All right.
CLERK REGISTRAR: [Indiscernible].
THE COURT: All right, good. All right, thank you very much.
MR. HETHERINGTON: Thank you.
FORM 2
Certificate of Transcript
Evidence Act (Subsection 5(2))
I, Shauna MacGregor, certify that this document is a true and accurate transcript of the recording of R. v. Ryan Gomboc in the Superior Court of Justice, held at Barrie, ON taken from Recording 3811_03_20180611_083243__10_FUERSTM.dcr which has been certified in Form 1.
Date: ________________________
ELECTRONIC TRANSCRIPT
Shauna MacGregor
Authorized Court Transcriptionist - ACT# 1103323559