R. v. G.N.D.

R. v. G.N.D. Collection Decisions of the Court of Appeal Date 2007-04-17 Neutral citation 2007 ONCA 274 Docket numbers C43867 Judges MacPherson, James C.; Cronk, Eleanore Ann; Gillese, Eileen E. Subject Criminal Decision Content CITATION: R. v. G.N.D., 2007 ONCA 274 DATE: 20070416 DOCKET: C43867 COURT OF APPEAL FOR ONTARIO MacPHERSON, CRONK and GILLESE JJ.A. BETWEEN: HER MAJESTY THE QUEEN (Respondent) and G. N. D. (Appellant) G.N.D., in person Richard Litkowski, as duty counsel Charmaine M. Wong, for the respondent Heard: April 13, 2007 On appeal from the conviction entered by Justice S. Rogin of the Superior Court of Justice dated June 6, 2005. APPEAL BOOK ENDORSEMENT [1] The appellant appeals against conviction on the ground that his guilty plea was not voluntary and informed. On the appellant’s behalf, duty counsel submits that this is supported by the evidence of defence counsel’s conduct in this case, including his alleged lack of preparedness for trial and his failure to obtain appropriate written instructions from his client to enter a guilty plea. [2] In our view, the appeal must be dismissed for the following reasons. [3] There is no dispute that the incompetence of trial counsel is a very serious allegation that should be made only after very careful reflection. There is a presumption of competence of counsel. The test to displace this presumption is a high one. [4] In this case, written instructions to enter a guilty plea were taken by defence counsel at trial. Those instructions, however, provided for a guilty plea on a charge of breaking and entering only. In fact, the charge in issue was breaking and entering a dwelling house and committing therein the indictable offence of sexual assault. [5] Notwithstanding this important defect in the language of the written instructions received, to the appellant’s knowledge throughout, there was only one charge at issue. When the facts were read-in at trial, including the facts surrounding the allegation of sexual assault, the appellant made no objection, nor any comment indicating that he was not pleading to sexual assault or that he disputed the facts read-in. [6] The trial proceeding, including the sentence hearing, continued thereafter for several days, during which evidence was led regarding the sexual assault and the appellant himself testified. Again, at no time did the appellant indicate that he had not intended to plead guilty to sexual assault or that he did not understand his plea. Nor did he dispute the facts relevant to the sexual assault. [7] Finally, the appellant addressed the court prior to sentence being imposed. Once again, there was no suggestion of any kind by him that his plea was uninformed or involuntary. To the contrary, his comments to the court can be understood as indicating that he never intended that the complainant should be required to testify because he had intended to enter an early guilty plea. [8] In our view, therefore, the appellant’s own conduct throughout this multi-day trial belies his claim that he did not intend to enter a guilty plea to the offence as charged and that he did not understand that he had done so. [9] Accordingly, the appeal against conviction is dismissed. We note that the appellant has abandoned his sentence appeal.