R. v. Yarlasky

R. v. Yarlasky Collection Decisions of the Court of Appeal Date 1999-11-09 Docket numbers C31999 Judges Finlayson, George Duncan; O’Connor, Dennis; MacPherson, James C. Subject Criminal Decision Content DATE: 19991109 DOCKET: C31999 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) –and– LILLIEMAY YARLASKY (Appellant) BEFORE: FINLAYSON, O’CONNOR and MacPHERSON JJ.A. COUNSEL: Clayton C. Ruby, for the appellant Lucy Cecchetto, for the respondent HEARD: November 5, 1999 On appeal from the decision of Gordon J. dismissing an appeal from the conviction entered by Michel J. dated December 2, 1998. ENDORSEMENT [1] On December 2, 1998, the appellant was arraigned and charged as follows: CLERK OF THE COURT: Lilliemay Yarlasky, between 01 March 1996 and 30 April 1996 at the Town of Latchford in the said region did by deceit, falsehood or other fraudulent means defraud the Town of Latchford of monies not exceeding $5,000.00 by failing to disclose a change of address which would have disentitled her from received benefits, contrary to Section 380(1)(b) of the Criminal Code of Canada. CLERK OF THE COURT: How is the Crown electing to proceed on these charges? MR. BENSON [Crown]: Summarily. CLERK OF THE COURT: How do you plead to this charge guilty or not guilty? MS. YARLASKY: Guilty. THE COURT: You may be seated. [2] The Crown outlined the facts and the trial judge stated: “Are those facts substantially correct?” The appellant’s counsel replied: “Those facts are correct, Your Honour”. The trial judge then stated: “There will be a finding of guilty”. [3] After hearing submissions from the Crown and the appellant’s counsel, the trial judge said: “Miss Yarlasky, is there anything you wish to tell the court in addition to what your counsel has said? Ms. Yarlasky replied: Yes, I, I, I didn’t pick up the cheque intentionally. I didn’t have any money, money coming from anywhere else. I had just moved, so I didn’t really have a chance to change my address. And I did, I am sorry. And there was no intention – it was just a cheque that I picked up and I didn’t have a chance to change my address. I am sorry. [4] It is accepted that a guilty plea must be unequivocal; see R. v. R.T. (1992), 10 O.R. (3d) 514 at 519 (Ont. C.A.). This plea is not unequivocal and cannot stand. [5] Accordingly, leave to appeal from the judgment of Gordon J. is granted, the appeal is allowed and the plea of guilty is set aside. A new trial in the Ontario Court of Justice is ordered. Signed: “G.D. Finlayson J.A.” “D. O’Connor J.A.” “J.C. MacPherson J.A.”