Once again, we can thank Ontario Court of Appeal Justice David Watt for his powerful writing in a recent judgment ordering a new trial for a man who pleaded not guilty but ended up with an immediate conviction anyway after the Crown read out the allegations against him.
The accused “thought he would have a trial where he could tell his side of the story,” Watt wrote. “He had a lawyer to help him out. But the appellant didn’t have a trial. He didn’t get to tell his side of the story. And he didn’t see or hear anyone else testify either.”
Watt continued: “As soon as the appellant’s lawyer pleaded not guilty on the appellant’s behalf, the prosecutor read out the allegations against him. The appellant’s lawyer said that he had no submissions. The prosecutor made no submissions either. The judge convicted the appellant and remanded him in custody for sentencing.”
The events as described in
R. v. D.M.G. sound problematic. But it gets worse. The accused, who was facing two counts of sexual assault and two charges of sexual interference, is 60 years old and has a hearing impairment. He received a 15-month jail sentence.
There were complicating factors in the case. As Watt noted, while the accused maintained his innocence throughout, he repeatedly expressed worries about the alleged victim having to testify in court.
At the same time, his original trial counsel claimed the accused had signed a handwritten document instructing him to resolve the matter on Feb. 21, 2008, the day the trial was to begin.
While the accused denies signing those instructions (he at one point claimed his signature was a forgery, Watt noted), he admits to signing a handwritten memo attesting to the adequacy of his defence counsel’s efforts on his behalf.
At the same time, Watt noted that what took place here — essentially pleading not guilty while making admissions anyway — can happen. But that’s not enough.
“After the appellant pleaded not guilty, the prosecutor read the allegations but neither adduced evidence nor proposed that the allegations be taken as a formal admission under s. 655 of the Criminal Code,” Watt wrote.
“No one asked the appellant to confirm his understanding of and agreement with the proposed procedure,” he noted.
There were other problems as well. “The audio enhancement system functioned intermittently, if at all,” Watt wrote.
Calling the events a “cannibalized procedure,” Watt set aside the conviction and ordered a new trial. It’s good, then, to see the accused will at least have a chance at justice.
However, it’s unfortunate that defence counsel, the Crown, and the trial judge allowed things to play out as they did. While Watt noted admissions under s. 655 can form the entirety of the Crown’s case, it’s clear that the accused at the very least deserved more protections to ensure he understood the implications of what was taking place.
Now we’re stuck with the cost and time burden of a new trial. Those involved should have known better.
— Glenn Kauth
