This recent decision from the Ontario Court of Appeal has a few interesting aspects to it, including some discussion about competence of counsel. However, arguably the most interesting and curious aspect of it relates to the apparent guilty plea.
On the first date of trial the appellant and trial counsel met. Latter accounts of this meeting diverge signifcantly about what took place. Counsel indicated that the appellant provided written directions to accept the Crown's allegation - plead not guilty but not dispute the allegation. The appellant denied he ever provided those directions.
What did occur, however, was that the appellant appeared in court, plead not guilty, the Crown read in the allegations, trial counsel indicated that the appellant did not dispute the allegations and the appellant was found guitly.
On appeal the conviction was struck and a new trial was ordered. The Court of Appeal held that what transpired constituted a miscarriage of justice as there was a plea of not guilty and no evidentiary proof was established, as required, by the Crown:
This case proceeded on the basis of a plea of not guilty, a plea by which the appellant denied having committed the offence charged and required the prosecutor to prove the essential elements of that offence by relevant, material and admissible evidence beyond a reasonable doubt.After the plea of not guilty, the prosecutor adduced no evidence. No viva voce testimony. No real evidence. As a surrogate for evidence, the prosecutor read the allegations made against the appellant. It is fundamental that prosecutorial allegations are not evidence. Nor did they become admissions under s. 655 of the Criminal Code by the failure of the appellant's trial counsel to make submissions [paras 55-56].
DG Mack