R v KD, 2015 ONSC 104 (CanLII)

Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd., 2014 ONCA 898 (CanLII)

December 5, 2014

Miletic v. Jaksic et al, 2015 ONSC 1400 (CanLII)

March 3, 2015

CITATION: R. v. K.D., 2015 ONSC 104

COURT FILE: SCA(P) 410/13

DATE: 2015 01 07

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN

)

A. P. Renwick, for the Respondent

Respondent

– and –

K.D.

A. Farooq, for the Appellant

Appellant

HEARD: April 15 and November 18, 2014, and January 5, 2015 at Brampton

REASONS FOR JUDGMENT
[on appeal from conviction by

Justice M. Khoorshed on June 11, 2013]

HILL J.

INTRODUCTION
[1] K.D. pleaded guilty to unlawfully assaulting his spouse.
[2] The appellant was sentenced to “time served” calculated as nine (9) days of pre-sentence custody. While the Criminal Code does not authorize a sentence of “time served”, and although the appellant, who served 10, not 9, days of pre-sentence custody, was not awarded credit of 1.5:1 for his pre-sentence custody in accordance with R. v. Summers, 2014 SCC 26 (CanLII), [2014] 1 S.C.R. 575, the appeal is against conviction only.
[3] Mr. K.D. seeks to have this court strike his guilty plea on the basis that it was entered “under duress and not voluntarily”.
FACTUAL BACKGROUND
The Arrest
[4] The appellant was arrested on June 4, 2013 at his home where he resided with his wife (T.Z.) and three-year-old daughter. The couple had been married for about five years. It was alleged that he had assaulted T.Z. At the time, the appellant was 51 years of age and had no prior criminal record. The appellant speaks with a heavy accent – English is his second language.
The Court Setting
[5] The Grenville and William Davis Courthouse (the Peel Courthouse) is a consolidated six-storey courthouse with 41 courtrooms occupied by the Ontario Court of Justice and the Superior Court of Justice (Ontario). In addition, there are 8 Small Claims courtrooms in an adjacent building.
[6] The Peel Courthouse opened in June 2000. During the planning stage for the building, a policy decision was made to reduce the capacity of the courthouse from the original approved design. Within a very few years, the courthouse was physically unable to meet the demands of the Region of Peel including insufficient courtrooms. Trials are currently traversed to Milton and Orangeville and even to Kitchener. This month the Ontario Ministry of the Attorney General announced that, on an as-yet unknown timeline, a permanent 6-floor addition to the courthouse will be constructed to meet demand for the next 25 years.
[7] One of the busiest, if not the busiest, courthouses in Canada, the facility serves the Region of Peel having a permanent population of over 1,400,000 persons. The Region is roughly broken into thirds – the largely rural area of Caledon in the north with a population of about 60,000, Brampton in the centre which is Canada’s ninth largest city by population with about 600,000 persons, and Mississauga in the south which is Canada’s sixth largest city by population with about 775,000 persons. In addition, with the Pearson International Airport located in the northeast corner of Mississauga, the Region also has a daily transient population of tens of thousands travellers, at times over a hundred thousand per day, using the international airport.
[8] The courtrooms of the Peel Courthouse are located on the lower four floors. In the basement there are cells for in-custody accused persons. The prisoners are moved to the appropriate courtrooms by prisoner escort officers using designated passenger elevators.
[9] The Ontario Court of Justice, in addition to operating courtrooms to conduct preliminary inquiries and trials, also operates intake courts, set-date courts, bail courts and plea courts. These latter courts, for the most part “front-end” proceedings, are staffed by Legal Aid Ontario (LAO) lawyers acting as Duty Counsel assisting as yet unrepresented accused. Some are full-time Duty Counsel while others, ordinarily practicing as private defence counsel, act on a per diem basis.
[10] In his affidavit, Mr. J. Gillham, the LAO Manager of Duty Counsel Services for Peel, provided this information:
(1) A central role of Duty Counsel is arranging bail for arrested persons:

Conducting bail hearings and arranging early release of accused persons are among the most important functions of duty counsel. The time to prepare for a bail hearing is often very brief. The accused must be interviewed, sureties contacted and prepared, the Crown synopsis and the accused’s record must be reviewed and community resources contacted. Preparation must be efficient, precise and accurate. LAO has a Bail Worksheet that records essential intake information, including names and contacts for prospective sureties.

(2) It is “normal practice” for LAO Duty Counsel to attend the courthouse’s holding cells to interview prisoners. Basic information is taken and recorded in a Bail Worksheet. Counsel must also record all steps taken and those steps next to be done. Successive Duty Counsel on a file can review a client’s Worksheet.

(3) Duty Counsel provide assistance in contacting prospective sureties:

Following the initial interview with the accused, prospective sureties must be contacted. Where possible, the names and contacts of several potential sureties are obtained in order to have alternatives.

[The] Brampton courthouse is fortunate to have community resources and agencies. Salvation Army workers see individuals in the cells to provide an array of services, but particularly to assist them in contacting family and prospective sureties. And the Ministry of the Attorney General provides funding for the John Howard Society (“JHS”) bail program. For accused who are unable to obtain a surety, the JHS provides community supervision and verification of an accused’s community ties.

The First Court Appearance
[11] For reasons which are unclear, the appellant was not released on bail by the police on a Form 11.1 undertaking on conditions including non-communication with the complainant. On Monday, June 4, 2013, the appellant was transported to the Peel Courthouse from the Maplehurst Correctional Centre. An initial intake interview was conducted by an LAO Paralegal Intern.
[12] The appellant appeared before Justice of the Peace G. Manno in the Ontario Court of Justice in a bail court (courtroom #102) in the Peel Courthouse. G. Smith appeared for the Crown and C. West, a duty counsel, appeared for Mr. K.D.. On the court record, Duty Counsel stated:
Your Worship, subject to hearing from the John Howard Society with respect to this gentleman, my suggestion is to put the matter over until tomorrow. We do not have a plan of supervision to propose to the court at this time.

[13] The court remanded the appellant in custody to the following day and quite properly made an order pursuant to s.516(12) of the Code, at the request of the prosecution, prohibiting the appellant from communicating directly or indirectly with T.Z.
[14] In her affidavit filed on appeal, Ms. West provided this information:
(1) it is common practice for an LAO staff member to attend in the holding cells in the courthouse basement to interview in-custody arrestees

(2) where a detainee does not have his/her own counsel, and desires assistance, LAO Duty Counsel takes basic information and records it on a Bail Worksheet

(3) on June 4, 2013, the initial intake with the appellant was undertaken by a paralegal student working with LAO

(4) included in the intake notes, in relation to prospective sureties, was this reference: “[defendant] say no one”

(5) the notes further indicate that the appellant was referred to the John Howard Society (JHS)

(6) the LAO Worksheet notes indicate that the appellant met with JHS staff and a Bail Verification Report was prepared and given back to the LAO staff indicating, with respect to JHS supervision if released:

Accepted application, however Mr. K.D. declined Bail Program assistance as he was not agreeable to the residency condition.

(7) Ms. West noted on the Bail Worksheet that in the appellant’s case there was to be a “surety consent release, reside with surety”

(8) the appellant did not provide the LOA staff, in or out of the courtroom, the names for any prospective sureties.

[15] Counsel on appeal verified that the expression “residency condition”, insofar as it relates to the JHS, means that the accused person would be released without a surety to reside at an approved shelter.
The First June 5, 2013 Proceeding
[16] On this date, the appellant initially appeared before Justice of the Peace Santos in courtroom #101. Ms. A. Simitsis appeared for the Crown and Mr. K. McCallum as Duty Counsel.
[17] Cross-examined on his affidavit, Mr. McCallum stated that he did not meet the appellant prior to his court appearance.
[18] When Mr. K.D.’ case was called, this exchange occurred:
CROWN COUNSEL: With respect to Mr. K.D., it’s a Crown onus. We would consider recommending a release if there were a residential surety.

DUTY COUNSEL: And what’s the amount on the residential surety? Court’s indulgence. Is there a position on a possible resolution?

CROWN COUNSEL: There isn’t. What we could do is send it out and if you’d like remand the bail and we’ll just hold the remand warrant until we can get him a position.

DUTY COUNSEL: Why don’t we do that, sir, we’ll send it out for the Crown to determine their position on sentence if you were to plead guilty. You could potentially do that today. If it doesn’t – doesn’t get done today then you come back tomorrow, how does that sound?

CROWN COUNSEL: So in other words, we’ll just remand the bail hearing since you’re not in a position to deal with bail today, but we will send the package out for a position and if you’re agreeable and want to accept the position and plead guilty we’ll send you to the plea court today.

APPELLANT: Okay.

[19] In cross-examination before this court, Mr. McCallum stated that at the two times he stated on the record, “Court’s indulgence”, he may have entered into a private unrecorded conversation with the appellant who would have been in the prisoner’s box. He has no recall as to what they may have discussed.
[20] The court explained to the appellant that his bail hearing would be held the next day but that he would not be remanded back to the jail until the Crown position on sentence on a guilty plea became known. Mr. K.D. confirmed, when asked, that he understood and that he did not require an interpreter. The appellant’s only access to the telephone numbers for outside contacts was in his cellphone which was at his residence. On the record of the June 5 appearance, the appellant added, “This is my first time in court on the …” before he was interrupted by the court:
THE COURT: All right. So your bail hearing is adjourned to tomorrow. Should you choose not to accept the Crown’s position, so should you choose not to plead guilty later on today, your bail hearing is still marked for tomorrow.

APPELLANT: And if I – it will be done today.

THE COURT: If you decide to plead guilty, I’m – we’re going to hold on to your warrant so you’re not sent back to the institution, so that you’ll be able to go before a judge and plead guilty if you want to.

[21] In his affidavit in this appeal, Mr. McCallum confirmed that he acted as a per diem LAO Duty Counsel when the appellant was before the court. He had reviewed the LAO Bail Worksheet notes from the day before. Under cross-examination, Mr. McCallum testified that although he did not participate in the resolution meeting with Crown counsel, he likely received the Crown’s position from another duty counsel.
[22] According to Mr. McCallum, had he been provided contact information by Mr. K.D. about prospective sureties, he would have noted it on the Worksheet. No such note was recorded. Mr. McCallum’s affidavit further states:
4. I made notes on the Bail Worksheet. On page 2, I noted in relation to the bail: “$1,500 release suggested, but accused doesn’t have surety”. In relation to the court attendance, I noted: “To have resolution meeting, wishes to plead guilty”. In relation to the Crown’s position, I noted: “June 5/13. On G.P. (guilty plea) time served and 18 months probation”.

5. It is my normal practice to advise the accused of the Crown’s position. I would have advised Mr. K.D. about the Crown’s position in relation to the amount of the residential surety and their position if he was to enter a plea.

6. If an individual advises that they would like to enter a plea, then they are transferred to a different courtroom. In that event, I would advise the Duty Counsel Office of the individual’s intentions and they would arrange for the Duty Counsel in the plea court to meet with the individual.

[23] Mr. McCallum testified that at some point he wrote in the file, “Wishes to plead guilty”. He remained in bail court for the day conducting bail hearings for in-custody accused persons.
The First Guilty Plea
[24] On June 5, the appellant was subsequently transferred to the plea court (courtroom #103) presided over by Justice E. Ready. Crown counsel in that court was Mr. T. Powell with Mr. R. Rota appearing as a LAO Duty Counsel.
[25] Mr. K.D.’ affidavit deposed that he only entered a guilty plea as he “feared for the safety” of his young daughter and “wanted to get out of jail”. Under cross-examination on his affidavit, the appellant indicated that his daughter could be in harm’s way. It was his understanding that the Salvation Army and others were unable to get any answer at his home phone number. He needed to have someone “confirm … that she’s safe” but he was unsuccessful. He was concerned about a parental kidnapping. Given that his wife was Chinese and “from overseas”, he feared that “she could take her and go away”.
[26] On the appellant’s evidence regarding what occurred on June 5 with Mr. Rota, he stated:
Q. So Mr. Rota, on June 5th, didn’t meet with you prior to the guilty plea and say that this is what you’re going to have to do. The Crown Attorney is going to read out certain allegations. In order to plead guilty you’re going to both have to plead guilty but also to admit certain facts and then you’ll be sentenced?

A. Mm’hmm. He never – he never explained that to me. No, no, no. He said you – you plead guilty and then you’ll – then you’ll be – we’ll – then you’ll be free to go.

…

Q. They explained the – the plea process to you, as well, didn’t they, Mr. K.D.?

A. Yes. They – they never tell me – they never mentioned to me it will be 90 days – 90 days jail. They only – they told me you will plead guilty and you will get probation.

Q. Right.

A. Yes.

[27] On Mr. K.D.’ evidence, prior to his guilty plea, he had also spoken to other inmates. Some had assisted in calling his home from the jail. As well:
A. I spoke with – with – with inmates in – in – in the cell – in the – the jail. They told me if you want to plead guilty then you will – you have to plead guilty and you will be freed.

Q. Well, did they not also tell you that you could actually receive more jail?

A. No.

[28] In his affidavit, Mr. Gillham described the expectations upon LOA Duty Counsel when assisting an in-custody accused to plead guilty:
Another core responsibility of Duty Counsel is to advise and represent those individuals who wish to enter a guilty plea. A Duty Counsel lawyer will meet with an accused who indicates they wish to enter a guilty plea. The lawyer will review the Crown synopsis and the relevant section(s) of the Criminal Code with the accused in private. Counsel must satisfy him or herself: the accused committed the act that constitutes the offence; the accused had the requisite mens rea; the Crown is in a position to prove the offence; there are no defects in the information; there are no Charter arguments; there are no special pleas; and, that the requirements of s.606 of the Criminal Code are met, namely counsel must complete a plea comprehension inquiry. If an accused raises a defence but wants to plea[d] “just to get it over with”, it is LAO policy that Duty Counsel is not to assist the accused.

[29] Although Mr. Rota has no independent recall as to whether he met the appellant in the courthouse cells prior to the June 5 court appearance, noting the volume of cases at the Peel Courthouse coming quickly into court, he would “typically” meet the prisoner beforehand, review the synopsis and “go over the 606 inquiry” prior to a guilty plea. As a plea Duty Counsel, he would not generally discuss bail matters with an in-custody accused. Counsel does not take written instructions regarding a guilty plea given “the volume that we deal with in Brampton” and “oftentimes … in the cells” he cannot provide “pens and things into the cells … for security issues”. Counsel did note that “[s]ometimes there are exceptions” when he will have an officer come with him to a cell “so I can do that”.
[30] In his affidavit, Mr. Rota provided this information:
4. I made notes on the Bail Worksheet. On page 1, I noted: “905-949-9170 call his home to get surety #’s hopefully complainant will give us some #’s”. On page 2, I noted: “Says his phone is at home please phone complainant to get #’s for surety”, and, “- June 7”.

5. It is my normal practice to advise the accused of the Crown’s position on bail. I would have advised Mr. K.D. about the Crown’s position in relation to the amount of the residential surety. And I would have advised that he could proceed with a consent bail on that day, the advantage of proceeding that way is once the bail conditions are in place then when he found a surety, the surety could attend at the courthouse before a justice of the peace to be deemed suitable.

[31] Prior to arraignment, Mr. Rota stated on the record:
Yes. He is going to be entering a plea of guilty, Your Honour, one count of assault. I have reviewed [the] Section 606 inquiry with him, and he is ready to proceed, and is although it is a joint recommendation sentencing is always up to Your Honour.

[32] The Crown elected to proceed summarily. When asked how he pleaded to the charge once read, the appellant personally stated, “Guilty”. At this point, the prosecutor narrated the facts in support of the charge:
Your Honour, the facts are as follows, this is a domestic matter. They have been at the same address for nine years, they have been married for five years, and they have a two-year-old daughter. Alcohol was not a factor. This happened on June 3rd, 2013 at 9:15 p.m. The accused, his wife, and their child were all at their residence at 3483 Queenston Drive in Mississauga. They got into an argument. He then hit her with his right hand on her left ear, which caused her to fall down and cut her upper lip. She then contacted the police. The police saw swelling to her left ear and a cut to her upper lip. Those are the facts.

[33] The proceeding immediately turned to the appellant’s position respecting the facts:
CROWN COUNSEL: Your Honour, I’d, I just ask that the accused acknowledge the facts himself. No offence against, Mr. Rota.

DUTY COUNSEL: No. Is that what happened, sir?

APPELLANT: Not, not exactly.

DUTY COUNSEL: Okay. So tell us what happened.

APPELLANT: No. My, my, my daughter was crying. She cry, she said, tell mama to give me milk. My, my wife was lying in the bed. She said, no, in not going to give you milk. She wouldn’t give her milk. So I went down to her, I say – I hold my child, give it, give it to her to go feed her to the, she kick, she kick the, she kick me in the leg, then she hit, she hit the baby. Then I go there and I push her just like this.

[34] Cross-examined before this court as to whether the appellant’s account to the court came as a surprise to him, Mr. Rota stated “I don’t recall”. Counsel further testified that he would not have assisted Mr. K.D. to plead “if he’s providing a defence”. Mr. Rota also testified as follows:
A. I just focus on making sure that the inquiry’s done and that’s what the person wants to do, that he wants to plead guilty, so I just focus on that.

Q. And so you don’t go into what the rationale may be or background about why an individual is entering a plea?

A. I assume because they’re accepting guilt…

Q. Okay.

A. …Responsibility.

[35] When Crown counsel heard the appellant’s position, he observed that on the basis of the representation of a possible consent fight scenario or self-defence or defence of another, the guilty plea was problematic. The court agreed and struck the guilty plea remanding the appellant to a bail hearing the next day.
[36] In cross-examination before this court, Mr. K.D. described his actions with his wife on June 3, 2013 in these terms: “I tried to stop her from – from hitting the – the child”. In the appellant’s view, on June 5, he told the judge “exactly what happened”. There is no evidence in the record as to whether at any point the police re-interviewed the complainant in light of Mr. K.D.’ disclosure of his defence.
Wednesday, June 6, 2013
[37] The appellant deposed in his affidavit that being of the belief that Duty Counsel were not attempting to contact his family or friends he continued to seek assistance from within custody:
THAT I provided an inmate with my address and phone number and I am advised by my brother-in-law, Abraham Assyari, and do verily believe that the inmate contacted him and as such my brother-in-law attended court on two occasions to sign as surety for my release…

[38] In cross-examination, the appellant added this information:
First of all, I have my – my friend called my house, was no answer. I have the Salvation Army volunteer call my house, I believe maybe 10 times. And he came back to me, said, I call your house, was no answer. I have two inmate, they were with me in the cell, they were freed, and I gave them my house phone number to call, and even my address. They – both of them call my – my house and there’s still no answer. The – the – the Salvation Army confirmed that because I give them their – their phone number too and he called him and – my house – was no answer at all. He – they called in the morning, in the afternoon and evening was my – still no answer in my house.

[39] On June 6, the appellant appeared in courtroom #101 for his bail hearing. Justice of the Peace N.R. Rohan presided. Mr. G. Smith appeared for the Crown and Ms. S. Nimjee as LAO Duty Counsel.
[40] Ms. Nimjee informed this court that the practice of a duty counsel in Brampton “is a lot more hectic” than when dealing with clients as private counsel. As duty counsel, she has “a lot of individuals” to assist, at times 20 to 30 cases a day, and works with the pressures of the system needing to operate effectively.
[41] In her affidavit filed here, Ms. Nimjee deposed that she met the appellant before his appearance in bail court. However, in cross-examination, counsel stated that “we do not meet them in the cells” and that her first contact with Mr. K.D. “was in the courtroom”. It is her “normal practice” to meet an in-custody accused in the courtroom. Though having no specific recall of the appellant’s case, Ms. Nimjee was prepared to say that she “would have” asked the appellant if he had a surety and what the release plan was. Cross-examined here as to whether the appellant spoke to her about his daughter, Ms. Nimjee stated that she had no recall of such a discussion.
[42] Ms. Nimjee further stated in her affidavit that:
4. I made notes on the Bail Worksheet. On page 1, I noted: “905-949-9170 call his home to get surety #’s hopefully complainant will give us some #’s”. On page 2, I noted: “Says his phone is at home please phone complainant to get #’s for surety”, and, “- June 7”.

…

7. I can advise that it is my normal practice that if an individual advises me of the name and contact information of a surety that I would record that information on the Bail Worksheet. The Bail Worksheet did not have the names of prospective sureties. And given my notes on the Bail Worksheet about contacting the complainant to obtain some numbers, I would say that Mr. K.D. did not give me the name and contact information for any prospective sureties.

[43] Crown counsel informed the bail court that it was “a domestic situation”, a Crown onus for the bail hearing, and “we’re looking for a surety he can reside with”.
[44] Ms. Nimjee testified on appeal that a prisoner brought up from the cells may be present in a courtroom prisoners’ box along with other in-custody persons. On the record, the court asked duty counsel to “have a word with” the appellant. This would be a brief opportunity on account of “time constraints”. After a few seconds of whispering with the appellant in the courtroom, and being of the view that the best plan would include a residential surety, Ms. Nimjee addressed the court:
DUTY COUNSEL: I’m trying to explain to Mr. K.D. that he needs a surety release. He tells me he wants to go with John Howard. I can advise the Court John Howard has refused.

THE COURT: Well, I think that’s pretty straight forward.

DUTY COUNSEL: I have also advised Mr. K.D. that in the matter of a domestic the Court usually does not agree with a John Howard release. That’s all I can do.

THE COURT: Well, I never would – I never will, and I’m speaking for myself, thank you.

[45] Ms. Nimjee testified on appeal that when speaking to the appellant in court she would not yet be aware of the alleged circumstances of the assault. Counsel further testified as follows:
A. When there’s a consent release in place, and when there’s no surety available, usually I would advise the accused that he must be aware that if he accepts the – the conditions of the consent release…

Q. Right.

A. …and then if he’s unable to get a surety, then he’s stuck with those conditions. So I would definitely advise him of that possibility.

Q. Would you have advised Mr. K.D. that he could also contest the terms that the Crown is posting and actually run the bail hearing that day?

A. I would – I would discourage him. When there’s a consent release in place, I would discourage him from contesting the conditions of release, because if the consent release is based on [a] surety being – being present, being available, I don’t – I don’t want to put the client in the position where, without the surety, we’re trying to contest the conditions.

…

A. As far as I know, duty counsel in Brampton would not put the accused at risk if they felt that the plan wasn’t a good one. And – and not having a resident – residential surety is not a good plan. It’s not the best plan at least.

[46] The appellant testified that he was unaware that he could request a hearing to contest release conditions proposed by the prosecutor, for example, the requirement of residing with a designated surety.
[47] Crown counsel then narrated the factual allegation behind the charge. Justice of the Peace Rohan ordered judicial interim release for the appellant:
THE COURT: Sir, this was Crown onus, and with the consent of the Crown you’re going to be released on a recognizance of bail in the amount of $1500, no deposit, with the following conditions: You are to reside with your surety and abide by the rules and discipline of the household. You are to abstain from communicating directly or indirectly with … [T.Z.], except through legal counsel. You are not to attend within 500 metres of 3483 Queenston Drive in Mississauga. You’re not to attend any residence, place of employment, worship, recreation, or any other place known to you that … [T.Z.] may be present. Any personal belongings to be removed from the above address is to be arranged through a mutually agreed third party or on a once only basis in the presence of a Peel Regional police officer. Access to your child is to be arranged through a mutually agreed to third party or a valid court order. You’re not to possess until dealt with according to law any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance as such items intended for use as a weapon as defined by the Criminal Code of Canada. And you’re not to possess or make application for any licence or authorization pursuant to the Firearms Act. Sir, do you understand these conditions?

APPELLANT: Yes, I do.

THE COURT: Do you agree with them?

APPELLANT: I do.

THE COURT: Are you going to abide by them?

APPELLANT: Absolutely.

[48] The court next addressed the appellant:
THE COURT: You do realize, sir, that these conditions are in place until the matter is dealt with in law, and that can take quite a while in these courts. And if you’re in breach of these conditions, further charges may arise. The deposit will be subject to forfeiture by the Crown. Your surety or sureties have to attend here in this Davis Courthouse, specifically the intake court, to be deemed suitable by the justices in there that – to meet the terms and conditions of this bail. And that being done in a satisfactory manner, both you and the surety or sureties will sign this order, specifically this recognizance of bail. Do you understand everything clearly?

APPELLANT: Yes, sir.

[49] The appellant submitted in his affidavit before this court that on June 6 he understood from what Duty Counsel advised the court that LAO “would attempt to make calls to secure a surety” for his release. However, he heard nothing back. Also under cross-examination in this appeal, Mr. K.D. maintained that he raised with Duty Counsel his concerns about his daughter. He did not know he could directly raise this subject with the court and had little time with Duty Counsel:
A. I tried to speak with – with – with the duty counsel. They – they never give me time. Only I spoke with them maybe two, three seconds, and they always cut me off.

…

A. When I was – when I was in the cell – in the jail – in the jail cell, they used to come, they take – used to come there to the cell and ask – take the – our names, who would like to speak with the duty counsel in private, in the office. I put there – my – my name there many, many times, and from the 5th to 11, whenever that is, they never got back to me to – to talk to me.

Q. With respect, specifically to the concerns about your daughter, Mr. K.D., was this something that you raised with every single duty counsel that you spoke to?

A. I believe so.

…

Q. …did you raise this with every duty counsel that you spoke to?

A. I believe, absolutely.

…

A. First of all, they – they – they never ask me about my daughter. I – I always approached them and asking, where is my daughter? Where’s my – where – where’s my family? They – they never asked me.

Q. Right. But you’re telling them every time that you see them, Mr. K.D., that you’re concerned about your daughter. You need to get out to protect your daughter, right?

A. Yes.

Q. This is a conversation that you have with them over and over again. Right?

A. Yes.

…

Q. Okay. In any of the times that you try and speak up, Mr. K.D., you agree with me, again, we don’t see you say anything in those transcripts with respect to your daughter?

A. That’s not true. I – I only spoke with duty counsel about my family.

Q. In court, sir.

A. In court, I didn’t even have a chance, no. I have no chance.

…

Q. …are you really concerned about your rights? In the sense that if you’re concerned that your daughter is in imminent harm of some variety, why wouldn’t you be shouting at the top of your lungs with respect to this concern?

A. I tried to – to speak with the – with the duty counsel. They never – they never gave me time.

Prospective Surety Rejected
[50] Ibrahim Asyaari, the appellant’s brother-in-law, deposed in his affidavit that on June 6 or 7, 2013, following the arrest, he attended at a Peel police station to locate the appellant. He was informed that the appellant was not in custody there and that he would need to attend “at Brampton Court”.
[51] On one of these dates, the affiant attended the courthouse:
4. I attended at the bail office on the first floor of Brampton Court to be a surety for Mr. K.D..

5. I filled out all of the requisite paperwork.

…

6. Upon reviewing my ID the worker told me that I would not be able to be a surety for Mr. K.D. as I resided at the same address as him and Mr. K.D. wife and child.

The Fourth Day In Court
[52] On June 7, the appellant appeared before Justice of the Peace S. Burton in a “set date” court (courtroom #104). Ms. S. Andersen was present for the Crown and Mr. J. Gillham as LAO Duty Counsel.
[53] On the record, it was confirmed that bail had been ordered for the appellant the day before. Mr. Gillham related this to the court:
Okay, Your Worship, the gentleman’s provided some phone number and contact names for people to come and bail him out. He’s requested to come back on Monday in person; we’ll make every effort to contact his potential sureties.

[54] In his affidavit, Mr. Gillham states that:
13. JUNE 7, 2013 – Mr. D. [K.D.] [appears in set date court. I assisted Mr. D. [K.D.] on that appearance. It is noted on the record that Mr. D. [K.D.] has given LAO some phone number and contact name. He has requested to come back on Monday. And LAO will make efforts to contact [h]is potential surety. I am advised by LAO Paralegal, Daniele Monsalves, and I verily believe to be true, that on June 7, 2013 she placed a telephone call to “Abraham (9)949-9170”. There was no answer and no voice mail. Mr. D. [K.D.] is remanded to Monday June 10.

…

16. I would note that prior to June 7, 2013, Mr. D. [K.D.] had not provided the name of a potential surety. On June 4 and 5, he advised that he had no surety. On June 6, he advised that he needed his phone to obtain names and numbers. He provided the phone number of the complainant, being his home number. Then on June 7, he provides a name and number. The number provided on June 7 is 905-949-9170, which is the same number that he first provided on June 6, being his home number.

[55] The appellant was remanded to Monday, June 10 without the court expressly stating the purpose for the next court appearance. The appellant testified here that he did not understand why his bail was not “complete”.
[56] On the appellant’s Bail Worksheet for the June 7 date there is a note: “called Abraham” and that there was no answer.
One Week In Custody
[57] On Monday, June 10, the appellant appeared before Justice of the Peace M. Hudson in courtroom #104. Ms. Andersen again appeared for the Crown while Mr. S. Cragg-Core, then a summer law student with LAO, was present apparently acting as Duty Counsel.
[58] Mr. K.D.’ affidavit stated that when he appeared in court on June 10 he believed that Duty Counsel “had not made any further attempts to secure a surety”.
[59] The court was erroneously informed that the matter had been remanded from the prior Friday. From the court record, the court self-informed that bail had been ordered but had “not been entered”.
[60] Without any inquiry of the appellant on the record, this exchange then transpired:
DUTY COUNSEL: I mean, he does not have a lawyer he’d like to speak to duty counsel about possibly pleading or….

THE COURT: Well, if he wants to come back at an early…

DUTY COUNSEL: Yeah.

THE COURT: …date then he can do that…

DUTY COUNSEL: Yeah, he can come back another day.

THE COURT: …but not right now. So, when do you want him to come back?

DUTY COUNSEL: He would like to come tomorrow.

THE COURT: Tomorrow? All right, sir. June 11th, then, at nine o’clock in person, you’ll be in this courtroom 104, and you can then get to speak with a duty counsel.

[61] In his affidavit, Mr. Cragg-Core stated:
I noted on the Bail Worksheet: “104 June 11, in person, may want to plea[d]”. This was the next appearance date and courtroom. I can advise that it is my normal practice that if an individual in custody advises me of the name and contact information of a surety that I would record that information on the Bail Worksheet. I can further advise that my normal practice is to proactively inquire about sureties for individuals who have bail in place but are still in custody. I did not make a note on the Worksheet about prospective sureties.

The Second Guilty Plea
[62] Initially on June 11, the appellant appeared before Justice of the Peace Chang-Alloy in courtroom #104, a set date court. Ms. Andersen was present for the Crown. The certified transcript for the proceeding records no Duty Counsel appearing for the appellant. The entirety of the appearance, as recorded, reads:
COURTROOM CLERK: Court’s indulgence, Your Worship. An add on matter, K.D., is going to courtroom 103.

THE COURT: Courtroom 103 for K.D..

[63] In his affidavit, Mr. Morgan Koch states that he was working as LAO Duty Counsel at the Peel Courthouse in the Room “110 Advice Office”. From review of the LAO file, Mr. Koch was able to provide this information:
3. Contained in the LAO file is a note written on a standard form entitled “Request By Counsel”. This note, specific to Mr. K.D. matter, is not in my handwriting. I am advised by Daniele Monsalvo, a paralegal employed by LAO with the Brampton Criminal Duty Counsel Office that she did write the note. I am further advised by Daniele Monsalvo and I verily believe it to be true that she would have prepared that note based upon my instructions to her.

4. The notes provides: “K.D., K.D.: Morgan had Res Mtg (resolution meeting). π (Crown) willing to look into allowing Δ (defendant) to return to home as comp. (complainant) has moved out. Surety is here but can’t sign because they live at the same address as victim. Ms. Watson (crown attorney) requesting 1 week to”. Attached to this affidavit and marked as Exhibit “A” is a copy [of] the note on the Request by Counsel form.

5. It is my normal practice to get instructions from my colleagues, have discussions with the Crown (if necessary), and then convey the results of these discussions to either my colleagues or the accused person. If my colleague asked me to have a Crown Pretrial to see if the Crown would be agreeable to Mr. K.D. possibly returning back home, I would have done so. Based upon my colleague’s note, it is likely that the Crown asked to adjourn Mr. K.D.’ matter for one week to do further investigation about whether the complainant had moved out of the residence. It is further likely that I advised Ms. Monsalvo of the outcome of the meeting and that this message would then be conveyed to Mr. K.D. by duty counsel. I do not specifically recall ever meeting Mr. K.D..

6. The note goes on to provide “to 103” at the top right-hand corner. I can advise that courtroom 103 is a plea court. If an accused advises that he or she wants to be transferred from 104 set date court to plea court, then the duty counsel in set date court would have that matter transferred to the duty counsel assigned to plea court. I do not have any knowledge about whether this happened or at what point this happened as I was not present in 104 set date court.

7. As noted above, it would be normal practice for the Bail Worksheet and the Note attached as an Exhibit to this affidavit to be delivered to the Duty Counsel in plea court.

[64] On June 11, the appellant was next transferred to courtroom #103, a plea court, where Justice M. Khoorshed presided. Ms. M. Basso appeared for the Crown. Mr. B. Fader was present as a per diem LAO Duty Counsel.
[65] Mr. Asyaari states in his affidavit that on June 11 he attended the courthouse for the second time to attempt to meet his brother-in-law:
8. I attended again on June 11, 2013 to meet Mr. K.D., I also told duty counsel that Mr. K.D.’ wife and child are no longer at the same address and that I could be his surety.

…

9. I was informed by duty counsel that it no longer mattered as Mr. K.D. would be pleading guilty.

10. I asked if I could see Mr. K.D. and was told that he would be in court later that day.

11. I waited and saw Mr. K.D. in room 104 but was not allowed to approach him to speak to him.

…

12. The same duty counsel that spoke to me was representing Mr. K.D. and plead him guilty.

[66] Crown counsel on appeal elected not to cross-examine Mr. Asyaari upon his filed affidavit. Crown counsel made no submissions on appeal suggesting that Mr. Asyaari’s evidence ought not to be accepted.
[67] In his affidavit, Mr. Fader did not respond to the Asyaari affidavit paragraphs reporting discussions with him on June 11. Also there was no cross-examination of counsel on the subject. The appellant’s evidence is that he was not informed by counsel that his brother-in-law was present at court attempting to act as a surety.
[68] In his affidavit, the appellant stated that he was subsequently informed by Asyaari of the following:
18. THAT I was advised by my brother-in-law and do verily believe that he was told by Duty Counsel that he could not act as my surety as he lived in the basement of my house;

19. THAT my brother-in-law advised me and I do verily believe that he personally told Duty Counsel that my wife and daughter had moved out of the house within a day or two of my arrest;

20. THAT Duty Counsel advised me that they would need to wait a week to verify this information that my wife and daughter had moved out of the house in spite of the fact that they too had apparently been, or should have been, making calls on my behalf to my house and would also have obtained no answer;

[69] Mr. Fader’s affidavit includes this information:
4. I can advise that it is my normal practice to review the Legal Aid file. The Bail Worksheet at page 2 listed the Appellant’s prior appearances. The first appearance was on June 4, 2013 in courtroom 101. On the next appearance, June 5, 2013, the Appellant was transferred from courtroom 101 to courtroom 409 to plead guilty. The Bail Worksheet notes: “Plead but plea struck Raised self defence / consent fight”. The Bail Worksheet from June 11, 2013 from courtroom 104 noted: “In person may want to plea[d]”.

5. It is my normal practice, to talk to the Applicant in the cells and to then have discussions with the Crown about the Crown’s position. As indicated on the record, the Crown and I arrived at a joint submission. As is my practice, I discussed the joint submission with the Applicant. As indicated on the record, I reviewed the plea inquiry with the Applicant. Justice Khoorshed expects Duty Counsel to review the plea inquiry with the accused prior to entering a plea. On the instructions of the Applicant, his matter was called to enter a plea. As indicated on the record, the Applicant plead: “Guilty”.

…

8. I can advise that duty counsel will generally refuse to assist an unrepresented accused with a guilty plea and sentencing 1) until the duty counsel can speak to the accused privately; or 2) if the accused does not admit to the facts as substantially correct, but wishes to continue with a guilty plea to “get it over with.”

[70] In cross-examination, Mr. K.D. acknowledged that Duty Counsel explained that if he pled Guilty he would have no right to a trial. He understood the nature of a guilty plea. He knew that he would be sentenced after pleading guilty. He was informed of the sentence likely to be imposed by the court. He intended to plead guilty to achieve his objective of ending custody and checking on his daughter – he made a choice:
Q. …you were informed of those rights before that plea being entered, sir, right?

A. Yes.

Q. The rights don’t really matter here because first and foremost in your mind is the safety of your daughter?

A. Yes, absolutely.

Q. That trumps all else, right, Mr. K.D.?

A. Yes.

…

Q. So right to trial – you knew you had a right to trial but that doesn’t matter, right? Right, Mr. K.D.? Because you can’t wait in jail waiting for a trial when your daughter may be in harm’s way.

A. Absolutely.

Q. Right? You knew you could get bail, or you could have a bail hearing, but, again, you can’t wait for that to happen because you need to get out, right?

A. Yes.

Q. Because, again, your concerns about your daughter trump everything else?

A. Absolutely.

Q. So you knew about your rights to go with a bail hearing, a trial, reasonable bail, but, again, your plan here is to try and get out as quickly as possible to address these concerns with respect to your daughter?

A. I can say yes, after my – I understood that will be no – no bail for me.

Q. And, again, this takes us back to something that I asked you earlier, Mr. K.D.. You would have done anything during this whole ordeal to protect your daughter and to get out of jail, right?

A. Absolutely.

[71] In cross-examination on his affidavit, Mr. Fader stated that when acting in a Duty Counsel capacity he has less time to spend with an accused than he does with a private client. The advice he provides is “not as detailed”. He can have a number of clients on any court day. The courts before which he appears like “to see things move efficiently”.
[72] Before this court, Mr. Fader testified that, beyond the Worksheet notes, he has no specific or independent recall of the appellant’s case. Counsel has no current recall as to how many inmates he dealt with on June 11. He believes that he met Mr. K.D. in the courthouse cells prior to his appearance in plea court. As Duty Counsel, he would have had a number of prisoners to speak to. He speaks to these clients through the bars of their cells.
[73] On the June 11 date, Mr. Fader had no idea why the appellant had been “unable to make bail”. He was unclear as to whether a bail order had in fact been made or whether the Crown was simply prepared to consent to bail with a residential surety. He did not discuss these issues with Mr. K.D.. Mr. Fader generally assumes that bail matters have been dealt with in courtroom #101 by bail Duty Counsel. Counsel was unable to recall whether the appellant raised with him concerns about his daughter.
[74] Mr. Fader informed this court that when acting as private counsel he would only take written instructions regarding a guilty plea “if there’s something unusual about the case”. Counsel added that when acting as LAO Duty Counsel he follows a similar practice:
A. It’s very difficult to get written instructions when you’re duty counsel because it would involve handing a pen to the accused into the cells and that’s something the police, obviously, frown on, so you’re – you’re not permitted to do that.

…

Q. But when you’re back upstairs, when the inmate is called up, you can always ask leave of the court or the police officers to get those instructions signed, if you had them in writing?

A. It’s never been my practice or the practice of other duty counsel to do so. I suppose that’s something that could be looked at. I’m not sure that it’s necessary, but I guess it would be possible. Again, your handing a – you’d be handing a pen to an accused person in custody, and I know the police, understandably, have concerns about that.

[75] In cross-examination, Mr. Fader stated:
A. As I say, I have no specific recollection of dealing with Mr. K.D.. But I can tell you, when I look at the bail worksheet and I see that a plea has been struck, that raises a flag. And I would have had to have had a discussion with him to say, if you want to plead guilty that’s fine. I understand you tried to plead guilty before and there were some issues, so we need to talk about that and make sure that this is really what you want to do.

Q. And did you advise him as to what would happen with the plea, if he entered a plea that day?

A. I advised – I would have advised him that if, again, he raised the issue of self-defence or consensual – consensual fight that the court would have struck the plea again, because those are defences to the charge, and the court would not accept the plea again. If he wishes – wished to accept the facts as set out by the Crown at the time of the plea, then the plea would likely be accepted.

Q. Do you recall having this discussion, or this is something based on…

A. I – I have….

Q. …the notes and past experience that you’re….

A. Notes and past experience. I have no – no recollection, at all, of dealing with your client either in the cells or in the courtroom.

…

Q. So all you’re understand your role to be is, if he wants to plea[d] out that’s all you can assist him with?

A. And if he doesn’t want to do that then he can go back to bail court, or he can set a trial date, or he can apply for Legal Aid, or…

Q. Okay.

A. …any of those options.

…

Q. Okay. So when you entered the plea for Mr. K.D., did you have any concerns, at all, given that he’d previously had his plea struck?

A. I had concerns when I spoke to him in the – I would have had concerns when I spoke to him in the cells because I looked at the notes. So I would – as I say, it would have been a live issue in my mind to make sure that this is really what he wanted to do and that he understood what was happening. Because, obviously, he had tried to plead before and had raised a defence.

Q. Okay.

A. And – and both of those are valid defences, a consent fight or self-defence. So if he had given me any indication that those were live issues still, I would have said I can’t assist you with a plea. You have a defence to these charges and you should retain counsel or, you know, at the very least set a trial date.

Q. Or he could have tried to get his bail conditions varied…

A. He could have gone….

Q. …right?

A. Absolutely. He could have gone back to bail court.

Q. Was that something that you told him?

A. Again, I have no recollection of specifically dealing with him. I can only go by my notes. But the usual practice is, if you don’t – you – the accused doesn’t wish to plead and wishes to relook at bail, you say, go back to bail court.

[76] The appellant agreed before this court that he came to the conclusion that there were only two ways to be released from custody – bail or a guilty plea and sentencing. As to his perception of obtaining bail:
Q. Okay. And you had realized by this point, Mr. K.D., that there’s two ways that you can get out of jail, bail and a guilty plea?

A. And a guilty plea, yes.

Q. Right.

A. Yes. From the 6th up to the 11th, every – every day we – I get to court I was hearing that – I was hearing talking about bail. That there’s – somebody was there to bail me out, but I did not understand exactly the procedure why they failed. So I hoping that they – that somebody there to bail me out.

Q. Right.

A. So I have been back to jail.

Q. Right.

A. And the next day hope to come back, the next day and more – and then the next day and the bail – my bail will be – will be entered.

…

A. No, from the 6th to the 11th I was hoping for the bail because I hear that somebody was to – to – to bail me out, but I didn’t have – that was my – my – my brother-in-law.

…

A. Yes, because – okay, in that – in that – in that – in that day too again, from the 7th – 6th, the 7th, 8th and 9th – sorry, 8th and 11th, Salvation Army was calling my house and also the inmate, I – I give one – one inmate a note to go to my house and give it to my brother-in-law. And he told – Salvation Army called him back and he – and he – he say that he did.

…

Q. But you just told us that you assumed that she was safe between the period of June 7th to June 11th?

A. June the 11th because my – my bail was – was – was – was failed and I have no choice.

Q. Okay. So it’s not anything to do with your daughter. It has…

A. No.

Q. …to do with…

A. No, sir.

Q. …your bail.

A. It’s – everything – everything – everything had – had to do with my – with – with – with my – with my child.

[77] Paragraphs 22 to 24 of the appellant’s affidavit state:
22. THAT I made it clear to the Duty Counsel that I needed to get out and find my daughter as I was concerned for her safety;

23. THAT Duty Counsel was not diligent in their efforts to secure my release and that given the history of the matter Duty Counsel ought to have been alert to the fact that I was desperate to not be incarcerated;

24. THAT I entered a guilty plea under duress and not voluntarily;

[78] In cross-examination on his affidavit, the appellant stated that, “[a]fter they refused my bail, otherwise there I have no choice but to plead guilty”. In order to check on his daughter’s well-being, he was prepared to admit “things that weren’t necessarily true” as the only way out including that he had unlawfully assaulted his wife when in fact he had not. The appellant informed the court that he was unaware that his brother-in-law was at the courthouse on June 11. Had he known, this “probably” would have affected his decision to plead guilty as a surety bail would, for the first time, be attainable.
[79] Under cross-examination, the appellant was questioned as to whether he was prepared to deceive Mr. Fader about the true facts in order to achieve his objective of being released:
Q. …and it’s agreed that Mr. Fader didn’t get any written instructions from you, but it wouldn’t have mattered, Mr. K.D., right? Because you would have given him written instructions to plead guilty, at that point, given your concerns about your daughter.

A. Okay. If he was asking to – for the instructions, then I will give him the whole story from the beginning. And then I suddenly plead guilty to get out of jail because I wasn’t guilty in – in the – in – in the first place.

…

Q. On June 11th, you realized that the only option that you have, the only choice that you have is to plead guilty?

A. Yes.

Q. And you recognized that in order to be able to plead guilty, you’re going to have to admit things that you didn’t do.

A. Yes.

…

Q. So by the time that you see Mr. Fader on June 11th, you know that , basically, you’re going to have to admit to assaulting your wife?

A. Yes, sir.

Q. And that’s the only way that you’re going to get out of jail?

A. Absolutely.

…

Q. Right. So while he didn’t get written instructions, if he had asked for written instructions you would have given him written instructions?

A. I – I wouldn’t believe so I will do that in – in the – in the matter that he did because then I have to read my – what he – what he write in the instruction. I – I probably will sign it, but I still not – to me – to me it was – I was forced to plead guilty so I can get out of the jail, to….

Q. Right. And – and that’s what I’m trying to confirm with you, Mr. K.D..

A. Yes, sir.

Q. That that pressure, that force that you felt that was robbing you of your choice to have a trial was coming from you and coming from this concern about your daughter?

A. I would not be, say a hundred percent, because after the duty counsel failed to – to – to – to – to present me after they asked me – I – I even ask him a few times if they can find me a lawyer. When – they – they said tomorrow, tomorrow, tomorrow, tomorrow. In the last day I – I have no choice. I – I gave up, basically.

[80] Prior to arraignment, Mr. Fader provided this information to the trial court:
Your Honour, this would be a guilty plea to the charge before the Court. I’ve been over the plea inquiry with him, there’s a joint submission for the Court’s consideration.

[81] The assault charge was read aloud by the court clerk. When asked how he pled, the appellant personally replied, “Guilty”. Crown counsel recited the background facts:
For a domestic matter Your Honour. The defendant and the victim both live at 3483 Queenston Drive, in Mississauga. They’ve been married for five years, they lived there for nine years, they have a daughter who’s three years old. Police have not had any previous domestic matters with these parties. There are no known firearms, or related licences for either party. On June 3rd then of this year at 9:15 p.m. the victim, the defendant, and the child were inside that residence. They got into an argument over the victim not getting up to feed their child. The defendant then hit the victim with his right hand on her left ear, which caused her to fall down and cut her upper lip. She then called police, who arrived and attended the – attended, arrested the defendant, took him to 11 Division where he was held for bail. She had swelling to her left ear, and cut to her upper lip. Those are all of the facts.

[82] On behalf of the appellant, Mr. Fader, not the appellant personally, agreed that the facts were “substantially correct”. Counsel then presented their joint position on sentence. The appellant was not asked whether he had anything to say about the sentence to be imposed.
[83] In his affidavit, the appellant stated that Duty Counsel who assisted him on June 11 “did not appear to have fully understood the previous court appearances whereupon a guilty plea had been struck”. In the appellant’s view, the trial court “was not fully apprised of the history of the matter”. On June 11, he was “never asked … for … input” and “never asked … to say the word “guilty”” nor was he asked to personally “confirm the facts”. The appellant testified in cross-examination on his affidavit that had he known on June 11 that his daughter and wife were in fact out of the matrimonial home and in the care of a Children’s Aid Society facility he would not have pled guilty.
[84] Apart from the appellant being prepared to deceive Mr. Fader, he also intended to deceive the court by pleading guilty:
Q. …you’re in jail, you’ve told us all you want to do is get out of jail to check on your daughter, right?

A. Yes.

Q. You know that at this point, on June 11th, the only avenue that you have for that is a guilty plea?

A. Yes, sir.

Q. Or at least that’s what you feel.

A. Yes.

Q. All right. You know that you’re going to have to admit to certain things that you know are not true?

A. Yes.

Q. So on June 11th, sir, it doesn’t matter what duty counsel says to you, right, Mr. K.D.?

A. Yes.

…

Q. You have decided what you’re going to do.

A. I can say I decided, yes, I want to do, because to me it was – I forced – I have no choice but to do – to do that.

Q. Because, again, sir, on June 11th you’ve decided that, basically, that you’re going to do anything you need to do in order to get out of jail?

A. My – my only option was to get out of jail is – is to plead guilty…

…

Q. There was no doubt with respect to you pleading guilty on that day?

A. Yes.

Q. Because what’s really driving this at the end of the day on June 11th, Mr. K.D., is, again, your perception that you need to get out to check on your daughter?

A. Yes.

Q. And what you feel because of that is that you’ve got no choice but to plead guilty, right?

A. Yes.

Q. And you’ve been robbed of that choice in two ways, right, Mr. K.D.?

A. Yes.

Q. One is because you haven’t been able to get bail…

A. Yes.

Q. …even though you have bail.

A. Yes.

Q. You can’t meet the bail, right?

A. Yes.

Q. And the other reason that you’ve been robbed of this choice is because of the fact that you have this concern about your daughter?

A. Yes.

[85] Ultimately, Justice Khoorshed imposed sentence in these terms:
All right. Under these circumstances, the joint submission is accepted. I have taken the nine days pre-trial custody into account. Sir, it would be time served, Probation for 18 months. You will report to a probation officer right away, and then as required. You are not to have any contact with the alleged victim except with written revocable consent. Not to be within 100 meters of her residence, or place of work without a written revocable consent. No weapons. You will participate in a PARS program and provide evidence to the probation officer that you have completed it. Section 110 order for five years. And contact with your child only through a third party agreed upon by both, or through a family court order.

POSITIONS OF THE PARTIES
The Appellant
[86] On behalf of the appellant, Mr. Farooq submitted that the affidavits from the appellant and Ibrahim Asyaari are properly admissible as fresh evidence speaking, as they do, to the validity of the trial process itself.
[87] It was submitted that on the whole of the evidence, including all affidavits filed as well as the record of cross-examinations of selected affiants, it has on balance been established that the appellant’s June 11, 2013 guilty plea was legally invalid.
[88] Mr. Farooq argued that there were in effect “a series of fumbles” resulting in the appellant effectively finding himself in a position where, with insufficient information, he felt forced to enter a guilty plea.
[89] Counsel pointed to a number of problematic features of the case in the context of a person in custody for the first time, without experience with the criminal justice system, who was subject to the emotional stress and pressures of fearing for his daughter’s well-being.
[90] In narrower and more refined submissions in oral than written argument, it was argued that while no one act of Duty Counsel, whether or not properly characterized as ineffectiveness of counsel, may be identifiable or act of a court in its treatment of the appellant’s case as being responsible for the miscarriage of justice of a potentially innocent accused pleading guilty, the cumulative impact of case-specific circumstances ultimately led to this result. Counsel noted a number of contributing circumstances, properly characterized as creating an oppressive and coercive atmosphere, including the inability of the appellant to contact prospective sureties and the failure of the system to alert him to Mr. Asyaari’s preparedness to act as a surety, Justice of the Peace Rohan’s refusal (without submissions) to consider the John Howard Society supervision program in lieu of a surety, the rotating roster of busy Duty Counsel over six days of court appearances, the failure to inform Justice Khoorshed that an earlier guilty plea was vacated, and the absence of a plea inquiry by the court on June 11.
[91] It was also submitted that the appellant’s plea was not voluntary or unequivocal.
The Respondent
[92] On behalf of the Crown, Mr. Renwick submitted that the court should have reservations about the reliability of the appellant’s evidence on appeal respecting the stress he maintains he was experiencing and its contribution to the decision to admit guilt. Counsel noted that in none of the transcribed court appearances is there any suggestion of the appellant being in emotional stress.
[93] It was submitted that at all times the appellant understood that he had the right to a trial with legal representation, he understood the nature of the sentence which would be imposed if he pled guilty, and he freely chose to enter such a plea as the selected option to be released from custody to deal with his concerns about his daughter. On the appellant’s evidence, it is his position that he deliberately chose to mislead the court on June 11 by pleading guilty knowing that he might have a defence to the charge of unlawfully assaulting his spouse. In these circumstances, it was submitted that the appellant’s plea was voluntary, unequivocal and informed.
[94] Mr. Renwick also drew to the court’s attention the evidence that Mr. Fader conducted a plea inquiry review with the appellant before acting for the appellant in the guilty plea proceeding. It was submitted that, determined to secure his release from custody for personal reasons of his own, the appellant pled guilty without any overpowering or severe pressures and in the absence of any actions by counsel or judicial officers which compromised the fairness of the guilty plea proceeding on June 11, 2013.
ANALYSIS
Governing Principles
[95] Parties on the appeal were in general agreement as to the body of jurisprudence relevant to the issues on appeal. Accordingly, and because submissions were essentially limited to application of principles to the facts of this case, the overarching principles may be summarily stated.
[96] The Palmer fresh evidence admissibility criterion of due diligence is less strictly applied in the context of a criminal proceeding where the integrity of the trial process is itself at issue: R. v. Hay, 2013 SCC 61 (CanLII), at para. 63; R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520, at pp. 529-30; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at pp. 43-4 (appln for leave to appeal dismissed [1996] S.C.C.A. No. 347).
[97] An appellant seeking to set aside a guilty plea on appeal on the basis that it is somehow deficient carries a heavy burden of proof: R. v. Wilson, 2012 ONCA 396 (CanLII), at para. 3; R. v. Mitchell, 2010 ONCA 692 (CanLII), at para. 27; R. v. Logan (1999), 1999 CanLII 927 (ON CA), 139 C.C.C. (3d) 57 (Ont. C.A.), at p. 62.
[98] As a general rule, a plea of guilt is legally valid where it is voluntary, informed and unequivocal: R. v. R.T. (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), pp. 519-524: R. v. R.P., 2013 ONCA 53 (CanLII), at para. 40 (appln for leave to appeal dismissed [2013] S.C.C.A. No. 133); R. v. Moser (2002), 2002 CanLII 49649 (ON SC), 163 C.C.C. (3d) 286 (Ont. S.C.J.), at paras. 29-43 (affd on a different basis [2006] O.J. No. 3945 (C.A.)).
[99] An accused person has a fundamental right to control the conduct of his case: R. v. Swain (1991), 1991 CanLII 104 (SCC), 63 C.C.C. (3d) 481(S.C.C.), at p. 505; R. v. Delisle (1999), 1999 CanLII 13578 (QC CA), 133 C.C.C. (3d) 541 (Que C.A.), at p. 555. A voluntary plea refers to the conscious volitional decision of an accused person to plead guilty “for reasons which he or she regards as appropriate”: T.R., at p. 520; R.P., at para. 40. Broadly interpreted this could include entry of a false guilty plea. That said, it has been recognized, albeit in a different context, that a court “that is misled, or allows itself to be misled, cannot serve the interests of justice”: R. v. K.(S.) (1995), 1995 CanLII 8926 (ON CA), 24 O.R. (3d) 199 (C.A.), at para. 15.
[100] A plea of guilt is not involuntary simply on account of an accused person acting under the pressures of ongoing carceral confinement, the fact of facing a criminal charge, and uncertainty about his or her future: R. v. Meadus, 2014 ONCA 445 (CanLII), at paras. 15-17; R. v. Tryon, [1994] O.J. No. 332 (C.A.), at para. 1.
[101] Where an appellant submits that in pleading Guilty he did so in the context of ineffective assistance of counsel he or she must establish that defence counsel’s acts or omissions constituted incompetence and that a miscarriage of justice resulted: R. v. G.D.B., at para. 26; R. v. L.B., 2014 ONCA 748 (CanLII), at paras. 6-8; R. v. Furtado (2006), 2006 CanLII 32992 (ON SC), 43 C.R. (6th) 305 (Ont. S.C.J.), at para. 74.
[102] Sections 606(1.1) and (1.2) of the Criminal Code provide that:
(1.1) CONIDITIONS FOR ACCEPTING GUILTY PLEA – A court may accept a plea of guilty only if it is satisfied that the accused

(a) is making the plea voluntarily; and

(b) understands

(i) that the plea is an admission of the essential elements of the offence,

(ii) the nature and consequences of the plea, and

(iii) that the court is not bound by any agreement made between the accused and the prosecutor.

(1.2) VALIDITY OF PLEA – The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.

[103] In assessing the validity of a guilty plea, appellate courts have regard to the totality of the case-specific factual circumstances including having regard to such factors as to whether:
(1) the court conducted “a full guilty plea inquiry” (R. v. Cohen, 2013 ONCA 163 (CanLII), at para. 1), also described as a “thorough and careful plea inquiry”: Meadus, at para. 6; see also: R. v. Chemana, 2014 ONCA 220 (CanLII), at para. 19 (appln for leave to appeal filed [2014] S.C.C.A. No. 379)

(2) the appellant was represented by experienced counsel: Mitchell, at para. 25

(3) defence counsel received written instructions regarding the plea: R.P., at paras. 18-19, 22, 56-7; R. v. Singh, 2014 BCCA 373 (CanLII), at paras. 22, 25, 27, 37

(4) the accused had prior experience with the criminal justice system: T.(R.), at pp. 256, 260; R. v. Eastmond, [2001] O.J. No. 4353 (C.A.), at para. 6.

[104] In noting the need for courts taking pleas of guilt to proactively deal directly with accused persons, even where legal representation is present, Professor Christopher Sherrin in his article, “Guilty Pleas From The Innocent” (2011), 30 W.R.L.S.Ι. 1, has observed that:
Defence counsel are realists. They appreciate that many clients falsely claim innocence. They recognize that they can never really know what happened. They come to understand that their role is not to determine the truth but to act and give advice based on a practical, realistic assessment of a case. One also cannot forget that in the rush of the criminal courts, counsel, and perhaps especially duty counsel, are often sorely pressed for time. They do not always have (or, in some instances, take) the opportunity to assure themselves of the completeness and sincerity of the accused’s admissions. The law has to recognize these practical realities and respond to them.

(citations omitted)

[105] At the end of the day, where, as in the present case, an appellant pleads that the fairness of the process and confidence in the reliability of the verdict were compromised, such that a miscarriage of justice was occasioned, the court’s broad supervisory jurisdiction is properly invoked to overturn a wrongful conviction. This authority is well-described in R. v. Kumar, 2011 ONCA 120 (CanLII), at para. 34:
…even though an appellant’s plea of guilty appears to meet all the traditional tests for a valid guilty plea, the court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the guilty plea and that demonstrate a miscarriage of justice occurred.

(emphasis added)

Application of Principles to the Appellant’s Appeal
[106] Counsel were in agreement that the court ought to receive the affidavits submitted on appeal and the transcripts of the cross-examinations conducted on some of those documents in determining whether a miscarriage of justice occurred.
[107] The parties further acknowledge that determination of this issue is largely a fact-driven exercise. Accordingly, a sensible starting point is the credibility of the appellant’s evidence.
[108] Although the appellant, in particular because of his heavy accent, and it seemed his less than full capacity to understand English at times, was periodically difficult to understand during his testimony before this court, I am satisfied on the entirety of the record that Mr. K.D. was not seeking to mislead the court. On balance, I accept:
(1) that the appellant’s version of the June 3, 2013 events was capable in law of affording a complete defence to the assault charge

(2) whether reasonably or not, while in custody, he honestly perceived that his daughter might be unsafe or removed from the country

(3) deprived of the opportunity to litigate the issue of a non-surety release to a JHS shelter, and then with bail not completed and no known surety to fulfil the residential surety condition of the outstanding bail order, a guilty plea was viewed by the appellant as the sole avenue to release from custody to facilitate access to his daughter.

[109] The only sworn account of the events of June 3, 2013 is that of the appellant before this court relating that what actually occurred is contained in his explanation given to the court on June 5, 2013. Given that those Duty Counsel who were examined on the subject had no current recall of the appellant’s case, there was no evidence to contradict Mr. K.D.’ evidence that he raised concerns about his daughter with Duty Counsel. It is not reasonable to think that an in-custody accused unfamiliar with the court system would raise this issue directly with the court. The evidence does not support, and it was not suggested to the appellant in cross-examination, that he was able to contact anyone to act as a surety.
[110] Unlike so many cases in which a convicted and sentenced accused seeks to withdraw his Guilty plea on appeal after being sentenced to an unexpected custodial disposition, or after learning post-conviction that conviction status materially impairs another of his or interests (for example immigration status or international travel), the record here does not admit of such concerns.
[111] On the whole of the evidence accepted by the court, it can be safely concluded that on June 11, 2013 Mr. K.D.:
(1) understood that he was criminally charged with assaulting his wife on June 3, 2013 in their residence

(2) knew that he had the right to a trial of the charge where the prosecution would be obliged to prove the allegation

(3) understood that he could retain his own counsel to defend the charge

(4) knew that entry of a guilty plea would result in no trial being conducted

(5) understood that a guilty plea amounted to public acceptance of the facts of the allegation narrated by Crown counsel

(6) further knew that by pleading guilty he would be convicted and sentenced for the alleged assault

(7) knew the sentence likely to be imposed by the court, based on the joint submission to be presented by Duty Counsel and Crown counsel, would result in his immediate release from custody.

[112] To more completely set the background for the appellant’s decision to plead guilty, it is necessary to review the factual context of his situation, as he experienced it, in the 8-day period of June 4 to 11, 2013 including the following:
(1) in the course of a single transaction, after his wife kicked him and struck their child, he pushed his spouse – an intentional application of physical force to her person

(2) he was arrested for assaulting his wife and taken into custody by the police

(3) despite having no prior criminal record, he was not given bail from the police station

(4) the appellant, without prior experience in the court system, and having English as his second language, found himself in the environment of a pre-trial prisoner facing prosecution in the criminal courts – an experience which would include:

(a) 7 nights in custody including at the Maplehurst detention facility

(b) transport in a prisoner van between the jail and the Peel Courthouse on 6 separate days

(d) in an 8-day period, encountering different court personnel including 6 justices of the peace, 2 judges, 6 prosecutors, as well as 8 LAO Duty Counsel and an LAO Paralegal

(5) the appellant was ordered to have no communication directly or indirectly with the complainant

(6) his access to phone numbers for outside persons was in his cellphone which remained in the matrimonial home in which he resided with the complainant

(7) despite the non-communication order, in an effort to secure bail to get to his daughter, the appellant tried directly (phone calls from jail) and indirectly (inmates calling appellant’s home, LAO and Salvation Army phoning as well) to reach the complainant respecting contact information the appellant could use to locate a willing surety

(8) these endeavours of the appellant proved unsuccessful – throughout most or all of his custody, he was unable to provide the name of anyone willing to act as a surety – he could only give his home phone number which was never answered by a live person

(9) the appellant was unaware, as of June 11, that his brother-in-law was willing to act as a surety and had received no confirmation that his wife and daughter had vacated the matrimonial home and remained within the jurisdiction

(10) his June 5 attempt to relate to the court his account of what happened in his home on June 3 resulted in his remaining in custody as his guilty plea was struck by the court

(11) on June 11 the prosecution would not ask the court to impose any further custody leading to the likelihood that the appellant could secure his release that day.

[113] It can be safely acknowledged that, in many respects, Mr. K.D.’ situation falls within a range of common experience for others who, after arrest, find themselves before the courts for the first time in their lives. An in-custody accused at the front-end of the system encounters various criminal justice system participants, multiple courtrooms and sudden acquaintance with previously unknown legal concepts and systems. There is fear of the unknown, the discomfort and stress of custody, struggle to find a surety, anxiousness about the future, as well as concern and pressures relating to extrinsic matters such as relationships, family, employment, home and possessions, securing chosen legal representation, etc.
[114] As a general rule, an in-custody accused who, in succumbing to these ordinary pressures and stresses, pleads guilty though having a viable defence, cannot be subsequently heard to complain about the validity of his or her plea.
[115] Also, for the purposes of this appeal, I accept that a criminally-charged accused has the freedom of choice to plead guilty for personal reasons although aware that he/she may have a viable defence to the charge supporting his or her innocence. For example, an accused who pleads guilty in such circumstances in order to take criminal responsibility in place of a co-accused with whom he or she has a personal connection, or to immediately secure a non-custodial sentence to accommodate release from custody to visit a dying relative or to avoid dismissal from employment, cannot be later heard to request a take-back of the plea.
[116] However, individualized assessment of the appellant’s plea decision requires more intensive scrutiny. When drilling down more specifically on peculiarities in the appellant’s case, for want of a better descriptor at this point, which ultimately fall to be cumulatively considered as to whether the entry of his guilty plea amounted to a miscarriage of justice, one can usefully review the following circumstances unique to the appellant’s circumstances, some systemic, and others not:
(1) Although a s.515(12) non-communication order was properly made on June 4, 2013, no court or counsel subsequently raised the issue of an amended or qualified order once it became apparent that the appellant’s prime connection to the outside world was his cellphone at home with its menu of phone numbers and when it became evident that the only phone number he could provide to LAO counsel was his home number where he resided with the complainant.

(2) Also on June 4, the JHS, funded through the Ontario Ministry of the Attorney General, accepted the appellant for bail supervision. No affidavit material or cross-examinations addressed this matter any further. The JHS provides an alternative to pre-trial custody in the absence of a surety. The Bail Worksheet notes that the appellant initially declined JHS assistance as he was not amenable to a shelter residency condition.

(3) On June 5, the appellant met a different Duty Counsel than he had met a day earlier. He only met counsel in the courtroom and only very briefly. There was no Crown disclosure.

(4) On the record, it remains unclear whether, on transfer to plea court on June 5, the appellant was aware that a guilty plea amounted to an admission of an unlawful assault upon his wife. In this regard, these circumstances are relevant:

(a) Mr. Rota is now only able to articulate what he believes he “would have” done in terms of advising the appellant

(b) Duty Counsel has no record of written instructions relating to the plea

(d) the absence of a s.606(1.1) plea inquiry by the court

(e) the fact that the appellant advanced potential defences after Crown counsel recommended that the appellant be asked to personally agree to the narrated facts

(f) the current inability of Duty Counsel to say whether he was surprised when the appellant gave the explanation he did to Justice Ready.

(5) On June 6, the appellant met a third Duty Counsel, again only very briefly in the courtroom. On Duty Counsel’s evidence, she asked the appellant what his release plan was. Of course, he had no plan as he did not have his cellphone, could not reach anyone by phone at his residence, and, on the appellant’s uncontradicted evidence, though hearing back from the Salvation Army, he was getting no reports back as to the progress of LAO staff in communicating with his home.

(6) On June 6, with a stall in progress toward identifying a prospective surety, a decision fell to be made as to whether a non-surety bail order should be sought for the appellant, an individual with no criminal record who, on his version, pushed or slapped the complainant in the context of a defence to the employ of that physical force:

(a) Duty Counsel informed the presiding justice of the peace that, “He tells me he wants to go with John Howard. I can advise the Court John Howard has refused”. Unfortunately, no one explored whether the JHS refusal would be affected by the appellant’s apparent change of mind to accept JHS supervision terms.

(b) In any event, the justice of the peace announced that he would “never” agree to a JHS release. This general pronouncement was made without submissions on the point from Duty Counsel or Crown counsel, and not only without information as to the ongoing problems of contacting prospective sureties, but also without the court having knowledge of the specific facts of the allegation in this case of a slap or push by someone with no prior criminal record including the possible defences explained to the court the prior afternoon. The appearance of fair justice was compromised and the court’s approach effectively foreclosed a contested bail hearing on the residential surety issue in the absence of a recusal motion.

(c) Duty Counsel, having no knowledge of the factual nature of the allegation, the facts not having yet been read into the record, persuaded the appellant to proceed with a consent bail thereby locking the appellant into again trying to find a surety while he remained in custody, an exercise which was proving to be futile on a daily basis.

(7) The appellant’s uncontradicted evidence that he was receiving no reports back from LAO staff respecting the unsuccessful efforts to acquire information on his behalf as to a prospective surety.

(8) On June 7, his fourth consecutive day of custodial attendance at the Peel Courthouse, on the appellant’s evidence, he did not entirely understand why his bail was not “complete”.

(9) It is apparent that by Monday, June 10, having spent over a week in custody with no information as to his daughter’s whereabouts, and no information about a prospective surety, the appellant was prepared to return to the option of trying to plead guilty to secure release from custody.

(10) On the entirety of the record, it appears that on June 11, before entry of a guilty plea, the appellant was not informed that:

(a) his brother-in-law was present at court prepared to act as his surety

(b) that the Crown might be prepared to consent to the appellant moving back to the matrimonial home, where his brother-in-law had been residing, once the Crown checked the complainant’s circumstances.

Because Mr. Koch does not appear to have met with the appellant, and Mr. Fader did not pass along this information, the appellant was deprived of critical facts relevant to his decision to plead guilty despite having been informed that he had one or more viable defences.

(11) On the record, as enhanced on appeal, we know little more than that Mr. Fader’s normal practice would have been to review, in advance, “the plea inquiry” with the appellant in part because that was an expectation of Justice Khoorshed. It is unknown the extent to which counsel probed issues of factual and legal guilt with the appellant particularly in light of the explanation previously given to the court as to the circumstances of touching his wife. Counsel did not review options respecting the unfulfilled bail order including the prospect of a s.523(2)(c) consent variation of the outstanding order.

(12) Despite the circumstance of the earlier vacated guilty plea, no written instructions were taken from the appellant respecting his decision to plead guilty. While Crown counsel’s submission, that this point is academic given the appellant’s intention to deceive Mr. Fader, is not easily answered, the failure of the plea court to conduct a s.606(1.1) plea inquiry is less easily dismissed. Someone ought to have informed the court that, only days before, a plea had been entered and struck by another judge as well as what was known regarding defences raised by the appellant in open court on that occasion. Whatever discretion exists for the court to forego the plea inquiry, or to delegate it to counsel in whole or in part, had this information been conveyed to the court, a plea inquiry would have been mandatory. With a fully informed court, probing examination of the appellant on the record by the experienced judge very likely would raise doubts as to the validity of the plea. As well, at least some of the facts described in subpara. (10) above would likely have been disclosed allowing the appellant to proceed on a fully informed basis as to whether to eliminate continued pursuit of bail as an alternate to pleading guilty. Indeed, the court may well have held the case down during the day with a direction that it be forthwith determined whether the complainant had vacated the family residence.

(13) Finally, prior to imposing sentence, the court failed to comply with s.726 of the Code to permit the appellant to personally speak to sentence.

[117] Duty Counsel in the Peel Courthouse provide an invaluable professional service to unrepresented accused appearing before the criminal courts. They often do so in difficult circumstances including incomplete Crown disclosure, inadequate facilities to interview prisoners, and very real time constraints.
[118] Practically speaking, Duty Counsel have little opportunity to make notes during the course of their duties. In a year, they might see several hundred clients. Accordingly, it is hardly surprising that Duty Counsel in this appeal had no current independent recall of Mr. K.D.’ case. Apart from cryptic notes on the Bail Worksheet, counsel were obliged, for the most part, to resort to giving evidence of custom, habit or routine in terms of how, as Duty Counsel, they assist in-custody clients.
[119] In the present case, a revolving door of Duty Counsel strived to assist the appellant who had yet to retain his own counsel. In the context of their caseload pressures, the circumstances of how long and where they spoke to Mr. K.D., the “split” assignments of Duty Counsel across various courts, and the time available to deal with individual accused, one cannot in this case fault their judgment calls and discharge of professional duties.
[120] It is evident that other measures and decisions by counsel would, in all probability, have resulted in the appellant’s release on bail and the presentation of one or more defences in a defended trial. That said, this conclusion based on hindsight does not mean that counsel provided ineffective assistance.
[121] As an aside, and recognizing the existence of language challenges in some cases, there is no reason why a document cannot be provided to an accused in the cells which sets out the substance of a plea inquiry as well as instructions to LAO Duty Counsel to proceed in assisting with the entry of a guilty plea. It need not be signed. When the accused is brought up to court, the document can be made an exhibit once the accused acknowledges on the record that he/she has read and understood the document’s text and has no further questions about its text.
[122] Be that as it may, in the current circumstances under which LAO Duty Counsel work at the Peel Courthouse, and considering that the in-custody accused they assist soon after arrest have no Crown disclosure or independently-retained counsel of their own, and generally do not provided written instructions, any court before whom such an accused expresses an intention to plead guilty should conduct its own plea inquiry, have the accused personally enter his/her plea, directly ask whether the accused agrees to the accuracy of the facts read in by the prosecution and question qualification of those facts or equivocation on a prisoner’s part, and, should permit the accused to speak personally to sentence. There should not be routine departure from this standard as occurred in the appellant’s case.
[123] On the appellate record, the appellant has discharged the burden of establishing that his June 11, 2013 guilty plea ought to be vacated. In the very particular circumstances of this case, the fairness of the process, in appearance and operation, was compromised to a degree which is antithetical to the interests of justice.
[124] In the context of self-imposed pressure of wanting to verify his daughter’s circumstances, the appellant pled guilty to secure release from custody when he could not obtain judicial interim release. In concluding that he would not be released through the option of bail, a conclusion driving the guilty plea decision, the appellant was deprived of the opportunity of being able to act on his willingness to accept a JHS shelter residency condition and not alerted to the presence of a prospective surety at the courthouse on June 11. The failure of the court, itself deprived of the critical information about the earlier vacated plea, to conduct a probing plea inquiry on June 11 was instrumental in defeating the interests of justice in this particular case. Aware that he had a viable defence to the criminal charge, Mr. K.D. forewent pursuing his innocence on account of the cumulative circumstances described in paragraph 116 above. This amounted to a miscarriage of justice.
CONCLUSION
[125] The submitted fresh evidence is admitted.
[126] The appeal is allowed. The conviction is set aside and a new trial is ordered before a differently constituted summary conviction trial court.
[127] The appellant is ordered to appear in courtroom #104 of the Peel Courthouse on January 19, 2015 at 10:00 a.m. in order to set a new trial date. Should the appellant fail to appear, the Crown may apply for process to compel his appearance.

____________________

Hill J.

DATE: January 7, 2015

CITATION: R. v. K.D., 2015 ONSC 104

COURT FILE: SCA(P) 410/13

DATE: 2015 01 07

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

RE: R. v. K.D.

COUNSEL: P. Renwick, for the Respondent

A. Farooq, for the Appellant

HEARD: November 18, 2014, at Brampton

REASONS FOR JUDGMENT

[on appeal from conviction by

Justice M. Khoorshed on June 11, 2013]

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