Appeal Court decision focuses on guilty plea procedures

Law360 Canada (January 2, 2024, 2:38 PM EST) --

John Hill

Maybe the taking of guilty pleas in Ontario courts has become a little more difficult. The usual procedure when a guilty plea is entered follows a traditional pattern: The accused signals an intention to plead guilty; the Crown reads in a synopsis of facts; the accused is asked if the “facts” are substantially correct. Rarely is an Agreed Statement of Facts presented. If the accused signals agreement, a conviction is entered.

That seems to be the procedure intended to be followed when Thavanathan Sithravel stated his intention to enter a guilty plea in the Ontario Superior Court in the summer of 2015. Sithravel heard the Crown read in statements regarding a robbery to which he had been a party. He admitted to being at one of two meetings where the robbery was planned and he was the one selected to fence the stolen goods. He objected to being the mastermind behind the operation and disputed his involvement in all the prior planning. There was no Agreed Statement of Facts entered into evidence. However, Sithravel’s objection to the allegations read into the record were noted. On that basis, the Superior Court Justice found Sithravel guilty.

Sentencing was adjourned to a later date. When that date arrived, Sithravel had absconded to Sri Lanka. His defence counsel asked to be and was granted permission to be removed from the record. Sentencing proceeded in absentia. A nine-year sentence was imposed.

The Ontario Court of Appeal held in November 2023 that a reduction of sentence by nine months was proper by allowing the appeal on the second of two grounds (R. v. Sithravel 2023 ONCA 748)

The first ground advanced, that Sithravel’s absconding was erroneously treated as an aggravating factor, was denied. Defence argued that absconding should not be an aggravating factor in sentencing and cited R. v. Singh 2015 ONSC 904. That argument was discounted because the Appeal Court noted that the sentencing judge’s use of the words “aggravating factor” was more nuanced. What the judge intended was that despite a guilty plea (ordinarily a sign of remorse), going abroad was an indication he had not taken full responsibility for his wrongdoing and should not be given the credit that normally accompanies an accused showing repentance and a willingness to move towards rehabilitation.

The second argument that was persuasive was that the sentencing judge had not followed the procedures laid out in R. v. Gardiner [1982] 2 S.C.R. 368. That case set out the standard when there were disputed facts in sentencing. It held that a trial judge should not depart from the traditional criminal standard of proof beyond a reasonable doubt in sentencing, which is a critical stage of the criminal process. Facts justifying a sanction are just as important as facts justifying a conviction. Crime and punishment are inextricably linked. Proof beyond a reasonable doubt of facts in sentencing are as important as proof when imposing a conviction.

Here, the sentencing judge failed to accept Sithravel’s denial that he was the mastermind behind the robbery. That aggravating factor had not been proven beyond a reasonable doubt. His co-accused were given sentences of less than nine years and the defence urged a reduction of nine months being the additional time imposed on Sithravel for increased culpability in the robbery. This amounted to an error in principle allowing an appellate court to intervene in the sentencing process (R. v. Lacasse 2015 SCC 64)

The Court of Appeal agreed and reduced the nine-year sentence by the nine months as suggested.

The case is of greater importance in that the last three paragraphs of the judgment establish a caution that Ontario’s Appeal Court is directing to trial counsel. It notes that busy courts frequently proceed in guilty pleas where the “facts” read out are simply a restatement of a police synopsis. It even notes that sometimes these “synopses are aspirational in terms of the facts the Crown can prove.”

While it is entirely proper for an accused to deny or qualify what is in the Crown brief, the Ontario Court of Appeal warns that “the details of the facts to be admitted should be sorted out by counsel before the plea is entered, both as a matter of clarity of the facts admitted in support of a guilty plea and the efficient use of court time.”

If this warning is taken seriously, both Crown and defence counsel will in future have to meet and agree on what is admitted before the facts are read out following a guilty plea. It may lead to greater efficiency at trial, but it will also require Crown and defence counsel to spend more time doing their “homework” before a court appearance is made.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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