Ontario Superior Court of Justice

Between

Her Majesty the Queen

Applicant

And

[REDACTED] and [REDACTED]

Respondents

[REDACTED] and [REDACTED] for the Respondent, Her Majesty the Queen

[REDACTED], for the Applicants, [REDACTED]

[REDACTED] for the Applicants, [REDACTED]

Released: [REDACTED]

Judge: [REDACTED]

RULINGS

1. RULING RE USE OF GUILTY PLEA

[1] The Applicants suggest the jury must be instructed that when an accused admits facts on his guilty plea, he can only be deemed to admit facts that pertain to his own involvement, not that of anyone else.

[2] In this case, [REDACTED] admitted at his guilty plea that certain facts pertaining to the offences in question, were substantially correct. Many of those facts included acts allegedly perpetrated by the Applicants. These facts are relevant and probative as they corroborate the testimony of the Complainant.

[3] Absent evidence to the contrary, a guilty plea must be assumed to be voluntary and informed (See R. v. T.C.R. (1992), 10 O.R. (3d) 514 (C.A.).)

[4] The guilty plea was made under oath, the facts were read to [REDACTED] by his own counsel and, at the Preliminary Inquiry of the Applicants, [REDACTED] confirmed that the facts read to him at his guilty plea were correct. He was cross-examined on these issues and had the opportunity to qualify those statements at trial.

[5] I ruled earlier that [REDACTED] guilty plea could be used to impeach his credibility and could be introduced for the truth of its contents pursuant to the KGB Application brought by the Crown. It was of course open to [REDACTED] to qualify or to deny those statements.

[6] In my view, given that a guilty plea is assumed to be voluntary and informed and the particular circumstances in which this guilty plea was made, the jury should not be instructed that when an accused admits facts on his guilty plea, he can only be deemed to admit facts that pertain to his own involvement, not that of anyone else. Defence counsel are of course permitted to refer to [REDACTED] understanding that he believed he was only admitting facts that pertained to him.

2. RULING RE ADMISSIONS

[7] The Applicants seek a ruling that the court advise members of the jury that:

a) The Complainant did not identify [REDACTED] as one of the alleged perpetrators of the offence "right away" (as she suggests); and

b) The Complainant did not telephone police to tell them that she had seen Mr. [REDACTED] at a Coffee Time franchise and instead only told them when she went into the station approximately one week later.

[8] The Crown states that she provided all police notes from the officers in question. The first police note wherein [REDACTED] is identified as one of the perpetrators is a police note taken at approximately 8 o'clock on October 26, 2006. The alleged incident took place sometime between 22 hours and midnight on October 25, 2006.

[9] The Applicants may choose to address these issues with the jury in their closing addresses but it is not appropriate in my view for the court to instruct the jury that these facts are untrue. The documentation or lack of same regarding the timing of the Complainant's identification of [REDACTED] speaks for itself. Moreover, the fact that there is no officer's note is not necessarily determinative of the issue and the Applicants have chosen not to call the officers to testify.

3. RULING RE LETTER WRITTEN BY [REDACTED] AND READ AT HIS

SENTENCING

[10] The Applicant, Mr. [REDACTED] only, seeks a ruling that a letter written by [REDACTED], read in part at his sentencing proceeding, be produced by the Crown to the Applicant, Mr. [REDACTED]. At his sentencing proceeding, [REDACTED] advised the court that the letter "it's about, basically, what I've been through since this has all happened."

[11] The Crown advises that the letter is not and never had been in the possession of the Crown or the police. Counsel believe the letter is in the hands of [REDACTED]' solicitor. The Crown advises that despite repeated requests, [REDACTED]' counsel has not returned their telephone calls. The Applicant declines to contact [REDACTED]' solicitor.

[12] On the basis of the submissions made by the Crown as set out above, there is no basis for me to order the Crown to produce a document first requested during the trial proceedings, where the document has never been in the hands of the Crown or police. I decline to do so.