R v G (D.M.)

Her Majesty the Queen v. D.M.G.

2011 ONCA 343
Court of Appeal for Ontario — O'Connor A.C.J.O., Simmons and Watt JJ.A. | May 2, 2011

Background

D.M.G., a 62-year-old hearing-impaired man, was charged with sexual assault and sexual interference involving a young complainant. From arrest through trial preparation, he consistently denied the allegations and insisted he wanted to plead not guilty and testify at trial. His defence counsel failed to review videotaped witness statements, prepare cross-examination outlines, or ready the accused to testify — despite the case being set for a two-day trial.

On the trial date, defence counsel told the judge that his client "would not be disputing the allegations" and was "content to be convicted." The accused pleaded not guilty, the Crown simply read out the allegations (no evidence was called), and the judge immediately entered a conviction. The accused was never asked to confirm he understood or agreed with this unusual procedure.

Issues

1. Did the trial procedure following a not guilty plea result in a miscarriage of justice?
2. Did defence counsel provide ineffective assistance that caused procedural unfairness?

The Procedural Breakdown

The Court of Appeal found the proceedings "sufficiently flawed" to require setting aside the conviction. After pleading not guilty — which formally denies the charges and requires the Crown to prove guilt beyond reasonable doubt — the prosecution presented no actual evidence. Simply reading allegations aloud is not evidence, nor did it constitute a formal admission under section 655 of the Criminal Code.

The procedure was "the functional equivalent of a guilty plea" despite the not guilty plea. When that happens, the judge must conduct a mandatory inquiry to ensure the accused understands the nature and consequences of what's occurring and has voluntarily participated. This inquiry never happened. The court emphasized this was especially problematic given the accused's hearing impairment and consistent denial of guilt.

Ineffective Assistance of Counsel

The court found a "clear connection between the lack of preparation and the fortuitous turn of events that terminated the trial proceedings." Defence counsel's complete failure to prepare — not reviewing disclosure, not preparing cross-examinations, not readying his client to testify — directly contributed to the procedural unfairness. The accused had repeatedly rejected plea negotiations and wanted his day in court, but counsel's incompetence derailed that right.

Key Takeaway

A not guilty plea means you're demanding a real trial with actual evidence — not just having allegations read aloud like a guilty plea in disguise.

If you plead not guilty, you have the right to require the prosecution to prove their case with admissible evidence and proper procedure. Courts cannot blur the fundamental distinction between guilty and not guilty pleas without proper safeguards and judicial inquiry.