Ontario Superior Court of Justice

Between

Her Majesty the Queen

Applicant

And

[REDACTED] and [REDACTED] [REDACTED]

Respondents

C. Sweeney and R. Wright for the Respondent, Her Majesty the Queen

D. Steinberg, for the Applicants, [REDACTED]

M. Friedberg for the Applicants, [REDACTED]

Released: December 8, 2008

Thorburn J.

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, Mr. Powers 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 Mr. Powers by his own

counsel and, at the Preliminary Inquiry of the Applicants, Mr. Powers 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 Mr. Powers 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 Mr. Powers 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 Mr. Powers 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 Mr. Powers 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 Mr. Powers 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 Mr. Powers 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 MR. POWERS AND READ AT HIS

SENTENCING

[10] The Applicant, Mr. [REDACTED] only, seeks a ruling that a letter written by Mr. Powers, read in

part at his sentencing proceeding, be produced by the Crown to the Applicant, Mr. [REDACTED]. At his

sentencing proceeding, Mr. Powers 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 Mr. Powers' solicitor. The

Crown advises that despite repeated requests, Mr. Powers' counsel has not returned their

telephone calls. The Applicant declines to contact Mr. Powers' 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.