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PROCEDURE - Setting aside guilty plea - Voluntariness

Wednesday, April 10, 2019 @ 9:00 AM  

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Appeal by the accused, Erez, from a conviction and sentence for 12 counts of fraud. The accused was charged with 26 counts of fraud and ordered to stand trial following a brief preliminary inquiry. At the outset of trial, he sought a stay of proceedings on the basis of a breach of his s. 11(b) Charter rights. The motion was refused. The following day, the Crown disclosed copies of electronic communications that had a significant adverse impact on the accused’s intended defence. The accused instructed defence counsel to seek a resolution with the Crown. The discussions resulted in entry of a guilty plea to 12 counts on a fresh indictment. During further ensuing discussions on structuring restitution, defence counsel passed away. Approximately 18 months after the guilty plea, the accused retained new counsel and sought to withdraw his guilty pleas on the basis they were involuntary and uninformed. The application judge refused the relief sought and the matter proceeded to sentencing. The accused was sentenced to eight years’ imprisonment, less credit for time on restrictive bail conditions. He was also ordered to pay restitution totalling $6.2 million and fined an additional $6.2 million in lieu of forfeiture, payable within 10 years of release with an additional seven years’ imprisonment in the event of non-payment. The accused appealed his conviction and sentence.

HELD: Appeal dismissed. There was no basis upon which the accused’s guilty pleas should, or could, be set aside. The plea judge confirmed with experienced senior defence counsel that a full and extensive plea inquiry was reviewed with the accused. The plea judge subsequently conducted his own plea inquiry with the accused. The extensive reasons refusing withdrawal showed that the finding the plea was voluntary was not contaminated by any misapprehension of evidence. The rejection of the accused’s contention he was pressured into pleading guilty was supported by the record and was not impacted by the proposed fresh evidence on appeal. In sentencing the accused, no error arose from the factual findings derived from the competing expert evidence on the accused’s responsibility for the victim’s losses, the scope of those losses and the degree to which the accused benefited from the fraudulent scheme. No error or injustice arose from the imposition of a fine in lieu of forfeiture. The sentence imposed was not unduly harsh given the duration, scope and sophistication of the fraudulent scheme and the devastating effect on the victims.

R. v. Erez, [2019] O.J. No. 1285, Ontario Court of Appeal, D. Watt, G. Huscroft and L.B. Roberts JJ.A., March 14, 2019. Digest No. TLD-April82019006