[28] Admettre que le ministère public est en mesure de prouver un fait hors de tout doute raisonnable équivaut-il à admettre un fait au sens de l'article 655 C.cr.? Cela équivaut-il à un plaidoyer de culpabilité? [29] À la première de ces questions, on doit répondre ici par la négative. Reconnaître, à la suite de négociations, la qualité de la preuve du ministère public paraît relever de l'admission de droit ou de l'admission de fait et de droit, qui n'est pas un aveu au sens de l'article 655 C.cr. (aveux lors du procès), plutôt que de l'admission d'un fait, même si l'on peut penser que, par cette reconnaissance, l'accusé sait qu'une déclaration de culpabilité risque de s'ensuivre. [30] À la seconde de ces questions, il faut répondre de manière nuancée, ainsi que l'expliquait récemment le juge Wyatt dans R. v. D.M.G. et, surtout, R. v. R.P.. Outre les moyens de défense spéciaux, le Code criminel ne reconnaît en effet que deux types de plaidoyer (art. 606 C.cr.) : le plaidoyer de culpabilité et le plaidoyer de non-culpabilité. Le plaidoyer de culpabilité conditionnel n'existe pas, non plus que le plaidoyer de nolo contendere (plaidoyer de « non-contestation ») – qui correspond assez à ce que les appelants tentaient ici de faire, en réalité. Il est vrai, cependant, que les parties à une poursuite pénale peuvent, même sans qu'il soit question pour l'accusé de plaider coupable, convenir qu'il fera certaines admissions de fait ou s'engagera à ne pas contester la preuve de la poursuite ou à ne pas présenter une défense. L'aveu des éléments essentiels de l'infraction dans le cadre d'une telle entente ou, de même, la non-contestation de la preuve offerte par le ministère public (comme dans D.M.G.) peut entraîner une déclaration de culpabilité. Dans l'arrêt D.M.G., on parle à cet égard d'un « functional equivalent of guilty plea » (concept que, toutefois, on ne reprend pas dans l'arrêt R.P., l'article 606 C.cr. excluant la possibilité d'un plaidoyer de culpabilité implicite). La répudiation d'une telle entente, du moins lorsqu'elle survient après la déclaration de culpabilité, doit alors être envisagée sous l'angle de la question de savoir si l'accusé a compris la nature et les effets de la procédure et s'il y a participé de façon véritablement volontaire. [31] Voici comment le juge Wyatt s'explique dans l'arrêt R.P. : [38] Section 606(1) describes the pleas available to an accused who is called upon to plead. The section makes it clear that, apart from the general pleas of guilty and not guilty and the special pleas authorized by Part XX, no other pleas are available. Thus, a formal plea ofnolo contendere, literally “I am unwilling to contest”, is not available under our procedural law.
[39] A plea of guilty is a formal admission of guilt and constitutes a waiver, not only of an accused’s right to require the Crown to prove its case by admissible evidence beyond a reasonable doubt, but also of various related procedural safeguards, including those constitutionally protected: R. v. T. (R.), (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519; Korponay v. Canada (Attorney General), 1982 CanLII 12 (CSC), [1982] 1 S.C.R. 41, at p. 49. [40] A plea of guilty must be voluntary, unequivocal, and informed. A voluntary plea is a conscious, volitional decision by an accused to plead guilty for reasons that he or she considers appropriate: T. (R.), at p. 520. An informed plea is a plea entered by an accused who is aware of the nature of the allegations made against him or her, the effect of his or her plea, and the consequences of that plea: T. (R.), at p. 519; R. v. Lyons, 1987 CanLII 25 (CSC), [1987] 2 S.C.R. 309, at p. 371-372. [41] On the other hand, an accused who pleads not guilty puts the Crown on notice that she or he requires the Crown to prove every essential element of the offence charged, by evidence that is relevant, material, and admissible, to the exclusion of reasonable doubt, and in accordance with applicable procedural safeguards: R. v. G. (D.M.), 2011 ONCA 343 (CanLII), 275 C.C.C. (3d) 295, at para. 52. The manner in which the Crown proves its case is for the Crown to decide, subject to the authority of the trial judge to determine issues of relevance, materiality, and admissibility of the evidence, and to ensure that the proceedings comply with any applicable procedural requirements and constitutional standards. [42] Among the methods of proof available to the Crown are admissions of fact governed by s. 655 of the Criminal Code. Under that provision, it is for the Crown, not the defence, to state the fact or facts that it alleges against the accused and of which it seeks admission. The accused may choose to admit the facts, or decline to do so. Admissions require action by two parties, one who makes the allegation and the other who admits it. Once the admission is made, no other proof of the facts admitted need be offered: Castellani v. The Queen,1969 CanLII 123 (CSC), [1970] S.C.R. 310, at pp. 315-317. [43] Sometimes, formal admissions of fact under s. 655 may constitute the entirety of the Crown’s case. For example, in R. v. Cooper,1977 CanLII 11 (CSC), [1978] 1 S.C.R. 860, the Crown’s case-in-chief consisted of an agreed statement of facts. The Supreme Court of Canada described the procedure as unusual, but did not suggest that it was legally impermissible or procedurally flawed. A similar procedure is followed by some courts in one-stage trials on the issue of criminal responsibility. [44] A procedure similar to what happened here came under scrutiny in G. (D.M.). There, as here, the accused pleaded not guilty to a sexual offence. Crown counsel read out a synopsis of the allegations against the accused. The trial judge made no inquiry of the accused to ensure that he understood the nature and effect of the procedure that was being followed. Neither Crown nor defence counsel made any submissions. The trial judge convicted the accused and remanded him in custody for sentencing.
[45] In G. (D.M.) a combination of two errors caused a miscarriage of justice and warranted a new trial. The first had to do with the manner in which Crown counsel discharged her burden of proof after the accused had pleaded not guilty. And the second was the failure of the trial judge to conduct any inquiry into the voluntariness of the appellant’s participation and his understanding of the nature and effect of the procedure: G. (D.M.), at para. 61.
[46] In G. (D.M.), Crown counsel read a synopsis of the allegations on which the Crown relied. Defence counsel said nothing about whether he agreed with or did not dispute the allegations. Nothing said or done by counsel could be construed as bringing the case within the reach of 655 of the Criminal Code. [47] In G. (D.M.), the trial judge did not conduct any inquiry of the accused, similar to the inquiry mandated by s. 606(1.1) for pleas of guilty, to ensure that the accused was a voluntary participant in the procedure and understood the nature and effect of the procedure being followed. The fresh evidence in that case did not establish the scope of any advice counsel may have provided to the accused, more specifically, whether counsel told the appellant about the procedure that would be followed when proceedings resumed.
[48] In G. (D.M.), as in this case, the appellant, in discussions with counsel, denied having committed the offences with which he was charged and on which he was being tried.
[49] In R. v. Hector, (2000) 2000 CanLII 5725 (ON CA), 146 C.C.C. (3d) 81 (Ont. C.A.), the appellant pleaded guilty to three counts of first degree murder. On appeal, he argued that his guilty pleas should be set aside and a new trial ordered because he had never admitted his guilt to trial counsel, indeed had protested his innocence on several occasions. It followed, the argument continued, that trial counsel should have refused to permit the appellant to plead guilty or try to talk him out of it. The court rejected the argument because the failure of the appellant to acknowledge guilt or, put another way, the appellant’s denial of guilt, did not compromise any of the essential elements of a valid plea of guilty, that is to say, that the plea is voluntary, unequivocal, and informed: Hector, at paras. 7-8; R. v. Pivonka, 2007 ONCA 572 (CanLII), 228 O.A.C. 227, at para. 16; and R. v. Khaja, 2010 ONCA 246 (CanLII), at para. 11. [50] To determine whether the procedure followed in cases like this caused a miscarriage of justice requires a case-specific examination of all relevant circumstances, including those revealed by the fresh evidence: G. (D.M.), at para. 62.
[32] Si l'accusé n'a pas bien compris la nature et les effets de la procédure suivie ou n'en a pas été bien informé, ce qui altère le caractère volontaire de sa décision, ou s'il a subi des pressions indues (toutes conditions qui s'apparentent fort à celles du retrait du plaidoyer de culpabilité), il y a alors atteinte à l'équité du procès et erreur judiciaire au sens de l'article 686, sous-al. (1)a)(iii), C.cr.). C'est d'ailleurs là la conclusion à laquelle en vient le juge Wyatt dans D.M.G., alors qu'il conclut à l'inverse dans R.P., où il écrit que : [65] Finally, we are left with an appellant who voluntarily participated in a procedure without statutory warrant (or prohibition, except against entry of a formal plea of nolo contendere), well aware of the consequences (a finding of guilt and conviction), in the hope of gaining a desired sentencing disposition without having to utter an express admission of guilt of sexual offences. That he asserted innocence and did not admit guilt to his counsel does not invalidate these proceedings any more than it would vitiate a plea of guilty. Unlike the appellant inG. (D.M.), this appellant does not say he wanted to testify to deny the allegations, but the procedure followed denied him that opportunity.
[66] As G. (D.M.) points out, at para. 51, there is no statutory provision or common law principle that prohibits the procedure at issue in that case and in this case after an accused has entered a plea of not guilty. The flaw in G. (D.M.) was in the execution. The execution in this case was materially different. I am satisfied that in the circumstances of this case, the procedure followed did not cause a miscarriage of justice. The procedure here did not compromise the fairness of the hearing or contribute to an unreliable verdict. I would not give effect to this ground of appeal.
[33] Dans R.P., voici la manière dont les parties avaient choisi de procéder : The Written Instructions
[17] Trial counsel obtained written instructions from the appellant about the procedure to be followed at trial. Counsel reviewed the instructions with the appellant and had a second lawyer from the local Bar repeat the procedure. The appellant signed the instructions which the other lawyer witnessed.
[18] The instructions signed by the appellant indicated that he would re-elect trial by judge alone and not contest the counts upon which the Crown would be proceeding. Attached to or accompanying the instructions was a list of the relevant counts and a detailed statement of facts concerning the allegations of each complainant, except the first complainant who had already testified before the jury and for whom the facts were to be as disclosed in his evidence. The appellant acknowledged that the Crown had a strong case and that neither he nor his wife, for different reasons, would be able to offer much of a response.
[19] The instructions also noted that none of the offences on which the Crown was proceeding required the imposition of a minimum sentence of imprisonment. Trial counsel for the appellant would seek a conditional sentence, but Crown counsel would not be joining in that submission. The appellant further acknowledged that the final result would be in the judge’s discretion after a sentencing hearing.
The Procedure Followed
[20] In the absence of the jury, counsel advised the trial judge of the procedure they proposed to follow. The appellant re-elected trial by judge alone with Crown counsel’s consent and, after the trial judge had discharged the jury and declared a mistrial, pleaded not guilty to each count in the indictment.
[21] During the discussions with the trial judge in the absence of the jury, trial counsel for the appellant said:
We have agreed on a statement of facts that we anticipate will be followed through.
Trial counsel made it clear that the appellant would not be entering guilty pleas but that both counsel would be inviting the trial judge to make findings of guilt and to enter convictions on specified counts, and to record conditional stays in connection with the remaining counts.
[22] In accordance with the written instructions of the appellant, counsel agreed to have the evidence given by the first complainant before the jury apply to the proceedings before the trial judge. Crown counsel then read the statement of facts appended to the appellant’s instructions in connection with the remaining complainants. Trial counsel indicated that those facts were not contested. The trial judge entered findings of guilt on all counts and recorded convictions in conformity with the agreement of counsel. Conditional stays were entered on the remaining counts.
