“Grounds For Appeal?”

Hi everyone,

I was charged with speeding 28 over. I appeared at trial and when asked by the prosecutor how I wanted to proceed, I asked if the officer was present. She replied that he was, and they would not let me plea guilty to the original or lesser charge if he was not present.

After the recess during which we spoke about this, I saw the officer speaking to the crown. Immediately after, they brought another matter (the only remaining matter for the officer that day other than mine) for which the officer was requried, they entered a reduced charge and the defendant pled guilty. Right after this quick trial was done, the officer left, and as he was leaving, they called my up. When I went up, the officer was no longer in the court room.

When read out the lesser charge and waiting for a response, I asked the JP whether the officer was there. The crown responded that he was, and the JP said I would not be allowed to plead guilty if he was not. I pled guilty, and immediately after asked the crown if she could call out the officer so I can ask him a question. She called him out, but no response, the officer was not there. JP instructed me to go outside the courtroom because he must have just stepped out and see if I can find him and if not, come back so they can page him. I went out, looked for him, and did not find him, so I returned to the court room.

When I came in and sat down, the JP saw me and told me to come up. She assured me that I had no reason to overturn my conviction. I asked him the officer was present during my trial, which frustrated them, and they avoided the question, and another officer came up to escort me (?? I was very polite, no sign of aggression at all).

My question is, do I have grounds for appeal? Could it be seen as the JP erring in fact (i.e. that officer/evidence was there, when he/it was not)? Also, JP and crown essentially lied to me that he was (granted, they presumably did so on the basis of their own belief that he actually was).

So what you're saying is that the officer was there moments before your trial but stepped out of the court room and you're not sure where exactly he was when your case was up? I don't think that's grounds for an appeal. The officer doesn't have to be present in the court room. He only has to be available to give evidence and because he was there it sounds like he was. If he stepped out into the hall or to the bathroom or outside for a smoke, he's still available. Even if he doesn't hear the page initially, it doesn't mean he's not available to give evidence if needed, especially if he was just there.

Thank you for your response.

The officer packed up and left immediately after the matter that came up right before mine, so he was not there and did not just walk out. What I am getting at is, if the officer was not there and I knew that (which I was led to believe incorrectly that he was because of the crown and JP), I would have continued with trial, they would have called the officer, and he would not have responded, so my charges would have been withdrawn.

Also, another thing I noticed is that when everyone else was pleading guilty, the JP asked everyone "do you understand the consequences of pleading guilty" before she would render her decision and give a fine. She neglected to ask me this question, so I was wondering if there is any requirement that a defendant understands the consequences of pleading guilty causing the JP to ask everyone this question, and considering she did not, perhaps there is a case to be made that I did not, or in any case, that the JP did not follow the process properly?

Thanks for your help.

Unfortunately, I think you don't have grounds for an appeal. It's hindsight, but before pleading to anything, you should have confirmed that the officer was present, ie "I want to ask the officer a question before pleading." Not technically 100% accurate court procedure, but it would've achieved the aim of the exercise. Once you pled guilty, the damage was done. You were not convicted in error by the JP; you pled guilty. You can try getting it re-opened, but I'm not confident it will work. You could also try talking to a paralegal, but if they turn you away almost immediately, I'd just move on.

As for not asking you if you understood the consequences, well, that's a minor issue. You could try to raise it, but I don't think it's enough to get it re-opened or appealed.