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Criminal - Arraignments. R. v. Nettleton
In R. v. Nettleton (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from guilty pleas (which were struck) where there was confusion as to the arraignments and charges made:There is significant confusion around what the appellant pleaded guilty to
[27] As discussed above, there were serious procedural irregularities in the appellant’s arraignment and pleas. Three counts were read to the appellant at the arraignment: one count of intimidation, one count of uttering threats to cause death and one count of uttering threats to damage property. The last of these was then withdrawn by the Crown. The trial judge then asked the appellant what his plea was “on the other charges”. The appellant pleaded guilty. The facts relating to the two counts of intimidation and one count of uttering threats to cause death were read out to the appellant and he admitted them. The Information and warrant of committal show that he was convicted of and sentenced on these three charges.
[28] However, the appellant was never re-arraigned on the count of intimidating a justice system participant in relation to the Superior Court justice. For this reason, and despite the pre- and post-trial discussions, the recorded conviction on the second count of intimidation of a justice system participant simply cannot stand. The appellant was not arraigned on that charge, and it was not made explicit that it was included in the “other charges” when the trial judge asked for his plea. I note further that the trial judge did not expressly identify the counts on which the appellant had been found guilty. He stated only that “[o]n the admitted facts, I’ll make findings of guilt on the charges upon which you have been arraigned.”
[29] I would reject the Crown’s argument – which relies on this court’s decision in R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 36 O.R. (3d) 643 (C.A.) – that this can be cured by s. 686(1)(b)(iv) of the Criminal Code.
[30] In Mitchell, this court held that, in the context of convictions after a contested trial, the failure to arraign on a count can be saved by the curative proviso. In my view, in the context of a guilty plea, an accused person’s waiver of a trial on the merits elevates the significance of the arraignment process. The appellant was not formally arraigned on the second intimidation charge, and therefore could not have been found guilty of it.
[31] It would damage the integrity of the criminal justice system if an accused person could be convicted of an offence for which they were not arraigned or tried. In the circumstances, the appellant could have only properly been convicted of one count of intimidating the TSDC Security Deputy and one count of threatening death to the TSDC Security Deputy.
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