Her Majesty the Queen v. Al-Diasty
[Indexed as: R. v. Al-Diasty]
64 O.R. (3d) 618
 O.J. No. 1498
Docket No. C36144
Court of Appeal for Ontario,
Carthy, Goudge and Gillese JJ.A.
April 28, 2003
Criminal law — Plea of guilty — Withdrawal of guilty plea on appeal — Accused intending to defend charges but deciding to plead guilty after defence counsel assuring accused that he would receive non-custodial sentence — Crown and defence counsel at trial providing fresh evidence on appeal that trial judge said at pre-trial that a conditional sentence would be imposed if accused pleaded guilty — Trial judge imposing custodial sentence — Accused pleading guilty on basis of mistaken belief that consequences of plea settled — Miscarriage of justice — Accused’s appeal allowed and new trial ordered.
The accused pleaded guilty to six counts of fraud and received a custodial sentence on one count and a conditional sentence on the other counts. He appealed, arguing that there was a miscarriage of justice because he pleaded guilty on the basis of an assurance from his counsel that he would receive a non-custodial sentence. Defence counsel at trial testified, as part of fresh evidence admitted on appeal, that he assured the accused that he would not go to jail, based on statements made by the trial judge at a pre-trial meeting that he could see fit to impose a conditional sentence if there was a guilty plea.
The Crown confirmed defence counsel’s recollection of what was said at the pre-trial.
Held, the appeal should be allowed.
The accused was persistent in claiming his innocence and was clearly determined to defend the charges. However, as the result of a clear promise from his lawyer of a non-custodial sentence, and the accused’s mistaken belief that the consequences of his guilty plea were settled, it would be a miscarriage of justice to deny the accused a trial on the merits. [page619]
APPEAL from a conviction for fraud.
William J. Parker, Q.C., for appellant. Leslie Paine, for respondent.
 BY THE COURT: — The appellant argues that there has been a miscarriage of justice because he pleaded guilty to six counts of fraud on the basis of an assurance from his counsel that he would receive a non-custodial sentence. In fact, he was sentenced to six months in custody on one charge, followed by a 12-month conditional sentence on the other charges.
 There was a discussion about sentencing at a pre-trial meeting with the trial judge. Both counsel have testified, as part of fresh evidence provided to this court, that the trial judge made a statement to the effect that he could see fit to impose a conditional sentence if there was a guilty plea. The trial judge explained that, in his view, the Court of Appeal called for more than a $650,000 fraud to impose a custodial sentence. The Crown was then, and thereafter, seeking a minimum of an 18-month custodial sentence, plus a restitution order.
 Trial counsel for the appellant was cross-examined as to his advice to his client. The following exchanges are explicit:
Q. Well, let’s be a bit more specific than messages. Did you tell Mr. Al-Diasty that if he entered a plea of guilty before Judge Ormston, he would not go to jail?
Q. So you did present it as a sure thing?
Q. And this is despite the fact that it wasn’t a sure thing?
A. Well, when a judge at a judicial pretrial says he could see fit to imposing a conditional sentence, that tells me that the judge is not going to incarcerate the person.
And then further:
Q. Mr. Al-Diasty says that you promised him that if he pled guilty, the judge would sentence him to no jail?
A. That’s what I’m saying.
Q. Is that fair?
A. That’s what Judge Ormston told me. I think that’s — that’s what he actually said — well, I don’t know about promised, but that’s what the judge said he was going to do: no jail.
Q. So, there was no doubt in your mind that, on a plea, he would be receiving a conditional sentence; is that fair? [page620]
A. No doubt. That’s fair.
Q. And that’s what you conveyed to Mr. Al-Diasty?
 The appellant was persistent in claiming his innocence. He now testifies that his personal circumstances made it so important that he avoid incarceration that he pleaded guilty on the assurance of avoiding jail.
 At the time of the guilty plea, the trial judge questioned the appellant closely as to his understanding of its implications and, specifically, that although there had been discussions with his counsel, the trial judge could sentence as he saw fit. In cross-examination on his fresh evidence affidavit, the appellant said that it was his understanding that, despite the deal, each party had “to do their job giving submissions and reasons and facts”. He, and his trial counsel, were taken aback when a custodial sentence was imposed.
 The appellant’s belief in his innocence of the intent to defraud may be wistful, but, nonetheless, it reflected a clear determination to defend the charges. That determination was interrupted by the clear promise from his lawyer of a non- custodial sentence. Thus, he pleaded guilty on the basis of a mistaken belief in the consequence.
 This is not a case where someone dissatisfied with a sentence is creating a story to avoid the outcome. The factual basis for the entire episode is documented or revealed by cross-examinations of the concerned individuals with little dispute as to what occurred. In our view, it would be a miscarriage of justice to deny the appellant a trial on the merits. His guilty plea was entered with an honest belief that the consequences were settled. Words to the contrary in court can be discounted as being, from the appellant’s point of view, part of the ritual.
 We, therefore, allow the appeal, set aside the verdicts and sentences, and direct a new trial.