R. v. Sinton, 2023 NSCA 31

Nova Scotia Court of Appeal Citation: R. v. Sinton , 2023 NSCA 31 Date: 20230502 Docket: CAC 515305 Registry: Halifax Between: Michael Roland Sinton Appellant v. His Majesty the King Respondent Judge: The Honourable Justice Anne S. Derrick Appeal Heard: March 27, 2023, in Halifax, Nova Scotia Subject: Criminal law. Ineffective assistance of counsel. Guilty pleas. Designation of counsel under s. 650.01 of the Criminal Code . Curative Proviso .

Summary: Counsel representing the appellant, who was not present, entered guilty pleas on his behalf in Provincial Court to indictable offences. There was no designation of counsel filed as required by s. 650.01 of the Criminal Code . The appellant was subsequently sentenced and raised no issue with the facts supporting the pleas. He acknowledged responsibility for the offences in an interview for his presentence report and in comments to the court at sentencing.

On appeal by way of an affidavit in a fresh evidence application the appellant claimed he was unaware the guilty pleas were being entered, had not discussed the matters with counsel or provided instructions for disposing of them. He sought to have the guilty pleas declared invalid and the charges remitted back to the Provincial Court for determination. Issues: Was counsel’s representation ineffective, and if so, was there a miscarriage of justice? Result: Appeal dismissed.

The appellant’s fresh evidence affidavit was admitted for the purpose of assessing whether he had established that counsel entered guilty pleas without any instructions to do so, thereby occasioning a miscarriage of justice. The record of the proceedings in court and the file notes of counsel concerning his communications with the appellant and instructions to enter the guilty pleas established that the appellant’s claims were not reasonably capable of belief.

The appellant’s allegation there was a miscarriage of justice collapsed in the face of facts that demonstrate he was well aware guilty pleas had been entered in accordance with his instructions. He failed to demonstrate he was subject to any prejudice in the entering of the guilty pleas. Although no designation of counsel was filed and no s. 606(1.1) inquiry was made, these oversights did not invalidate the appellant’s guilty pleas. The curative proviso under s. 686(1) (b)(iv) of the Criminal Code was applied to dismiss the appeal despite the procedural irregularities in the plea-taking.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 64 paragraphs. Nova Scotia Court of Appeal Citation: R. v. Sinton , 2023 NSCA 31 Date: 20230502 Docket: CAC 515305 Registry: Halifax Between: Michael Roland Sinton

Appellant v. His Majesty the King Respondent Judges: Wood, C.J.N.S., Derrick, Beaton, JJ.A. Appeal Heard: March 27, 2023, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Derrick, J.A.; Wood, C.J.N.S. and Beaton, J.A. concurring Counsel: Mark A. Bailey, for the appellant Glenn Hubbard, for the respondent Reasons for judgment: Introduction [ 1 ] Mr. Sinton’s sole ground of appeal is ineffective assistance of counsel, Nicolas Hoehne, who entered guilty pleas on his behalf before Judge Alain J.

Bégin of the Provincial Court of Nova Scotia. [ 2 ] On August 4, 2021, Nicolas Hoehne, representing the appellant, entered guilty pleas to charges arising from four Informations. The appellant was not present. By way of an affidavit supporting his fresh evidence application before this Court, the appellant says he was unaware the guilty pleas were being entered, had not discussed the matters with Mr. Hoehne or provided any instructions for disposing of them. He says as a consequence the guilty pleas are invalid, requiring them to be rescinded.

He seeks to have the charges remitted back to the Provincial Court for determination. [ 3 ] For the reasons that follow, I find no merit in the appellant’s ineffective assistance of counsel claim and would dismiss the appeal. The Proceedings in Provincial Court [ 4 ] The impugned guilty pleas were entered after many months of the appellant’s matters making slow progress through the court’s docket.

That factual background is important to understanding what happened on August 4, 2021, and thereafter. [ 5 ] The four Informations charged the appellant with offences allegedly committed between May 27, 2018, and January 11, 2020. On January 23, 2020, the appellant was released on bail with his mother as his surety. His release conditions required him to attend a residential alcohol treatment program in Ontario, where his mother lived. All matters were adjourned for three months. [ 6 ] Mr. Hoehne brought the matters back to court on February 19, 2020, to advise that the appellant was in a treatment facility.

It was expected he would be there for at least three months. A new return date was necessary. [ 7 ] The trial judge, Judge Bégin, who dealt with the appellant’s matters throughout, asked Mr. Hoehne if a designation of counsel had been filed. Mr. Hoehne was not sure he had obtained one from the appellant while he had been in custody. The Crown agreed to hold a warrant. [ 8 ]

Section 650.01 of the Criminal Code [1] permits counsel to appear on indictable matters for an absent accused, subject to certain exceptions not relevant to the appellant’s case. No designation of counsel was ever filed in this case. As a consequence, at each court appearance the trial judge issued a bench warrant to be held until the next court date. [ 9 ] The appellant’s next court appearance was set for April 29, 2020. . Mr. Hoehne told the judge he believed there was “a strong possibility” the appellant would be out of the treatment facility by then. [ 10 ] The global pandemic shuttered courts in March 2020.

On August 5, 2020, Mr. Hoehne appeared before the trial judge to indicate the last he had heard the appellant was still receiving treatment. The emails he sent to the appellant had come back as undeliverable. Mr. Hoehne advised he would try emailing the appellant’s mother with whom he had been in contact previously. The appellant’s matters were set over to August 19, 2020. [ 11 ] At a series of court appearances between August 19, 2020, and January 13, 2021, Mr.

Hoehne advised the judge of his understanding that the appellant was in a treatment facility in Ontario. [ 12 ] By January 13, 2021, there had been less contact between the appellant and Mr. Hoehne who had not heard from his client for “a few weeks now”. The trial judge observed that Covid “has thrown a wrench in everything” and suggested returning on March 17 “to see how he’s doing”. Mr. Hoehne asked for March 24. [ 13 ] On March 24, 2021, Mr. Hoehne advised that the appellant was still residing in Ontario with his mother.

The trial judge said the matters had to be dealt with “[h]e can’t just keep hiding in Ontario”. Mr. Hoehne doubted that all the matters would be going to trial

but asked for time to seek instructions. The judge ordered a warrant be held to April 7, 2021. [ 14 ] Mr. Hoehne advised the trial judge on April 7 that he had been in contact with the appellant’s mother by email but needed “a little bit more time to…talk to him and figure out…his plan to come back and when we can get that done”. The Crown chimed in to indicate that she and Mr.

Hoehne had been trying to “sort out some matters that [the appellant] may be prepared to enter guilty pleas to…”. [ 15 ] A shutdown of the courts in response to another spike in Covid infections delayed the return of the appellant’s matters to July 7, 2021. Mr. Hoehne had an update from the appellant’s mother. His client had been doing “several courses” in Ontario but, because of Covid, had not been able to get into programming. The trial judge observed the matters were drifting: “…we’re floating here, we can’t keep floating”. Comments that followed from the Crown and Mr.

Hoehne made it clear they were continuing to talk about what charges might be resolved by guilty pleas with a presentence report on the appellant’s progress in relation to his alcohol abuse issues. As the trial judge noted, a presentence report could only be ordered once there had been a guilty plea. [ 16 ] On July 21, 2021, Mr. Hoehne appeared for the appellant who was still living in Ontario. He indicated the Crown had put forward a proposal that offered the potential of resolving all the charges: …I’ve spoken with – with Mr. Sinton about those.

I expect that – that that’s going to be agreeable, and we’ll be able to then deal with all of these. I’d ask that we perhaps put the matter over for a period of two weeks, and then I’ll arrange to have him – I don’t know if the best is to – for him to call in or how we best deal with it at that point but two weeks should give us enough – sufficient time to – to figure out the logistics for – for having him appear from Ontario. [ 17 ] Two weeks later, on August 4, 2021, Mr. Hoehne appeared before the trial judge and advised of his hope that his client would attend “either by phone or video”.

He informed the judge guilty pleas would be entered to a number of charges, a resolution on sentence having been worked out with the Crown. The outstanding detail was the appellant’s appearance for sentencing from Ontario. The plan was for the sentencing to occur on August 19, 2021. The trial judge was unenthusiastic about a telephone appearance but viewed it to be a simpler option than video conferencing. [ 18 ] The trial judge next asked Mr. Hoehne if he had instructions for pleas. Mr. Hoehne confirmed he had.

The judge responded: “Well, let’s just get on with that…You tell me the pleas and we’ll order the PSR [presentence report] and we’re one step forward”. [ 19 ] The trial judge then took guilty pleas to the following charges: • May 27, 2018 ➢ Operation of a motor vehicle in a manner that was dangerous to the public contrary to s. 249(1) (

a) of the Criminal Code . • January 29, 2019 ➢ Break and enter into a liquor establishment with intent to commit an indictable offence contrary to s. 348(1) (

a) of the Criminal Code . • January 11, 2020 ➢ Assault on [K.B.] contrary to s. 266 of the Criminal Code . ➢ Within two hours after ceasing to operate a conveyance, having a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of blood, contrary to s. 320.14 of the Criminal Code . • February 1, 2019 to January 10, 2020 ➢ Between June 1 and June 28, 2019, assault of [K.B.] contrary to s. 266 of the Criminal Code . ➢ Between September 15 and 26, 2019, assault of [K.B.] contrary to s. 266 of the Criminal Code . ➢ On November 10, 2019, assault of [K.B.] contrary to s. 266 of the Criminal Code . ➢ Between December 1, 2019 and January 11, 2020, assault of [K.B.] contrary to s. 266 of the Criminal Code . [ 20 ] The Crown withdrew other charges on the Informations. [ 21 ] The judge ordered a presentence report.

He floated a question about how he would sentence the appellant “out of Ontario” if he determined a custodial sentence was warranted. He said: “I think…he’s looking at time”. [ 22 ] At the return date on October 20, 2021, the trial judge noted probation services in Nova Scotia reported the appellant had not been in touch with them to have the preparation of his presentence report transferred to Ontario. Mr. Hoehne said his client was still in Ontario: “I try and call him directly and can never get through to him, and then get accused of not being in contact with him”.

He indicated his only contact was through email with the appellant’s mother. [ 23 ] The trial judge had reached the end of his tether. Issuing an unendorsed warrant [2] he said: “I’ve lost patience…at some point he wants to make arrangements to deal with it, that’s great…these are all from 2020. It’s getting ridiculous”. [ 24 ] The appellant re-appeared on the trial judge’s radar on January 17, 2022. He had been arrested on the outstanding unendorsed bench warrant and taken into custody. His mother wanted to render as his surety. The Crown was seeking to revoke bail.

The appellant had been in the province during the fall of 2021 and had acquired new charges.

[ 25 ] The appellant was present in person on January 17, 2022. Mr. Hoehne participated by telephone. The Crown opposed release. The appellant confirmed he wanted Mr. Hoehne to represent him on the new charges. The trial judge put the new charges over to the next day to give the appellant the opportunity to speak to Mr. Hoehne. He made mention of the older charges: “I know you’re scheduled for sentencing awhile ago and chose not to come see me, but hey, here we are”. [ 26 ] The appellant did not ultimately proceed with a bail hearing on the new charges.

At an appearance with the appellant before the trial judge on February 23, 2022, Mr. Hoehne indicated a number of matters had been set for sentencing “some time ago”. At his request, the trial judge re-ordered a presentence report on the basis of the guilty pleas previously entered. [ 27 ] On May 4, 2022, Mr. Hoehne appeared with the appellant and indicated not guilty pleas would be entered on the new charges. When the discussion returned to the older matters the trial judge was informed the appellant was interested in having a bail hearing. However Mr.

Hoehne addressed a practical consideration: “…if it’s not going to be too long before the sentencing then we may want to hold off on the show cause hearing because that may become a moot point after sentencing…” [ 28 ] The appellant indicated his understanding of the discussion: The Court: If you can come up with a bail plan between now and then [May 10] and we’ll see you sooner than that, all right? Crown: Otherwise it’s a sentencing on the… Mr.

Sinton: Okay, thank you. … The Court: Yeah, it’ll definitely be a sentencing on those four Informations. [ 29 ] The Crown indicated they were looking for “a federal sentence”, that is, two years or more in a federal penitentiary, for the break and enter charge. This was no surprise to Mr. Hoehne who said: “That’s made clear”. [ 30 ] On May 10, 2022 the appellant was sentenced on the eight charges spanning four Informations to which guilty pleas had been entered on August 4, 2021. The appellant attended by video conference. In his presence, the Crown read out the facts underpinning the charges.

The trial judge specifically asked on two occasions whether “anybody” disputed the facts. Mr. Hoehne indicated there was no dispute. The appellant said nothing. [ 31 ] In his submissions, Mr. Hoehne referred to the presentence report which had been prepared in Nova Scotia with the appellant’s participation. He indicated his client had a serious alcohol abuse problem.

He advised the appellant had great difficulty getting into programming while he was in Toronto, but noted he did access some relevant counselling and was prepared to continue with treatment. [ 32 ] When asked by the trial judge if he had anything he wanted to say, the appellant took responsibility for his involvement in the offences: I’d just like to say I’m sorry for – for everything. I do realize they are a big mistake.

I’m just looking forward to getting the help I need to better myself for my kids. [ 33 ] Confronted by the trial judge who accused him of lying about attending an alcohol treatment facility, the appellant struggled to explain what he had done during the time he had been in Toronto. He said Covid restrictions had frustrated his attempts to get admission to a residential facility. He told the judge he had been assessed and placed on a waiting list.

He acknowledged that all he had accomplished were a few days in detox and “an online drinking course”. [ 34 ] The appellant told the trial judge he had asked for a presentence report “because that was the only way I could get accepted to a program during Covid. I did want to go to a program, Your Honour, and I still do want to go and finish a program. I do acknowledge I need help”. [ 35 ] The appellant’s acknowledgment of responsibility at his sentencing reflected what he said in his presentence report interview where he discussed the assaults on K.B..

The author of the presentence report recorded: The subject stated he accepts responsibility for the offences and responded: “I know a lot of it is my fault”. He stated he feels “pretty bad”, the event was “very upsetting” and added, “I’m not that person when I am sober”… Mr. Sinton stated, “I need to work on my anger…work on how I handle situations, don’t go to a bottle or say things I don’t mean”… [ 36 ] The trial judge rejected the defence submission for a conditional sentence.

He imposed a global sentence of 61 months’ incarceration for the eight offences less remand time for a “go-forward” sentence of 56 months. The Fresh Evidence Application [ 37 ] The appellant says the guilty pleas entered on August 4, 2021 by Mr. Hoehne are invalid. In his fresh evidence affidavit he indicates he had “little or no direct contact” with Mr. Hoehne between his relocation to Ontario in January 2020 and January 2022. He claims he was “unaware of the status of my matters” and had no opportunity “to discuss possible options or provide instructions to Mr.

Hoehne”. [ 38 ] In his affidavit on the fresh evidence motion, the appellant says he did not learn of the guilty pleas until he returned from Ontario: 21. I did not discuss the August 4, 2021 appearance with Mr. Hoehne in advance of that appearance or otherwise and I had no

knowledge that there was a court appearance that day. 22. I did not instruct Mr. Hoehne to enter any guilty pleas on my behalf at an appearance on August 4, 2021. 23. It was not my intention to plead guilty to any of the offences that Mr. Hoehne entered guilty pleas on my behalf at the appearance on August 4, 2021. 24. I did not speak to Mr. Hoehne on July 14, 2021 by telephone or otherwise communicate with Mr. Hoehne regarding pleading guilty. 25. I understand that Mr.

Hoehne was in communication with my mother in July of 2021 about possibly resolving my matters by entering guilty pleas but I was not aware of that correspondence until after my sentencing and was I [ sic ] not in agreement with that approach. 26. In addition, I did not respond or otherwise communicate with Mr. Hoehne about his correspondence sent in July 2021 and I specifically did not authorize him to enter guilty pleas on my behalf. [ 39 ] Mr. Hoehne’s affidavit in response paints a different picture.

His recollection is supported by file notes. [ 40 ] After the appellant was released on bail in January 2020 and relocated to Ontario, Mr. Hoehne says he kept in contact with his client by phone and email. Approximately a year before the guilty pleas were entered, the appellant’s emails started to come back to Mr. Hoehne as “undeliverable”. Mr. Hoehne had the appellant’s instructions to communicate with his mother and did so. [ 41 ] Mr.

Hoehne indicates in his affidavit that he: • Reviewed Crown disclosure with the appellant. • Provided the appellant via his mother with the Crown’s July 12, 2021 written proposal for resolution, “as was the established means of corresponding with Mr.

Sinton in writing”. • Spoke with the appellant over the phone on July 14, 2021, and received instructions to plead guilty to the charges proposed by the Crown “in support of a joint recommendation for a non-custodial sentence”. • Reviewed “the factors under s. 606 of the Criminal Code ” with the appellant, “including that he would be giving up his trial and the nature of a joint recommendation”. • Confirmed with the appellant that he was prepared to admit to the essential elements of the offences. • Spoke to the appellant on the July 14 call and afterwards about arranging for him to appear remotely from a courthouse in Ontario in August 2021 to enter the guilty pleas. [ 42 ] I pause here to explain “the factors under s. 606 of the Criminal Code ”.

Mr. Hoehne was referring to s. 606(1.1) which has been addressed by Justice Beveridge in R. v. Henneberry : 13 A trial judge can, but need not, conduct an inquiry before accepting a guilty plea. The Criminal Code was amended to encourage trial judges to do so.

Section 606 sets out the issues to be addressed, but adds that failure to "fully" conduct the inquiry does not affect the validity of the plea. It provides: 606.

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused (

a) is making the plea voluntarily; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor.

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. [3] [ 43 ] The trial judge here did not conduct any inquiry into the s. 606 factors on August 4, 2021 when Mr. Hoehne entered the guilty pleas. I will discuss this omission later in these reasons when I address the fact of the guilty pleas having been entered in the appellant’s absence with no designation of counsel on file with the court. [ 44 ] Mr.

Hoehne explains in his affidavit that the arrangements for the appellant’s remote appearance for the guilty pleas proved difficult with the result that he was not present on August 4, 2021. He says he entered the pleas in the appellant’s absence because he had the necessary instructions from his client and the trial judge wanted to proceed. [ 45 ] Mr. Hoehne says he placed “multiple calls” to the appellant following the August 4 court appearance. The appellant called him back on August 6, 2021. Mr.

Hoehne told him he had been able to enter the pleas and that he needed to contact probation services to get the presentence report process underway.

[ 46 ] After this the appellant again dropped out of contact. He and Mr. Hoehne reconnected in January 2022 when the appellant came before the court on new charges. At no time did the appellant ask to withdraw the guilty pleas entered on August 4, 2021. [ 47 ] Mr. Hoehne attached his file notes to his affidavit. They record the telephone conversation he had with his client on July 14, 2021. There are notations about the Crown’s resolution proposal and the entering of guilty pleas in relation to the four Informations. According to his notes, Mr.

Hoehne told the appellant: “Do as much programming as possible – looks best”. [ 48 ] Mr. Hoehne recorded a file note of his August 6, 2021 call with the appellant. It indicates he informed the appellant about the August 4 appearance where he was allowed “to enter pleas with instructions”. The pleas were “as discussed in July”. He told the appellant the court had directed him to contact probation services to transfer the presentence report preparation and that he “would likely need to be here for sentencing”. [ 49 ] Mr. Hoehne was not cross-examined on his affidavit.

Issues [ 50 ] The appellant has advanced one issue to be resolved: whether Mr. Hoehne’s representation was ineffective, and if so, has there been a miscarriage of justice? Standard of Review [ 51 ] As Justice Beveridge held in R. v. Messervey : [63] …the power of an appeal court to permit the withdrawal of a guilty plea on appeal is tied to s. 686(1)(a)(iii) -- that there has been a miscarriage of justice.

The onus is on the appellant to demonstrate the requisite grounds that call into question the validity of the pleas. [4] [ 52 ] To succeed in his appeal, the appellant must establish that counsel’s ineffectiveness caused him prejudice amounting to a miscarriage of justice. Usually the best practice for appellate courts is to start with the issue of prejudice. “If the appellant cannot demonstrate prejudice that rises to the level of a miscarriage of justice, it is unnecessary to address the performance issue” [5] , that is, whether counsel’s performance fell outside the range of reasonable professional assistance.

Analysis [ 53 ] The appellant’s fresh evidence affidavit is admitted for the purpose of assessing whether he has established that Mr. Hoehne entered guilty pleas without any instructions to do so, thereby occasioning a miscarriage of justice. [ 54 ] I find the appellant’s affidavit evidence is not reasonably capable of belief. [ 55 ] The appellant’s claims that he gave no instructions to Mr. Hoehne to enter guilty pleas and had no knowledge of what had been done are refuted by numerous indications to the contrary: • Mr.

Hoehne’s file notes confirm he spoke with the appellant on July 14, 2021 about the Crown’s resolution proposal and received instructions on the guilty pleas the appellant was prepared to enter. • Mr.

Hoehne’s file notes confirm he spoke to the appellant on August 6, 2021 and told him about the guilty pleas being entered on August 4 “as discussed in July”. • The appellant was present during discussions in court on January 17, February 23 and May 4, 2022 where his impending sentencing was mentioned and raised no issues or concerns. • The appellant did not raise any objection or protest at his sentencing hearing when the Crown recited the facts of the offences relating to the guilty pleas. • The appellant participated in the preparation of the presentence report and expressed regret for his actions. • The appellant acknowledged responsibility when asked by the judge at sentencing whether he had any comments to make before he was sentenced. • The appellant’s responses to the judge at his sentencing hearing indicated he had sought a presentence report so he could gain admission to an alcohol treatment program. [ 56 ] I also note the appellant does not describe the course of action he intended to take to meet the charges against him.

He does not state that he wanted to go to trial or what defence he would have advanced to the charges. He does not say he believed the Crown could not prove the charges against him beyond a reasonable doubt. He has not addressed why he did not protest at any point when the issue of his sentencing was discussed, nor why he accepted responsibility. [ 57 ] Furthermore, when the appellant resurfaced in January 2022 he chose to have Mr.

Hoehne continue as his lawyer. [ 58 ] The appellant’s claim there has been a miscarriage of justice collapses in the face of the facts that demonstrate he was well aware guilty pleas had been entered on his instructions. I accept Mr. Hoehne’s statement that he obtained clear instructions from the appellant to enter guilty pleas. I find he reviewed the consequences of pleading guilty with his client and was satisfied Mr. Sinton understood he was giving up his right to a trial and would be subject to the sentence imposed by the judge. Designation of Counsel and the s. 606(1.1) Inquiry

[ 59 ] The appellant’s guilty pleas were a matter of criminal procedure. [6] They were accepted by the trial judge despite two significant omissions—there was no designation of counsel filed and no s. 606(1.1) inquiry was made. While I am satisfied the oversights do not invalidate the pleas, it is important to note these procedural safeguards. They operate to ensure fairness for an accused and protect against guilty pleas later being placed in doubt.

Notwithstanding the docket pressures in the trial courts, observing proper procedures when taking guilty pleas must be a priority—ensuring counsel appearing without their clients are authorized to act and being satisfied on the basis of some inquiry that the guilty pleas are informed, voluntary and unequivocal. [ 60 ] Early on the trial judge here had inquired of Mr. Hoehne whether there was a designation of counsel.

Section 650.01 of the Criminal Code permits an accused person to appoint counsel to represent them at most proceedings. The designation, signed by both the accused and their counsel, must be filed with the court. A designation “is equivalent to the accused’s being present, unless the court orders otherwise”. [7] If a designation is filed, a court can order that accused need not be present for the entering of a guilty plea and even the pronouncing of sentence. [8] Such an order is an exercise of judicial discretion. [9] [ 61 ] It is apparent both the trial judge and Mr.

Hoehne forgot about the fact there was no designation of counsel filed. It was not mentioned again after the trial judge brought it up in February 2020. The issue of the appellant’s pleas unspooled over nineteen months between the time of his release on bail in January 2020 until guilty pleas were entered on August 4, 2021. At most court appearances the focus was on what Mr. Hoehne believed was the continuation of the appellant’s attendance at an alcohol treatment facility and the possibility of a resolution of the charges.

The designation of counsel requirement simply vanished off the radar. [ 62 ] When the guilty pleas were entered—in accordance with the appellant’s instructions—the trial judge did not make any s. 606(1.1) inquiries. He should have done so, even to the extent of satisfying himself that Mr. Hoehne had gone over the provision with his client. However, as I earlier described, both the appellant’s interaction with the court prior to and at his sentencing and Mr. Hoehne’s evidence establish the guilty pleas entered on his behalf were informed, voluntary and unequivocal.

The facts read at the appellant’s sentencing supported the charges to which guilty pleas had been entered and the appellant voiced no objection to them. [ 63 ] I am satisfied the taking of the guilty pleas in the absence of a designation of counsel or any s. 606(1.1) inquiry did not prejudice the appellant. The appellant’s interests were adequately protected, the guilty pleas have been shown to be informed, voluntary and unequivocal, and no miscarriage of justice was occasioned. The curative proviso under s. 686(1)(b)(iv) [10] is applicable to procedural error [11] .

I would apply the proviso and dismiss the appeal despite the procedural irregularities in the plea-taking. Disposition [ 64 ] The appellant has failed to demonstrate he was subject to any prejudice in the entering of guilty pleas on his behalf. I would admit the fresh evidence solely for the purpose of assessing the appellant’s allegation of ineffective assistance of counsel and, having found the allegation to be without merit, would dismiss the appeal. Derrick, J.A. Concurred in: Wood, C.J.N.S. Beaton, J.A.