Jun 1, 2020

MLB Headnote and Key Numbers

R v. DaFonte, 2016 ONCA 532 (CanLII)

R. v. DaFonte (G.) (2016), 351 O.A.C. 338 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JL.003

Her Majesty the Queen (respondent) v. Gina DaFonte (appellant)

(C59811; 2016 ONCA 532)

Indexed As: R. v. DaFonte (G.)

Ontario Court of Appeal

Doherty, Feldman and D. Brown, JJ.A.

July 5, 2016.

Summary:

Fleming entered guilty pleas to charges of assault against her husband and failure to comply with a recognizance. While she was awaiting sentencing, she retained DaFonte. DaFonte applied to set the guilty pleas aside. Fleming's matrimonial proceedings were adjourned to await the outcome of the application. The application was initially scheduled to be heard on October 4, 2013, but was adjourned to January 28, 2014, to enable DaFonte to obtain the necessary transcripts. On January 28, she informed the Crown that she could not attend the application hearing due to illness. The presiding judge was also ill. The application was adjourned to February 4. DaFonte did not attend court on February 4, nor did she inform her client or the Crown that she would not be attending. The application was set over to February 20. On February 6, the Crown served and filed an application to secure case management orders, with the application returnable on February 10. DaFonte did not appear on February 10. The judge adjourned the matter to following the day. DaFonte appeared at that time. The judge put the application to strike the pleas over to March 10, and made the matter peremptory. On March 10, Fleming appeared in court, but DaFonte did not. Court staff were unable to contact Fleming. The judge cited DaFonte for contempt, and disposed of the application to set aside the guilty pleas in the absence of DaFonte. DaFonte apologized to the court, explaining that she had been extremely ill and had misread her diary and did not realize that she was required for court.

The Ontario Court of Justice found that DaFonte's failure to attend the March 10 hearing had seriously interfered with the administration of justice, delaying not only the application to strike the pleas, but also the related family court proceedings. DaFonte's conduct demonstrated reckless indifference to her obligations to the court and her client. The court found her guilty of criminal contempt. DaFonte's apology did not purge her contempt, but was a mitigating factor concerning sanction. The court imposed a $500 fine and referred the matter to the Law Society for any supervision or other action they deemed appropriate. DaFonte appealed, asserting that the trial judge (i) erred in concluding that the mens rea for contempt had been established because the reason for her failure to attend was an honest mistake; (ii) misapprehended the evidence about the availability of DaFonte's telephone records; (iii) erred in holding that DaFonte's apology could not purge her contempt; and (iv) erred in determining the sentence without allowing DaFonte an opportunity to make submissions.

The Ontario Court of Appeal dismissed the appeal from the finding of contempt. With respect to the sentencing appeal, the court agreed that the trial judge erred in determining the sentence without allowing DaFonte an opportunity to make submissions. After receiving submissions on sentence, the court granted an absolute discharge and referred DaFonte to the Law Society for practice mentoring. The referral was not a judicial complaint of professional misconduct against DaFonte, but a request under the 2010 protocol that the Law Society provide formal practice mentoring.

Barristers and Solicitors - Topic 673

Duty to court - Contempt - What constitutes contempt - See paragraphs 23 to 29.

Barristers and Solicitors - Topic 716

Duty to court - Appearances - Failure to appear - Effect of - See paragraph 23 to 29.

Contempt - Topic 42

General - Elements of contempt - Mens rea - See paragraphs 23 to 25.

Contempt - Topic 510

What constitutes contempt - General principles - Criminal contempt - See paragraphs 23 to 29.

Contempt - Topic 2655

Defences - Particular defences - Adequate excuse - See paragraphs 27 and 28.

Contempt - Topic 2657

Defences - Particular defences - Apology - See paragraphs 27 and 28.

Contempt - Topic 3303

Punishment - Rules applicable - See paragraphs 30 to 32.

Contempt - Topic 3304

Punishment - Purging of contempt - See paragraphs 27 and 28.

Contempt - Topic 3329

Punishment - Sentence - Criminal contempt - See paragraphs 30 to 40.

Contempt - Topic 5003

Practice - General principles - Procedural rules applicable - See paragraphs 30 to 32.

Criminal Law - Topic 4430

Procedure - Verdicts - Discharge and dismissals - Absolute or unconditional discharge in lieu of conviction - See paragraphs 33 to 40.

Counsel:

Timothy E. Breen, for the appellant;

John McInnes, for the respondent.

This appeal was heard on June 22, 2016, by Doherty, Feldman and D. Brown, JJ.A., of the Ontario Court of Appeal. D. Brown, J.A., released the following decision for the court on July 5, 2016.