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| John L. Hill |
On Dec. 10, 2010, a Kingston Whig Standard report named Nettleton, 24, as one of two individuals charged with two counts of procuring. It was alleged that Nettleton and another inmate of Kingston Penitentiary used the maximum-security penitentiary’s telephone to command prostitutes on the street.
Then again in 2023 the Toronto Star reported prosecutors had twice unsuccessfully sought to have Nettleton declared a dangerous offender and had to settle for a five-and-a-half-year sentence for a 2018 robbery. In their quest to impose an indeterminate sentence, prosecutors relied on a report from forensic psychiatrist Dr. Scott Woodside who wrote that Nettleton had assaulted the mother of his children and that he was a gun and drug-trafficking member of the Driftwood Crips — incorrect information cut and pasted from another offender's report. Woodside refused to acknowledge his mistakes while testifying in court.
Moral outrage was again sparked on Aug. 6, 2022, when correctional officers at the Toronto South Detention Centre found threatening letters outside Nettleton’s cell. He was charged with two counts of intimidating a justice system participant and one count of uttering a death threat. Later information accused him of destroying a laptop in his cell. Nettleton had planned to plead guilty to the
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Nettleton appealed and with the help of Duty Counsel Peter Copeland was able to convince the Appeal Court that the trial judge had acted precipitously without assurance that Nettleton understood the essential elements to which he pleaded guilty or ensured that he had not been pressured to make his pleas nor offered anything in exchange for admitting his guilt.
It was not until two and a half months later that a problem was discovered — Nettleton had pleaded guilty to one count in error and not pleaded to a count he should have. The judge offered Nettleton the choice of a re-arraignment or going to the Court of Appeal to correct the error. The Crown opposed the striking of the guilty pleas and no further discussion about the arraignment ensued. The Crown did ask for three ancillary orders: a no-contact order, a DNA order and a weapons prohibition order. Without hearing from Nettleton, the orders were imposed.
The Ontario Court of Appeal issued its decision on March 3, 2025 (R. v. Nettleton, 2025 ONCA 155). The judgment noted serious procedural irregularities, including that Nettleton had never been arraigned on intimidating a justice system participant. It was never made explicit that the charge was included in the “other charges” to which Nettleton intended to plead. In so doing, the Appeal Court rejected the Crown’s argument that this case was comparable to R. v. Mitchell (1997), 36 O.R. (3d) 643 (C.A.). The Appeal Court held it would damage the criminal justice system's integrity if an accused person could be convicted of an offence for which they were not convicted or tried.
Duty counsel argued that the facts supporting the threat, and the act of intimidation, were the same and that uttering a death threat ought to have been stayed on the Kienapple principle. Using the test set out in R., v. Prince, [1986] 2 S.C.R. 480, there was a legal nexus between the counts of intimidation and uttering threats. The conduct underlying both counts was identical.
The Appeal Court judgment is also critical of the trial judge’s plea inquiry, which prejudiced the appellant. The court noted that Nettleton had spoken of the 112 days spent in pre-sentence custody. That should have alerted the trial judge to suspect that the guilty plea was motivated by something other than an acknowledgment of guilt.
The Appeal Court allowed the fresh evidence contained in the appellant’s affidavit that while at Toronto South Detention Centre he had not been taking his medication for a mental health condition and that he was kept in solitary confinement for most of the 35 months leading up to his pleas. Correctional officers urged him to get to a federal facility. This could be an inducement to plead guilty.
Duty counsel also raised the issue of the trial judge being functus officio when the court reconvened after two and a half months to impose ancillary orders. R. v. Malicia (2006), 211 C.C.C. (3d) 51 holds that a trial judge’s authority is spent once the indictment is endorsed.
Fortunately, the Ontario Court of Appeal considers proper procedure rather than the Crown’s moral outrage in determining such issues. Because of these deficiencies, the guilty pleas were struck, and a new trial was ordered.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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