Case isn't over when you plead guilty

by Gary McHale - The Regional

August 31, 2011

While we pretend to believe people are innocent until they are found guilty, many people believe you are automatically guilty as soon as the police arrest you. For the rest of us we would believe someone is guilty if they plead guilty in court. However, one case has caught my attention and deserves a review by the courts and by the public.

Cheryl Ashton, who lives in Port Dover, started seeing a man who is divorced and suddenly became the target of the ex-wife's anger. The ex-wife filed endless complaints with the OPP claiming she was being harassed and stalked by Ms. Ashton. This went on for several months until the OPP finally arrested Ms. Ashton.

Ms. Ashton states she plead guilty after spending a night in jail in Simcoe and another 6 days in Hamilton. She claims the duty council refused to speak to her and due to his misrepresentation caused her to be held in jail until she plead guilty at her first appearance in court.

Since her guilty plea, Ms. Ashton has filed an appeal to have the court quash her plea. I would be one of the many who would believe this is not possible or that she is simply trying to find excuses for her actions. As such, I drove to the courthouse in Simcoe to hear Ms. Ashton speak to Judge Glithero about her case which is now set for Oct. 19.

Ms. Ashton, unrepresented in court, came across as a intelligent woman who truly believes an injustice has been done against her. Judge Glithero, who I have appeared before several times, read out her reasons for her appeal. He stated three reasons Ms. Ashton believe impaired her ability to enter a proper plea.

First, she had an operation and was denied any medication while in jail for 6 days. Second, her duty council "yelled and swore" at her while she was in jail. Third, the Crown withheld disclosure that would have proved she was innocent.

Judge Glithero pointed out that Ms. Ashton's request to file an application for disclosure from the Crown and from 3rd parties was highly unusual. The Crown was quick to point out that during an appeal such requests are not done. However, Judge  Glithero noted that Ms. Ashton had purchased the transcripts of her bail hearing, which he stated was also highly unusual, but noted that maybe these transcripts would show that the duty council misrepresented Ms. Ashton.

Judge Glithero then ordered that Ms. Ashton would be permitted to file applications for disclosure from both the Crown and any 3rd parties - i.e. Hamilton jail, phone records from Bell etc. Judge  Glithero stated, "this could turn into the appeal of the century" and then ruled that he would be the judge to hear both the applications for disclosure as well as the appeal itself.

The facts of the case appear to be as follows. The ex-wife contacted the OPP numerous times and according to the OPP reports the ex-wife has never met Ms. Ashton nor knows what she looks like. Not surprisingly the OPP told the ex-wife repeatedly over several months they cannot charge someone with harassment when the ex-wife keeps admitting she cannot identify the person who is allegedly harassing her. Furthermore, the mere fact that the ex-wife sees a red car on the road in Port Dover doesn't prove Ms. Ashton, who drives a red car, is harassing her.

Finally the OPP did arrest Ms. Ashton and kept her in jail overnight in Simcoe. Due to a recent operation the OPP took Ms. Ashton to the hospital but she was not allowed to see a doctor. At the Hamilton jail she was told it would be 2 weeks before she could see a doctor. During her 7 days in jail she was not permitted to have the medication that had been prescribed to her.

In Canada, you are required to be brought before court within 24 hours. The OPP phoned Ms. Ashton's lawyer but he didn't return the call and so she was represented by duty council in court. According to the records, the duty council spoke with Ms. Ashton for 15 minutes prior to court and that was merely to get the name of someone who put up security for her release.

The transcripts from this bail hearing are quite telling considering the duty council had not talked to Ms. Ashton about the details of her case. During a bail hearing the Crown attempts to paint the worst case they can about a person and hearsay evidence is allowed - if 15 years ago a neighbour phoned the police because you had a party playing loud music then you can be assured the Crown will present it as if you repeatedly created problems in your neighbourhood.

What was shocking from the transcripts is not how the Crown painted Ms. Ashton but how quickly the duly council supported the wild claims. At one point the duty council starts agreeing with the Crown and tells the court about Ms. Ashton's "bizarre behaviour" and that he has spoken to the Crown to "setup a series of counselling" for Ms. Ashton. The duty council states, "we presented a plan that there's some recognition that this woman needs some mental health assistance."

In less than 24 hours Ms. Ashton went from being a retired Ontario tax auditor to an out of control patient of the jail's mental health ward. However, it gets worse. The bail hearing concluded by the duty council telling the court that Ms. Ashton would plead guilty just five days later. The court then set the date for a guilty plea.

I can't imagine any lawyer telling their client to plead guilty before reviewing the evidence, before listening to the client's story, before hearing from the Crown on what deal they were offering and even before the first appearance in court.

A duty council is to be an advocate for the person charged. What Ms. Ashton quickly discovered was that with a duty council like this who needs the Crown to prosecute the case.

The action of the duty council will clearly be a main point of her appeal.