Will the Crown consent to quashing Ashton's guilty plea?

by Gary McHale - The Regional

October 26, 2011

On Oct. 19 Superior Court Judge Glithero suggested to the Crown in Simcoe that they could save the court many months of court time by consenting to Cheryl Ashton's appeal of her guilty plea. This was in sharp contrast to just two months ago when the Crown had suggested to the court that Ms. Ashton's appeal was a waste of court time. Increasingly, the evidence is supporting Ms. Ashton's claim that a miscarriage of justice occurred when she plead guilty.

Ashton had approached us about four months ago about her story of how the duty counsel mistreated her and the refusal of jail staff to provide needed medication to her for 6 days.  I will admit I wasn't too interested in hearing someone, who plead guilty to the charge, complain about the justice system. However, I have learned a valuable lesson about not judging people until you have listened to their side of the story.

Although Ashton has a lawyer giving her advice behind the scenes she is forced to represent herself due to the fact that a key part of her case is her claim that duty counsel Albert Smelko failed to properly represent her - it appears lawyers don't want to go to court and prove another lawyer failed to do their job.

The court heard that Cheryl Ashton, who lives in Port Dover, started seeing George Gibbons jr., who is divorced, and suddenly became the target of the ex-wife's (Nancy) anger. Nancy Gibbons 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 Ashton.

Justice Glithero told the Crown to release every OPP occurrence report (which was estimated at being about 70 occurrences) from Dec. 1, 2010 to Oct. 5, 2011 to Ashton because, "if it is true that Nancy Gibbons harassed the OPP but was told by the OPP that they couldn't charge Cheryl Ashton but finally gave in then that is something the courts would want to know."

Ashton informed the court about the numerous times since she plead guilty, how Nancy Gibbons continues to follow her around town and call 911 claiming that Ashton is in violation of parole - Ashton must not be within 50m of the Gibbons. The court heard how, on Oct. 5, Nancy and George Gibbons brought their mentally handicapped child to a playground directly across from Ashton's home - the Gibbons swore out a statement back in April claiming they were afraid Ashton would kidnap their child.

Upon leaving the playground, Nancy Gibbons with her child in the car parked on the wrong side of the road at the entrance to Ashton's driveway. George Gibbons left in his car but returned to tell Nancy to leave the area. The court heard how a neighbour, who is a Correctional Officer, spoke to the 911 operator and told the OPP the licence plate number and how George and Nancy were arguing about Nancy parking at Ashton's home. Ashton showed me her videotape backing up these facts.

It is Ashton's argument that the wrong person had been charged from the very beginning and that the OPP gave into the Gibbons due to the numerous calls to the OPP. The court heard about how the Crown withheld key evidence that showed the OPP repeatedly told the Gibbons that they could not charge Ashton.

The Crown told the court that Ashton's case is very confusing and that she appears to be all over the map regarding her claim. Judge Glithero responded, "in plain language she is claiming her duty counsel screwed her over, that she had serious medication problems while in jail and that the Crown screwed her over as well when they misinformed the court that Nancy Gibbons had identified Ashton as the person harassing her when the OPP reports show Nancy told the OPP she could not identify Ashton because she didn't know what Ashton looked like."

After Judge Glithero reviewed Ashton's application for additional disclosure he informed the court that the  Ontario Court of Appeal created a protocol regarding any claim that a lawyer had misrepresented a person in a criminal case. As such he ordered that duty counsel Albert Smelko would have to be notified of Ashton's appeal and the Crown stated he would have the right to have legal counsel present throughout the proceedings.

Judge Glithero then turned to the Crown and addressed the allegations that the Crown had misrepresented the facts to the court - i.e. withheld OPP reports showing that no one identified Ashton as the person harassing the Gibbons. Ashton read off the OPP occurrence reports that supported her argument and Judge Glithero questioned the Crown on whether someone from outside of the local Crown would have to argue the case.

Judge Glithero adjourned the case for two months to give the Crown the opportunity to bring in an outside Crown and to allow that Crown time to review the case. Glithero stated, for the second time, that maybe that outside Crown, upon reviewing the case, would consent to the appeal.

Judge Glithero suggested to the Crown that they should request copies of all video and audio recordings of Ashton's time in jail to see what conversations she had with duty counsel. Ashton was informed by the judge about procedures regarding obtaining the same evidence from the Hamilton Detention Center.

Ashton's last point was that while in jail for 6 days she was denied the opportunity to see a doctor, denied her medications and left to suffer in serious pain until she couldn't take it any longer, thus she plead guilty.

The court was given 3 doctors' letters - other letters have been given to me - that showed she suffers serious medical problems for which she had several prescribed medications. Two doctors examined Ashton after her incarceration and reported how the incarceration affected her.

The court also heard how two doctors wanted Ashton to immediately receive medical tests but the Hamilton Detention Center failed or refused to allow them.

Case will continue on Dec. 14 in Simcoe.