R. v. Pulles, 2007 ONCA 519

APPEAL BOOK ENDORSEMENT

1Counsel for the appellant waived the reading of the election. On the basis of Korponey v. Attorney General Canada (1982), 65 C.C.C. (2d) 65 (S.C.C) and R. v. Mitchell (1997), 121 C.C.C. (3d) 139 (O.C.A.), when counsel who understands the effect of the election and of the waiver, waives the election on behalf of the accused, that is an effective waiver giving the court jurisdiction to proceed. However, when there is a suggestion on appeal that because of misunderstanding or misinformation there may have been a miscarriage of justice, if this court is satisfied that such a miscarriage of justice occurred, it will interfere.

2In this case, we are not persuaded that such a miscarriage occurred. The appellant says the effect of the waiver was not explained by the lawyer. To the contrary, the lawyer specifically told the judge that he had explained to the appellant the effect of the waiver. His evidence on the appeal is that he explained to the appellant that he had the option of having another judge come from London. That was the sole concern of the appellant, who intended to plead guilty but was concerned about pleading in front of that particular judge. Also, on the record, the appellant specifically agreed that he was giving up the right to a preliminary hearing. We see no prejudice to the appellant on the facts of this case.

3Accordingly, this ground of appeal fails and the appeal from conviction is dismissed.

4On the sentence appeal, the appellant takes the position that the sentencing judge erred in principle by finding a s. 718.2(a)(iii) breach of trust as an aggravating factor that required the court to emphasize general deterrence and denunciation and caused the trial judge to reject a conditional sentence.

5In our view, when the reasons are read as a whole, the trial judge’s reference to breach of trust related to the nature of the fraudulent enterprise the appellant was carrying on with people who believed themselves to be customers of a legitimate business. She found that such conduct called for a sentence that emphasized general deterrence and denunciation. We see no error in her approach, and do not view it as reference to a breach of trust under s. 718.2(a)(iii). As the trial judge found, this was a large scale commercial fraud perpetrated over a substantial period of time for financial gain. She took into account as mitigating factors the guilty pleas, the remorse and the restitution in arriving at the sentence and these will also benefit the appellant when seeking parole.

6Accordingly, leave to appeal sentence is granted but the appeal is dismissed.