COURT OF APPEAL FOR ONTARIO
FELDMAN, GILLESE and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
DAVID PIVONKA
Appellant
Delmar Doucette for the appellant
David Pivonka In person
Charmaine Wong for the respondent
Heard: February 12, 2007
On appeal from the conviction by Justice Joseph Fragomeni of the Superior Court of Justice dated July 29, 2005.
FELDMAN J.A.:
1On this appeal, the appellant seeks to withdraw his guilty plea to a charge of criminal harassment on the basis that he felt pressured by his counsel to plead guilty when he did not believe he was guilty. For the reasons that follow, I would dismiss the appeal.
FACTS
2On May 1, 2005, the appellant was charged with criminal harassment of a woman he had been seeing, Ms. K., as well as breach of a probation order. The appellant was denied bail and a bail review hearing was set for July 29, 2005.
3The appellant had prior convictions for uttering threats and for criminal harassment, both of which occurred in domestic situations. He had pled guilty on both occasions and Mr. Gee had been his lawyer on the latter charge. Following his arrest, the appellant contacted Mr. Gee once again to retain his services. He called Mr. Gee at least daily and sent him voluminous material regarding the merits of the case. Although he claimed he was innocent, he also asked his lawyer on a number of occasions what the Crown’s position would be on a guilty plea.
4On July 29, Crown counsel approached Mr. Gee with a resolution proposal of time served plus probation as a joint submission. Mr. Gee discussed the proposal with the appellant and gave him the option to accept or to proceed with the bail review. He told the appellant that the Crown had agreed with his request to limit the time frame of the offence to the latter half of April, 2005 (as opposed to December 2004 to May 1, 2005).
5Based on the Crown synopsis and the facts read out at the guilty plea proceedings, until April 2005, the appellant and the victim had a dating relationship which the victim had tried to end. On April 23, the appellant attended the victim’s work and met her in the parking lot where he pumped up the tires on her car. She told him not to come to her work and that she did not want to see him anymore. On April 28, the appellant attended the victim’s store and was asked to leave by her and by her associate. He refused until she threatened to call security. On the evening of April 29, the victim lost her purse at a bistro. The appellant found the purse and was waiting at her home with it when she returned from the bistro. She was with a friend at the time who asked the appellant to leave. The victim found a note in her purse written by the appellant about her. On April 30, both the victim and the appellant were at the same bistro. When the victim danced with another man and told the appellant to leave her alone, the appellant broke glass and turned over chairs. The police were called and ultimately arrested the appellant on the harassment charge. At that time, the appellant was bound by a probation order made on December 20, 2004 in respect of another charge of criminal harassment, to keep the peace and be of good behaviour until December 19, 2007.
6On this appeal, the appellant initially made a claim of ineffective assistance of counsel in respect of the guilty plea and sought to file fresh evidence. The appeal was adjourned to allow the parties to follow the procedure for making the ineffective assistance claim, including notice to the lawyer. As a result, each party filed an affidavit and cross-examinations were held. A section 684 order was made, appointing duty counsel to assist with the procedure and with the appeal.
7In oral argument however, duty counsel abandoned the ineffective assistance of counsel claim, and sought to set aside the guilty plea on the basis that it was not voluntary and that trial counsel inadvertently pressured the appellant into pleading guilty.
8In his affidavit, filed as fresh evidence on the appeal, the appellant both stated that Mr. Gee pressured him into pleading guilty and insisted that he was innocent. He stated that he felt pressured because Mr. Gee told him that with the offer proposed by the Crown he would be out of jail that day, whereas the bail review would be an “uphill battle” because of his previous breach of recognizance after another criminal harassment charge. He also stated that Mr. Gee had said he could be in custody for several months until his trial date and pressured him into making a decision right away.
9Mr. Gee denies that he pressured the appellant. He advised him that (1) the Crown had agreed to limit the time period of the offence to the events in the latter part of April where he was most at risk of conviction; (2) success on the bail review could not be guaranteed, especially because he had previously breached an earlier bail by contacting the victim of the previous harassment; (3) the outcome of the trial would depend on credibility findings; (4) although the court was not bound by a joint submission, he felt it was reasonable and should be accepted by the court; and (5) the proposed probation was favourable and would run concurrently with his previous bail order.
10Although Mr. Gee did not obtain written instructions, the appellant gave him oral instructions that he wished to plead guilty. The appellant was brought into court where he advised the presiding Superior Court judge that he intended to plead guilty that day. As there was paper work to do in terms of obtaining the information and preparing a new indictment, four hours passed before the appellant actually pled guilty. During that time he gave no indication that he was having second thoughts. When the case was called as the last matter on the list, the trial judge conducted a section 606 plea inquiry to ensure that the appellant understood that the effect of a plea was an admission of guilt and that his plea was voluntary. The appellant answered “yes” to both. He also made several statements to the judge before sentence was pronounced indicating that he knew the importance of a court order, that he had no intention of seeing or calling the victim again, and, in that context, acknowledged to the judge that they had been dating, but up until “the weekend when this happened.”
11On August 4, a few days after the plea, the appellant called Mr. Gee to say that he wished to appeal his guilty plea and complained about the account. Mr. Gee told him he could not represent him on such an appeal as the only basis for it would be that the appellant did not understand what he was doing or that Mr. Gee had forced him to do it. Mr. Gee’s evidence on this motion was that the appellant said he had understood but was prepared to say anything to get out of jail and that he “would think of something to say” to explain why he pled guilty.
12The appellant was arrested a few days later and charged with uttering a death threat against Ms. K. and breach of probation. He called Mr. Gee to ask him to represent him but Mr. Gee declined in light of the appellant’s wish to appeal his guilty plea conviction. The appellant was eventually acquitted of the new offences. The trial judge in that case, Cooper J., expressed a negative impression of the credibility of both the complainant and of the appellant.
ISSUES
(1) Is there a basis in law to set aside the guilty pleas and the convictions based on them?
(2) Should the fresh evidence be admitted on the appeal?
(1) Validity of Guilty Pleas
13The test for determining whether a guilty plea is valid was stated by Doherty J.A. in R. v. T.(R.) (1992), 1992 2834 (ON CA), 17 C.R. 247 at 252 (Ont. C.A.) as follows:
To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea.
14In R. v. King, [2004] O.J. No. 717, this court applied that test on facts somewhat similar to this appeal. At trial, King had pled guilty to touching a young girl for a sexual purpose based on a plea agreement reached with the Crown, which included the withdrawal of a second charge of sexual assault of the same child. He sought to withdraw his plea before sentencing, alleging that the plea negotiations had been initiated without his instructions, the plea bargain was sprung on him on the day of trial, the plea was put to him as his best or only chance of avoiding jail and that he had been told by a friend that he would be assaulted in jail. The trial judge referred to the test in T.(R.) and to the fact that there was authority that inducements inherent in a plea negotiation do not in and of themselves render a plea involuntary. See for example, R. v. Tryon, [1994] O.J. No. 332 (C.A.). This court dismissed the appeal from the trial judge’s conclusion that the plea was voluntary.
15In my view, it is clear from the record in this case that the appellant’s pleas were voluntary. He had pled guilty twice before to other offences and was familiar with the procedure. He was fully informed of the charges and the evidence against him and understood the charges and the effect of his pleas. His pleas were unequivocal.
16Counsel for the appellant submits that the pleas were vitiated because trial counsel failed to confirm that the appellant agreed that he was in fact guilty. In R. v. Hector (2000), 2000 5725 (ON CA), 146 C.C.C. (3d) 81 at paras. 7-8, this court stated that that submission did not address any of the issues the court is concerned with from T.(R.). Having said that, counsel should be concerned if his or her client does not expressly admit guilt. However, in that case, as in this one, counsel was very experienced in criminal law, the accused was also familiar with the process, and the lawyer had acted for the accused previously. Both understood that a guilty plea meant that the accused was acknowledging guilt in relation to the charges. In this case, Mr. Gee ensured that the charge was limited in time and did not include the time when the appellant and the victim were dating. I note on this issue that the appellant did not include in the fresh evidence any suggestion of what his defence would have been had he proceeded to trial.
17The appellant relies on his subsequent acquittal on the death threat charge and the adverse findings of credibility made about the victim by Cooper J. to suggest that the guilty pleas resulted in a miscarriage of justice in this case. I do not agree. Cooper J. in that case also disparaged the appellant’s credibility. Nor did he make any finding regarding the events charged in April, 2005.
18The appellant says he felt pressured and rushed into a decision. However, as several hours passed between the decision and the pleas in court, this submission has little credence. I accept that the appellant may well have been induced by the prospect of release from prison that day rather than possibly waiting in jail for a trial date. However, as this court said in King, that type of inducement alone does not vitiate a plea. In this case, I see nothing else.
(2) Admission of Fresh Evidence
19The test for the admission of fresh evidence on appeal is the four-pronged Palmer test summarized as follows:
(1) The evidence could not have been adduced at trial using due diligence;
(2) The evidence is relevant to a decisive trial issue;
(3) The evidence must be credible i.e., reasonably capable of belief; and
(4) The evidence, if believed, could reasonably have affected the result.
R. v. Palmer (1980), 1979 8 (SCC), 50 C.C.C. (2d) 193 at 205 (S.C.C.).
20The fresh evidence in this appeal is the appellant’s affidavit, which attests that he was pressured by his lawyer into pleading guilty when he did not want to do so. This evidence does not satisfy the third principle in Palmer. Both the circumstances on the record of the guilty plea as well as the responding evidence of Mr. Gee show that the appellant’s plea was fully informed and voluntary and that he changed his mind about the plea after he was released from jail. I do not find the fresh evidence of the appellant credible and I would not admit it on the appeal.
RESULT
21In the result, I would dismiss the appeal.
RELEASED: August 21, 2007 “KNF”
“K. Feldman J.A.”
“I agree E.E. Gillese J.A.”
“I agree R. Armstrong J.A.”
