COURT OF APPEAL FOR ONTARIO
Moldaver, Feldman and MacFarland JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
Piero Rulli
Applicant (Appellant)
Counsel:
Nicholas A. Xynnis, for the appellant
Emile Carrington, for the respondent
Heard: January 5, 2011
On appeal from the Order of Justice J.R. McIsaac of the Superior Court of Justice, dated March 10, 2008, dismissing the applicant/appellant’s appeal from conviction entered by Justice R. P. Main of the Ontario Court of Justice, dated October 18, 2005.
ENDORSEMENT
1On summary conviction appeal, the appellant sought to have his plea to a charge of refusing to provide a breath sample struck on the basis that he had allegedly received misleading advice from his counsel as to the consequences of his plea. The summary conviction appeal judge dismissed the appeal on the basis that the appellant had failed to demonstrate that he had a viable defence to the charge and therefore was not prejudiced, irrespective of the advice he may have received from counsel.
2With respect, the summary conviction appeal judge applied the wrong legal test in assessing whether the plea should have been struck. In the circumstances, he should have focused on whether the plea was informed. If it was not, the prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial. Whether he had a viable defence was not a relevant factor in the circumstances.
3That said, we would deny leave to appeal. The matter comes to us some six years after the date of the offence, more than five years after the plea was entered and almost three years from the date the summary conviction appeal was dismissed. The remainder of the proposed appeal raises no legal issues of any consequence. It essentially turns on a factual dispute and we are not persuaded that there has been any miscarriage of justice that would warrant granting leave to appeal. Accordingly, leave to appeal is denied.
Signed:
“M.J. Moldaver J.A.” “K. Feldman J.A.” “J. MacFarland J.A.”
