Court of Appeal for Ontario

Citation: R. v. Pintus, 2010 ONCA 247

Date: 20100406

Docket: C51027

Juriansz, Rouleau and Watt JJ.A.

Between

Her Majesty The Queen

Respondent

and

Giuliana Pintus

Appellant

Counsel:

Zachary Kerbel, for the appellant

Tanit Gilliam, for the respondent

Heard and released orally: March 29, 2010

On appeal from the conviction entered and sentence imposed by Justice B. MacPhee of the Ontario Court of Justice on January 28, 2009.

ENDORSEMENT

[1] The appellant pled guilty to a charge of possession of cocaine for the purpose of trafficking and was sentenced to 18 months imprisonment in addition to the 104 days she spent in pre-trial custody.

[2] In the same proceeding, the appellant’s co-accused, her then boyfriend who was living in her house, pled guilty to simple possession of cocaine and was sentenced to one day of imprisonment in addition to time served.

[3] The appellant submits that she entered the guilty plea because her counsel did not provide her with effective representation and because the plea was not voluntary or informed. She seeks an order setting aside the guilty plea and a new trial.

[4] On the first issue, the appellant recognizes that she must establish on a balance of probabilities both that her trial counsel was incompetent and that the incompetent representation resulted in a miscarriage of justice.

[5] We find it unnecessary to deal with the first element because we conclude that she has failed to establish the second. Had the appellant proceeded to a trial, it was likely that the copious evidence of drug trafficking at the house would have satisfied a trial judge that, at a minimum, she knew that drugs were being trafficked from the house over which she had control and she knowingly permitted those activities to go on. Had she taken the stand and denied such knowledge and control, it is most likely that she would not have been believed given her numerous previous convictions, including several for crimes of dishonesty. The appellant has failed to establish that if there was any incompetence it likely resulted in a miscarriage of justice.

[6] In regard to the second issue, the appellant carries the burden of persuading the court that her plea was not informed or voluntary. She argues first that the plea was not informed because she entered the guilty plea without knowledge of the immigration consequences of that plea. While counsel did not expressly advise her that her deportation would be automatic if convicted of possession for the purpose, he did tell her that upon conviction her deportation was unavoidable and that she would have no chance. We would not give effect to this ground of appeal. The failure to specifically advise her that deportation would be automatic does not persuade us that the plea was not informed.

[7] She also argues that her plea was not voluntary because it was induced by threats from her co-accused. Such threats must be established by credible evidence. In our view, this allegation has not been made out. Several facts weigh against her assertion:

• All of the threats were made in a prison van en route to the court house, out of earshot of other people.

• She did not report the threats that were allegedly made the morning of the trial to the police, the judge, her lawyer or anyone else at court.

• She has an extensive criminal record and has been convicted in the past for crimes of dishonesty.

• The joint submission that her plea was based on would have provided her with a favourable sentence in the circumstances. Although the trial judge did not accept the joint submission, a possible consequence of which the appellant was aware, his failure to do so does not negate the voluntariness of her plea.

• The fact that the appellant entered a guilty plea is consistent with her past behaviour and is not a marked departure from it. On the many occasions the appellant has appeared before the courts, she has always pleaded guilty and never contested any of her charges.

• The appellant filed her notice of appeal only after receiving the decision of the Immigration Appeal Division to discontinue the cancellation of the stay of the deportation order. The decision to discontinue the stay was issued on February 10, 2009. Her notice of appeal was filed February 23, 2009.

[8] Finally, we agree with the Crown’s submission in its factum that private threats are easily claimed and difficult to disprove. More was required than what was put forward in this case. Otherwise, the integrity of the resolution process is far too easily undermined by an accused who regrets his or her choice to plead guilty.

[9] In the result, the appeal is dismissed.

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”