Court of Appeal for Ontario

Date: 2017-07-10 Docket: C62446

Panel: Hoy A.C.J.O., Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Antonio Agresta Appellant

Counsel

Amy Ohler, for the appellant

Antonio Agresta, appearing in person

Peter Fraser, for the respondent

Heard and released orally: July 10, 2017

Appeal Information

On appeal from the conviction entered on June 29, 2016 and the sentence imposed on June 29, 2016 by Justice K. Carpenter-Gunn of the Superior Court of Justice.

Reasons for Decision

[1] The appellant argues that the trial judge erred: 1) in applying the Palmer test and refusing to admit fresh evidence after his guilty plea and before sentencing that he says would establish he was not the driver of the vehicle that caused the June 15, 2012 accident; and 2) in refusing to permit him to withdraw his guilty plea before sentencing.

[2] We reject these arguments and dismiss this appeal.

[3] The proposed fresh evidence is evidence going to whether or not the appellant was the driver and factually innocent. When the appellant brought his application in 2016 to admit the fresh evidence, he did not include affidavits of the persons he says could have provided an alibi for him. He had ample time and opportunity to do so. There are still no affidavits before the court. The appellant having failed to provide affidavits, the trial judge was entitled to refuse to permit those persons to testify viva voce, if indeed they would have done so.

[4] The trial judge reviewed the test to be applied when a guilty plea should be struck and found that the appellant's plea was voluntary, unequivocal and informed, relying in part on the careful inquiry she had conducted under s. 606 of the Criminal Code at the time she took the appellant's guilty plea. The trial judge properly rejected the appellant's argument that his plea was not voluntary because he felt he had no choice but to plead guilty because his defence witnesses were not present at trial.

[5] We are not persuaded there was a miscarriage of justice in this case.

"Alexandra Hoy A.C.J.O."

"J.M. Simmons J.A."

"David M. Brown J.A."