ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: S.C.J. 204/07
Date: 2012-02-09

Between:

HER MAJESTY THE QUEEN
Respondent

– and –

Benito Ciullo
Appellant

Stacy Haner, for the Crown
Kirkor A. Apel, for the Appellant

Heard: January 16, 17 and 18, 2012

Justice J.S. O’Neill

REASONS ON APPEAL

1PART A: INTRODUCTION

2The within Appeal was argued before me in Sudbury on January 16, 17 and 18, 2012. The Appellant is seeking to set aside his guilty plea to one count of impaired operation (s.253 (a)) on the basis that his guilty plea was invalid and involuntary, thus resulting in a miscarriage of justice. Various grounds were argued in support of the Appellant’s position on the appeal including those set out at paragraph 9 of the Appellant’s factum, which I reproduce in part as follows:

1. The Appellant’s judgment was affected by alcohol and lack of sleep so as to impair his ability to instruct counsel and receive instructions and advice.

2. The Appellant did not receive effective assistance of counsel.

3On the Appeal, counsel also argued that given the stress, anxiety and fear that his client felt while being held for bail, his decision late in the day to plead guilty in order to secure release from jail was in the circumstances an involuntary one, and that accordingly, his plea ought to be set aside.

4PART B: FRESH EVIDENCE CALLED ON THE APPEAL

5Five witnesses testified on the appeal and I will summarize their evidence briefly:

6i. Grace Kurke

7Grace Kurke was Crown counsel in the plea court before Justice Renaud on October 24, 2007. She recollected that Justice Renaud asked Mr. Ciullo to sit for his plea as he was handcuffed to another prisoner. She testified that although the plea of guilty was made late in the day, she had no reason to believe that the Appellant has such residual alcohol in his system so as to impair his ability to freely and voluntarily enter a plea.

8She confirmed that the Appellant never asked for an adjournment and that she had no concerns that he did not appreciate what he was doing when he entered his plea. She testified that he seemed genuinely remorseful when he entered the plea before Justice Renaud.

9She testified that Mr. Ciullo had the option of returning to bail court and either dealing with his matter that afternoon or possibly spending another night in jail. She was shown the Greater Sudbury Police Service Information For Bail Hearing document and she stated that a person such as Mr. Ciullo, with no criminal record, facing a charge of impaired operation, would have been eligible for release from jail on payment of a cash amount.

10ii. George Florentis

11Mr. Florentis was duty counsel in the plea court on October 24, 2007. He confirmed that he spent time speaking with Mr. Ciullo that day. He discussed with him the Appellant’s intention to plead. He provided his recommendation to the Appellant and he then spoke with Mr. Bland, the duty counsel in bail court.

12Mr. Florentis confirmed that Mr. Ciullo was not comfortable being in custody. He testified that he saw no signs of fatigue or impairment in him. He confirmed that Mr. Ciullo understood the discussions and his recommendations “very well”. Mr. Florentis stated that he recommended that Mr. Ciullo plead not guilty. He testified that Mr. Ciullo was anxious to deal with his matter and that he pleaded guilty against Mr. Florentis’ recommendation. He confirmed that the Appellant was aware and understood what was going on. He stated that the Appellant wanted to be released from jail – “that minute”.

13He stated that after the plea of guilty was entered, and proceedings were finalized, he met Mr. Ciullo in the court house hallway where Mr. Ciullo stated “this is not over”. Mr. Florentis took this to mean that Mr. Ciullo understood what was happening when he entered his plea of guilty.

14Mr. Florentis denied that he advised the Appellant that he could have stayed in jail overnight. He stated that if a plea of guilty was not entered, Mr. Ciullo would have returned to bail court. If he was not able to satisfy terms of bail or if the bail court was closed later in the day, Mr. Ciullo would have to remain overnight.

15Mr. Florentis testified that even prior to entering a plea of guilty, Mr. Ciullo was anxious about being in custody and told him that he would “fix it up later”.

16Mr. Florentis stated in cross examination that he was under the impression that when Mr. Ciullo spoke to him, that Appellant was not in a position to be released as he did not have cash bail available. Mr. Florentis stated that there may have been some concerns with the Appellant who may have threatened to hurt himself while in jail and he stated that the Crown may have wanted additional conditions.

17iii . Peter Bland

18Mr. Bland was duty counsel in bail court on October 24, 2007. He did not recall speaking with Mr. Ciullo that day but his file docket confirms that a portion of the account that he sent to legal aid was for legal advice for Mr. Ciullo. Mr. Bland billed 3.75 hours on his adult file and 1.25 hours on his youth file. He worked from 10:45 a.m. to 12:30 p.m. and then from 2:00 p.m. to 4:00 p.m.

19Mr. Bland confirmed that if Mr. Ciullo wanted to deal with his matter in plea court he would then speak to another duty counsel lawyer. He stated that in his opinion, Mr. Ciullo would have needed a cash component of bail to be released as he resided in Toronto, more than 200 kilometres from Sudbury.

20Mr. Bland testified that bail court usually opened at 9:30 a.m., closed over the lunch hour for an hour and fifteen minutes or an hour and a half and then opened in the afternoon until all matters were completed, sometimes to as late as 6:00 p.m. Mr. Bland stated that that day bail court finished at 4:00 p.m. He reiterated that bail court would continue until the docket was finalized.

21Mr. Bland testified that it would be his responsibility to speak to an accused, speak to the Crown, review the Crown brief and review suggested conditions for bail with an accused. He testified that $500.00 to $1000.00 was a normal cash component for bail in a case such as this.

22He stated that if cash bail was available the Justice of the Peace would finalize the release of an accused.

23iv . Randal Warren

24Mr. Warren is a toxicologist with the Centre of Forensic Sciences. His Report or letter to Crown counsel Stacy Haner dated June 2, 2011 was filed as exhibit 6 on the appeal. He outlined the hypothetical information at paragraph 1, 2 and 3 of page 1 of his letter and confirmed his opinion that given that information, Mr Ciullo’s projected blood alcohol concentration at or between 2:00 p.m. and 5:00 p.m. on October 24, 2007 would have been 0mg/100ml.

25v . Benito Ciullo

26The Appellant testified on the appeal. He stated that following his arrest shortly after 2:00 a.m. he was taken to the police station where he became concerned that he might lose his job. He began to feel anxious and depressed. He entertained feeling that “my life is over”.

27He testified that it was cold in the police cell and that he could not sleep. He indicated that he was deeply confused and depressed.

28He and other inmates were taken to court and he confirmed that he spoke with Peter Bland. He testified that he was afraid and he was not absorbing what counsel was telling him.

29He testified that he had nothing to eat at the police station but that he was given two sandwiches in the courtroom cells. One sandwich was taken from him.

30He confirmed that he spoke with Mr. Florentis. He testified that he wanted to get out and that he was tired and fatigued. He testified that he did not want to go back to the range and that his only option was to plead guilty.

31He testified that his friend Gord travelled up from Toronto both to terminate his employment but to also drive him back to Toronto. He testified that as a friend, Gord might have posted bail for him.

32He testified that as he spoke with Mr. Florentis, the only thing that registered with him was that a guilty plea guaranteed an immediate release from jail. He testified that he felt that he would not be getting released, but after hearing evidence on the Appeal Hearing, he confirmed that this was not a correct assumption.

33He indicated that he did not have very much cash but he had some money in his bank account and his friend Gord was also with him.

34Under cross examination, he testified that he could answer all questions with the breath technician at the police detachment. He testified that he could not remember his conversation with Mr. Bland at the court house and that he was stressed out. He stated that he was desperate to get out of custody. He confirmed that Gord was a friend of his and “I think he would have posted bail for me”.

35In re-examination, he testified that after hearing all of the fresh evidence on the appeal, it “has helped me to understand better what they were trying to convey on that day”.

36PART C: DOCUMENTARY EVIDENCE FILED ON THE APPEAL

37Various items of documentary evidence were filed on the appeal hearing including:

i. Letter from Mr. Kurke to Mr. Apel dated September 16, 2010

“Our file shows no issue about release on the part of the Crown. Indeed the police Bail Recommendation Form listed no grounds for holding your client, and suggested terms of release.”

ii. Greater Sudbury Police Service Information For Bail Hearing – this document suggested that Mr. Ciullo be released under certain conditions.

iii. Witness Statement of Officer Prevost

“He was lodged in cell #7 due to the fact that Mr. Ciullo started expressing depressing thoughts upon his arrest. He stated that his life was now over and he had lost his job. Also, due to the fact that I had to make sure that he would be appearing for court, due to the fact that he lived in Toronto, myself and S/Sgt. Treitz decided to hold the party over for bail court”.

iv. Letter from Mr. Florentis to Mr. Apel dated September 20, 2010

“If I remember correctly I was told that Mr. Ciullo lived out of town. Mr. Ciullo was unwilling to wait to arrange the requirements of the Crown and insisted on expediting the process.”

38PART D: ANALYSIS AND CONCLUSION

39In paragraphs 11, 12 and 13 of his factum, the Appellant’s counsel set out the legal principles with respect to the validity of a guilty plea. I reproduce those three paragraphs in full:

11. The Ontario Court of Appeal, in R. v. T.(R.), provided the following definition of a valid guilty plea:

“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”

R. v. T. (R), (1993) 17 C.R. (4 th ) 247 (Ont. C.A.)

12. The conditions for a valid guilty plea have also been codified by section 606 (1.1) of the Criminal Code that provides:

“A court may accept a plea of guilty if it is satisfied that the accused

a) is making the plea voluntarily; and

b) understands

1. that the plea is an admission of the essential elements of the offence,

2. the nature and consequences of the plea, and

3. that the court is not bound by any agreement made between the accused and the prosecutor.”

4. For the “voluntariness” factors, Justice Doherty for the Ontario Court of Appeal in T.(R.) stated: “A guilty plea entered in open court will be presumed to be voluntary unless the contrary is shown.”

R. v. T. (R.) , supra, at para 16 [emphasis added]

40This is not a case where the Appellant’s guilty plea should be reversed and set aside, on the basis of ineffective assistance of duty counsel. I am satisfied that on the date and time in question, both Mr. Bland and Mr. Florentis assisted Mr. Ciullo in the best manner possible, under the circumstances. Nor is this a case where the guilty plea should be set aside on the basis that Mr. Ciullo didn’t understand the advice that he received from Mr. Florentis. There is nothing in the evidence before me, including the documentary evidence filed, to suggest that the Appellant did not understand or appreciate the advice that he was being given.

41If there is any basis for setting aside the guilty plea, it relates to the prong or thrust of the appeal that Mr. Ciullo was an anxious, stressed and frightened man who would do anything on the date in question to free himself from jail and to avoid spending another night in jail. Indeed, this was the thrust of the Appellant’s evidence when he testified on the appeal hearing.

42This ground of appeal, based as it is on certain evidence, must be viewed in its totality, and in view of what we know or can with reason conclude was occurring on the date and time in question. In that regard, I summarize the following:

i. Given the original concerns by Officer Prevost, and the distance that Mr. Ciullo resided from Sudbury, it was reasonable that he be held over for bail court on October 24, 2007.

ii. The suggested conditions for release as set out on the bail document referred to were reasonable and fair.

iii. Mr. Ciullo’s friend Gord arrived in Sudbury that day and was able to drive him back to Toronto.

iv. Mr. Ciullo confirmed that Gord would most likely have provided assistance with cash bail if asked.

v. Mr. Ciullo spoke with Mr. Bland and he spoke with Mr. Florentis.

vi. Mr. Florentis provided a strong recommendation that Mr. Ciullo not plead guilty, given the low readings and the police evidence with respect to the grounds for arrest.

vii. The transcript of proceedings before Justice Renaud confirms that Mr. Ciullo understood that he was pleading guilty to the charge before the court, that he admitted the allegations forming the basis of the charge, and that he was expressing remorse for his actions in question. The transcript confirms that he understood that he might require time to pay the fine, that three months was adequate and that he understood the prohibition order of 12 months.

43At the root of this appeal is the Appellant’s position that given the stressful conditions in jail, the Appellant’s anxiety in jail and the fact that he had been in police custody from shortly after 2:00 a.m. to approximately 4:00 p.m. on October 24, 2007, his decision to plead guilty against duty counsel’s advice was reasonable and understandable in the circumstances, but nevertheless constituted a plea that was not voluntary in law.

44I am unable to accept the Appellant’s argument in this respect for the following reasons:

i. As outlined above, the weight of the evidence suggests that the bail court would have remained opened until beyond 4:00 p.m., and that Mr. Ciullo’s friend Gord would likely have assisted with cash bail requirements.

ii. The Appellant filed no medical or other evidence on the appeal to confirm his state of mind on the date in question.

45In this respect, the statements of Doherty J.A. at paragraphs 17 and 18 of the decision R. v. T. (R.), supra bear repeating:

17. Several factors may affect the voluntariness of a guilty plea. None are present in this case. The appellant was not pressured in any way to enter guilty pleas. Quite the contrary, he was urged by duty counsel not to plead guilty but to accept an adjournment. No person in authority coerced or oppressed the appellant. He was not offered a “plea bargain” or any other inducement. He was not under the effect of any drug. There is no evidence of any mental disorder which could have impaired his decision-making processes. He is not a person of limited intelligence.

18. In his affidavit the appellant asserts that he was anxious and felt himself under pressure when he entered his pleas. No doubt most accused faced with serious charges and the prospect of a substantial jail term have those same feelings. Absent credible and competent testimony that those emotions reached a level where they impaired the appellant’s ability to make a conscious volitional choice, the mere presence of these emotions does not render the pleas involuntary.

46This is a case where, in my opinion, at the end of a long morning and a portion of an afternoon, Mr. Ciullo lost all patience with the system, and decided in his mind that he would plead guilty in order to secure an immediate release. The Appellant is not a man of limited intelligence and there is no concrete evidence to suggest that his ability to understand and appreciate duty counsel’s instructions was either impaired by lack of sleep or alcohol. The oral and documentary evidence filed on the appeal hearing confirms that Mr. Ciullo was not willing to “wait to arrange the requirements of the Crown”.

47The weight of the evidence on appeal suggests that the bail court could have remained open past 4:00 p.m. to accommodate Mr. Ciullo, and to accommodate any arrangements with respect to cash bail. No evidence was provided on behalf of Gord as to whether he was asked to provide cash bail or to make arrangements to secure some cash bail so as to secure the release of Mr. Ciullo that afternoon.

48There can be no doubt that the Appellant was under great stress and pressure that day. He had been held in jail between approximately 2:00 a.m. and 4:00 p.m. He described some of the conditions while in jail. And as Crown counsel argued on the appeal, he had a “tough decision” to make that day.

49However, on the evidence placed before me, I am satisfied that although Mr. Ciullo was under stress, anxious and in circumstances where he had to make a difficult decision, his decision was nonetheless a rational one, a voluntary one and one that he made after receiving the benefit of legal advice.

50Accordingly, for these reasons, I would dismiss the Appellant’s appeal and uphold the guilty plea and the conviction.

51Order Accordingly.