Court File and Parties

Court File No.: CR-19-1833-00AP Date: 2025-07-28 Ontario Superior Court of Justice Summary Conviction Appeal Court

Between: His Majesty the King - and - Shaheen Tufail

Counsel: Paul Renwick, for the Crown Self-Represented, for the Appellant

Heard: March 3, 2022; July 17, 2023; August 25, 2023; February 2, 2024; July 18, 2024; February 10, 2025

Judgment on Summary Conviction Appeal

D.E. HARRIS J.

Overview

[1] The appellant, Shaheen Tufail, requests upon this summary conviction appeal to withdraw his guilty pleas to one count of threatening and two counts of failing to comply with bail release entered before Blacklock J. on September 30, 2019. He seeks a new trial.

[2] Mr. Tufail filed several affidavits on this appeal and was cross-examined. His trial counsel, Ed Brown and Lisana Nithiananthan, both filed affidavits and were examined and cross-examined on them.

Appellant's Position

[3] Mr. Tufail's position is that the evidence against him was fabricated and he was "set up." His lawyers' sole goal from the start was to have him plead guilty and be sentenced. They rendered ineffective assistance in his defence. His son filed an affidavit on this application claiming that his lawyers attempted to extort money from him.

[4] At Maplehurst Correctional Complex and in being transported to and from the institution, the appellant testified that he was attacked repeatedly by several inmates and his life was threatened. He felt that if he did not plead guilty in order to be released as soon as possible, he would be killed. The authorities in the jail knew of the situation but could not protect him. In the end, Mr. Tufail's guilty pleas should be struck and a new trial ordered.

Crown and Defence Counsel Response

[5] Mr. Brown and Ms. Nithiananthan wholly deny Mr. Tufail's allegations against them including with respect to the purported coercion and pressures on Mr. Tufail to plead guilty. The Crown, arguing Mr. Tufail's lack of credibility amongst other things, requests the appeal be dismissed.

Court's Analysis

Credibility and Plausibility

[6] I agree and would dismiss the appeal. The transcripts of Mr. Tufail's appearances in court, including his guilty plea and sentencing appearance, belie his current assertion that he was under duress and that his lawyers failed to protect him. At no point did Mr. Tufail complain or say anything that would cast doubt on his comprehension of the proceedings or derogate from the voluntariness of his guilty pleas. There was never even a hint in the proceedings that anything was wrong or that Mr. Tufail was acting under pressure and without proper legal assistance. His account is neither plausible nor credible. Although not required as a matter of law, there is no evidentiary confirmation for it in the record.

Legal Framework

[7] The law is clear that a guilty plea must be voluntary and unequivocal. The accused must be aware of and accept the truth of the allegations against him and be aware of the potential consequences upon sentencing. A guilty plea entered in open court is presumed valid. An appellant has the onus of demonstrating that his plea of guilty was invalid: R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at paras. 12-16.

Factual Chronology

[8] The facts in this case are that the appellant was arrested for one count of fail to comply with bail on September 23, 2019 after turning himself into the police. He was facing outstanding charges too. The appellant appeared in bail court with Mr. Brown the next day, September 24, 2019. A bail hearing was held on September 26, 2019. The hearing was a reverse onus by reason of the two previous releases in relation to the same alleged victims as the current charges, the appellant's ex girlfriend and her son. He was ordered released on a $10,000 surety bail with a $2,000 deposit as a result of not residing in Ontario. The appellant testified on the bail hearing. At no time did he refer to any of the threats or abuse he has since attested to as having occurred at the hands of other inmates. Supposedly, these incidents happened on September 24 and 25, 2019, prior to the bail hearing.

September 27, 2019 Appearance

[9] On September 27, 2019, a Friday, not having made the bail that was set, the appellant appeared before Mr. Justice J. Blacklock in the Ontario Court of Justice. Mr. Brown appeared as his counsel. Mr. Brown stated that the Crown's position on a plea was 20 days. The appellant had been in for five days on the present charges and three days on the other two charges for a total of eight days of pretrial custody. Justice Blacklock informed the appellant that even with the plea, he might not get out of jail today. Mr. Brown asked the appellant whether he wanted to enter a plea and Mr. Tufail said that he did. Mr. Brown informed Justice Blacklock that he had done a plea inquiry and the appellant wanted to plead guilty. Mr. Brown said that he had told Mr. Tufail that he could have a trial if he wanted. The Crown was asking for 20 days but Mr. Brown would be asking for a lower sentence.

[10] Mr. Tufail commented in one of his affidavits about this day and Mr. Brown's conduct. He quoted Mr. Brown in his affidavit as saying:

Just plead guilty even if they say YOU killed someone, I will get you out, I know the Judge, we have a much better deal for you then the prosecutor. This is an uttering threat case not a murder case, just plead guilty.

[11] I find it impossible to believe that Mr. Brown would have said anything like this. It is hyperbolic and suggests a conspiracy between Mr. Brown and the judge. It is not credible.

September 27, 2019 Plea Proceedings

[12] The appellant was arraigned on one count of threatening and two counts of failing to comply with bail by violating the no contact clause. He personally pled guilty to each. After the facts were read in, the appellant was asked if the allegations were substantially correct. He replied, "[t]he initial ones were incorrect." Based on this failure to accept the allegations, the matter could not be completed and was remanded to Monday, September 30, 2019 in plea court before Justice Blacklock.

September 30, 2019 Sentencing

[13] Ms. Nithiananthan appeared as his counsel on that day. Justice Blacklock recounted what had occurred on Friday. Ms. Nithiananthan was aware of it and said that she had spoken to her client and that after reflecting on it, he was now in a position to agree to the allegations. Mr. Tufail said that was correct. He then explicitly agreed on the record that the facts read in on the previous day were correct. Submissions on sentencing were then made. Before the sentence was imposed, having been given the right to speak, the appellant said "we learn from our mistakes if we make them in our lives" and then, when the judge indicated he did not hear, said again, "we learn from our mistakes, and I learned from mine." An additional three days in jail and probation was imposed as sentence.

Voluntariness of Pleas

[14] In my opinion, there is no reason to doubt the voluntariness of the guilty pleas entered by the appellant. There was ample opportunity to voice disagreement or complaint in the judicial proceedings which took place up to and including the plea and sentencing proceedings. At no time was anything said or done to throw doubt on the validity of the pleas. The appellant had already demonstrated that he was not diffident about standing up for himself. He told the judge that he did not accept the allegations the previous week.

[15] In his elocution at the time of the plea, he freely admitted that he had made "mistakes" and had learned from them. If the appellant had been abused in Maplehurst and not properly served by his legal counsel, it is likely he would have brought it to the court's attention. That he did not is evidence that nothing of this kind ever happened.

Cross-Examination Evidence

[16] Mr. Tufail's explanation on this issue, like a good deal of his evidence, was not believable. This exchange took place at this hearing:

Q. [Mr. Renwick for the Crown] You didn't tell the court anything about what had happened to you in the jail.

A. No, I did not because that was my attorney's responsibility.

Q. But you were able to speak up for yourself when she didn't do the job, correct?

A. The judge didn't ask me. He just said, you don't have to say anything. And she had already said that. You see that in the comments, she has said that, he was in protective custody and he was threatened. So why would I be saying something to the judge? My attorney who was paid has already said that.

Q. That's not an....

A. If somebody had asked me, if somebody had asked me, then I would've said it.

Q. Sir, you wanted the judge to know, okay, I'm not here on my own free will, I'm only pleading guilty because I'm scared I'm gonna get killed. You wanted the judge to know that on that day, correct?

A. No, I didn't know that. I had my attorney. My entire understanding was if you have a judge – if you have attorney and you have told them everything, they are supposed to be doing all that. I'm not supposed to be talking. This is what I was told. (Emphasis added)

[17] But he did talk during the hearing, saying that he did not accept the facts and apologizing for his behavior. When asked in his cross-examination at this hearing why he did not complain despite being open enough to admit making mistakes, the appellant replied:

A. I told him - this is me telling that my mistake was ever going to that hiring of Edmund Brown, my mistake was ever appearing and appearing on that illegal warrant in the, in the police station. This is what I mean by that.

Q. But you didn't say that.

A. It was all mistake. I should've changed him. I should've got rid of the attorney. I should have never gone in and turned myself in. The good deed I did came back and I learn from my mistake. That's the mistake I'm talking about.

Q. But you didn't say that.

A. No, sir, I did not. At that point I knew I was gonna get killed. They were gonna send me back to jail. (Emphasis added)

[18] These explanations made no sense and were contradictory. I disbelieve them. They are representative of the general quality of the appellant's evidence in his cross-examination. None of it on the key issues was believable. If what the appellant alleges now had happened, abuse and threats by other inmates and improper conduct by his lawyers, the appellant would have mentioned it. On the other hand, I saw no flaws, inconsistencies or implausibilities in the evidence of defence counsel. Nor was there anything which provided direct or indirect support for the appellant's allegations.

Conclusion

[19] I do not believe the evidence of the appellant with respect to the conduct of his lawyers nor of the purportedly invalid guilty pleas. The allegation of ineffective assistance of counsel has no merit. And the guilty pleas were voluntary.

[20] For these reasons, the appeal is dismissed.

D.E. HARRIS J.

Released: July 28, 2025