



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Agresta, 2017 ONCA 603

DATE: 20170719

DOCKET: C62446

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

BETWEEN

Her Majesty the Queen

Respondent

and

Antonio Agresta

Appellant

Amy Ohler, for the appellant

Antonio Agresta, appearing in person

Peter Fraser, for the respondent

Heard and released orally:  July 10, 2017

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 appellants 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 appellants guilty
    plea.  The trial judge properly rejected the appellants 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.


