Court of Appeal for Ontario

CITATION: R. v. Goloubev, 2009 ONCA 333

DATE: 20090424

DOCKET: C44699

BETWEEN:

Her Majesty the Queen

Respondent

and

Vladislav Goloubev

Appellant

Counsel:

Brian Snell for the appellant

Colleen Hepburn for the respondent

Heard and released orally: April 16, 2009

On appeal from conviction by Justice S. R. Shamai of the Ontario Court of Justice dated December 21, 2005.

ENDORSEMENT

[1] Despite the commendable care taken by the trial judge, this court retains the discretion to receive fresh evidence where it is in the interests of justice and to set aside a guilty plea to avoid a miscarriage of justice. In this case there are a number of factors that combine in our view to require this guilty plea to be set aside:

(1) Through the entire 8 months of his pretrial detention, his retained counsel failed to meet with the appellant.

(2) On the date set for trial, his retained counsel did not attend but sent an associate who received the file that morning. That counsel had no knowledge of the case and since he had to attend another court first, he had no opportunity to make a prior assessment of how to proceed that day.

(3) The appellant had had a very difficult time in custody having been repeatedly assaulted by inmates.

(4) The appellant had repeatedly denied his guilt and did so even after his guilty plea.

(5) While he later did admit facts consistent with guilt, he again made a statement that appeared inconsistent with guilt.

(6) The counsel who attended on the date set for trial was in no position to provide helpful advice about the strength of the Crown’s case and therefore the real risk of continuing with the preliminary inquiry.

(7) The appellant had some difficulty with the English language.

(8) It seems unlikely the appellant had a proper opportunity to review the disclosure.

(9) Except for the few minutes in court, the appellant has maintained and continues to maintain his innocence.

[2] Given this very unusual set of circumstances, we would allow the appellant to withdraw his guilty plea, set aside the convictions, and order a new trial on all of the charges including those that were withdrawn by the Crown.

[3] Mr. Snell does not dispute that this is the proper order and that we have this power pursuant to s. 686(8) of the Criminal Code.

"M. Rosenberg J.A."

"Janet Simmons J.A."

"S. E. Lang J.A."