COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kirpichova, 2015 ONCA 621

DATE: 20150917

DOCKET: C58952

Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marta Kirpichova

Appellant

Marta Kirpichova, appearing in person

Tracy Kozlowski, for the respondent

Heard: September 14, 2015

On appeal from convictions entered by Justice Kelly of the Superior Court of Justice on June 6, 2014 and on appeal from the sentence imposed on June 11, 2014.

ENDORSEMENT

[1] The appellant appeals conviction and sentence. The court received detailed written submissions from both the appellant and Crown counsel. The parties made brief additional oral arguments.

The Conviction Appeal

[2] The appellant was convicted based on her pleas of guilty in January 2014 of two charges of fraud and one charge of uttering a forged document. The fraud charges related to credit applications made to banks. The uttering charge involved forged documents used to obtain a passport for the appellant’s daughter.

[3] The appellant had pled guilty to the same charges some four years earlier. She successfully moved to strike those pleas. The matter then proceeded through the courts until the second guilty pleas were entered in January 2014. Five months later, the appellant again moved to strike her guilty pleas. This time her motion failed. She appeals from the refusal to strike the pleas.

[4] Kelly J. took the pleas after a detailed and careful plea inquiry. She heard extensive evidence on the motion to strike the pleas. In her reasons, Kelly J. set out the lengthy and somewhat tortured history of these proceedings. She also identified the relevant legal principles and made findings of fact based on the evidence she heard. Kelly J. concluded, at para. 20:

Lastly, I have had a chance to engage in a number of exchanges with Ms. Kirpichova. She appears to be articulate and smart. She uses appropriate language and phrases when addressing the court. She conducted a very thorough and focussed cross-examination of both Ms. Khan and Mr. Fisher. During a plea discussion, she was thoughtful and helpful. I have no doubt but that Ms. Kirpichova knew exactly what she was doing when she pleaded guilty before me and she knew the consequences of her action. I did not observe any reluctance to engage in the plea process whatsoever at the time it was taken.

[5] The trial judge’s observations are fully warranted on the record. There is no merit to the argument that the appellant’s pleas were not voluntary.

The Sentence Appeal

[6] The trial judge imposed a conditional sentence totalling 22 months, having given the appellant credit for one month of presentence custody. The trial judge imposed house arrest for the first eight months of the conditional sentence and imposed a curfew for the remaining months. The trial judge also made a community service order and a restitution order. The terms of the conditional sentence were suspended by order of this court about one month after it was imposed.

[7] The appellant’s crimes were serious. The frauds involved a total of about $40,000 and the uttering charge undermined the integrity of the passport issuing process, an important public concern.

[8] Under the sentencing law as it now stands, the appellant would not be eligible for a conditional sentence on the fraud charges. She was, however, eligible for a conditional sentence under the law that applied when the offences were committed. The appellant was the beneficiary of a favourable exercise of the trial judge’s discretion when the trial judge declined to impose a custodial term. We see no error in the sentence imposed.

[9] The sentence appeal is dismissed. The terms of the conditional sentence imposed at trial become effective the day after the release of these reasons.

“Doherty J.A.”

“M.H. Tulloch J.A.”

“Grant Huscroft J.A.”