Court File and Parties

Court File No.: Central East - Newmarket 11-06561 Date: 2014-02-18 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ysay Gililov

Before: Justice P.N. Bourque

Counsel:

• Ms. Nadine Courville for the Crown
• Ms. Rita Levin for the Applicant

Heard: In Writing

Judgment

Application to Strike Guilty Plea

Released on February 18, 2014

Overview

[1] The defendant was charged with the offence of sexual assault upon J.M. arising out of events of July 17, 2011. With the assistance of an earlier counsel, the defendant had two previous judicial pre-trials in 2011, and then set a trial date.

[2] The defendant eventually retained counsel, Mr. A.N. Singh and set a trial date of September 27, 2012. On September 26, 2012, counsel for the defendant and the Crown attended before me and a further judicial pre-trial was conducted in my chambers (I was not the Justice on the previous pre-trials). Discussions were held. In the course of those pre-trial discussions, I expressed an opinion to counsel as to a range of sentence that I would impose. The range of sentence that I indicated to counsel was up to six months.

[3] On September 27, 2012, the defendant appeared before me and entered a plea of guilty to a single count of sexual assault upon J.M. on July 17, 2011. The defendant was assisted by a Russian-speaking interpreter and he was sworn. I note that there has been no objection filed to the quality of the interpretation in court or indeed out of court. A plea inquiry was held and it is set out in full below:

Plea Inquiry Transcript

THE COURT: Yes, Mr. Gililov, I understand you wish to plead guilty to a simple charge of sexual assault. Is that correct, sir?

YSAY GILILOV: Yes.

THE COURT: And do you understand that when you plead guilty to this charge you waive several important rights? The most important right you waive is the right to have the Crown prove the case beyond a reasonable doubt after a trial. By pleading guilty you waive the necessity of that trial.

YSAY GILILOV: I understand.

THE COURT: All right. Now, I confirm that I met with your lawyer and the lawyer for the Crown yesterday in my office. I confirm at that time I gave an opinion to both counsel as to what I thought an appropriate range of sentence would be and I'm indicating to you that while sentencing is always finally up to me, unless I'm apprised of factors that I didn't hear yesterday, I can stay within the range that I indicated. Do you understand that? Any by pleading guilty – is that yes?

YSAY GILILOV: Yes. Yes.

THE COURT: All right. Yes. You have to vocalize everything, sir. And by pleading guilty to this charge today are you doing so freely and voluntarily?

YSAY GILILOV: Yes.

THE COURT: Thank you. Madam clerk, when you're ready and go slowly.

[4] The charge was read to the defendant, the Crown had elected to proceed summarily and the defendant pled guilty.

[5] The facts were read in and the Crown also put into evidence the audiotape (and transcript) of the recording that the complainant made of the conversation referred to in the facts for the sentencing. Both audio and transcript were made exhibits.

[6] After that was completed, the defendant was asked directly by the Court whether those facts were substantially correct and the defendant said "yes". The Court made a finding of guilt.

[7] There were some issues with regard to the criminal record of the defendant and the Crown wished to have clarified before submitting the defendant's criminal record. The matter was put over for sentence to February 28, 2013 for submissions and sentence.

[8] On February 28, 2013, when the matter returned, the defendant's counsel asked to be removed from the record due to irreconcilable differences with his client and I made the order and the matter was adjourned so that the defendant could retain new counsel. The matter was adjourned at the request of the defendant more times until he fully retained new counsel. This application was filed by an Application Record and Factum on September 30, 2013. The Crown responded on October 9, 2013 and the matter was heard before me on February 18, 2014.

[9] In addition to the application and Factum, the defendant filed an affidavit and an affidavit was filed from the defendant's son. The defendant testified.

Applicant's Evidence

[10] The defendant testified. He testified through a Russian Interpreter. Even with the Russian interpreter, there were several occasions where the defendant spoke English in Court and sometimes did not wait for the interpretation before giving an answer. He testified that he knows some English but "not everything". He also stated that he spoke to his son half in Russian and half in English (this contrasts with his affidavit where he states he only speaks to his son in simple English and his son "does not speak Russian").

[11] He testified that he had hired Neil Singh to represent him and he had spoken to him at his office several times about the case. Sometimes he spoke to Mr. Singh alone and sometimes he had his son with him. He did not complain about any lack of comprehension in any of these meetings. He also stated that he met with his lawyer two or three days before trial and he stated that his lawyer said that he must admit guilt. His lawyer described that there will be a lesser sentence.

[12] Upon exploration of the factors which led him to enter a guilty plea, the defendant had this exchange with his counsel:

MS. LEVIN: What was your understanding about the choices?

YSAY GILILOV: I was given a choice plead guilty you will be given a short time and it will be done.

MS. LEVIN: Could you do anything else?

YSAY GILILOV: I was very fed up it was 2 1/2 years and almost 3 years and I accepted it to get rid of it and I am at home under home arrest.

MS. LEVIN: Is this the reason for pleading guilty?

YSAY GILILOV: Yes.

MS. LEVIN: Did you understand that you can have your day in court?

YSAY GILILOV: I don't know when he was dragging out this I was fed up - I was talking to him - if you want me to go to jail, go ahead.

MS. LEVIN: Did you understand you could have a trial?

YSAY GILILOV: I don't understand. I understood that I could plead not guilty.

[13] At this point the defendant called no further evidence.

[14] In deciding this matter, I will rely upon the circumstances of the plea as set out in the transcript of the proceedings, the affidavit of the defendant and his son, and Exhibit Number 1 - Authorization and Direction of Ysay Gililov.

The Law

[15] As stated in R. v. T.(R.), [1992] O.J. No. 1914, C.A.:

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 consequence of his plea.

[16] In R. v. Petrenko, [2009] O.J. No. 5094, Durno J. set out what I believe is a concise statement of the law which I will paraphrase:

(a) The right to trial is an important charter right with the presumption of innocence until proven guilty after a trial in accordance with sec 7 (Right to life, liberty and security) of the Charter.

(b) A valid guilty plea must have minimally sufficient characteristics in order to provide an assurance that the forfeiture of a trial is fair;

(c) There is no absolute right to withdraw a guilty plea.

(d) The onus is on the applicant to establish on the balance of probabilities that there are valid grounds to withdraw the plea;

(e) There is a presumption that the plea is valid, particularly where the accused personally enters the plea, personally admits the facts as correct, and represented by experienced counsel who will be presumed to have fulfilled their professional obligations;

(f) No finite list of all valid grounds to strike a plea can be provided, however a following is a list of some factors:

(i) All pleas involve pressures and a plea negotiation does not render the plea invalid. Oppressive and coercive conduct by others which deprives an individual the right of free choice of their decision to go to trial is not acceptable;

(ii) The plea must be informed and the defendant must understand the nature of the charge, the legal consequences of the plea, the jeopardy faced by way of sentence. Incorrect legal advice may be a factor to consider;

(iii) The plea must be unequivocal.

(g) The plea is the defendant's decision, and no one else's.

Analysis

[17] In coming to a decision in this matter I find the following:

1. The plea was made on the eve of trial and after the defendant received an opinion from his counsel as to the likelihood of success (the counsel considered it to be small) and the consequences if he were to sentenced after a trial. The lawyer also passed to the defendant the results of the judicial pre-trial held before me on September 26, 2012, that is my opinion to counsel about the range of sentence, I would impose.

2. The opinion of the solicitor was initially passed to the defendant through his son (who is a paralegal). The defendant does speak some English and his son speaks some Russian. Paragraph 7 of the defendant's Affidavit clearly sets out the information passed to him through his son from his lawyer. I also note that when the defendant met with his lawyer in court on the morning of the plea, the Russian interpreter was there to fully translate between the defendant and his lawyer and the written instructions were obtained. There is no indication that anyone (especially not Mr. Singh) put any untoward pressure on the defendant. He says that he felt he did not have any alternative but to plead guilty. That may be so but there is no evidence that it was the result of any improper advice from counsel (or anyone else). He was aware that he could certainly go to trial but he would most likely be convicted and the Crown would seek a much longer jail sentence than the one now offered on a plea.

I specifically find that there is no evidence to indicate that the defendant's solicitor did not fulfill his obligations to his client in a professional and competent manner.

3. The information given to the defendant on the eve of trial was undoubtedly distressing although I cannot see how it differs from the conversations between counsel and client on the eve of dozens of criminal trials occurring every day in this province. There were no special circumstances which by any objective standard was of such oppression that it robbed him of his ability to make a rational decision. The defendant had previous experience with the criminal justice system as a defendant.

4. The defendant eventually gave instructions to his lawyer in writing to enter the plea. The instructions are very comprehensive and exhaustive and I note it includes the following issues:

(a) it sets out the complete charge;

(b) it sets out that the plea is voluntary;

(c) it acknowledges guilt to the offence;

(d) it sets out the essential ingredient of the offence;

(e) it sets out his acknowledgement of his right to a trial and the burden of proof upon the Crown attorney;

(f) he waives his right to a trial;

(g) he acknowledges that he has discussed defences with his lawyer and acknowledges that there may be a viable defence;

(h) it acknowledges some difficulties in proceeding with a trial;

(i) he acknowledges that there could be a voir dire on his statement to the police;

(j) he acknowledges that he is admitting the essential facts of the crime as alleged by the Crown;

(k) there is an acknowledgement of the Judicial pre-trial held before the justice and also sets out the opinion of the pre-trial justice;

(l) it acknowledges that the judge is not bound by joint submissions;

(m) the final instruction to plead guilty is totally unequivocal.

5. In all respects this written instruction to plead guilty is very comprehensive, and in and of itself would lead any trier of fact to find that the plea was entirely voluntary and the defendant understood all the ramifications. I would have made this finding even if the defendant had not made the admission in court before me referred to above.

At all times in court during the plea, the defendant was assisted by a Russian interpreter. The defendant has not made any allegations putting into doubt the quality of the interpretation in court.

6. The entry of the plea was done in court after a plea comprehension inquiry where the defendant was advised of his waiver of a right to a trial, the fact that the trial judge had the final say in sentence, and that the defendant was asked and responded positively to the query whether he was making his plea freely and voluntarily.

7. The defendant personally acknowledged a very thorough and comprehensive statement of facts.

[18] I therefore find that the plea of the defendant was voluntary, unequivocal, and the defendant was aware of the nature of the allegations against him, the effects of his plea and the consequences of the plea. The only real factor to be considered in the defendant's favour is that the decision to plead guilty was made on the eve of trial. With regard to the language issues raised by the defendant, he does not say that he did not understand his counsel's advice as passed to him by his son. If there was any difficulty, it was solved by the interpreter's assistance on the following morning.

[19] The defendant clearly changed his plea from not guilty to guilty as a result of the advice from his lawyer. I find nothing about that advice and the circumstances in which it was rendered which give rise to any doubts in my mind about the voluntary nature of the plea and the defendant's understanding of its consequences. I specifically distinguish this case on its facts from the decision in R. v. K.(S.), [1995] O.J. No. 1627 (where the defendant did not fully admit the facts) and R. v. W.B., [2001] O.J. No. 587 (where the defendant continued to protest his innocence and had misapprehensions about the consequences).

Conclusion

[20] The defendant has not established on a balance of probabilities that his plea of guilty should be set aside.

Signed: "Justice P.N. Bourque"

Released: February 18, 2014

Footnote

[1] When the evidence began in this matter, it became apparent after Exhibit Number 1 was presented to the witness that the interpreter in court today was also the interpreter who was present on September 27, 2013 and who also interpreted Exhibit Number 1 for the witness. Both Crown and defence were aware this was the case but I was not. I stopped the proceedings and arranged for a new interpreter. I was concerned, that although there may be no issues about the interpretation, the events in the room where the defendant and his counsel spoke may become an issue and I did not want to have to start from the beginning.