Court File and Parties
Ontario Court of Justice
Date: 2019-07-23
Court File No.: Brampton 18-917
Between:
Her Majesty the Queen
— and —
Oleksandr Ostashkov
Before: Justice I. Jaffe
Heard on: March 21, 25, April 8 and 26, 2019
Written Submissions Received on: May 22, 2019 (Applicant) and July 8, 2019 (Crown)
Reasons for Judgment Released on: July 23, 2019
Counsel
C. Coughlin — counsel for the Crown
S. Shikhman — counsel for the accused Oleksandr Ostashkov
JAFFE J.:
Introduction
[1] On July 3, 2018, Oleksandr Ostashkov pled guilty before me to one count each of break and enter and possession of stolen property. The allegations, which were read into the record, were admitted and I found Mr. Ostashkov guilty on both counts. The matter was adjourned for three months purportedly to enable Mr. Ostashkov to recover some stolen property in mitigation of sentence. The Crown also wanted to get victim input.
[2] By the time the matter returned before me on October 2, 2018, Mr. Ostashkov had taken steps to discharge his lawyer Mr. Lopez, and retain Ms. Shikhman to represent him in an application to strike his guilty pleas.
Mr. Ostashkov's Argument in a Nutshell
[3] A valid guilty plea is voluntary, unequivocal and informed: R. v. Wong, 2018 SCC 25, 364 C.C.C. (3d) 1, at para. 3; R. v. T.(R.) (1992), 17 C.R. (4th) 247 (Ont. C.A.), at p. 252. The focus of the argument before me is on only one of these three preconditions. Specifically, Mr. Ostashkov argues that his guilty plea was not voluntary, but was rather made under pressure exerted upon him by virtue of meritless charges which the Crown continued to pursue against Mr. Ostashkov's parents.
[4] Though not framed as such, Mr. Ostashkov's complaint embodies qualities of an abuse of process allegation because implicit in his argument is that the charges against his parents were inevitably doomed to fail but were kept alive by the Crown as leverage for a guilty plea by Mr. Ostashkov.
July 3, 2018: The Guilty Plea
[5] Mr. Ostashkov first appeared before me on July 3, 2018 at which point he was represented by Mr. Lopez. I was advised that Mr. Ostashkov was scheduled to commence his discovery on that day but had decided to resolve his matters by way of a guilty plea.
[6] Counsel requested an opportunity to discuss their resolution agreement with me in a judicial pre-trial. Prior to retiring for the pre-trial, Mr. Lopez advised me that while the Russian interpreter was on hand for the discovery as requested, his client "does not want her." Mr. Ostashkov then confirmed that he no longer required the interpreter by replying "yeah." I asked Mr. Ostashkov directly if he was "okay speaking and understanding English" and Mr. Ostashkov answered "yes."
[7] Prior to finally excusing the interpreter, I addressed Mr. Ostashkov directly asking him "you are clear, sir what this means, and you are able to communicate fully, effectively with your counsel in English?" Mr. Ostashkov replied "yeah."
[8] A judicial pre-trial was held following which proceedings resumed. Prior to arraignment, Mr. Lopez confirmed that he had gone through the plea inquiry with Mr. Ostashkov. Mr. Lopez nonetheless repeated the content of the inquiry on the record following which he asked Mr. Ostashkov "is that correct?" to which Mr. Ostashkov replied "yes." I asked if everyone was ready to proceed on the basis of what Mr. Lopez just advised the Court and Mr. Ostashkov replied "yeah."
[9] Mr. Ostashkov was then arraigned on two counts, both of which related to allegations that he and others stole valuable items from various storage units. Some of those stolen items were later found in the home occupied by Mr. Ostashkov's parents and in a van parked outside of their home.
[10] Specifically, Mr. Ostashkov admitted that on the night of January 13, 2017, he and some others drove two U-Haul rental trucks onto the property of Smart Stop Self Storage. At 2:56 a.m., a security camera captured Mr. Ostashkov access storage locker 5004 by using tools to remove the lock. The locker belonged to Gurmeet Malhotra, who is in the business of importing and selling Turkish rugs. Stored within that locker were between 400-500 Turkish rugs valued at over $100,000, all of which were stolen. A further quantity of Turkish rugs valued at approximately $50,000 were stolen from another locker belonging to Mr. Malhotra.
[11] Musical instruments valued at approximately $50,000, and belonging to another individual, were stolen from a separate locker. Parvi Qadri, whose deceased father was a well-known painter, stored 500 of her father's paintings in the locker 3127, all of which were stolen. The total value of the stolen artwork was estimated to be in excess of 1 million dollars.
[12] The U-Haul trucks left the premises at approximately 6:00 a.m., and thereafter, police initiated an investigation into these offences. Police discovered that Mr. Ostashkov had left photocopies of his driver's license and credit card with the rental agency from which the U-Haul trucks were rented. This, in turn, led police to the address of 9 Cactus Avenue in North York, the house occupied by Mr. Ostashkov's parents.
[13] Police observed a white van parked outside of the residence, and through its rear window, observed stacks of what appeared to be rugs. A subsequent authorized search of the van confirmed the presence of 25 rugs stolen from Mr. Malhotra's storage locker.
[14] Police also executed a search warrant on the house at 9 Cactus Avenue and discovered two of the stolen paintings. One of the paintings, still in its packaging, was found behind a piece of furniture in the living room. A second painting was found hidden in the master bedroom, a room believed to be used by Mr. Ostashkov's parents.
[15] I was also advised that on the morning of the guilty plea, just prior to the scheduled start of Mr. Ostashkov's discovery, the Crown and defence learned that Mr. Ostashkov's fingerprints had been located on various items found within the white van parked in front of his parent's home.
[16] The matter was then adjourned for three months to enable Mr. Ostashkov to "make some effort to assist him in his sentencing" and to allow the Crown to obtain victim input. Mr. Ostashkov confirmed that he did not require the Russian interpreter for his sentencing and he was remanded to October 2, 2018.
Mr. Ostashkov's Parents
[17] During Mr. Ostashkov's guilty plea, the Crown advised the Court that Mr. Ostashkov's parents, Sergey Ostashkov and Valentyna Kovalenko, were also charged with being in possession of the stolen property but that with Mr. Ostashkov's admission of guilt, his parents' charges will be "dealt with in due course." And in fact, on July 20, when his parents were before the court, the Crown directed that their charges be stayed.
[18] Mr. Ostashkov's parents were charged on separate informations and I was provided with transcripts of their numerous court appearances. It was clear from the transcripts that Mr. Ostashkov's parents were anticipating some form of resolution of their charges. On March 8, 2018, counsel for both Sergey Ostashkov and Ms. Kovalenko requested a 2-month adjournment explaining that their clients will be meeting with the officer-in-charge and that they will continue discussing "prospects of resolution" with the Crown in the interim.
[19] When the matter returned on May 9th, 2018, the Court was advised that both Mr. Ostashkov senior and his wife would be providing further KGB statements to the police but have not been able to connect with the officer-in-charge. A further adjournment was requested to June 14th.
[20] On the June 14th appearance, the Court was advised that the parents would be meeting with the officer-in-charge "this Monday" to provide videotaped statements following which their counsel and the Crown will have a judicial pre-trial. Defence counsel requested a return date of June 28th and stated that he hoped the parents' charges will be resolved on that day.
[21] However, on June 28th defence requested a further adjournment to July 20th to enable "ongoing discussions" with the Crown. It was on the next return date that their charges were stayed.
Evidence of Oleksandr Ostashkov
[22] In support of his application to strike his guilty pleas, Mr. Ostashkov filed an affidavit dated March 9, 2019 in which he swore that he pled guilty only to save his parents from "the meritless charges they were facing." He felt he had no other choice and as such, his pleas were not voluntary.
[23] Mr. Ostashkov explained in his affidavit that he was intending to defend himself on these charges and was anticipating that the charges against his parents would be withdrawn, as he understood was often the case with those who were not the main subject of a police investigation.
[24] Mr. Ostashkov swore that his parents provided additional statements to the police and when they attended court anticipating the withdrawal of their charges, the Crown asked that their matters be adjourned until after his court date. This apparently upset his mother, as Mr. Ostashkov explained that his mother called him and told him that unless he made the charges go away, she would never speak to him again. His father made essentially the same threat.
[25] According to his affidavit, when the fingerprint evidence was disclosed on July 3rd and his lawyer advised there maybe DNA evidence forthcoming, Mr. Ostashkov felt that "the Crown and police will go to any length to ensure a conviction…" He did not express these concerns to his lawyer at the time, rather he instructed Mr. Lopez that he wished to resolve the charges, whatever the consequences, as long as the charges against his parents would be withdrawn.
[26] According to Mr. Ostashkov, his parents refused to provide evidence in support of this application as they are afraid of the consequences to them, in particular they are concerned that the stayed charges may be resurrected.
[27] During his cross-examination, Mr. Ostashkov confirmed that he was in Canada on a visitor's visa. He also confirmed that prior to pleading guilty, he consulted an immigration lawyer and was aware of the immigration consequences to pleading guilty. Importantly, Mr. Ostashkov acknowledged that he knew from his discussions with Mr. Lopez that he did not have to plead guilty and that doing so was his (Mr. Ostashkov's) choice.
[28] At first in his cross-examination, Mr. Ostashkov insisted that the only reason he pled guilty was to spare his parents from the criminal charges. All he wanted was the charges against his parents dropped.
[29] However, he later acknowledged that his desire in receiving a lower sentence was also a factor in his decision to plead guilty though not the "decisive" factor. Mr. Ostashkov acknowledged that following his pleas of guilt, and in an effort to hopefully reduce his sentence, he requested a lengthy adjournment during which he was going to attempt to recover some of the stolen property.
[30] In re-examination by Ms. Shikhman, Mr. Ostashkov testified that he would not have pled guilty had his parents not been charged. He also maintained his position that the charges against his parents were meritless.
[31] However, Mr. Ostashkov's tendency to be evasive during cross-examination and at times inconsistent, has left me questioning both his credibility and the reliability of his evidence.
[32] For instance, when challenged on the identity of the "civilian witness" who apparently identified both him and his father in the security camera footage, Mr. Ostashkov seemed reluctant to admit that he knew the witness. When asked if it was true that the witness positively identified him, Mr. Ostashkov replied "that's what he stated, but he's constantly makes statements, random statements, and he could have stated that about anybody." When asked whether the witness was less certain about his identification of Mr. Ostashkov's father, Mr. Ostashkov replied "he actually had issues personally disliking me."
[33] To me, Mr. Ostashkov's answers seem evasive and unresponsive to the questions. Mr. Ostashkov's example of the lengths the Crown and police would go to secure convictions hinged in part on the faulty identification of his father by this "civilian witness." It appeared to me that he seemed disinclined to admit that the witness himself qualified his identification evidence.
[34] Mr. Ostashkov was also evasive, and in my view inconsistent, when he was cross-examined about his parents' charges. Specifically, he was cross-examined on his claim in his affidavit that "the only evidence" against his parents was the "purportedly stolen property that was found hidden in their house."
[35] Asked if his mother drove a BMW "back then," Mr. Ostashkov replied that he did not remember, and explained that while his mother had driven a BMW in the past, he could not recall whether or not it had been sold by the time of the offences. However, Mr. Ostashkov then admitted that he was aware the police executed a search warrant on the white BMW. In other words, it turns out Mr. Ostashkov must have known that the BMW had not yet been sold.
[36] Mr. Ostashkov was also cross-examined on whether he was aware that within the BMW police discovered computer printouts in which someone was seeking prices for Qadri's artwork. Mr. Ostashkov replied that he was not aware of that detail and then explained that he was not involved in the charges against his parents nor was he their lawyer. This testimony seems inconsistent with Mr. Ostashkov's unequivocal assertion that the Crown had no case against his parents, an assertion that implies Mr. Ostashkov had taken some steps to inform himself about the details of their case.
[37] The "meritless" case against his parents is a central pillar in Mr. Ostashkov's application, and it appeared to me that he did not want to weaken his argument by admitting there was more to his parents' charges then the discovery of stolen property in their house - a discovery which itself could form a reasonable basis for a criminal charge.
Evidence of Juan Lopez
[38] Mr. Lopez is a criminal defence lawyer who was called to the bar in 2012. In November 2017, Mr. Ostashkov retained Mr. Lopez to represent him in defence of these charges. Mr. Lopez was of the view that throughout his representation of Mr. Ostashkov they enjoyed open and respectful communication and it was his impression that Mr. Ostashkov's guilty pleas were voluntary. Mr. Ostashkov's subsequent complaint that they were not voluntary has come as a shock to his former lawyer. Mr. Lopez testified that the pleas were entered only after he had discussions with Mr. Ostashkov and received instructions.
[39] Mr. Lopez acknowledged that Mr. Ostashkov was concerned about his parents' charges, but as both parents had lawyers, the case against his parents was not Mr. Lopez's primary focus.
[40] Mr. Lopez acknowledged that he advised Mr. Ostashkov that the Crown's case against his parents was not very strong and was not likely to succeed. However, he also acknowledged the evidence against the parents, including the stolen property found in their home and in the white van parked outside the home. He was also aware of the fact that further evidence relating to the stolen paintings was found in the white BMW which was solely used by Mr. Ostashkov's mother. Mr. Lopez also acknowledged that Mr. Ostashkov's father made a statement linking himself to the white van which contained 25 stolen Turkish rugs.
[41] Mr. Lopez was familiar with the statement provided by the civilian witness who claimed to have identified Mr. Ostashkov and his father on the security camera footage. Mr. Lopez testified that the witness claimed to have a working relationship with Mr. Ostashkov though they had a falling out when Mr. Ostashkov apparently owed the witness some money. According to Mr. Lopez, while the witness was "pretty sure" of his identification of Mr. Ostashkov in the video footage, he was less certain about his identification of his father.
[42] Prior to the break and enter charge being laid against Mr. Ostashkov, the parties had arrived at what appeared to be a global resolution which involved a plea to possession of the stolen property for a potential conditional discharge. The charges against Mr. Ostashkov's parents would then be withdrawn. However, the laying of the additional, more serious charges, brought those discussions to an end as a conditional discharge was no longer a viable disposition.
[43] Though Mr. Lopez denied ever telling his former client that the Crown and police would go to any length to secure a conviction, he did advise Mr. Ostashkov that it is often the case that other people charged might have to "go along for the ride."
[44] Mr. Lopez testified that on July 3, 2018, the day of the guilty pleas, Mr. Ostashkov's plan was to proceed with the discovery. All the police witnesses involved in the searches and the Crown's civilian witness were in attendance. However, the commencement of the discovery was disrupted by the late-breaking disclosure of fingerprint evidence. Specifically, the Crown disclosed that Mr. Ostashkov's fingerprints were found on a Tim Horton's cup located in the white van that was parked outside his parents' house and from which stolen rugs were seized.
[45] The Crown also disclosed some still photographs taken from the previously disclosed video footage and according to Mr. Lopez, upon seeing those photos, Mr. Ostashkov said "I'm fucked." It was also disclosed that the police were in the process of conducting DNA analysis.
[46] After receiving this new disclosure, Mr. Lopez and Mr. Ostashkov met in a conference room for between 1 and 1 ½ hours discussing his options including the range of sentence and immigration consequences should he opt to plead guilty. This aspect of their discussions involved some back and forth negotiating with the Crown which saw the Crown's initial position of 2-3 years reduced to a position of 18 months. The Crown also conveyed that depending on the amount of stolen property Mr. Ostashkov could recover, the Crown could further reduce its position.
[47] As with their previous discussions, throughout their July 3rd discussions, Mr. Ostashkov insisted that whatever resolution was reached must bring an end to his parents' charges. The probability that Mr. Ostashkov would be removed from the country was also a topic of much discussion. From time to time, Mr. Ostashkov would exit the room for the purpose of making telephone calls. This is consistent with Mr. Ostashkov's evidence that during this time period he had an argument over the phone with his mother.
[48] Mr. Lopez testified that his client, while not "thrilled" about pleading guilty, was aware of what he was doing and understood the implications. Mr. Lopez put no pressure on his former client to plead guilty, as he believed they still had viable arguments to make in defence of the charges. Mr. Lopez was not made aware of anyone else who might have been putting pressure on him.
[49] When cross-examined by Ms. Shikhman on the preconditions to Mr. Ostashkov pleading guilty, Mr. Lopez replied that Mr. Ostashkov wanted his parents' charges withdrawn and to receive the lowest possible sentence. He could not say whether Mr. Ostashkov would have pled guilty had his parents' charges been withdrawn at the June 28th court appearance.
[50] Ms. Shikhman argues that Mr. Lopez's reluctance to admit that a withdrawal of his parents' charges was a precondition to Mr. Ostashkov's guilty plea is "indicative of Mr. Lopez's hazy recollection." Ms. Shikhman argued that an e-mail sent to her by Mr. Lopez evidences Mr. Ostashkov's primary concern for his parents and supports his assertion that he pled guilty on July 3rd solely to relieve them of the criminal charges.
[51] In the e-mail, Mr. Lopez advised Ms. Shikhman that "on July 3, 2018 prior to the commencement of the discovery your client gave me instructions to resolve and also instructed me to ensure his parent's charges were withdrawn if he were to accept responsibility."
[52] I see no inconsistency between Mr. Lopez's e-mail to Ms. Shikhman and his in-court evidence. It was clear from his evidence that Mr. Ostashkov was deeply concerned about his parents' pending criminal charges. Mr. Lopez testified that during their July 3rd discussions following the new disclosure, Mr. Ostashkov wanted Mr. Lopez to help advocate for the withdrawal of his parents' charges and Mr. Lopez assured him that they would reject any resolution offer that would not also bring an end to his parents' charges.
[53] Moreover in his cross-examination, Mr. Lopez did not appear to hesitate in admitting that the withdrawal of his parents' charges was a condition precedent to a guilty plea. Mr. Lopez's willingness to acknowledge this reality is evidenced in the following exchange:
Ms. Shikhman: For him to enter a plea of guilty…. What he wanted was the withdrawal of the charges against his parents?
Mr. Lopez: Yes
Ms. Shikhman: What else?
Mr. Lopez: The lowest possible sentence
[54] I found Mr. Lopez to be a credible witness who gave reliable evidence concerning his interactions with his former client. Despite the lack of notes and written instructions, I accept his account of what transpired on July 3, 2018, much of which is consistent with Mr. Ostashkov's own account.
Argument
[55] I will start off with what is not being argued. Mr. Ostashkov is not arguing that his guilty plea was uninformed, or that difficulties with the English language impeded his understanding of the proceedings. Nor is Mr. Ostashkov claiming that he received ineffective assistance of counsel, or that Mr. Lopez exerted pressure on him to plead guilty.
[56] Rather the argument is strictly focused on external pressures which were bearing down on Mr. Ostashkov and which ultimately led him to plead guilty. Ms. Shikhman encapsulates the applicant's argument in the final paragraph of her written submissions in which she posits that the manner by which the Crown chose to deal with his parents' charges, "whether intentionally or unintentionally" deprived Mr. Ostashkov of a "real choice" and unfairly influenced his decision to plead guilty.
[57] Ms. Shikhman argues the Court's focus should be on whether Mr. Ostashkov would have pled guilty had the charges against his parents been withdrawn earlier. In other words, had their charges been withdrawn on their June 28th court appearance, would Mr. Ostashkov nonetheless have pled guilty on July 3rd? Ms. Shikhman argues that if I have a reasonable doubt about that his plea should be set aside.
Legal Principles
[58] A guilty plea entered in open court is presumed valid: R. v. Cherrington, 2018 ONCA 653, [2018] O.J. No. 4012, at para. 21; T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at para. 16. The presumption of validity is fortified when the accused was represented by experienced counsel throughout the plea process: Moser (2002), 163 C.C.C. (3d) 286, at para. 37; R. v. Eastmond, [2001] O.J. No. 4353 (C.A.), at para 6.
[59] In the context of a guilty plea, the voluntariness requirement is met when the guilty plea is a "conscious volitional decision of the accused to plead guilty for reasons which he or she regard as appropriate." Cherrington, at para. 21; T.(R.), at para. 16.
[60] Recently in R. v. Cherrington, 2018 ONCA 653, our Court of Appeal confirmed the constituent elements of a voluntary guilty plea and at paragraph 21 summarized the bottom line as follows:
To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice. Whether the choice to plead guilty is wise, rational or in the accused's best interest is not part of the inquiry: M.A.W., at para. 35; R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 47.
[61] Though there are numerous factors which can affect the voluntariness of a guilty plea, the focus of this application is on the impact of external pressures on Mr. Ostashkov's decision-making process. While external pressures from sources unrelated to the prosecution can in some circumstances undermine the voluntariness of a guilty plea, not all pressures on an accused will strip his plea of its essential volitional quality. After all, facing criminal charges and deciding to plead guilty ordinarily involves some degree of pressure both inherent and external. This reality has been repeatedly acknowledged by the courts.
[62] For instance in its single paragraph endorsement in R. v. Tryon, [1994] O.J. No. 332 (C.A.), the Court of Appeal concluded that multiple pressures on the accused, some of which came from his sureties and co-accused, did not invalidate his guilty plea:
No doubt, the appellant, like most accused, felt various pressures in deciding to plead guilty. In this case the pressures stemmed from the difficult position the appellant had put his sureties (his parents) in as a result of his failure to abide by his bail conditions, the appellant's incarceration pending trial and the wishes of his co-accused whose immediate fate was tied to the appellant's willingness to plead guilty by the position taken by the crown during plea negotiations. None of these factors render the appellant's plea involuntary in the sense that it was rendered under duress or was the product of coercion. The plea was a valid one and should stand.
[63] Similar comments were made by the Court in R. v. Carty, 2010 ONCA 237, 253 C.C.C. (3d) 469, at paragraphs 36 and 37:
The appellant claims in his affidavit and cross-examination that he was coerced into pleading guilty by the circumstances and, to some extent, by the attitude of his trial lawyer. I have no difficulty accepting that the appellant was under pressure at the time. He was 21 years old, and in custody for the first time with no real prospect of release. He was facing a series of criminal charges, one of which was a serious allegation. His lawyer had informed him that he had no defence on that serious charge. These factors no doubt weighed heavily on the appellant's mind when he was trying to decide what to do.
However, the circumstances in which the appellant found himself were hardly unique, and are shared by many who must decide whether to plead guilty to criminal charges. That decision by its very nature must be made when individuals are under considerable pressure. That pressure is often the product of the grim realization that there is no viable alternative to a guilty plea, and that the consequences of a guilty plea will be immediate, serious and far-reaching. The pressures inherent in the nature and timing of the decision to plead guilty cannot in and of themselves invalidate a guilty plea on appeal. People are capable of deciding what is in their best interests even when they are under considerable pressure and none of the available options are attractive.
[64] Justice DeLuca in R. v. Cherry, 2018 ONSC 5668, similarly concluded that the pressures on the accused to make a difficult choice between unpalatable options did not render his guilty pleas involuntary. Though the accused no doubt regretted his decision to admit guilt, as DeLuca J. said "regret is not the test for setting aside a plea": Cherry, at para. 27.
[65] Finally in R. v. Sobaram, 2016 ONSC 8200 at para 9, Durno J. confirmed the mere existence of pressure on an accused does not invalidate a guilty plea:
That an accused felt under pressure before or at the time of entering a guilty plea to a serious charge and facing a significant jail term, does not in itself result in the plea being involuntary. In the absence of "credible and competent" testimony that his or her emotions reached a level where they impaired her or his ability to make a conscious volitional decision, the mere presence of those emotions does not result in an involuntary plea: T.(R.) at para 18.
[66] On the other hand, coercive or oppressive conduct from others which unfairly prevented the accused from freely deciding whether or not to forfeit his trial and plead guilty, will invalidate the plea. Moser, para. 33. For instance in R. v. Easterbrook, [2005] O.J. No. 1486 (C.A.), the appellant claimed that death threats made to him and his wife forced him to plead guilty.
[67] Though the Court acknowledged that the evidence of the threats was contradicted by Crown evidence, it nevertheless amounted to more than a mere subjective assertion that the pleas were involuntary: Easterbrook, at para. 4. An e-mail produced by the appellant in which a threat was made, if believed, objectively supported a finding that the plea was not voluntary.
[68] While an inquiry into the validity of a guilty plea is subjective, for instance in this case calling for an examination of how external pressures impacted on Mr. Ostashkov's perceptions and beliefs, the Court is entitled to assess the veracity of an accused's subjective account against objective, circumstantial evidence: Wong, at para. 26. It would appear that is precisely what the Court did in Easterbrook, where the existence of objective evidence in the form of an e-mail was significant, if not determinative, of the Court's conclusion that the plea should be struck: Easterbrook, at para. 5
[69] The case of R. v. Nevin, 2006 NSCA 72, 2010 C.C.C. (3d) 81, offers another example of external pressures which invalidated a guilty plea. In that case, the appellant sought to strike his guilty plea on the basis that it was coerced by repeated and sinister threats made by police officers against members of the appellant's family. Specifically the appellant argued that while in detention following his arrest on drug charges, two named police officers separately threatened to arrest members of his family and have his young niece apprehended by Children's Services.
[70] The Crown countered that these alleged threats were implausible and ought not to be believed. The Court disagreed finding that the evidence of threats was plausible, uncontradicted, specific and detailed. If believed, these threats could have unfairly motivated the appellant to plead guilty. The Court ultimately allowed the appeal concluding that the appellant met his burden of demonstrating that his plea was not voluntary.
[71] In R. v. Djekic (2000), 147 C.C.C. (3d) 572 (Ont. C.A.), it was pressure placed on the appellant by the pre-trial judge which led the Court to strike her plea and order a new trial.
Conclusions Regarding the Voluntariness of Mr. Ostashkov's Guilty Pleas
[72] On July 3rd, 2018, a combination of factors convinced Mr. Ostashkov to plead guilty. In cross-examination of Mr. Lopez, Ms. Shikhman suggested that the new disclosure played no role in Mr. Ostashkov's decision to resolve his charges, rather it was a decision Mr. Ostashkov had already made by the time he arrived to court - a decision solely motivated by pressure from his parents.
[73] Ms. Shikhman argues that I should place little weight on Mr. Lopez's evidence that the new disclosure prompted the change in Mr. Ostashkov's intentions because having failed to put this suggestion to Mr. Ostashkov in cross-examination, the Crown breached the rule in Brown v. Dunn.
[74] However, Mr. Lopez's evidence concerning Mr. Ostashkov's reaction to the new disclosure was given only after Mr. Ostashkov had testified and I accept the Crown's submissions that concern for solicitor-client privilege prevented any pre-testimony preparation or disclosure of Mr. Lopez's anticipated evidence. Had Mr. Ostashkov felt aggrieved by Mr. Lopez's evidence on this point, his counsel could have sought to recall him in order to offer reply evidence.
[75] However quite apart from Mr. Lopez's evidence, it is clear that the new disclosure did, in fact, have a persuasive impact on Mr. Ostashkov. According to his affidavit, it was when he received the new disclosure that he felt "the Crown and police will go to any length to ensure a conviction…" Mr. Ostashkov then entered into discussions with his lawyer and shortly thereafter, pled guilty.
[76] Ms. Shikhman argues that the still photographs, which were disclosed together with the fingerprint analysis on the morning of the scheduled discovery, revealed nothing new to Mr. Ostashkov since they were merely still photographs from the security camera video footage which Mr. Ostashkov had already received.
[77] At Ms. Shikhman's request, the Crown provided me with that video footage. The EF Player on which the footage must be viewed, enables the user to view the footage from multiple cameras, each of which was aimed at different parts of the storage facility. The user has various options by which to view the videos from watching the footage from all cameras at once in small thumbnail format, to viewing the larger single camera footage. However, as the videos become larger, their resolution becomes less sharp.
[78] I did not find the video footage particularly easy to access or isolate. Moreover, as would be expected from people stealing valuable items from private property in the middle of the night, those captured on the video kept moving and the face of the person alleged to be Mr. Ostashkov is not easily seen. In my view the still photographs derived from the video footage were not redundant, but added strength to the Crown's identification evidence.
[79] I find that by the time July 3rd rolled around five days after his parents' last court appearance, Mr. Ostashkov knew that his parents' charges had not been withdrawn. I accept Mr. Lopez's evidence that at the start of the day and with his parents' charges still pending, Mr. Ostashkov remained intent on proceeding with the discovery.
[80] It seems clear to me that whatever Mr. Ostashkov's thoughts might have been about the new disclosure, learning that his fingerprints were found in the van and seeing the still photographs was a turning point.
[81] It is also clear to me, that while concern for his parents may have been the driving factor in Mr. Ostashkov's decision to plead guilty, his motivation was not entirely altruistic. There was also a hope that by pleading guilty and recovering stolen property, Mr. Ostashkov might derive the benefit of a lower sentence.
[82] Ms. Shikhman argues that "there is no evidence that Mr. Ostashkov thought that by pleading guilty he was likely to get a significantly lower sentence. In fact the sentence he was receiving was at a very high end of the range."
[83] This is not the case. Both Mr. Lopez and Mr. Ostashkov acknowledged that the defence request for a lengthy adjournment following his guilty plea was to enable Mr. Ostashkov to recover some of the stolen property in order to support a lower sentence. So while 18 months was the joint submission on the day of his guilty plea, there was every reason to believe that it would be lower depending on Mr. Ostashkov's success in recovering the stolen items.
[84] Not so implicit in the applicant's argument is that the charges against Mr. Ostashkov's parents were devoid of merit and were kept pending solely to exert pressure on their son. However, on the record before me, it would seem that while the case against the parents may not have been overwhelming, their charges were rooted in fairly compelling evidence.
[85] Two stolen paintings were found in their home - one in their master bedroom. Stolen Turkish rugs were found in a white van parked outside of their home and owned by his father. A computer printout relating to the stolen artwork was found in the mother's BMW.
[86] Even assuming Mr. Ostashkov had easy access to both the home and vehicles parked at the home, I cannot conclude that the charges against his parents were doomed to fail. In other words, the charges against Mr. Ostashkov's parents did not appear to me to be decoy charges the purpose of which was to extract a plea from Mr. Ostashkov. When stolen items of that value are found on private property, the occupants of that property can reasonably expect to be charged.
[87] And when multiple people are charged with the same offence, it is common that the Crown will accept a plea of guilt from one or some of the accused, and withdraw viable charges against the others. This is an exercise of Crown discretion which can result in savings of court time and expenses, and when done appropriately serves the interests of both the public and the justice system.
[88] The reality is however, that when multiple accused are charged in the relation to the same criminal endeavour, some of those accused will feel pressure to resolve. No doubt Mr. Ostashkov felt pressure from his parents. It stands to reason that parents who find themselves facing serious criminal charges as a result of their son's actions would put some pressure on their son to remedy the situation. However, I have not been persuaded that whatever pressure Mr. Ostashkov felt from his parents deprived him of the ability to make conscious, volitional decision on how to proceed.
[89] The burden rests on Mr. Ostashkov to persuade the Court that his guilty plea was invalid. Ms. Shikhman argues the balance of probabilities standard is not the standard against which a trial court should assess the merits of an application to strike a plea. Ms. Shikhman argues that the Court of Appeal's reference to a "balance of probabilities standard" in Easterbrook was made in the context of an appeal. It is Ms. Shikhman's position that a guilty plea should be set aside by the trial judge if there is a "real doubt" about its validity.
[90] Ms. Shikhman's argument finds some support in Moser, where at para. 43, Hill J. suggests that there is a lack of clarity in the jurisprudence concerning the standard of persuasion in an application to strike a guilty plea. After reviewing some cases on the subject, Hill J. concluded that a trial judge should strike a plea where there is a "real doubt as to the plea's validity."
[91] It would seem that Durno J. came to a different conclusion 14 years later in Sobaram where as a trial judge, His Honour applied the balance of probabilities standard: Sobaram, at para. 6. Durno J.'s application of the balance of probabilities standard accords with the statement made by the Court of Appeal in R. v. Krzehlik 2015 ONCA 168, where at paragraph 26, the Court stated that the "accused has the onus to show that the plea was invalid on a balance of probability." Of significance is the Court's use of the word "accused" and not "appellant" suggesting that the balance of probabilities standard is not reserved for appeals but applies equally at the trial level.
[92] Regardless of the applicable standard of persuasion, I have no real doubt about the voluntariness of Mr. Ostashkov's guilty plea.
Other Factors Relevant to the Validity of the Guilty Plea
[93] There are two other factors which, although were not advanced as a basis to strike Mr. Ostashkov's plea, should nonetheless be addressed: Mr. Ostashkov's proficiency in the English language and the collateral immigration consequences.
[94] I am satisfied that Mr. Ostashkov understood English sufficiently well to communicate effectively with his counsel, appreciate the options that were open to him, and the legal and immigration consequences flowing from those options.
[95] At the outset of his guilty plea prior to releasing the Russian interpreter, Mr. Ostashkov was asked directly if he was "okay speaking and understanding English" and whether he was able to communicate fully and effectively with his counsel in English. There was no suggestion that Mr. Ostashkov did not understand these questions and though terse, his responses were unequivocal.
[96] I also accept Mr. Lopez's evidence that he had no difficulty communicating with his former client. Though he attempted to use simple language in his discussions with Mr. Ostashkov, Mr. Lopez explained that he does so with all his clients because the legal process can be overwhelming.
[97] All communications between Mr. Ostashkov and Mr. Lopez, including phone calls and text messages, were in English. Mr. Lopez testified that if he felt there had been any difficulty with Mr. Ostashkov understanding English he would have used an interpreter because it is important that his clients (many of whom do not speak English) fully understand their options and related consequences. Mr. Lopez was confident that Mr. Ostashkov understood their discussions.
[98] Mr. Lopez never felt the need for a Russian interpreter during his communications with Mr. Ostashkov and testified that one was requested for the discovery to assist a Crown witness. Mr. Lopez further explained that it was Mr. Ostashkov's idea (not Mr. Lopez's) to discharge the Russian interpreter prior to his guilty plea.
[99] Mr. Lopez's assessment of Mr. Ostashkov's proficiency in English finds support in Ms. Shikhman's statement to the Court on October 2nd that Mr. Ostashkov "has a command of the English language."
[100] Mr. Ostashkov never once alerted his former counsel or the Court to any difficulties he was having understanding English and to the contrary, I accept that it was his decision to release the Russian interpreter precisely because he did not require interpretation.
[101] As previously mentioned, Mr. Ostashkov acknowledged in cross-examination that he consulted an immigration lawyer and was aware of the immigration consequences to pleading guilty.
[102] I am satisfied that Mr. Ostashkov understood the nature of the case against him, the guilty plea proceedings and the potential penal and immigration consequences which might flow from his admissions of guilt.
[103] Mr. Ostashkov's application to strike his guilty pleas is dismissed.
Released: July 23, 2019
Signed: Justice I. Jaffe