Court File and Parties

COURT FILE NOs.: 37/20 and 36/20 DATE: 2022-10-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SERGEY OSTASHKOV and VALENTYNA KOVALENKO, Appellants – and – HIS MAJESTY THE KING, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Ricardo Golec, for the Appellants Dan Guttman, for the Respondent

HEARD: October 2, 2022

AMENDED REASONS FOR DECISION

I. The appeal

[1] The Appellants are husband and wife who pled guilty to assault before Justice Pringle on April 17, 2020. The incident giving rise to the charges against them was, according to an agreed statement of fact, a rather violent one in which they and others administered a beating to a man who they thought had reported their son to immigration authorities. They were given a suspended sentence and 12 months’ probation, taking into account 69 days of pre-sentence custody.

[2] The Appellants now appeal their guilty pleas and sentence, claiming ineffective assistance of counsel. In support of their request to strike their guilty pleas, they seek the admission of fresh evidence introduced through their affidavits and the affidavits of their previous counsel.

[3] Counsel for the Appellants submits that they entered uninformed pleas in the court below. He states that Appellants were unaware of the consequences of the sentences they received on their immigration status.

[4] More specifically, the Appellants, who are originally from Ukraine and who swore affidavits and were cross-examined through a Russian language interpreter, contend that they did not understand that the sentences would result in their deportation from Canada. Although the trial judge conducted a plea inquiry before pronouncing sentence, the record shows that the judge was herself misinformed by counsel as to the immigration consequences of the sentence and was not made aware of the faulty immigration law advice that the Appellants had received.

II. The uninformed plea

[5] The Appellants were represented in the proceedings below by defense counsel Michael Simrod. They also consulted with immigration lawyer Valeriy Kozyrev as to the immigration law ramifications of a sentence they might receive. Having suffered a series of miscommunications and errors, the Appellants submit that they were ineffectively represented by both.

[6] The Appellants concede that they were anxious to resolve the charges against them. But as they were in Canada on work permit and visitor visas, they were equally concerned that any resolution not impact on their ability to remain in the country. Mr. Simard agrees that the Appellants were clear on that in their discussions with him; and Mr. Kozyrev also agrees that this was his understanding of the Appellants’ position. They wanted to plea if they could remain in Canada.

[7] In negotiating a resolution with Crown counsel, Mr. Simard asked for a conditional discharge. The Crown did not agree, and insisted on a suspended sentence. The parties entered into an agreed statement of fact in which the Appellants admitted many of the facts alleged against them and agreed to plead guilty to assault. Since they did not agree on sentence, each side’s counsel made separate submissions on sentence to the trial judge.

[8] The Appellants appear to have misunderstood this arrangement. They were under the impression that the Crown had agreed with Mr. Simard’s proposal of a conditional discharge. I have no reason to doubt that the Appellant’s genuine misunderstanding in this regard, as it is the basis on which they sought immigration law advice from Mr. Kozyrev. This understanding, or misunderstanding, is confirmed by Mr. Kozyrev in his affidavit.

[9] The Appellants’ discussion with Mr. Kozyrev does not appear to have addressed the possibility of a finding of guilt with a suspended sentence. Instead, it was limited to a review of the consequences of a conditional discharge. Had they understood that both those sentences were open as possibilities, the Appellants would doubtless have sought advice on the immigration law consequences of both, but they did not do so.

[10] The upshot of this miscommunication was that both Appellants believed that the pleas that they would be entering into would have no immigration consequences. Both deposed that they were told by Mr. Kozyrev that if they did not receive a sentence of greater than 6 months in jail, there would be no issue with the immigration authorities or with remaining in Canada. Since the sentence that they agreed to contained a period of probation and did not exceed six months of actual jail time, they incorrectly believed that their plea would have no immigration consequences.

[11] Neither of the Appellants appear to have appreciated the different impact of a suspended sentence as opposed to a conditional discharge on their immigration status; indeed, neither of them understood the difference between a suspended sentence and a conditional discharge at all. For his part, Mr. Kozyrev deposed that he only provided immigration advice to the Appellants on the basis of them receiving a conditional discharge, as that was his understanding of what had been negotiated.

[12] In the result, they both pled guilty and both received a suspended sentence and 12 months’ probation, with the judge taking note of the 69 days they each had spent in pre-sentence custody. The trial judge properly engaged in an inquiry as to whether the Appellants were fully informed of the consequences of this sentence, and was advised by Mr. Simard that they did understand what they were agreeing to.

[13] The transcript of Mr. Ostashkov’s hearing indicates that Mr. Simard advised the trial judge that that a conviction would lead to a deportation order, to which she responded that she thought they would still get a right to appeal that order. Mr. Simrod confirmed this belief. A similar exchange took place at Ms. Kovalenko’s hearing. When she entered her plea, Mr. Simard stated that “as a visitor here she may have limited rights of appeal if she’s convicted.”

[14] In fact, with Mr. Ostashkov being on a temporary work permit and Ms. Kovalenko having visitor status, neither of them was entitled to any right of appeal from a deportation order once they were found guilty. Mr. Simrod specifically conceded in cross-examination that he misspoke at the hearing and that, as a consequence, he had wrongly advised the trial judge on this issue and that what he had said in response to the judge’s inquiry was not correct in law.

[15] Accordingly, both the Appellants and the presiding judge were misadvised about the immigration consequences. This misunderstanding effectively undermined the Appellants’ agreement to the guilty plea and, at the same time, undermined the effect of the judge’s inquiry into the Appellants’ consent. Simply put, the plea that the judge thought was agreed to had been entered on the basis of faulty legal advice. It was uninformed in too crucial an aspect to be truly consensual.

[16] The one further twist to this unfortunate series of miscommunications is that in between the sentencing of Mr. Ostashkov and the commencement of Ms. Kovalenko’s hearing there was a text message between the counsel. Mr. Simard texted Mr. Kozyrev that Mr. Ostashkov had been sentenced to a suspended sentence and had not, in fact, obtained a conditional discharge.

[17] As indicated above, a conditional discharge was, according to Mr. Kozyrev, the only sentence for which he had given either of the Appellants immigration advice. Nevertheless, he did not comment on this apparent change either to Mr. Simrod or to the Appellants. The reason for his silence is unexplained, although it is possible that Mr. Kozyrev simply missed the point in the brief email exchange.

[18] In any case, despite Mr. Simrod’s text message Ms. Kovalenko was none the wiser. She proceeded to follow Mr. Ostashkov in pleading guilty and likewise received a suspended sentence with a period of probation.

[19] Subsequent to those proceedings, the Appellants each received deportation notices from the Department of Immigration. They deposed that they were shocked by this, and that they immediately made efforts to appeal their plea. Mr. Simrod initially filed a Notice of Appeal on behalf of the Appellants, but they soon changed counsel.

III. Fresh evidence

[20] The background of the plea, and in particular the uninformed factual basis and faulty legal advice that ensued, is introduced by the Appellants as fresh evidence. In my view, it readily fits the criteria established by the courts for introducing new evidence at the appellate stage.

[21] In R. v. Plein, 2018 ONCA 748, [2018] O.J. No. 4688, at 56, the Court of Appeal set out the criteria for introducing fresh evidence in the form of a three-stage inquiry: a) is the evidence admissible under the operative rules of evidence? b) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? and c) what is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? All three of these questions can be answered in the Appellants’ favour.

[22] The evidence is admissible as direct, non-hearsay testimony given under oath. As explained above, it is sufficiently cogent that it undermined the Appellants’ consent to the guilty plea and undermined the trial judge’s plea inquiry; it therefore inevitably impacted on the verdict that flowed from that inquiry and that plea. The explanation for the failure to have adduced it at trial is, quite simply, that it was a miscommunication error that was not discovered at the time of trial.

[23] The erroneous understanding of the two lawyers representing the Appellants – Mr. Kozyrev’s misunderstanding of the basis of the plea and Mr. Simard’s misunderstanding of the legal consequences of the plea – was simply not in the consciousness of any of the parties when they attended before the trial judge. Had it been otherwise, the hearing would have had an entirely different outcome. The Appellants might not have pled at all, and if they had entered a guilty plea judge’s inquiry might have resulted in her not accepting the plea as being fully informed.

[24] Accordingly, all three factors justify the admission of the fresh evidence.

IV. Consequences of the uninformed plea

[25] In R. v. Wong, 2018 SCC 25, [2018] 1 SCR 696, at para 6, the Supreme Court of Canada summarized the requirements for an appeal premised on an uninformed guilty plea:

The accused should be required to establish subjective prejudice. Meaning, accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused's subjective claim.

[26] The Wong analysis entails a partially objective and partially subjective perspective. The Court emphasized that for a guilty plea, defence counsel are obliged to ensure that they have their clients’ specific and direct instructions. As Justice Moldaver put it, at para 12:

The decision to plead guilty reflects deeply personal considerations, including subjective levels of risk tolerance, priorities, family and employment circumstances, and individual idiosyncrasies. For this reason, it is one of the few steps in the criminal process where defence counsel are ethically required to seek their client's direct instruction.

Simply put, pleading guilty is the decision of the accused, not a reasonable accused, or someone like the accused. To permit reviewing courts to substitute their own view of what someone in the accused's circumstances would have done is to run a serious risk of doing injustice to that accused. [Citations omitted.]

[27] The Court of Appeal has held that this analysis applies equally to the accused’s subjective understanding of immigration law advice: R. v. Davis, 2020 ONCA 326. Counsel has an equal obligation to ensure that they have the direct instructions of their client with proper understanding of any immigration law consequences to the plea. In Davis, at para 12, Chief Justice Strathy described a situation very similar to the one in which the Appellants find themselves here:

In his affidavit and cross-examination, the appellant does not deny that he was aware that certain types of convictions would put his immigration status in jeopardy when he was charged. According to the appellant, he informed trial counsel that he was highly concerned about potential immigration consequences at the beginning of the retainer and throughout the proceedings. However, trial counsel assured him that there was “nothing to worry about” because they “could beat the charges”. The appellant further asserts that, before he decided to plead guilty on November 2, 2016, trial counsel erroneously advised him that pleading guilty would not affect his immigration status. We accept this assertion.

[28] In Davis, at para 16, the Court went on to explain that it does not matter which of several counsel provided the faulty advice to the accused. As in the present case, he explained that the source of the uninformed plea might be a matter of debate, but the fact that the plea was entered on an insufficiently informed, and therefore non-consensual basis, is enough to undermine its effectiveness.

[29] I conclude that the Appellants have demonstrated that they suffered substantial prejudice with respect to their uninformed pleas and ineffective assistance of counsel. Their evidence is clear that had they known the immigration consequences of their pleas and resulting suspended sentences, they would not have agreed to those pleas.

V. The sentence

[30] As a final point, I will take note of the Crown’s argument that the Appellants got an exceptionally good deal in negotiating their plea. It is Crown counsel’s submission that the evidence against the Appellants was strong, and that the violent nature of the crime for which they were charged would, if they were convicted following a full trial, likely carry a much more severe sentence than the one that they pled to. It is the Crown’s contention that the Appellants were therefore not prejudiced by their guilty plea and resulting suspended sentence, regardless of what they may have believed in respect of the immigration law consequences of that plea.

[31] With respect, the Crown’s argument does not persuade me. The evidence regarding the immigration consequences of their plea all points to this consideration being an overriding one for the Appellants.

[32] Appellants’ counsel points out in written submissions that the Appellants are from a part of the world that is currently in great conflict. The Appellants’ choice, had they been fully informed, would have been between the Canadian tradition of due process that they would receive in a trial and a deportation order to a dangerous conflict zone. Given that stark choice, it is altogether credible that they would have chosen a trial no matter how strong the case might appear against them or how much of a sentence they could potentially receive.

[33] The Court of Appeal itself has confirmed that context is everything when it comes to analyzing the subjective element of the test in cases of an uninformed plea. As Strathy CJO put it, in these circumstances “[i]t is highly unlikely that [they] would have pleaded guilty knowing that [they] would be deported”: Davis, at para 21.

VI. Disposition

[34] The fresh evidence is admitted, the Appellants’ pleas of guilty and consequent convictions are set aside. The Appellants shall have a new trial on all counts.

[35] The matter is remitted to Courtroom 301 in the Ontario Court of Justice in North York on November 15, 2022, at 11:30 a.m.

Date: October 11, 2022 Morgan J.