R. v. Crowder, 2025 ONSC 3260
Court File No.: CR-23-197-AP
Date: 2025-06-03
Ontario Superior Court of Justice
Between:
His Majesty the King, Respondent
and
Troy Crowder, Appellant
Appearances:
Jose Rodriguez, for the Respondent
Troy Crowder, self-represented
Heard: December 17, 2024, and March 26, 2025
Decision on summary conviction appeal
Justice S.K. Stothart
Introduction
1On December 14, 2023, the appellant pleaded guilty and was found guilty of the offence of acting upon a forged document. He was sentenced to a conditional sentence for eight months followed by twelve months of probation. The appellant was required to make restitution to his spouse as part of the probation order and to make restitution to Aviva Insurance as part of a stand-alone restitution order.
2The appellant appeals against both his conviction and sentence. The appellant submits that he received ineffective assistance from his counsel and seeks to have his plea and conviction overturned and a new trial ordered. The appellant also submits that the trial judge erred in ordering restitution as part of his sentence.
3The respondent submits that the conviction should stand because the appellant received effective assistance from counsel. With respect to the sentence appeal, the respondent agrees that the appellant should not have been ordered to make restitution to his former spouse, however, submits that the remaining sentence imposed was otherwise fit and appropriate.
Grounds of Appeal
4The appellant filed a notice of appeal (dated January 31, 2023), a supplementary notice of appeal (dated June 2, 2023), and an amended notice of appeal (dated July 4, 2023). The respondent did not oppose the appeal proceeding on all three notices of appeal.
5During the hearing of the appeal, I brought to the appellant’s attention that he was asking the court to set aside the restitution orders imposed but had not appealed against his sentence. With the consent of the respondent, I added an appeal against sentence.
6The various notices of appeal set out the following grounds:
Notice of Appeal:
- Ineffective representation by counsel
Supplemental notice of appeal:
Ineffective counsel
- My lawyer did not object or ask for a delay when a new agreed facts was provided by crown to me right before court (I was never told there would be a new version);
- Did not point out that the crown removed the key paragraph in agreed facts (wife not on title);
- Did not provide important supporting documents to substantiate my case or any defence (items in disclosure and 3 documents provided to him and the crown);
- Did not explain to the judge that my wife was not on title;
- Did not ask the judge to let me speak about my case as he told me I would be able.
Conduct of crown attorney not following her professional duties
- Changed the agreed facts to remove the paragraph that explained my wife was not on title;
- Was aware my wife was not on title from disclosure but purposefully only referred to the property as the matrimonial home to the judge;
- Made reference in the agreed facts about documents that were not accurate and were selected purposefully. Omitting the chain of documents relevant to the full understanding of the occurrence;
- Did not provide my lawyer with full disclosure as asked for in my first hearing with my lawyer (documents sent by email to my lawyer were black out in his version of disclosure);
- Made reference to the judge that the insurance company wanted to be reimbursed without any proof or documentation of such request;
- Did not calculate the time frame from when the insurance company told me to go ahead and take the collapsed part down and the time in which they paid me (insurance law requires them to pay within 3 months);
- Made reference in her version of agreed facts and to the judge that I attempted to bill Aviva twice for the same work. But disclosure and the two other documents sent to the crown would show this was not the case;
- Projected to the judge the inference that I had dragged the case on for a long period of time and that this guilty plea was saving the court 5 days in court, when neither fact was true.
Justice Rodgers did not provide me with my human rights guarantee to be able to speak to my innocence or situation that led to my plea or that I was ambushed and mentally paralyzed by a surprise new agreed facts provided by the crown.
Amended Notice of Appeal:
- “My lawyer, Mr. Frinak, told me that I could get a waiver or exemption for pleading to one summary charge to be able to travel to the U.S. and also work in the U.S. This in fact not an easy process to get a waiver to the U.S. with my uttering forged document charge”.
Background
7The appellant and his spouse separated and were involved in family proceedings that included contested equalizations claims. They both listed 103 North Shore Road in Whitefish, Ontario as their matrimonial home. Title to the home was solely in the appellant’s name. In the spring of 2019, while the family proceedings were ongoing, the boathouse at the matrimonial home collapsed. The appellant submitted a loss claim for the boathouse through insurance. At the time, the appellant and his spouse were both named as insureds on the insurance policy for the matrimonial home. During the course of the insurance claim, the appellant forged his spouse’s signature on a release document which removed her from the insurance policy so that payment for the loss was made directly to him. The appellant received money from the insurance company to cover the cost of demolishing and rebuilding the boathouse. He also received compensation for items lost or damaged.
8In February 2020, the appellant’s spouse heard that the appellant had received insurance proceeds in relation to the matrimonial home. When she contacted the insurance company, she found out that the appellant had forged her signature, without her consent, on a release that removed her from the insurance policy. After discovering this, his spouse contacted the police.
9During the police investigation, the police discovered that the appellant had sent the insurance company an estimate for the demolition of the boathouse from PLM Enterprises in the amount of $11,074 including GST with an indication that this amount had been paid by cheque on a certain date. Relying on this document, the insurance company paid the appellant $11,074. When the police spoke to the owner of PLM Enterprises, Paul Makinen, about the estimate he advised them that the estimate had not been paid by the applicant nor did he expect it to be paid given he had not done the work outlined in the estimate.
10Following the police investigation, the appellant was charged with six criminal offences: (1) knowingly forging a document; (2) acting upon a forged document; (3) fraud over $5000; (4) fraud over $5000; (5) concealment of property for a fraudulent purpose; and (6) concealment of property for a fraudulent purpose. These offences were alleged to have occurred between February 9, 2019, and August 31, 2019, and involved the appellant’s actions during the insurance claim following the collapse of the boathouse.
The Plea Negotiations
11On July 19, 2022, the appellant retained Paul Frinak as his counsel in relation to these charges. The appellant had retained at least two lawyers prior to retaining Frinak.
12Frinak spoke to the appellant on multiple occasions about the case. Frinak kept ongoing dockets that reflected the work he did, however he did not necessarily docket brief exchanges with the appellant, such as text exchanges. Frinak documented his attendance at judicial pre-trials, his download and review of disclosure, attendance at counsel pre-trials with the Crown, consultations with an immigration lawyer, and multiple meetings held with the appellant. In addition to the dockets, a number of e-mails and text messages between the appellant and Frinak were filed as part of this appeal that set out the ongoing communication between the two.
13The materials provided as part of this appeal establish that the appellant and Frinak discussed the possibility of the matter proceeding to trial and the risks involved in going to trial. On September 26, 2022, after a JPT, Frinak discussed the Crown’s position regarding a possible resolution with the appellant and the appellant’s family lawyer. Frinak then sought out and received a number of materials from the appellant including letters from his doctor and psychiatrist and materials related to the demolition and rebuild of the boathouse in an effort to pursue a possible resolution of the matter. On October 12, 2022, Frinak sent an e-mail to the Crown sharing these documents and proposing a possible joint position if the matter resolved.
14On October 19, 2022, Frinak sent the appellant an update on the file. On October 20, 2022, Frinak spoke with the appellant by phone. He confirmed that the appellant received his email correspondence and obtained the appellant’s instructions to set a date for resolution.
15On October 21, 2022, the date of December 14, 2022, at 2 p.m. was selected for a plea and contested sentencing hearing in the matter. This was communicated to the appellant.
16On November 2, 2022, the appellant and Frinak exchanged a series of text messages. In the messages the appellant expressed that he felt he would be better off telling his story to a judge in court rather than accepting the offer from the Crown. Frinak responded that he believed the risk of conviction was high and that he needed to clarify some terms with the Crown before fully advising the appellant about exactly what was on the table, even if they were going to reject it and set trial dates.
17On November 2, 2022, Frinak sought an opinion from Pilkington Immigration Law about the likelihood of travel interruptions between the United States and Canada if the appellant was convicted of any of the outstanding charges. Frinak advised the appellant that he had reached out to an immigration lawyer and had spoken to the appellant’s family counsel. Frinak texted the appellant “work remains to be done, trial or not, and we do need more funds as you mentioned”.
18On November 21, 2022, the appellant sent Frinak a number of pictures of the boathouse rebuild. Frinak responded that this might convince the Crown to adjust the amount of restitution they were seeking. Frinak then wrote “We have to update them about what we’re doing by the way. They think we’re still in agreement to join a recommendation for a community-based sentence (and only argue about the restitution amount that you should pay). If that is still the plan, and that’s fine if it is, this is good evidence to reduce restitution. I can share pics with the Crown and then with the Court if we still end up arguing restitution”. The appellant responded: “My plan is to fight this in court”. The appellant then discussed how he felt the prosecution was about his former spouse being spiteful.
19On December 1, 2022, Frinak emailed the Crown to advise that the matter might need to proceed to trial after all and sought clarification if the matter proceeded to a contested sentencing. The Crown advised that it was prepared to accept a plea to count 5 which was fraudulent concealment and would withdraw the remaining counts.
20On December 1, 2022, Frinak followed up and spoke with Andrew Maloney at Pilkington Immigration Law who advised him that any of the charges could make the appellant inadmissible for entry into the United States. Frinak was advised that the appellant could qualify for the “petty offence” exception if he was convicted of a single count on a summary basis. The immigration consequences were charge dependent and the appellant could not be convicted of fraud over $5000 as that would be viewed as the equivalent of a felony conviction for a crime of moral turpitude.
21On December 8, 2022, the appellant texted Frinak “when do you have to tell the Crown we are going to fight this in court?”. Frinak responded that he told the Crown last week and the Crown clarified a few things about the options and that Frinak felt he should go over them with the appellant. The appellant and the Frinak arranged to meet the next day.
22On December 9, 2022, Frinak met with the appellant to review disclosure and confirm instructions in light of the new information about the Crown’s position. They discussed a potential resolution that would involve the appellant pleading guilty to count one or count two. In their discussions, the appellant expressed that he did not want to enter a plea of guilt to count one, which alleged forging his wife’s signature on the insurance documents, because his position was that he had obtained his ex-wife’s permission to remove her from the insurance policy sometime prior to the property loss. The appellant was prepared to accept the facts underlying a plea to count two, which involved submitting a document to Aviva Insurance as if it was a paid invoice. Frinak obtained the appellant’s instructions to negotiate a plea to count two.
23During the December 9, 2022, meeting, Frinak told the appellant that he would need to apply for a waiver to be admissible to the United States, likely with the assistance of an immigration lawyer.
24On December 12, 2022, the appellant sent Frinak a text message asking if he had found a “misdemeanor” charge that allowed him to cross the border without issue. Following this message, Frinak advised the appellant that he had asked the Crown if a plea could be entered to one of the charges on a summary election so that the appellant could qualify for the immigration exception that he had talked to him about before.
25The appellant responded that if it did not qualify, to let him know and he would find a charge. Frinak responded “If you have other potential charges, you’d consider in mind let me know what they are because I will be speaking with her momentarily”. The appellant responded that he spoke to Brian (a friend) and he was going to call an immigration lawyer later that day. The appellant texted that Brian felt that any criminal charge made it difficult to be able to cross the border. The appellant then texted “But as I said if I can’t cross without issue I will go to court on this”. Frinak responded “I think we are alright. The immigration lawyer I talked with said he could get a waiver or exemption for you with one of your charges, so long as it’s a summary proceeding, and you have no other conviction”.
26As the text conversation continued, Frinak explained that the Crown would proceed summarily with respect to a single count of acting on forged document, a submission would be made for a CSO followed by probation. Frinak indicated that they had not agreed to any particular amount of restitution. Frinak texted “We should meet again tomorrow (because court is Wednesday) to prepare our statement of facts, and our specific position on restitution”. The appellant agreed and then asked what a CSO was. Frinak explained that it was house arrest and curfew period followed by probation. The appellant asked “Do you know the duration of these and would the judge decide or is this what we agree with the crown”. Frinak responded “We talked about the proposed terms when we met last week. For six months, you will be required to stay at home (except when you are working or attending a medical or dental appointment or for some emergency or at an appointed time for grocery shopping) and then for six months you will have a 10:00 p.m. – 6:00 a.m. curfew. Then 12 months probation (no remain at home terms anymore – just reporting to the probation officer when he or she requires. Could I sit down with you at the office again tomorrow to go over the details and get ready for Wednesday”. Frinak and the appellant agreed to meet the next day. The appellant asked Frinak to send him the current offer from the Crown and whether the Crown had sent any changes from the first offer, and asked whether the CSO is a standard sheet of conditions or whether these were the Crown’s conditions.
27On December 13, 2022, Frinak met with the appellant and received updated instructions with respect to sentencing and confirmed the appellant’s position respecting restitution. Frinak and the appellant reviewed a draft agreed statement of facts (“ASF”) and made revisions to be sent to the Crown. That evening Frinak sent the appellant a further revised version of the ASF via e-mail. At 5:33 p.m. Frinak texted the appellant confirming that he had emailed him the ASF. The appellant responded by text commenting on the ASF and provided further commentary. The appellant told Frinak that he made a mistake when he wrote “June 14, 2019” on the estimate and that it should have said July 14th because he was going to give the cheque to Paul (the owner of PLM enterprises) on the 14th. The appellant said he sent it on the 15th and that he had gone to Paul’s house on the 15th and his wife told him he was away fishing for the week and had bad or no reception where he was.
28The appellant and the Frinak continued to exchange text messages. Frinak told the appellant that they could tell the court additional details but that the document he sent (the ASF) could only include the facts the Crown was willing to acknowledge and that the ASF had to include enough of the facts to satisfy the Crown. Frinak wrote “we can’t make a plea without admitting anything”. Frinak explained that the ASF tells part of the story, the part that the Crown agreed with. Frinak pointed out that the bolded facts in the ASF related to count 2 for the plea and that the rest of the ASF related to counts the crown would withdraw but still wanted to mention. The appellant provided further commentary and indicated that he “didn’t think” he ever sent the PLM estimate to Aviva before he sent it to them as paid.
29On the next day, December 14, Frinak texted the appellant advising him that he had sent the revised version of the ASF late last night. The appellant responded indicating that the only thing he would add would be that the insurance cheque came at the end of July, and it was the one with both he and his spouse’s name on it. Frinak responded that this should be easy to fix and that he would make the revision and send it to the Crown. Frinak then sent a text advising that the Crown was sending back their version, and that he would forward it to the appellant “now” and he should see it in his e-mail.
30The appellant states that he went to hockey the morning of December 14, 2022, and did not see the last text. The next text conversation consists of the appellant asking Frinak where they were to meet at the courthouse.
31Frinak states that during the afternoon of December 14, 2022, prior to the plea, he and the appellant met at the courthouse and the appellant approved the final version of the ASF. Frinak further states that prior to the plea taking place, he conducted a plea inquiry with the appellant.
The Plea Proceedings
The Arraignment and Plea
32On December 14, 2023, the appellant appeared before Justice G. Rodgers, in the Ontario Court of Justice. Counsel for the appellant advised the court that he had gone over the requirements of a valid guilty plea with the appellant and that the appellant had been advised that ultimately the issue of sentence would be in the court’s discretion. Counsel advised the court that the appellant was aware that he had the right to a trial, and that the appellant had contemplated setting the matter for trial in the past. Counsel advised the court that the appellant understood that his plea had to be voluntary in order to be valid and it had to be supported by admitted facts.
33Rodgers J. asked counsel if the appellant was prepared to admit the facts that supported the charge. Counsel for the appellant replied:
The admitted facts that we’ve exchanged today, we just finalized them this morning, and – and he just confirmed with me that he has reviewed and agrees to having the – the agreed facts read as a basis…for the plea. And that plea, just to clarify, would be on-one one of those counts of 368 and count 2.
34The appellant was arraigned and entered a plea of guilty to count two. The Crown presented the agreed statement of facts to the court and read them into the record in the presence of the appellant.
The Agreed Upon Facts
35The facts presented were that the appellant and his spouse were involved in ongoing family court proceedings. The appellant and his spouse had separated in 2017/2018. They had both listed their matrimonial home in the family proceedings as 103 North Shore Road in Whitefish, Ontario.
36In February 2019, the boathouse located at the matrimonial home collapsed and the appellant submitted an insurance claim for the loss. On March 22, 2019, the appellant submitted a “release of interest” form to the insurance agent that purportedly bore the signature of his spouse, that renounced her interest in the insurance policy that covered the property. The spouse’s signature had been placed on the document by the appellant without his former wife’s knowledge.
37On April 17, 2019, Paul Makinen who ran a business known as PLM Enterprises prepared an estimate for the demolition of the boathouse. The estimate was in the amount of $11,074 including GST.
38On May 27 and 28, 2019 the appellant wrote to the insurance company and advised that he and two contractors had worked over the Easter holiday week and took down the boathouse. The appellant told the insurance company that the estimate he had provided did not account for labour and requested an additional $10,000.
39On or about July 15, 2019, the appellant sent an image of the PLM Enterprise invoice to Aviva Insurance, with the words “paid with cheque number 33” written on it and a date “June 14, 2019”. The appellant sent this image with an e-mail that said this amount was paid to clean up the collapsed part of the boathouse.
40In July 2019, Aviva Insurance sent a cheque in both the appellant’s and his former spouse’s names for $11,074 which was the amount set out in the PLM estimate. The appellant requested and thereafter received a replacement cheque for this same amount from Aviva Insurance solely in his name.
41In August 2019, the appellant received three cheques in his name: (1) $11,074 based on the PLM estimate for partial demolition; (2) $6,750 for loss of personal property in the garage; and (3) $84,185 which was a cash settlement for the loss of the boathouse. The appellant did not advise his former spouse that he had received these funds.
42Makinen told the police during their investigation that he was never paid $11,074, that the PLM document was an estimate, and that he did not expect payment for work that was not completed.
43After the facts were read in, Rodgers J. asked:
Court: Mr. Frinak are those facts substantially, correct?
Mr. Frinak: Yes, Your Honour, those facts are substantially admitted for the purpose of the plea to count 2.
44During submissions, counsel for the appellant advised the court that he wished to add “a bit of context” to the agreed statement of facts. In submissions, he advised the court that:
a. The property had been designated as the matrimonial home;
b. The spouses planned to liquidate the property and ultimately settle their property claims in the divorce proceedings;
c. The appellant’s understanding of ownership of the property was informed by advice he had received from his family lawyer and he understood that while he owed his spouse equalization for the property based on its value as of the date of separation, that his spouse did not have a right to the property itself or any claims going forward;
d. The appellant had not been advised by his counsel to forge his spouse’s signature and he was not advised to operate without telling his former spouse what was going on. That in family law, all this should have been properly disclosed;
e. The appellant had asked his family lawyer if he had to share the insurance proceeds and was told that he did not;
f. There was conversation about the property and issues related to it, including the collapse of the boathouse, through family counsel, but ultimately the appellant did not secure authorization from his spouse to sign her name to the insurance document;
g. The appellant had been forthcoming with the police and did not deny what he had done. What the parties disagreed about was the effect of what the appellant had done;
h. It was the position of the defence that the insurance claim was a valid claim for a loss incurred and that the lies about the receipt and the spouse did not serve to inflate or increase the value of the claim. While it may have influenced people to pay it at a certain time, or pay it without further investigation, the dollar amount was tied to an actual loss; and
i. It was the position of the defence that issues related to how the proceeds of the claim should be shared were better addressed in the family proceedings. At the time of the loss, the property was no longer the spouse’s property and so the loss was not a loss of marital property because the spouse did not have an interest in it.
Sentencing Submissions
45During sentencing submissions, the court was advised that there would be a joint submission with respect to the imposition of a conditional sentence, however the parties did not agree with respect to its length and did not agree on the issue of restitution.
46Counsel for the appellant submitted to the court that a conditional sentence of 8 months be imposed, followed by 12 months of probation. Counsel advised the court that the appellant had an opportunity to coach hockey in the fall in the United States, and for that reason he requested that the conditional sentence be shorter than that sought by the Crown.
47With respect to the issue of restitution, counsel for the appellant submitted that the first cheque for $11,097 covered the cost of demolishing the boathouse; the cheque for $6,750 covered the cost of items that had been damaged or destroyed; and the cheque for $84,000 covered 80% of the projected cost to rebuild the boathouse. Counsel submitted that these amounts had been reinvested into tearing down and rebuilding the boathouse. As such, the appellant should not be required to re-pay the insurance company or his former spouse.
48Counsel for the appellant advised the court that the amounts paid out were not the result of a fraud but were the product of some lies told in the course of the insurance claim in order to expedite it. The appellant had suffered the loss in February and was still trying to get paid by the insurance company in July and August.
49With respect to the issue of restitution, counsel for the appellant provided the court with a number of exhibits that included:
a. E-mails between the appellant and the insurance company about his efforts to have the boathouse demolished so that work could go forward before the spring thaw;
b. E-mails between the appellant and the insurance company that demonstrated that they were aware that he was doing the work himself, that he had tried to work with the contractor and then ended up performing much of the work on his own;
c. A letter from the appellant’s psychiatrist and family doctor identifying some of his conditions, including ADD, which spoke to how the appellant was thinking and his poor state of mind at the time;
d. That the appellant had been attending ongoing treatment in order to avoid these kinds of thinking errors in the future;
e. Photographs that depicted the current status of the re-build, and photos taken around the time of the claim that showed damage to a canoe, and photos of the rebuild; and
f. Receipts for lumber.
50At one point during the sentencing proceedings, the appellant spoke up and stated that he wanted his counsel to share a photograph of the clean-up. Counsel for the appellant advised the court that the photograph would show that the appellant had gone out to the location and had to clean up a lot of what had fallen down and was lying around.
51The appellant spoke directly to the court, indicating that he told the insurance company that they needed to do the clean-up now, and that one of the insurance adjusters had told him to go ahead and take the collapsed boathouse down. After this, he received an e-mail asking him to send photos, so he sent the photo of the clean-up.
52The Crown sought a 12-month conditional sentence followed by 12 months of probation. The Crown advised the court that it had come down quite significantly from its original position in order to mitigate the collateral consequences of the appellant’s plea. The Crown was aware that the appellant had sought out legal advice with respect to travel and the hope was that the resolution would be helpful to the appellant’s prospect of employment outside of Canada.
53The Crown advised the court that the appellant’s plea, although late, was a mitigating factor and it had saved the court three days of trial time. On the other hand, the appellant’s conduct had been planned and deliberate in an effort to enrich himself to the detriment of his spouse during ongoing divorce proceedings.
54The Crown sought restitution to Aviva Insurance in the amount of $11,097. The Crown confirmed that an officer had spoken to the insurance company and that they did want their money back.
55The Crown further sought restitution to the appellant’s spouse in the amount of $45,000 reflecting half of the amount paid for the personal property loss and the rebuild.
The Imposition of Sentence
56After hearing submissions, Rodgers J. asked the appellant if he wished to say anything before sentence was imposed. Rodgers J. explained:
I’m going to ask you about – I’m going to ask you about sentencing, I don’t want to hear your pitch on restitution. You’ve been- you’ve been ably represented by Mr. Frinak. I think you should be grateful to him for the – for the work he has done on your behalf, so I don’t want to- I don’t want to hear from you on the factual matters that I have to decide I want to hear – I’m going to ask you one simple question. Is there anything you wish to say before sentence is imposed?
57The appellant responded:
Yes, Your Honour. I had a severe mental breakdown this summer and I was about to represent myself in court, when my brother realized that I was not able to do that, and so he hired Mr. Frinak, and Mr. Frinak, who I thought was going – going to get all this evidence and we discussed only on a couple of occasions the evidence, and not the evidence that is very important…
58The court interrupted the appellant and indicated that the appellant was doing what he had asked him not to do. He then told the appellant that this was typically where people expressed remorse and explain their circumstances in terms of how they were feeling at the time.
59The appellant told the court that he was sorry, he was very remorseful, and that he should have followed better protocol and let his family lawyer get the signature from his spouse to go forward with the insurance claim.
60The court told the appellant that what he had done wasn’t a breach of protocol, but that the appellant had resorted to profound dishonesty. The appellant responded that there was information that had not been given that would explain a lot of what had happened.
61Rodgers J. sentenced the appellant to an 8-month conditional sentence order, followed by 12 months of probation.
62In his reasons for sentencing, Rodgers J. found that the appellant’s ex-wife was entitled to half the proceeds as a co-owner of the matrimonial home and ordered that the appellant make restitution to his ex-wife as part of the probation order. Rodgers J. made a stand-alone restitution order in favour of Aviva Insurance in the amount of $11,074.
Fresh Evidence
63On this appeal, I have received fresh evidence. The appellant has filed four affidavits dated October 24, 2023, November 14, 2023, February 9, 2024, and July 4, 2024. This evidence has been admitted with the consent of the respondent. The affidavits include exhibits related to the damage, demolition and rebuild of the boathouse; text messages and e-mails between the appellant and his counsel; some e-mails between the appellant and the insurance broker; some internal e-mails between the broker and the insurance company; and portions of Crown disclosure including witness statements.
64I have also received responding affidavits from the appellant’s trial counsel Paul Frinak, dated July 21, 2023, August 25, 2023, December 4, 2023, and July 2, 2024. These affidavits respond to the appellant’s four affidavits. The affidavits of Frinak include his dockets, e-mail exchanges and text exchanges.
65Both the appellant and Frinak were cross-examined on some of their respective affidavits on January 9, 2024. Cross-examination did not take place on the appellant’s February 9, 2024, and July 4, 2024, affidavits. Cross-examination did not take place on Frinak’s affidavit dated July 2, 2024; however, the appellant was afforded the opportunity to do so.
66As part of the appeal, the appellant obtained an additional transcript of a portion of the December 14, 2022, proceedings. This transcript appears to capture a “side conversation” between the appellant and his counsel while the Crown was speaking to the court during the sentencing portion of the proceedings. The transcript sets out the following exchange:
Ms. Rivard: The document actually has all of these
(Mr. Crowder: Can we have a recess?”)
(Mr. Frinak: Don’t ask)
Ms. Rivard: …documents
(Mr. Frank: After we’ve made the submissions here)
Ms. Rivard: Yes all of those.
67Frinak states that he has listened to the audio recording and the transcript appears to reflect a small part of a side conversation during the sentencing portion during which he and the appellant were whispering. Frinak states that it is hard to hear what was being said, however he believes he said “I’ll ask her” rather than “Don’t ask” as reflected in the transcript.
68Given the disagreement with respect to what is said at this portion of the proceedings, a copy of the audio recording was filed as part of this appeal. I have listened to it and agree that it is difficult to hear what is being said between the appellant and his counsel because the Crown is speaking, and the appellant and his counsel are whispering to each other. Having listened to the recording I cannot determine what was said.
Legal Principles
Ineffective Assistance of Counsel
69When asserting ineffective assistance of counsel on appeal, the appellant must establish: (1) the facts material to the claim of ineffective assistance on a balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation caused a miscarriage of justice by undermining either appearance of a fair trial or reliability of the verdict. This is a burden that is not easily discharged: R. v. Archer, (2005) 2002 C.C.C. (3d) 60 (Ont.C.A.) at paras. 119-120; R. v. R.W., 2023 ONCA 250 at para. 19; R. v. Cherrington, 2018 ONCA 653, at para. 25.
70It is strongly presumed that counsel’s conduct fell within the wide range of reasonable professional assistance and deference will be accorded to counsel’s strategic and tactical decisions. The “wisdom of hindsight” has no place in this analysis: R. v. Ball, 2019 BCCA 32 at para. 108.
71Once the facts that underpin the claim have been established, the ineffective assistance analysis moves to the third step, which is the prejudice component. This is where the court determines whether a miscarriage of justice has occurred, either because of some procedural unfairness in the proceedings, a compromise of the reliability of the verdict, or some combination of both consequences: R. v. Girn, 2019 ONCA 202, at para. 92.
72Where a reviewing court does not make a finding of prejudice, it is undesirable for the court to conduct an inquiry into and render a conclusion on the performance component: R. v. Girn at para. 92.
The Validity of a Plea of Guilt
73To be valid, a plea of guilt must be voluntary, unequivocal, and informed. It represents a “conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: R. v. C.K. 2021 ONCA 826 at para. 67; R. v. Gibbs, 2022 ONCA 816, at para. 5; R. v. Wong, 2018 SCC 25 at para. 3.
74Where an appellant challenges the validity of a guilty plea for the first time on appeal, the reviewing court is required to examine the trial record and any additional material tendered by the parties, which, in the interests of justice, should be considered in assessing the validity of the plea. Even where the appellant’s plea of guilt appears to meet all the traditional tests for a valid guilty plea, the reviewing court retains a discretion to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances leading up to the plea that may demonstrate a miscarriage of justice has occurred. A plea of guilt may be set aside in the interests of justice: R. v. Cherrington, at paras. 28-29.
75The centrality of the plea resolution process was recognized by the Supreme Court of Canada in R. v. Wong, at paras. 3 and 4:
The plea resolution process is also central to the criminal justice system as a whole. The vast majority of criminal prosecutions are resolved through guilty pleas and society has a strong interest in their finality. Maintaining their finality is therefore important to ensuring the stability, integrity, and efficiency of the administration of justice. Conversely, the finality of a guilty plea also requires that such a plea be voluntary, unequivocal and informed. And to be informed, 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" (R. v. T. (R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519).
76A plea of guilt entered in open court in the presence of counsel is presumed to be voluntary. This presumption is rebuttable, with the onus resting on the party seeking to withdraw a guilty plea. The party must establish on a balance of probabilities, that they “lacked the capacity to make an active or conscious choice to plead guilty”: R. v. Cherrington, at para. 21.
77Coercion, improper inducements, pressure imposed, and/or incapacity may destroy an accused’s volitional choice to plead guilty: R. v. C.K., at paras. 67-68.
78The required capacity to make a volitional choice to plead guilty is not high. There is no requirement that the accused’s choice be wise, rational, or in the accused’s best interests: Where a party seeks to withdraw their guilty plea, the inquiry into volition is entirely subjective: R. v. M.A.W., 2008 ONCA 555 at para. 36; R. v. Wong, at paras. 12 and 20.
79Where an appellant challenges the voluntariness of their guilty plea due to mental health concerns, the courts apply the “limited cognitive capacity” standard test. That standard requires only that the court be satisfied that the appellant understood the process, could communicate with counsel, and could make an active or conscious choice. For a plea to be voluntary, the law does not require that “an accused be able to engage in a careful, reasoned weighing of options”: R. v. Murray, 2022 ONCA 906 at para. 6; R. v. M.A.W., 2008 ONCA 555 at para. 51.
80As Doherty J.A. explained in R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at para. 18:
No doubt most accused faced with serious charges and the prospect of a substantial jail term [feel themselves under pressure when they entered their pleas]. Absent credible and competent testimony that those emotions reached a level where they impaired the appellant's ability to make a conscious volitional choice, the mere presence of these emotions does not render the pleas involuntary.
81To be informed, an accused must be aware of the nature of the allegations made against him, the effect of his plea, and the legally relevant collateral consequences of his plea. A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused: R. v. Wong, at paras. 3 and 4; R. v. Girn, at para. 51; R. v. T.(R.) at para. 519, R. v. Gordon, at para. 23.
82Where an appellant seeks to withdraw their guilty plea on the basis that it was uninformed, they must satisfy two criteria: (a) that the plea was uninformed in the sense that he/she was misinformed or uninformed about a collateral consequence; and (b) that he/she suffered a subjective prejudice, in the sense had they known of the legally relevant collateral consequences, they would have either opted for a trial and pleaded not guilty; or pleaded guilty, but with different conditions: R. v. Wong, at para. 7; R. v. Evans, 2022 ONCA 23 at para. 7; R. v. Espinoza-Ortega, 2019 ONCA 545 at para. 25.
83In order to assess the veracity of the appellant’s claim that he/she suffered subjective prejudice, the court can look at objective, contemporaneous evidence: R. v. Wong, at paras. 6 and 26; R. v. Evans, at para. 7.
84Section 606(1.1) of the Criminal Code permits a court to accept only a voluntary plea of guilt. Ordinarily the validity of a guilty plea is determined by a plea inquiry conducted by a trial judge. For a plea to be informed, the accused must understand that the plea is an admission of the essential elements of the offence; that the presiding judge is not bound by any agreement made by the accused and the Crown; and must understand the nature and consequences of a guilty plea: R. v. G. (D.M.), 2011 ONCA 343 at para. 42.
85The failure of a trial judge to conduct a plea inquiry does not affect the validity of the plea, however a judge’s failure to conduct a plea inquiry can leave the door more readily open to a finding that a plea was not valid: R. v. Beckford, 2019 ONCA 998 at para. 41; R. v. C.K. at para. 94.
Analysis
Issues on Appeal
86The appellant’s grounds of appeal continued to evolve in his notices of appeal, affidavits, factum, and submissions. I appreciate that the appellant is a self-represented litigant and as such he has been afforded some flexibility on this appeal. The appellant was given a number of opportunities to ensure he placed all additional materials he intended to rely on as fresh evidence in affidavit form. There were times when the appellant made statements about facts in his factum and during his submissions, that were not contained in his affidavits. He was reminded that the court could not receive additional evidence on this appeal by way of submissions.
87The appellant’s grounds of appeal from conviction, as they evolved, settled into two main themes. First, he takes the position that he received ineffective assistance from his counsel which resulted in a miscarriage of justice. Second, although not stated explicitly, the grounds as drafted indicate that he also challenges the validity of his guilty plea. There were also some issues taken with the actions of the Crown and the judge.
88With respect to sentence, the appellant takes the position that restitution should not have been ordered in this case because no one suffered a loss as a result of his actions.
[Further detailed analysis, findings, and conclusion as in the original document.]
Conclusion
145For these reasons, the appeal against conviction is dismissed.
146The appeal against sentence is allowed and the probation condition requiring the appellant to make restitution to his former spouse is vacated. All other terms of the sentence imposed and the stand-alone restitution order remain.
The Honourable Madam Justice S.K. Stothart
Released: June 3, 2025