R. v. Ostashkov

R. v. Ostashkov Collection Decisions of the Court of Appeal Date 2024-11-08 Neutral citation 2024 ONCA 826 Docket numbers C69251 Judges Rouleau, Paul S.; van Rensburg, Katherine; Madsen, Lene Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ostashkov, 2024 ONCA 826 DATE: 20241108 DOCKET: C69251 Rouleau, van Rensburg and Madsen JJ.A. BETWEEN His Majesty the King Respondent and Oleksandr Ostashkov Appellant Ricardo Golec, for the appellant Anjali Rajan, for the respondent Heard: September 25, 2024 On appeal from the conviction entered on July 3, 2018 and the sentence imposed on October 7, 2020 by Justice Iona Marlene Jaffe of the Ontario Court of Justice. REASONS FOR DECISION [1] On July 3, 2018, the appellant pleaded guilty to one count each of breaking and entering and possession of stolen property. He subsequently claimed that his guilty plea was involuntary and brought an application to strike the plea. The application judge dismissed the application. The appellant was sentenced to 17months’ incarceration and a restitution order. The appellant appeals his conviction on the basis that the application judge erred in finding that his plea was voluntary, and, if granted leave, appeals his sentence on the basis that it is unduly harsh and therefore unfit. In oral submissions on the appeal, appellant’s counsel focused on the restitution component of the sentence. [2] We do not accept either argument. [3] The appellant’s charges arose from the theft of valuable items including rugs, musical instruments, and artwork having an admitted value of approximately $1.2 million, from a self-storage facility in Brampton. Police recovered some of these items from the appellant’s parents’ home as well as from a van parked in front of the home. The appellant’s parents were each charged with possession of stolen property. Several months later, the appellant was also charged with possession of stolen property, prompting the case against his parents to stagnate until all three matters could be coordinated. On the day of his discovery, the appellant was confronted with new incriminating evidence, including his fingerprints on a coffee cup in the van containing the stolen items. That same day, his parents yelled at him over the phone and threatened to never see him again if he did not make the charges against them go away. The appellant pleaded guilty. [4] We find no error in the dismissal of the application to strike the guilty plea. The application judge gave detailed reasons in which she correctly set out legal principles governing the court’s receipt of a guilty plea: see e.g. R. v. Cherrington, 2018 ONCA 653, at para. 21. She carefully considered the evidence of the appellant and that of his lawyer. The appellant argued that it was a palpable and overriding error for the application judge not to have found that the pressure by the appellant’s parents overbore his will in making the guilty plea. The application judge found, on the evidence, that while the parental pressure was a “driving” factor, that pressure did not deprive the appellant of the “ability to make a conscious, volitional decision on how to proceed”; that the new and incriminating disclosure received the day of the plea was a factor in his decision to plead guilty; and that the appellant was also motivated by the desire for a more lenient sentence. The application judge further found, contrary to the appellant’s submission, that the charges against the appellant’s parents were rooted in evidence and not a decoy to extract his plea. These findings of fact were readily available on the evidence and are entitled to deference. [5] Nor do we find any error in the sentence imposed, which was neither demonstrably unfit nor based on any error in principle: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at para. 191. The application judge carefully considered and applied the applicable legal principles, noted the circumstances of the offender, and assessed the collateral consequences including, but not limited to, the consequence of a deportation order given the appellant’s presence in Canada on a visitor’s visa. She did not err in her decision to not quantify the “numeric credit” to be given in relation to each collateral consequence: R. v. Aiken, 2024 ONCA 326, at para. 16, citing R. v. Marshall, 2021 ONCA 344, at para. 53. Further, the decision to include a restitution component, reflecting an amount less than half of the admitted value of the stolen items, was reasonable, and reflected no error in principle: R. v. Robertson, 2020 ONCA 367, at para. 6. In light of the admitted value of the stolen items we do not accept the argument that the restitution order was excessive. [6] The conviction appeal is dismissed. [7] On the sentence appeal, leave is granted but the appeal is dismissed. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L. Madsen J.A.”