R. v. Goloubev
The cumulative effect of counsel's failures to properly engage and advise the appellant, the appellant's custodial assaults, language difficulties, likely inadequate review of disclosure and continued assertions of innocence created a real risk of a miscarriage of justice; therefore the court properly exercised its...
Source-derived case information.
- Citation
- 2009 ONCA 333
- Parties
- Respondent: Her Majesty the Queen; Appellant: Vladislav Goloubev
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 24 April 2009
- Procedural Posture
- Criminal / Appeal From Conviction (application to Set Aside Guilty Plea and Order a New Trial)
- Outcome
- Guilty plea withdrawn; convictions set aside; new trial ordered on all charges including those withdrawn by the Crown
- Legal Topics
- Withdrawal of Guilty Plea, Fresh Evidence, Miscarriage of Justice, Ineffective Assistance of Counsel, Pretrial Detention, Disclosure, Language Barrier, Assaults in Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Vladislav Goloubev
Appellant
Procedural Posture
Criminal / Appeal From Conviction (application to Set Aside Guilty Plea and Order a New Trial)
Legal Issues
- 1 Whether the guilty plea should be withdrawn and convictions set aside
- 2 Whether fresh evidence or circumstances warrant a new trial to avoid a miscarriage of justice
- 3 Whether counsel's failures and other factors rendered the plea unreliable
Ratio Decidendi
The cumulative effect of counsel's failures to properly engage and advise the appellant, the appellant's custodial assaults, language difficulties, likely inadequate review of disclosure and continued assertions of innocence created a real risk of a miscarriage of justice; therefore the court properly exercised its discretion under s.686(8) to allow withdrawal of the guilty plea, set aside the convictions and order a new trial on all charges including those previously withdrawn by the Crown.
Court Disposition
Guilty plea withdrawn; convictions set aside; new trial ordered on all charges including those withdrawn by the Crown
Orders
- Allow withdrawal of guilty plea
- Set aside the convictions
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Goloubev Collection Decisions of the Court of Appeal Date 2009-04-24 Neutral citation 2009 ONCA 333 Docket numbers C44699 Judges Rosenberg, Marc; Simmons, Janet M.; Lang, Susan Elizabeth Subject Criminal Decision Content CITATION: R. v. Goloubev, 2009 ONCA 333 DATE: 20090424 DOCKET: C44699 COURT OF APPEAL FOR ONTARIO Rosenberg, Simmons and Lang JJ.A. BETWEEN: Her Majesty the Queen Respondent and Vladislav Goloubev Appellant Brian Snell for the appellant Colleen Hepburn for the respondent Heard and released orally: April 16, 2009 On appeal from conviction by Justice S. R. Shamai of the Ontario Court of Justice dated December 21, 2005. ENDORSEMENT [1] Despite the commendable care taken by the trial judge, this court retains the discretion to receive fresh evidence where it is in the interests of justice and to set aside a guilty plea to avoid a miscarriage of justice. In this case there are a number of factors that combine in our view to require this guilty plea to be set aside: (1) Through the entire 8 months of his pretrial detention, his retained counsel failed to meet with the appellant. (2) On the date set for trial, his retained counsel did not attend but sent an associate who received the file that morning. That counsel had no knowledge of the case and since he had to attend another court first, he had no opportunity to make a prior assessment of how to proceed that day. (3) The appellant had had a very difficult time in custody having been repeatedly assaulted by inmates. (4) The appellant had repeatedly denied his guilt and did so even after his guilty plea. (5) While he later did admit facts consistent with guilt, he again made a statement that appeared inconsistent with guilt. (6) The counsel who attended on the date set for trial was in no position to provide helpful advice about the strength of the Crown’s case and therefore the real risk of continuing with the preliminary inquiry. (7) The appellant had some difficulty with the English language. (8) It seems unlikely the appellant had a proper opportunity to review the disclosure. (9) Except for the few minutes in court, the appellant has maintained and continues to maintain his innocence. [2] Given this very unusual set of circumstances, we would allow the appellant to withdraw his guilty plea, set aside the convictions, and order a new trial on all of the charges including those that were withdrawn by the Crown. [3] Mr. Snell does not dispute that this is the proper order and that we have this power pursuant to s. 686(8) of the Criminal Code. “M. Rosenberg J.A.” “Janet Simmons J.A.” “S. E. Lang J.A.”