Ontario Court of Appeal dismisses son’s attempt to blame parents

Law360 Canada (November 12, 2024, 11:49 AM EST) --

John L. Hill

The fifth commandment, “Honour your father and your mother that your days may be long in the land that the Lord your God is giving you,” is a commandment and a blessing repeated throughout the Old and New Testaments of the Bible. But does it constitute a legal defence?

On July 3, 2018, Oleksandr Ostashkov pleaded guilty to breaking, entering and possessing stolen property. The charges arose from the theft of rigs, musical instruments and artwork valued at $1.2 million that had been removed from a storage facility in Brampton.

The police found some of the stolen material in Ostashkov’s parents’ home and a van parked outside the residence. His fingerprints were found on a coffee cup inside the truck. Charges were laid against Ostashkov and his parents. In a phone call to their son, the parents expressed their outrage at being charged and threatened never to see their son again unless he made their charges go away. He pleaded guilty in the Ontario Court of Justice and was sentenced in October 2020 to 17 months’ incarceration and a restitution order.

Ostashkov appealed both the conviction and the sentence, claiming his guilty plea was made under duress. He also appealed the harshness of his sentence. Because he was obeying his father and his mother, he stood to lose the freedom he expected in this land called Canada.

The Ontario Court of Appeal released a unanimous opinion on Nov. 8, 2024 (R. v. Ostashkov, 2024 ONCA 826). In only seven paragraphs, both the sentence and conviction appeals were dismissed.

The Ontario Court of Appeal did not accept the guilty plea entered was involuntary. It agreed with the sentencing judge that while parental pressure may have been a driving factor in the decision to plead guilty, it did not interfere with his deliberate decision. The trial judge complied with the legal principles of accepting a guilty plea set out in R. v. Cherrington, 2018 ONCA 653. There, it was held that the pleas of guilty entered in open court in the presence of counsel were presumed voluntary. The presumption is rebuttable if an accused can show, for example, limited cognitive capacity, a mental disorder or condition or cognitive or emotional issues such as anxiety, depression, chronic pain, anger management problems, difficulty in communication and cannot make an active or conscious choice whether to plead guilty (R. v. T. (R.)​​​​​​, (1992),10 O.R. (3d) 514 (C.A.); R. v. M.A.W., 2008 ONCA 555). An accused needs only to be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice. A judge need not consider if the plea is wise, rational or in the accused’s best interest (R. v. Baylis, 2015 ONCA 477).

Ostashkov claimed that the charges against the parents were brought solely to extract a guilty plea from him. The trial judge found those charges were rooted in evidence and were not a ploy to force the accused to plead guilty. The appeal court agreed.

In assessing the propriety of the sentence imposed, the Court of Appeal determined that it was not demonstrably unfit or based on any error in principle as defined in case law (R. v. Lacasse, 2015 SCC 64; R. v. Theriault, 2021 ONCA 517). The sentencing judge properly considered collateral consequences, such as the possibility of deportation, since Ostashkov was in Canada on a visitor’s visa. The Court of Appeal cited R. v. Aiken, 2024 ONCA 326, where it was held that “there is no rigid formula for taking collateral consequences into account, and there is no requirement that collateral consequences must reduce a sentence.”

The restitution order imposed by the sentencing judge was for less than half the admitted value of the stolen items. The court found that this, too, reflected no error in principle. It cited R. v. Robertson, 2020 ONCA 367, which held that a restitution order forms part of a sentence. It is entitled to deference, and an appellate court will interfere with the sentencing judge’s exercise of discretion only if there is an error in principle or if the order is excessive or inadequate: R. v. Devgan (1999),136 C.C.C. (3d) 238 (Ont. C.A.) and R. v. Castro, 2010 ONCA 718.

This was a case where the accused must take responsibility for the theft himself and not seek to blame his decisions on mom and dad.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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