CITATION: R. v. Ghani, 2008 ONCA 748
DATE: 20081031
DOCKET: C47100
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and MacFarland JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
Abdul Ghani
Applicant/Appellant
Theodore Sarantis, for the appellant
Karen Shai and Andreea Baiasu, for the respondent
Heard: Ocrober 28, 2008
On appeal from the conviction entered on June 29, 2006, and the sentence imposed on July 20, 2006, by Justice Ian V.B. Nordheimer.
APPEAL BOOK ENDORSEMENT
[1] The trial judge made a finding that the appellant understood, that as of January 10th when he spoke to officer Steele that his statements could be used against him. The appellant had spoken to the police and indeed to his own lawyer in the time between the alleged assault and the arrest on January 10th, 2005 in Ignace, Ontario. We see no reason to interfere with the trial judge’s finding.
[2] We also do not agree that the failure to re-caution the appellant about one hour later when Steele went to ask the appellant some administrative questions renders the appellants subsequent spontaneous, incriminatory statements involuntary. The failure to re-caution may or may not be relevant to voluntariness, depending on the circumstances. In these circumstances we don’t think it had any relevance. The statement was properly admitted.
[3] With respect to the alleged non-direction on self-defence we do not think that the failure to retreat was ever a live issue on this evidence. No one at trial asked the trial judge to deal with that issue in his charge or in his response to the jury’s question. In our view, the absence of any request provides cogent support for our conclusion that the failure to retreat was simply never an issue in this case.
[4] Appeal dismissed.
[5] The sentence appeal is dismissed as abandoned.