CITATION: R. v. Young, 2009 ONCA 891
DATE: 20091215
DOCKET: C46938
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Guy Young
Appellant
Sean Ellacott, for the appellant
Michael Bernstein, for the respondent
Heard: November 30, 2009
On appeal from the convictions entered on December 6, 2006 and the sentence imposed on January 30, 2007 by Justice Anne Marie Molloy of the Superior Court of Justice, sitting with a jury.
By the court:
A. BACKGROUND
[1] At nine o’clock one October morning in 2003, the appellant, Guy Young, disguised in a UPS uniform and carrying a UPS box, went into a jewellery store in the Sherway Mall with an accomplice. Once inside the store, Mr. Young produced a loaded shot gun. He ordered the store owner and an employee to lie on the ground and open the store safe. Although terrified, the owner managed to push the alarm button. When Mr. Young and his accomplice realized what had happened, they fled. However, before leaving the mall, Mr. Young turned back and shot the store owner, shattering his shin bone.
[2] Mr. Young was tried before Molloy J. and a jury on a 9-count indictment, which included robbery, use of a firearm and attempted murder. The Crown’s case was compelling: Mr. Young’s fingerprint was found on the UPS box; the store owner identified Mr. Young from a photo array; and Mr. Young made a series of inculpatory statements to the police.
[3] The jury found Mr. Young guilty on all counts, except for reducing the attempt murder charge to a conviction for aggravated assault. Molloy J. sentenced him to a global sentence of 11 years in prison, after giving four years credit for pre-trial custody. She also ordered that Mr. Young not be eligible for parole until he has served at least one half of his sentence.
[4] Mr. Young appeals both his conviction and his sentence.
B. DISCUSSION
[5] We did not call on the Crown on either the conviction or the sentence appeal.
[6] On his conviction appeal, Mr. Young, in his factum, submitted that the trial judge erred in admitting his statements to the police, principally because they were not videotaped. In oral argument, Mr. Young abandoned his challenge to the admissibility of his statements. Instead he argued that the trial judge did not instruct the jury strongly enough on why the police’s failure to videotape the statements might affect their reliability and weight.
[7] Mr. Young also argued that the trial judge erred in admitting the identification evidence because the photo array was not conducted in accordance with the recommendations of Justice Cory in the Sophonow Report.
[8] We saw no merit in these arguments. Mr. Young did not testify on the voir dire into the admissibility of the statements. Molloy J. gave a thorough and well-reasoned ruling on why the statements were admissible. She also adequately instructed the jurors on the reliability and weight they might give to the statements because they were not videotaped.
[9] In the course of her ruling on the admissibility of the statements, Molloy J. adverted to what appears to an ongoing misperception among some police officers on the right to videotape (or tape record) the taking of a statement from an accused. At paras. 25 to 26 of her ruling she wrote:
I agree that the taking of a formal statement from a suspect is different from filming the routine matters that occur at arrival and booking. However, there is nothing about the taking of a formal statement that precludes it being tape recorded right from the start. It is appropriate to explain to a suspect that the interview is being videotaped and why, and there is nothing wrong with discontinuing the videotaping if the suspect does not wish to be recorded. However, there is absolutely no legal requirement to start the interview without taping and to only turn on the recording device upon obtaining consent. Quite to the contrary, the norm should be that a suspect is spoken to from the outset with the videotape in operation: R. v. Backhouse at para. 118. It should only be discontinued if the suspect objects.
It is not clear to me where these officers got the idea that it was unlawful to start the recording before getting permission. However, this is not the first time that I have heard police officers speak of it. It appears to be a commonly held view. Crown counsel in this case was unaware why police officers had this understanding, but agreed that there was no legal basis for it. I felt it important to comment on this formally in the hope that steps would be taken within the police force to educate officers on the importance of recording interviews from the outset. Otherwise, the important principles underlying cases such as Moore-McFarlane will be seriously undermined.
[10] We affirm these comments. They hearken back to the words of Rosenberg J.A. in R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 at para. 118:
That said, I should not be taken as holding that it will always be an answer to the failure to videotape the statement that the suspect has refused to participate. It could become all too easy for the authorities to attempt to avoid the impact of this court’s decision in Moore-McFarlane by attributing to the suspect a refusal to have his statements videotaped. It would still be open to the police to tape record the statement, or at the very least electronically record the suspect’s wishes, to avoid any later dispute. Depending on the context, the trial judge might well view with concern a bare assertion by police officers that the suspect refused to be videotaped or even tape-recorded.
[11] In short, the police are entitled to begin to videotape or tape record an accused’s statement. If the accused then objects or refuses to be videotaped, at least there will be a record of the accused’s refusal.
[12] The identification evidence was admissible although the photo array did not meet the Sophonow requirements. Its deficiencies were a matter of weight for the jury, and Molloy J. outlined in detail all the ways the photo identification in this case fell short of Justice Cory’s recommendations.
[13] The conviction appeal is therefore dismissed.
[14] Molloy J. gave lengthy reasons for the sentence she imposed. We see no error in her reasons. The sentence of 11 years after credit for pre-trial custody and a parole ineligibility order are entirely fit, given the nature of the offence, Mr. Young’s gratuitous and callous shooting of the store owner, and his lengthy criminal record.
[15] Although leave to appeal sentence is granted, the sentence appeal is dismissed.
RELEASED: December 15, 2009 “John Laskin J.A.”
“JL” “Robert J. Sharpe J.A.”
“E.A. Cronk J.A.”