COURT OF APPEAL FOR ONTARIO

CITATION: R. v. England, 2013 ONCA 237

DATE: 20130412

DOCKET: C55273

Doherty, MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Ronald England

Appellant

Ronald Ellis, for the appellant

J. Sandy Tse, for the respondent

Heard and released orally: April 10, 2013

On appeal from the conviction entered on January 10, 2012 and the sentence imposed on March 28, 2012 by Justice Gregory A. Pockele of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant William England was convicted of making available child pornography, possession of child pornography, accessing child pornography, and possession of a prohibited weapon by Pockele J. of the Superior Court of Justice on January 10, 2012.

[2] At the trial, the appellant made a Charter application to exclude two statements he made to the police, one in an office at the store where he was an employee before arrest and before being advised of his Charter rights, and the other in the police station after arrest and after being advised of his Charter rights. The trial judge dismissed his application. He found that the appellant had not been detained when he gave his first statement (via answers to brief police questions in the office) and therefore was not entitled to receive the standard Charter s. 10 warning. He also found that the second statement, provided after appropriate Charter warnings, was admissible.

[3] The appellant appeals from this ruling.

[4] In our view, the appeal cannot succeed. The trial judge explicitly applied the analytical framework for determining whether there has been a detention from R. v. Grant, 2009 SCC 32. His analysis, under the umbrella of applying the proper test, is entitled to deference: Grant at para. 43.

[5] In our view, the trial judge was entitled to find on a balance of probabilities that the appellant was not detained. His decision was premised on the absence of specific hallmarks of detention (e.g. the police did not say that the appellant could not leave the store office), the appellant’s concession that he knew it was possible for him to go, and the appellant’s strong motive for speaking, namely, to make sure that his brother was not implicated in his criminal activity. In light of these factors, what Rosenberg J.A. said in R. v. McMillan, 2013 ONCA 109 at para. 36 is particularly apt: “even when a person is under investigation for criminal activity and is asked questions, the person is not necessarily detained.”

[6] In light of this conclusion, it is not necessary to consider the issue of the statement in the police station. The appellant fairly concedes that his attack of that component of the trial judge’s ruling is contingent on being successful in establishing that the first statement was inadmissible. Without that foundation, there is no basis on which to mount an argument that the second statement was tainted by an inadmissible first statement.

[7] The conviction appeal is dismissed. In these circumstances, the appellant fairly acknowledges that there is no basis for appealing the sentence.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”