COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Todorovic, 2014 ONCA 153

DATE: 20140227

DOCKET: C53042

Rosenberg, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melissa Todorovic

Appellant

Brian Snell, for the appellant

Jamie Klukach, for the respondent

Heard: November 27, 2013

On appeal from the conviction entered on March 20, 2009 and the sentence imposed on July 28, 2009 by Justice Ian V. B. Nordheimer of the Superior Court of Justice, sitting with a jury.

Rosenberg J.A.:

[1] The appellant appeals from her conviction for first degree murder and the order of the trial judge, Nordheimer J., that she be sentenced as an adult to life imprisonment without eligibility for parole for seven years. The only issues on the conviction appeal concern two video-taped statements that the appellant gave to the police. The appellant submits that the statements were inadmissible by virtue of s. 146 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”). As to sentence, the appellant argues that the trial judge should have imposed a youth sentence. She argues that the trial judge erred in holding that he would have been required to give the appellant credit for pre-sentence custody if he imposed a youth sentence. The appellant also submits that the trial judge relied on speculation in holding that the risk posed by the appellant could not be managed through a youth sentence. For the following reasons, I would dismiss the appeal from conviction and sentence.

THE FACTS

[2] On January 1, 2008, the appellant’s former boyfriend, David Bagshaw, stabbed Stefanie Rengel to death outside her home. Bagshaw was tried separately and convicted of first degree murder. It was the theory of the Crown that the appellant, who was 15 years of age, counselled and encouraged Bagshaw, who was 17 years of age, to kill the deceased. The Crown’s case was based on a large body of circumstantial evidence including computer chats by the appellant with Bagshaw and others. The Crown argued that these communications showed that the appellant was obsessively jealous of the victim, who had briefly dated Bagshaw several years earlier. The Crown also relied upon the appellant’s conduct immediately after the killing as confirming that she had encouraged Bagshaw to commit the murder.

[3] While this circumstantial evidence presented a compelling case of first degree murder, the Crown also relied upon statements the appellant made to the police within hours of the killing and while Bagshaw was still at large.

[4] Bagshaw killed the victim around 6:00 p.m. on January 1, 2008. He then fled to the residence of his friend Steven Theodoru and confessed to Theodoru. While he was at Theodoru’s residence Bagshaw received two calls from the appellant, parts of which Theodoru overheard. He overheard the appellant ask, “Did you do it?”

[5] Officers with the Homicide Squad first interviewed the appellant, in the presence of her mother, at the police station beginning at 3:05 a.m. on January 2, 2008. By that time they had interviewed Theodoru, as well as a young girl whom they originally and mistakenly believed was Bagshaw’s girlfriend, and the victim’s parents and brother. As a result of this investigation, they knew that Bagshaw had killed the victim and that the appellant was his girlfriend. They also knew about an incident some three months earlier in which Bagshaw had attended at the victim’s home and told her that his girlfriend wanted him to stab her, that he was going to leave his cell phone to make it look like he had been interrupted in his effort to stab the victim and that he wanted the victim to confirm to his girlfriend that he had attempted to stab her so that his girlfriend would leave him alone about the subject. The victim told her mother about this incident and she and the victim’s stepfather (who both happen to be officers with the Toronto Police Service) had confronted Bagshaw. The victim's mother had also spoken with the appellant on the telephone about this incident. She had warned Bagshaw and the appellant to stay away from her daughter.

[6] Before the first interview, the police gave the appellant a K.G.B. warning, as they had with other witnesses. She was told the following:

Nobody can force you to make a statement. This door is only, will, will be closed but it’s not locked. All right? You’re not, you’re not here under arrest all right? Do you understand your right to choose whether or not to make a statement.

The appellant replied in the affirmative and agreed to give a statement. She was then placed under oath.

[7] The first interview with the police was terminated when the appellant made an incriminating statement to the effect that she had asked Bagshaw to kill the victim. The appellant was left alone in an interview room for several hours until 7:10 a.m. when the investigating officers returned to the room to explain to the appellant her rights under s. 146 of the YCJA. By this time, the appellant had spoken to duty counsel. The appellant said that she wanted her mother to be present. When the appellant’s mother returned to the police station the officers resumed the questioning. They again explained the s. 146 rights. The appellant waived her right to have a lawyer present.

THE ISSUES ON THE CONVICTION APPEAL

[8] As indicated, the issues on the conviction appeal only concern the admissibility of the statements that the appellant made at 3:05 a.m. and 8:15 a.m. The Crown did not seek to introduce the 7:10 statement, which was solely concerned with the appellant’s rights under s. 146. The appellant submits that the 3:05 statement was inadmissible because the police did not comply with s. 146. She argues that the 8:15 statement was inadmissible because the appellant did not waive her rights under s. 146 and in particular did not waive her right to have a lawyer present.

[9] The Crown submits that the appellant was not detained during the 3:05 statement until she made a specific incriminating statement at which point the interview ended. Thus, s. 146 did not apply to the 3:05 statement. Crown counsel submits that the police complied with s. 146 before the 8:15 statement.

ANALYSIS

(1) The 3:05 Statement

[10] The issue with respect to the 3:05 statement was whether the provisions of s. 146 of the YCJA were triggered. Section 146(2) requires the police to provide the young person with information and rights beyond those provided for at common law or under s. 10 of the Charter of Rights and Freedoms if the young person is under arrest or detention or the officer has reasonable grounds for believing that the young person has committed an offence. The appellant submits that the appellant was detained within the meaning of subsection (2) and, in any event, that during the 3:05 interview and before the appellant made the incriminating statement at the end of the interview, the officer had reasonable grounds to believe that the appellant had committed an offence.

(i) Was the appellant detained?

[11] The trial judge found that the appellant was not detained. He set out his reasons for that finding at paras. 45-49 of his ruling on the admissibility of the 3:05 and 8:15 statements. In short, the trial judge found that when the appellant and her mother were contacted by a police officer, P.C. Wells, they freely came down to the police station to assist with the investigation. Once at the station, the investigating officers told the appellant and her mother that while the door to the interview room was shut, it was not locked and that she was not under arrest. The officers also told the appellant she was not obliged to give a statement.

[12] The test for whether a suspect is detained has most recently been set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. While the court was dealing with ss. 9 and 10 of the Charter, there was no suggestion that a different test should apply to s. 146(2) of the YCJA. The court summarized the test at para. 44:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[13] In his submissions, counsel for the appellant focused on two aspects of the encounter between the appellant and the police. First was the request by officer Wells for the appellant and her mother to attend the station. The appellant submits that the request by officer Wells was a demand or direction and a reasonable person in the appellant’s circumstances would conclude that she was deprived of the liberty of choice. Second, at the station, it was never made clear to the appellant that she could leave at any time.

[14] The issue with officer Wells focuses on the contents of the telephone conversation between the officer and the appellant’s mother. The officer asked the appellant’s mother to bring the appellant to the station. The trial judge found the relevant facts on this aspect of the encounter as follows:

He [officer Wells] told M.T.'s mother that there had been an incident that the police wanted to speak to M.T. about. While P.C. Wells did not have a clear recollection of the conversation he had with M.T.'s mother, he acknowledged that he might have said that M.T.'s mother could either bring M.T. to the station or that the police could come and pick her up or words to that effect.

[15] Since, the appellant had no legal obligation to comply with the request from officer Wells to attend at the station, the issue is whether the circumstances amounted to psychological detention as explained in Grant. As at trial, the appellant submits that the words used by the officer resulted in a demand or direction that would lead a reasonable person to conclude, by reason of the state conduct, that she had no choice but to comply. In finding that there was no detention the trial judge noted that: “There is no evidence to contradict the position of the police officers involved that if M.T. and her mother had declined to attend at the station, that would have been the end of the matter at that point.” And specifically with respect to officer Wells, the trial judge stated that if the appellant’s mother had refused to come to the station he would have simply returned to the police station and reported that fact to the homicide detectives.

[16] The appellant submits that the trial judge erred in relying on the subjective view of the police, especially Officer Wells, which was never communicated to the appellant or her mother. These statements by the trial judge must be put in context. They were made in response to a submission at trial that officer Wells was giving the appellant and her mother “an ultimatum” and that the “police had intended to gain ‘control’ of M.T. for the purpose of questioning her”. In other words, the comments by the trial judge as to officer Wells’ and the other officers’ states of mind were in response to a submission by the appellant as to the intention of the officers. The other findings by the trial judge, which are supported by the record, support the view that the appellant was not detained. These findings include the following:

• The appellant and her mother freely attended at the station;

• The appellant’s mother’s reaction to the request from officer Wells was to assist the police in whatever way she and the appellant could;

• The appellant’s mother’s testimony at trial that she felt she had no choice but to attend at the station was at odds with her actions and statements at the time and during the interview.

These findings are sufficient to support the conclusion that there was no demand or direction amounting to psychological detention.

[17] The appellant submits that the trial judge also erred in finding that the appellant was not detained when she and her mother were placed in the interview room and the door was closed. Again, the trial judge’s findings of fact run counter to this submission. The door was closed, but the appellant and her mother were told that the door was not locked. While they were not told explicitly that they could leave at any time, they were told that nobody could force the appellant to make a statement and that she was not under arrest. The appellant agreed that she understood she had the right to choose whether or not to make a statement. It was not necessary for the officers to expressly tell the appellant that she could leave at any time. The only reason she was there was to make a statement. If she chose not to make a statement there was no reason for her to remain.

(ii) Reasonable grounds to believe the appellant committed an offence

[18] In the alternative, the appellant submits that the investigating officers had reasonable grounds to believe that the appellant had committed an offence, in particular that she was a party to the murder committed by David Bagshaw. The appellant referred to a number of circumstances. The police believed that Bagshaw was the killer and that he had told people he was being pressured by the appellant to stab the victim. They had learned about the incident three months earlier in which Bagshaw had asked the victim to pretend that he had tried to kill her to appease the appellant. Finally, they also knew that shortly after the killing the appellant had called Bagshaw. Bagshaw’s friend who overheard part of the conversation heard the appellant ask: “Did you do it?”

[19] The trial judge considered all these circumstances and concluded that the police did not have reasonable grounds prior to the appellant’s admission at the very end of the interview. The trial judge’s conclusion is supported by the evidence. As he points out, any information about the appellant’s possible role in the crime emanated from Bagshaw who the police reasonably believed was “inherently untrustworthy”. The police believed the appellant to be an important witness, not a suspect. She might have had valuable information about what Bagshaw had done, had planned to do, what his motive might have been and where he might be. It was open to the trial judge to reach this conclusion at para. 55 of his reasons:

Subjectively, the detectives say they did not suspect M.T. to be a party to the killing of S.R. Objectively, there was information that suggested that M.T. might have had some role. Put at its highest, however, that information could not give rise to anything more than the thinnest of suspicions regarding M.T.'s involvement. That information certainly fell well short of constituting reasonable grounds to believe that M.T. was a party to the killing. The homicide detectives are correct when they say that the only direct source purporting to link M.T. as a party to the killing was D.B. D.B., of course, would have been seen as having every reason to want to deflect the blame for his suspected actions or at least share that blame with others. In light of that reality, the information available to the police was insufficient when the homicide detectives first sat down with M.T. and her mother to constitute reasonable grounds to believe that M.T. was caught up in this crime. As it turned out, it was M.T. herself who provided that corroboration and, when she did so, the homicide detectives immediately terminated the interview and arrested M.T.

The appellant submits that this finding cannot be supported by the evidence given the following exchange early on in the 3:05 interview:

Appellant: I talked to her [the victim’s] mom on the phone and her on the phone.

Det. Sansom: And when was that?

Appellant: Like three months ago.

Det. Sansom: Okay. Can you tell me about that conversation.

Appellant: Yes. Um my boyfriend, they, well she spread rumours about me.

Det. Sansom: Um hum.

Appellant: And she kept calling my boyfriend.

Det. Sansom: Um hum.

Appellant: And I was getting really like sick and tired of it.

Det. Sansom: Right.

Appellant: So then like joking I was like oh I want her dead.

Det. Sansom: Um hum.

Appellant: And then my boyfriend went to her house but this was three months ago and then he tried to get her out of the house right? And then he wasn’t really gonna kill her. He just wanted to talk to her and to tell her to stop doing it.

[20] In this part of the interview, the appellant was talking about an incident three months earlier. She said she was joking and nothing came of the incident at the time. It was open to the trial judge to find that the officers only had reasonable grounds to believe the appellant was a party to the offence much later in the interview when the following conversation took place:

Det. Sansom: If and when we have well we will have David and we will speak to him, will he tell us that you had asked him to do this?

Appellant: Probably.

Det. Sansom: And he’ll say that, will he say that because you did ask him to do this?

Appellant: [nods head]

Mother: Mel do you know what you’re saying?

Appellant: Yea. I told you three months ago I asked him to.

At this point, the police now knew that the appellant, contrary to what she said earlier in the interview, had not been joking three months earlier. And, at this point, the police properly broke off the interview, advised the appellant of her rights and gave her the opportunity to speak to duty counsel. Aside from re-informing the appellant of her rights at 7:10 a.m., nothing further took place until 8:15 a.m., many hours after the admission that caused the police to stop the interview and arrest the appellant. I agree with the trial judge that s. 146 of the YCJA was not triggered until that time.

(2) The 8:15 interview

[21] The appellant’s submits that s. 146 was violated at the 8:15 interview because the police did not properly or adequately inform the appellant of her right to have counsel present during the interview. The relevant part of s. 146 is set out below. I have emphasized the important part of the provision:

(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that

(i) the young person is under no obligation to make a statement,

(ii) any statement made by the young person may be used as evidence in proceedings against him or her,

(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

(c) the young person has, before the statement was made, been given a reasonable opportunity to consult

(i) with counsel, and

(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and

(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person. [Emphasis added.]

Section 146(4) provides that the young person may waive the rights under para. (2)(c) or (d) to, among other things, consult counsel and make the statement in the presence of counsel.

[22] The facts giving rise to the appellant’s submission are the following. After the 3:05 interview was terminated, the appellant was informed of her right to counsel. The appellant’s mother advised the appellant to speak to a lawyer and the police arranged for the appellant to speak to duty counsel. There was no suggestion that there was any problem with the advice given by duty counsel. The police then placed the appellant in a locked room. At 7:10 a.m. the investigating officers returned to the room and informed the appellant of her rights under s. 146. This interview was audio taped. The officers explained to the appellant that she had the right to have counsel present in the following terms:

Det. Ryan: You don’t have to make a statement. If you decide to make a statement and you talk to a lawyer or parent or adult relative or any other adult, they must be here with you unless you don’t want them to be here. Do you understand that?

Appellant: No.

Det. Ryan: You can have an adult present with you when you talk to us again, if you want. Get that?

Appellant: Yes.

Det. Ryan: Now, I’m gonna read to you what’s called a Waiver of Rights and if you sit and talk to us without it, we’ll have to do this all over again [unintelligible], okay, but this is I want you to understand this is what we’re gonna be reading to you.

Appellant: Okay.

Det. Ryan: I’ve been given the opportunity to obtain free legal advice right now from a Legal Aid lawyer and the opportunity to talk to a lawyer and a parent. Correct?

Appellant: Yes.

Det. Ryan: I’ve been informed that I have the right to have any of these people that I’ve talked to here with me, if [unintelligible]. Correct?

Appellant: Yes.

Det. Ryan: My rights have been explained to me and I understand that.

Appellant: Correct.

Det. Ryan: And then we got some choices here. [Unintelligible] to you can talk to there’s boxes here that we’ll go over and says I do not choose to talk to any of these people. I have talked to or I have talked to somebody and I want them here with me during this interview. So, we’ll go through that and would you want to have somebody present with you when you talk to us, or would you rather do it on your own?

Appellant: My mom.

Det. Ryan: You want to have her here with you?

Appellant: Yes.

Det. Ryan: So, that’s what we’re gonna go over, so I’m gonna get your mom here and then so if your mom comes back here, I can call her and tell her that you wanna talk to us but you want her here with you, is that right?

Appellant: Yes.

[23] Since the appellant wanted her mother to be present, the police officers left and called the appellant’s mother. When she arrived, the appellant’s mother spoke to the appellant for 20 minutes. The appellant’s mother testified on the voir dire that she urged her daughter not to speak with the police officers without a lawyer being present. However, she was unable to persuade the appellant to have a lawyer present. When the 8:15 a.m. statement began, the investigating officers again reviewed the appellant’s common law and Charter rights with her. At each stage, the officers affirmed that the appellant understood what she was being told and often asked her to repeat back to them in her own words what she was being told. She was told in plain language that she had the right to speak to a lawyer again. She declined. She was told that any lawyer, parent or adult she had spoken to had to be present when she gave the statement. Since the appellant relies upon the wording of that part of the interview I set it out below:

Det. Sansom: Okay. Do you, uh sorry. You do not have to make a statement. If you decide to make a statement and you talk to a lawyer or parent or adult relative or any other adult, they must be here with you unless you do not want them here. Let me just word that in my, my own, my own way. In this case, you wanted to talk to your mom and you spoke to her in private. That means your mom has to be here during the taking of this statement unless you say ah you know what, I don’t want mom here and then mom has to leave. That’s your choice but since you talked to her, she has to be here unless you say nah I don’t want her here. Okay?

Appellant: Okay.

Det. Sansom: Do you understand that?

Appellant: Yea.

Det Sansom: What does that mean to you?

Appellant: It means if I don’t want my mom here, she doesn’t have to be.

Det. Sansom: Okay. You have talked to your mom. Do you want to have uh her here during this statement, if you give a statement?

Appellant: Yes.

Det. Sansom: So if you decide to make a statement here now, you can stop at any time and say all right, I want to talk to a lawyer or I want to talk to a parent. I want to talk to an adult relative or I want to talk to an appropriate adult. Sort of that list of people that you can, like go to people for, for a young person right?

Appellant: Okay.

Det. Sansom: Uh at any time you can stop and ask for one of those people. Okay?

Appellant: Yep.

Det. Sansom: Now this is sort of the last leg of it. It goes like this. I, you, I have been given an opportunity to obtain free legal advice right now from a Legal Aid Lawyer and the opportunity to talk to a lawyer and a parent. Do you agree with that?

Appellant: Yes.

Det. Sansom: You’ve been given that opportunity?

Appellant: [nods head]

Det. Sansom: Yea well write your mom’s name here. I’ve talked to and then tick that box. Uh I want them here during this and let’s stroke that out and initial it. And but you did talk to a lawyer. So I have talked to Duty Counsel right?

Appellant: How do you spell counsel?

Det. Sansom: Um. C-O-U-N-S-E-L. I have talked to Duty Counsel and you don’t want them here during this interview. Is that the person you talked to on the phone? Is that correct?

Appellant: [nods head]

Det. Sansom: Okay. So I guess tick that box as well. All right? So you’re comfortable with that. Your mom’s here. You want her here. You’ve talked to Duty Counsel and you’re not interested in having them here. Signature and signature and you follow all this mom? Are you comfortable with this?

Appellant’s Mother: I’m really confused actually. I’ve never been involved in any –

Det. Sansom: --it can be confusing--

Appellant’s Mother: --thing like this.

Det. Sansom: I know it can be.

At this point, the appellant’s mother said she was “terrified” seeing the charge against her daughter and that she wanted her to be “honest and tell the story” but didn’t want to see her implicated. Detective Ryan interjected and, in a brief exchange with the appellant’s mother, explained generally that the form the appellant was filling out went “above and beyond” to make sure that a minor understands everything. The exchange between detective Samson and the appellant’s mother continued:

Det. Sansom: She has more, more rights than an adult. She can talk to a lot of people to get advice. Including parents.

Appellant’s Mother: Um hum.

Det. Sansom: Obviously because parents should be involved right?

Appellant’s Mother: Yes.

Det. Sansom: And that’s what it says and she can have a parent in this room. If she was an adult and mom and dad wanted to come in, no way.

Appellant’s Mother: Um hum.

Det. Sansom: But because she’s a young offender, you get to come in. Basically that’s it.

Appellant’s Mother: Okay.

Det. Sansom: Really in a nutshell. So it asks for a witness. I’m gonna sign this as a witness but I want, I just want you to be comfortable that you understand what’s going on.

Appellant’s Mother: I understand the form.

[24] The trial judge found that the appellant had been afforded her rights under s. 146 and had waived her right to have the lawyer she had spoken to, present during the questioning. The trial judge took into account what the appellant said to her mother when they met in private and then what she said to the police. As he said at paras. 62-3:

It remains the fact that the requirement in Section 146(2), that any person whom a young person consults is to be present for the taking of a statement is expressly made subject to the exception "unless the young person desires otherwise". The section therefore recognizes that a young person may not wish to have a lawyer or a parent or another adult present when he or she speaks with the police. A young person has the right to make that choice. In this case, M.T. made it clear that she desired otherwise. She did so first to her mother and then later to the homicide detectives.

Further, during the course of the detectives explaining her rights under the Youth Criminal Justice Act in the opening portion of the second interview, M.T. was asked if she wished to speak to counsel again and M.T. said "No". The detectives told her that any lawyer or parent that she had spoken to had to be present for the taking of a statement unless she did not want them there. M.T. expressly said that she wanted her mother present, thereby evidencing her understanding of the choices available to her. Still further, M.T. was told that she could stop the interview at any time and speak to a lawyer, or her parent, and M.T. indicated that she understood that. It ignores reality to suggest that in those circumstances, the mandates of the Youth Criminal Justice Act have been violated. [Emphasis added.]

The trial judge concluded by finding that he was satisfied beyond a reasonable doubt that the requirements of s. 146 were fully complied with and he failed to see what else the officers could reasonably have been expected to do.

[25] The appellant submits that when the circumstances are considered as a whole, while the police did properly inform the appellant of her right to have her mother present, they did not adequately inform her of the right to have the lawyer present. The appellant particularly relies upon the passage where the officer paraphrased the rights. I repeat that passage:

You do not have to make a statement. If you decide to make a statement and you talk to a lawyer or parent or adult relative or any other adult, they must be here with you unless you do not want them here. Let me just word that in my, my own, my own way. In this case, you wanted to talk to your mom and you spoke to her in private. That means your mom has to be here during the taking of this statement unless you say ah you know what, I don’t want mom here and then mom has to leave. That’s your choice but since you talked to her, she has to be here unless you say nah I don’t want her here. Okay? [Emphasis added.]

[26] This short passage from the interview must, however, be considered with all the other evidence. In the 7:10 interview, the appellant was told that she could talk to a lawyer, parent or other adult and “they must be here with you unless you don’t want them to be here”. When asked if she understood, the appellant said that she did not. The officer then broke down the advice into two parts. She was told she could talk to a lawyer, parent, adult relative or appropriate relative at any time “and have that person here with you”. This time the appellant said that she did understand. The officers then reviewed the waiver with the appellant and she indicated that she understood she had the right to have any of the people she had talked to “here with me”. The appellant agreed she had been told this. She was then told again that she had the right to have anyone she had talked to present and she said that she wanted her mother present.

[27] As indicated earlier, after her mother came to the police station, the appellant talked to her and said she did not want a lawyer present.

[28] Again, at the 8:15 a.m. interview, the police reviewed the appellant’s rights and the requirements of s. 146. She was told she could speak to a lawyer again. Her mother asked her if she wanted to talk to a lawyer again. The appellant said: “I know what he said.” She told the investigating officer that she understood what the lawyer told her and she did not want to speak to a lawyer again. The part of the interview particularly relied upon by the appellant must be seen in the context of the appellant having repeatedly said that she understood she had the right to speak to a lawyer and did not want a lawyer present. Then the officer told the appellant that at any time she could talk to a lawyer and have that person “here with you”. Finally, in dealing with the waiver form, the officer read out the following:

I have talked to Duty Counsel and you don’t want them here during this interview. Is that the person you talked to on the phone? Is that correct?

The appellant nodded her head. When the appellant’s mother expressed confusion at this point, the police officer focused on the idea that because the appellant was a young person she had more rights than an adult, particularly the right to have an adult present. The appellant’s mother then said: “I understand the form.”

[29] The appellant submits that in this interview, the officers did not fulfill their obligations to inform the appellant that the lawyer to whom she had spoken was required to be present; that the officer in paraphrasing the obligation only told the appellant that her mother was required to be present. The appellant relies upon this court’s decision in R. v. S.S., 2007 ONCA 481, 222 C.C.C (3d) 545. As Lang J.A. said in that case at para. 33, there is an important distinction between a right of a young person and a requirement placed on the police. Section 146(2)(b)(iv) “expressly places an obligation on the police” and Parliament “deliberately distinguished between information about a young person’s right and about an obligation on the police”. Justice Lang went on at para. 35 to note that s. 146(2)(b) required the officer to “clearly” explain the information and it “cannot be a ‘clear’ explanation if the police fail to tell the young person that counsel and any other consulted third party must be present during the taking of any statement”.

[30] Whether the police complied with this provision is primarily a question of fact. In R. v. S.S., the officer never told the young person that any person consulted must be present during the taking of the statement: see para. 9 of this court’s reasons. In the appellant’s case, the officers did use the word “must” in relation to a lawyer, parent or adult relative to whom the appellant had spoken. It was open to the trial judge to find that the police therefore did fulfill their obligation. The fact that the police officer used as an example that, since the appellant spoke to her mother, her mother “has to be here” did not undermine the breadth of the earlier explanation that referred to talking to a lawyer and an adult relative who “must be here”. Interpreting what occurred between the appellant and the police officers and importantly whether the appellant understood her rights was a matter for the trial judge, absent a palpable and overriding error. I have not been persuaded that there was any such error.

[31] The respondent submits in the alternative that any deficiency in the obligation on the police to comply with s. 146(2)(b)(iv), in the particular circumstances of this case, fell within subsection (6), which provides as follows:

(6) When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.

In R. v. S.S., this court refused to apply subsection (6) because the young person in that case was “deprived of a substantial informational component of s. 146(2)(b)(iv)”. Since I have found that there was no failure to comply with subsection (2), I need not decide whether this would be a proper case to apply subsection (6).

[32] Finally, I see no basis for interfering with the trial judge’s conclusion at para. 57 of his reasons that the appellant “clearly understood her rights to have a lawyer present and willingly chose to waive those rights and participate in the second interview”. The entire context including the third interview and the appellant’s statement to her mother that she did not want counsel present support the trial judge’s conclusion.

SENTENCE

[33] The appellant submits that the trial judge erred in principle in imposing an adult sentence. The primary focus of the submission was the manner in which the trial judge treated the pre-sentence custody. I will deal with this submission after setting out more of the evidence about the offence and the appellant.

[34] The relationship between Bagshaw and the victim occurred when the victim was only 12 and Bagshaw was 15 years of age. The relationship was short, non-sexual, and ended when the victim’s mother found a message from Bagshaw demanding that the victim perform a sexual act on him. The relationship between the appellant and Bagshaw began two years later. It was a relationship marked by jealousy and allegations of unfaithfulness. Even though there was no basis for it, the appellant developed a belief that Bagshaw had a love interest with the victim that included sexual activity. As the trial judge said, the appellant’s belief that the victim posed a threat to her relationship with Bagshaw “grew from an irritation to an obsession”. There was constant communication between the appellant and Bagshaw concerning the killing of the victim. The appellant threatened to end the relationship if he did not kill the victim. The trial judge noted the cold-blooded effort by the appellant to confirm that Bagshaw had killed the victim by calling her cell phone.

[35] At the time of the killing the appellant was just a few days short of her sixteenth birthday. From her arrest on January 2, 2008, she had been in custody for about 18 months before she was sentenced by the trial judge. Outside of the appellant’s relationship with Bagshaw and her involvement in the murder, the appellant appeared to be a normal teenager. She did well in school and had friends. She had a good relationship with her brother and her parents. She was well-provided for and lived in a good neighbourhood. In determining sentence, the trial judge had the benefit of a pre-sentence report, evidence from a psychologist and evidence of Crown and defence psychiatrists: Dr. Klassen and Dr. Gojer. For reasons which are supported by the record, the trial judge placed greater emphasis on Dr. Klassen’s report. The psychological tests showed that the appellant exhibited more offender-like characteristics than would be apparent from her history and presentation. She has a capacity for manipulation and displays obsessive compulsive and borderline personality disorder features that are quite well-established despite her age. Those personality features may be difficult to modify.

[36] Dr. Klassen found that the appellant lacked empathy or remorse over the murder. He was inconclusive in assessing the appellant’s future risk, finding that depending on the context the risk of aggressive behaviour could be low, medium or high. In his view, the appellant should receive psychological intervention for these symptoms but he had concerns about her receptiveness to treatment. Should the appellant re-offend, potential targets include intimate partners, third parties and possibly children. Dr. Klassen did believe that the appellant would do well with external supervision and rules designed to address the risk. The appellant admitted to the psychologist that she had ongoing thoughts of hurting other persons.

[37] At the time the appellant was being sentenced, the applicable provision of the YCJA provided as follows[^1]:

72.(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

If sentenced as a young offender, the maximum sentence under the YCJA would be ten years comprised of a period of custody not to exceed 6 years followed by placement in the community under conditional supervision for up to four years. If sentenced as an adult, the relevant provision of the Criminal Code provided that the minimum sentence was life imprisonment with parole eligibility between five and seven years, because the appellant was under 16 years of age.

[38] Thus, if sentenced as a young offender and not given any credit for pre-disposition custody, the appellant would not be free of supervision until she turned 27 years of age. If sentenced as an adult and given the maximum parole ineligibility, the appellant would be eligible for parole shortly before she turned 23 years of age, but her release would be a matter for the parole board. And, in any event, she would be subject to parole supervision for life.

[39] The trial judge considered the three sets of factors set out in former s. 72 of (1) seriousness and circumstances of the offence; (2) the age, maturity, character, background and previous record of the young person; and (3) any other relevant factors. As to the first set of factors, the seriousness and circumstances of the offence, the trial judge found that this offence was unequivocally serious. As to the second set of factors, the trial judge found that her relatively young age, her pro-social background and lack of any prior record were all positives. However, they were outweighed by other facts that suggested a character flaw that is frightening in its prospects.

[40] The appellant’s submissions as to the alleged error in principle focus on the third set of factors: any other factors that the court considers relevant. Under this set of factors, the trial judge considered the interests of society and in particular the societal interest in ensuring that young persons who commit serious violent offences are subject to meaningful penalties. The trial judge concluded that the maximum youth sentence would not be consistent with ss. 3 and 38 of the YCJA as required by s. 72. To repeat, former s. 72(1)(b) provides the following with respect to the order the court shall make:

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

Because they are central to the trial judge’s conclusion and the focus of the appellant’s submissions I set out the relevant part of the trial judge’s reasons:

70 As acknowledged by both psychiatrists, a person's personality is not fully developed until a person is in his or her twenties. There are clear warning signals regarding Melissa's potential future mental state. While Melissa may only pose a risk in a narrow set of circumstances, that does not mean that the risk is any less real or the consequences of its emergence any less grave. Presented with an event such as occurred in this case, society has the right to expect that appropriate but balanced steps will be taken to protect the public while the rehabilitation and reintegration of the young person is undertaken.

71If subject to the maximum youth sentence, Melissa would be out of custody in four and one-half years (after the necessary and appropriate credit for pre-sentence custody). If she was then subject to the maximum community supervision period of four years, Melissa would be free of all court ordered supervision when she was approximately twenty-five years old or about the time according to the psychiatrists when her personality should be fully developed. In that scenario, there would be no further monitoring of Melissa.

74Of more importance, however, is the issue of monitoring. Ultimately, in this case, we are left with a horrific event caused by a young person for reasons that are still unfathomable. The evidence of the psychiatrists, fairly taken, is that there is some risk of a repetition of this conduct. While the precise degree of risk is unknown, the nature and extent of Melissa's role in this incident is cause for grave concern.

75The concept that a young person would ultimately be left free of supervision where there has yet to be an accurate diagnosis of the problem, nor any effective treatment program developed, is as contrary to the need for the public's protection as one could imagine. Someone must be charged with the task of at least making an effort to follow Melissa's progress so that if a risk should again present itself there may be some hope of interrupting its path. A youth sentence fails to provide the needed level of protection that an adult sentence does. As MacPherson J.A. said in [R. v.] Logan, [2009 ONCA 402, 97 O.R. (3d) 270], at para. 20:

Such supervision is entirely consistent with the overarching sentencing goal of protecting the public from violent criminal conduct.

76It is that factor, more than any other, that leads me to the conclusion that Melissa Todorovic must be subject to an adult sentence. It is the only sentence that properly reflects the principle of accountability or retribution, that is, the moral culpability of the offender, having regard to the intentional risk-taking of the offender (which is high), the consequential harm caused by the offender (which was enormous), and the normative character of the offender's conduct (which was extreme). [Emphasis added.]

[41] The appellant submits that the trial judge erred in principle in holding that the maximum youth sentence had to take into account the pre-sentence custody. If no credit were given for pre-sentence custody, the appellant would be under supervision until she was 27 years of age not 25 years of age. The appellant submits that this would have been an appropriate case not to give any credit for pre-sentence custody.

[42] In my view, the trial judge did not err in principle in his consideration of pre-sentence custody. First, it should be pointed out that it was defence counsel at trial (not Mr. Snell) who urged the trial judge to give credit for pre-sentence custody. Second, the amount of pre-sentence custody had no real impact on the appropriate disposition. In view of his findings, this is not a case where the trial judge would have imposed a youth sentence had he believed that the appellant would have been subject to supervision until she was 27 rather than 25. The trial judge’s proper concern was that under a youth sentence, the appellant would be free of supervision of any kind once she reached her mid-20s. Whether that was age 25 or 27 was of no moment. The important point was that just when her personality should be fully developed, the appellant would no longer be subject to any kind of supervision, no matter how dangerous she was. I agree with the trial judge’s concern that the appellant would be left free of supervision where there was yet to be an accurate diagnosis and any effective treatment programme developed. The trial judge was rightly concerned that imposing a sentence with a definite end period for supervision would not adequately protect the public. That factor together with the other sets of factors mandated by former s. 72 required imposition of an adult sentence so that the appellant would be under supervision of the parole board.

[43] The appellant also submits that the trial judge erred in principle in imposing an adult sentence on the basis of speculation that the appellant would represent a risk to re-offend in a violent way. I do not accept this submission. The trial judge found the psychiatric evidence unhelpful in assessing the future risk. However, the trial judge was not limited to considering the psychiatric evidence in making that determination. There was the evidence of the murder itself. It was conceived out of the appellant’s distorted view of her relationship with Bagshaw and of his relationship with the victim. She also continued to show no empathy for the victim and harboured ongoing thoughts of hurting other persons. Those circumstances strongly suggested that the appellant was at risk to re-offend. The psychological testing showed that a disordered personality was well-established despite the appellant’s young age and the appellant would be difficult to successfully treat. The trial judge properly found that the three sets of factors set out in former s. 72 required imposition of an adult sentence.

DISPOSITION

[44] Accordingly, I would dismiss the appeal from conviction and sentence.

Released: “MR” February 27, 2014

“M. Rosenberg J.A.”

“I agree. Paul Rouleau J.A.”

“I agree. G. Pardu J.A.”

[^1]: This provision has since been amended by provisions that came into force on March 13, 2012.