COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Guthrie, 2016 ONCA 466

DATE: 20160614

DOCKET: C61463

BEFORE: Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Guthrie

Appellant

Dennis Guthrie, in person

Joseph Di Luca, amicus

Tracy Kozlowski, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on June 2, 2014 by Justice Julianne Parfett of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant, Dennis Guthrie, was convicted of aggravated assault of a fellow resident at the Shepherds of Good Hope shelter in Toronto.

[2] The appellant was arrested in the late evening, charged with assault causing bodily harm, and was cautioned about his right to silence and right to counsel. He met with duty counsel and was placed in a cell for the night. The next morning - about 11 hours after his arrest and initial caution – he was interviewed by the police. Although he had not been under the influence of alcohol or drugs at the time of his arrest, he advised the interviewing officer that he did not remember any of the events of the previous evening.

[3] The interviewing officer asked the appellant if he wanted to speak to a lawyer. The appellant responded ‘if I already have, then I already have.’ The interviewing officer reminded the appellant twice of his right to silence. In response, the appellant told the interviewing officer that ‘he knew the drill’ and would have ‘stayed in the cell’ if he was not willing to talk. The interviewing officer told him that he had been arrested ‘for assault’, at which point the appellant asked whether the victim was alive. He was assured that he was, and the interview continued.

[4] The appellant was ultimately charged with assault with a weapon and aggravated assault, and was convicted at trial of aggravated assault. The appellant appeals that conviction on the basis that: (1) the trial judge misdirected the jury as to the nature of the appellant’s criminal record; and (2) the trial judge erred in finding that the appellant’s rights under s. 10(b) of the Charter of Rights and Freedoms were not infringed.

[5] For the reasons set out below, the appeal is dismissed.

Issue 1: The appellant’s criminal record

[6] The appellant argued on his own behalf without the assistance of amicus, that he was prejudiced at trial by the admission into evidence of his unredacted criminal record. At trial, the appellant was unsuccessful on a Corbett application to edit his criminal record to remove convictions from 2001 and 2005, which he argued were too remote in time to be of probative value. The trial judge accepted the Crown’s submission that if these convictions were removed, it would create a misimpression that the appellant had been law-abiding for a large stretch of time. The appellant believed that accepting this submission would suggest that he had been continuously criminally active from 2001.

[7] There is no merit to this ground of appeal. For the appellant’s unedited criminal record to be before the jury meant that both his convictions and the periods of time between convictions were in evidence. It did not communicate to the jury that he was engaged in criminal activity during the gaps in the record.

Issue 2: Voluntariness of the appellant’s statement and s. 10(b) of the Charter

[8] The amicus, on the appellant’s behalf, argued that the trial judge erred in finding that the appellant’s statement to the police was voluntary, and that his rights under s. 10(b) of the Charter were not violated. This argument is advanced on three bases: (1) a re-caution as to the right to counsel and the right to remain silent was required at the start of the police interview because of the length of time that had passed since the appellant was taken into custody and cautioned the previous night, (2) a re-caution was required because the appellant faced a change in jeopardy over the course of the police interview; and (3) a re-caution was required because the appellant had an absence of memory from the previous night, including the caution and meeting with counsel.

[9] As set out below, the trial judge made no error in finding that the appellant’s s. 10(b) rights were not violated and that no re-caution was required.

[10] First, the trial judge made no error in holding that a lengthy lapse of time between the exercise of the right to counsel and the start of a police interview does not automatically require an additional caution and opportunity to consult counsel. Significantly, as explained below, there was no change in jeopardy in the intervening period and, as the trial judge noted, the interviewing officer reminded the appellant of his right to remain silent before the interview began.

[11] Second, the trial judge’s analysis of the change in jeopardy was carefully reasoned and grounded in correct legal principles. The appellant was arrested for assault causing bodily harm, but by the conclusion of the interview, the interviewing officer decided to charge him with aggravated assault and assault with a weapon. As the Supreme Court held in R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at para. 48, a change in jeopardy will require an accused to be provided with an additional opportunity to consult counsel, where there is either ‘a discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence that that contemplated at the time of the warning.’

[12] The trial judge concluded that although aggravated assault and assault with a weapon are more serious offences than assault causing bodily harm, they are related offences and not significantly more serious as contemplated in Evans. We see no error in this conclusion. Although the interviewing officer commenced the interview by reminding the appellant that he had been arrested for ‘assault’, and did not specify further, the appellant’s immediate response – enquiring whether the victim was alive – indicated that he understood the jeopardy that he faced.

[13] Finally, the trial judge made no error in rejecting the appellant’s argument that his claim to having no memory of his arrest, caution, and meeting with counsel, required a re-caution and additional opportunity to exercise the right to counsel.

[14] The trial judge made a factual finding rejecting the appellant’s claim that he had no memory. She accepted the interviewing officer’s testimony that he believed the appellant to be lying in this regard, and noted the absence of any drug or alcohol abuse that might explain a blackout. She rejected the appellant’s argument that his bipolar disorder makes him prone to blackouts, on the basis that the appellant provided no evidence corroborating his assertion that he is bipolar or that suffering from bipolar disorder can make a person prone to blackouts. The appellant argued that the trial judge erred in not considering his statement in the police interview that he can tell when he is beginning a manic episode, and that his memory eventually returns. Although the trial judge did not specifically refer to this evidence, she was not required to. The trial judge did not accept the appellant’s evidence on this issue as truthful. The trial judge’s factual finding that the appellant did not suffer from any memory loss is entitled to deference, and there is no basis on which we could disturb it on appeal.

[15] Although this factual finding is dispositive of this third limb of this ground of appeal, the trial judge also marshalled ample evidence to support the conclusion that, even if the appellant had no memory of the night of his arrest, the interviewing officer provided him with sufficient reminders of his right to silence and right to speak to a lawyer. At the outset of the interview, the interviewing officer asked if the appellant wished to speak to a lawyer and reminded him twice that he did not have to speak to the officer. The appellant assured the interviewing officer that he understood, that he knew his rights, that he ‘knew the drill’, and that he would have ‘stayed in the cell’ if he did not want to talk. The trial judge did not simply take these statements at face value, but looked at the totality of the appellant’s statements and behaviour to determine that he in fact understood his rights. The appellant has not identified any reviewable errors.

[16] We would like to express our appreciation for the assistance of the amicus on the appeal.

Disposition

[17] The appeal is dismissed.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“B.W. Miller J.A.”