COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pepping, 2016 ONCA 809

DATE: 20161031

DOCKET: C57182

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Pepping

Appellant

Daniel Stein, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: October 28, 2016

On appeal from the conviction entered on June 11, 2012 by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his conviction for second degree murder and the 15-year period of parole ineligibility imposed by the trial judge. He makes three submissions in support of his appeal:

(1) The trial judge erred in admitting a portion of the appellant’s statement to the police because the appellant was not cautioned before he gave his statement;

(2) The trial judge erred in his Corbett ruling because he ruled that offences of violence on the appellant’s criminal record would be admissible if the appellant testified; and

(3) The 15-year period of parole ineligibility was excessive.

[2] The appellant relied on his factum for his second and third submissions. He focused his argument on the trial judge’s ruling that the appellant’s statement was voluntary.

[3] The police investigator did not caution the appellant before interviewing him. He only cautioned the appellant after the appellant asked to speak to a lawyer and after watching the video surveillance. Nonetheless, the trial judge found that the appellant was not a suspect during the initial interview and that the appellant’s statement during that interview was voluntary.

[4] The appellant contends that the trial judge’s finding the appellant was not a suspect was an unreasonable finding. And relying on the judgment of Justice Charron in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, he contends that the absence of a caution rendered the appellant’s statement involuntary.

[5] Even if we were to accept that the trial judge erred in failing to hold that at some stage during the interview the appellant became a suspect, the question we must still answer is whether the absence of a caution rendered the appellant’s statement involuntary. We do not read Singh as holding that the absence of a caution is fatal to the voluntariness of the statement, but only that it is a factor to be considered.

[6] In the present case we are satisfied the trial judge’s conclusion on voluntariness was reasonable. The trial judge made two key findings in support of his conclusion. First, the appellant was eager to talk, and second, the appellant was aware of the legal consequences of giving a statement. These two findings, which are reasonably supported by the record, by themselves are sufficient to uphold the trial judge’s ruling.

[7] On the appellant’s Corbett submission, the trial judge gave a thorough and well-reasoned ruling. We have no basis to interfere with it.

[8] Finally, in fixing the period of parole ineligibility the trial judge addressed the relevant considerations. His weighing of those considerations is entitled to appellate deference. His imposition of a 15-year period of parole ineligibility is within a reasonable range.

[9] Accordingly, we dismiss both the conviction and sentence appeals.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“Grant Huscroft J.A.”