COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boothe, 2016 ONCA 987

DATE: 20161229

DOCKET: C58922 and C59025

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garfield Boothe and Nichelle Rowe-Boothe

Appellants

Garfield Boothe, appearing in person, via videoconference

Delmar Doucette and Janelle Belton, duty counsel for the appellant, Garfield Boothe

Nichelle Rowe-Boothe, appearing in person

Mark Halfyard and Breana Vandebeek, duty counsel for the appellant, Nichelle Rowe-Boothe

Michael Bernstein, for the respondent

Heard: November 21, 2016

On appeal from the convictions entered on April 5, 2014 and the sentences imposed on June 5, 2014 by Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

INTRODUCTION

[1] This case concerns the prosecution of Garfield Boothe and Nichelle Rowe-Boothe for the killing of Shakeil Boothe, a ten year-old boy who was Mr. Boothe’s son and Ms. Rowe-Boothe’s stepson. Overwhelming medical and photographic evidence showed that Shakeil, who died in the family’s home, (a) was malnourished and suffered from pneumonia and skin infections; (b) had clearly been physically abused for many months; and (c) in the final twelve hours of his life was brutally beaten. At trial both appellants admitted to abusing Shakeil, but each blamed the other for causing his death.

[2] At trial the main issue was to determine who committed the final assault on Shakeil. Both appellants testified, and both admitted that they contributed to Shakeil’s death through various acts of abuse and neglect that rendered them guilty of manslaughter. However, each blamed the other in respect of the final assault in an attempt to avoid a finding of intent sufficient to transform conceded manslaughter into murder.

[3] Both appellants were found guilty of second degree murder by a jury and convictions were entered by the trial judge. The trial judge sentenced both to life in prison, with Garfield Boothe eligible for parole after 18 years and Nichelle Rowe-Boothe eligible after 13 years. The judge set the sentence for each appellant on June 5, 2014, but both of them had been in custody since May 2011, so Mr. Boothe would become eligible for parole in May 2029, and Ms. Rowe-Boothe in May 2024. Both appeal from their convictions.

[4] These appeals were inmate appeals and were heard together. Each appellant was ably assisted by duty counsel and each relied on the memorandums of law filed by duty counsel and the oral submissions counsel made at the hearing. Through duty counsel, each appellant focused his or her appeal on rulings made by the trial judge.

[5] The appellants accept that in respect of each challenged ruling, the trial judge was aware of, and correctly described, the applicable law. Where he went wrong, they say, is in his application of the law.

[6] We disagree with each of the appellants’ submissions. For reasons set out below, both appeals are dismissed. We discuss each of the appeals in order.

(1) GARFIELD BOOTHE’S APPEAL

[7] Mr. Boothe raises one ground of appeal. He claims that the trial judge improperly denied his mid-trial application for severance of the joint trial. It will be helpful to set out a brief description of the circumstances that gave rise to the severance application.

(a) Background to the severance application

[8] Just before the close of the Crown’s case, counsel for Ms. Rowe-Boothe advised the court that he had come into possession of photographs that had relevance to the trial. The trial judge ordered the photographs to be disclosed to all counsel, with the result being that the Crown wished to tender the photographs in evidence. The Crown proposed to recall two witnesses: the mother of Ms. Rowe-Boothe and Dr. Pollanen. Dr. Pollanen was the chief forensic pathologist for Ontario, and he had provided expert testimony at trial on Shakeil’s injuries and the causation of Shakeil’s death. In response to the Crown’s proposal, counsel for Mr. Boothe brought an application for severance, which the trial judge dismissed.

[9] On appeal, Mr. Boothe asserts that, in dismissing his application for severance, the trial judge misapprehended the nature of the prejudice that accrued against Mr. Boothe through late disclosure of the photographs. In essence, Mr. Boothe repeats trial counsel’s argument that the late disclosure fundamentally undermined his strategy for cross-examination of Ms. Rowe-Boothe’s mother and bolstered the credibility of the Crown’s only witness to give direct evidence against Mr. Boothe.

[10] To use duty counsel’s description in oral argument, the trial judge misunderstood how deep the unfairness of not granting severance was to Mr. Boothe. Mr. Boothe asserts that trial counsel’s entire strategy of cross-examining Ms. Rowe-Boothe’s mother would have changed had he known of the photographs.

(b) Discussion

[11] To repeat, none of the legal principles that governs an application for severance of the trial of co-accused is contested on this appeal, and Mr. Boothe does not assert that the trial judge did not understand those principles. Mr. Boothe’s only argument is that the trial judge did not appreciate the degree of prejudice that late disclosure of the photographs caused to his ability to make full answer and defence. We disagree.

[12] The trial judge was acutely aware of the “prejudice” (or “unfairness”) argument, which again is the same one now being advanced on appeal, except that the argument now impugns the trial judge’s conclusion. With respect, it is abundantly clear from the trial judge’s nuanced reasons that he completely understood Mr. Boothe’s “unfairness” assertion. He referenced virtually all of the same arguments and authorities that are being relied upon on appeal and gave thorough reasons for why he disagreed with Mr. Boothe. After his thorough analysis, he concluded:

The bottom line is I do not see what has occurred here as creating fundamental unfairness which impacts so adversely on Garfield Boothe’s ability to make full answer and defence that it overtakes society’s interest in a joint trial.

[Mr. Boothe’s] counsel chose a path that is not rooted in the evidence.

Whatever the source of the tactical decision, it has led by unknown means, to the production of photographs that tend to support one aspect of [Ms. Rowe-Boothe’s mother’s] evidence about which she was attacked. No disclosure obligation has been violated.

Based on my assessment of the overall situation, I do not see the fundamental fairness of the trial being upset at this point.

[13] An essential question to answer on an appeal from denial of severance is whether there was a “reasonable possibility” that severance could have affected the verdict by creating a reasonable doubt as to the accused’s guilt. That is to say, was there a reasonable possibility that, at a severed trial with a fresh jury, the new jury would have had a reasonable doubt as to whether Mr. Boothe was guilty of murder. Such a reasonable doubt in the minds of the hypothetical new jurors must be one that the jury that has delivered Mr. Boothe’s verdict was not reasonably likely to have perceived: R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at para. 49; R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 29. Although the trial judge did not expressly reference the question of whether there was a reasonable possibility that severance would create a reasonable doubt in this sense, it is clear from the entirety of his reasons that he was alive to it and answered it.

DISPOSITION

[14] The trial judge’s decision on the issue of severance is an exercise of discretion and is entitled to deference provided he has acted judicially and the ruling does not result in an injustice: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 14; Savoury, at para. 26. The argument in this appeal was rightly focused on whether the trial judge’s ruling resulted in an injustice to Mr. Boothe. Mr. Boothe has failed to establish that it did, and he has not demonstrated any reason for this court to interfere with the trial judge’s decision. His appeal is dismissed.

(2) NICHELLE ROWE-BOOTHE’S APPEAL

[15] Ms. Rowe-Boothe raises two grounds of appeal. Specifically, she claims that the trial judge erred in concluding that her statements in both her pre-arrest telephone interview and her post-arrest interview at the police station were voluntary.

Pre-Arrest Telephone Interview

(a) Background

[16] Ms. Rowe-Boothe, in focused submissions, argues that the trial judge erred in finding that she was not a “suspect” at the time when she made the relevant statements to a police officer over the telephone. She claims, just as she did at trial, that, at the time of the pre-arrest telephone statements, she had ceased being a person of interest and had become a suspect. She submits that, as a consequence, the police were required to warn her that she may be charged, that she was not required to make a statement, and that what she did say could be used as evidence against her.

[17] Although she concedes that the trial judge was aware of the applicable law on whether an individual was a “suspect” when speaking with the police, Ms. Rowe-Boothe asserts that the trial judge failed to apply the legal standard properly. That standard involves an objective view of all relevant circumstances.

(b) Discussion

[18] A statement made by an accused person to a person in authority is admissible if the Crown has proven beyond a reasonable doubt that the statement was voluntary. The investigation into “voluntariness” is broad and contextual: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 68-71.

[19] At para. 32 of his reasons for decision, the trial judge recited the correct law and concluded, “Given the totality of the circumstances … until the cause of death was known uncertainty remained as to whether Shakeil’s death was a homicide” and “a warning [to Ms. Rowe-Boothe] was not called for”: R. v. Boothe-Rowe, 2014 ONSC 571. Later, at para. 35, he identified the time during the telephone interview at which a caution from the police officer would have been appropriate: once Ms. Rowe-Boothe had told the police officer that she had left her home in Brampton without having sought medical attention for Shakeil, after having told the officer that Ms. Rowe-Boothe had known that Shakeil was sick and that she had sensed that he might not survive. The trial judge commented that this part of Ms. Rowe-Boothe’s story amounted to “an admission that, viewed objectively, would support a conclusion that she had failed to provide the necessaries of life.”

[20] The trial judge, at para. 45, properly noted that the absence of a caution was a factor to be taken into account and he did so. He found that Ms. Rowe-Boothe knew “beyond doubt” that “she could incriminate herself by choosing to speak to the officer.” And, at para. 46, he found that she “was also in a position to control the situation. She was not in custody but at a location unknown to the police outside the jurisdiction. She was on a cell phone and could have terminated the call at any time.”

[21] The trial judge did not make any reviewable error in this ruling. His reasons reveal a thorough and correct application of the governing law, including the objective component of the voluntariness analysis, to the material circumstances. We find no basis to interfere with what was largely a fact-based assessment.

Post-Arrest Interview at the Police Station

(a) Background

[22] Ms. Rowe-Boothe argued at trial that the post-arrest interview was involuntary because it was the product of oppression. She claimed that the atmosphere of oppression arose from three factors: (1) the police officer continued to question her after she indicated that she wanted to wait to speak with her lawyer in person; (2) the interview was not stopped to give her lawyer the opportunity to speak with her upon his arrival at the station; and (3) the police officer told her that her lawyer was not coming to the station. The trial judge held that none of these factors was sufficient to justify excluding the statement.

[23] On appeal, Ms. Rowe-Boothe, in purposeful arguments, submits that the trial judge erred in his analysis of the third factor. That is, the trial judge focused on the police officer’s intention and the fact that Ms. Rowe-Boothe had already spoken one time to counsel, but failed to consider the impact of the police officer’s statements on her.

(b) Discussion

[24] The question on appeal, just as it was posed at trial, is whether the police officer’s statement to Ms. Rowe-Boothe that her lawyer would not be available for the remainder of the interview, in the full context of that interview, negated her capacity to make a meaningful choice between speaking to the officer and refusing to speak: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 181. Once more, it is solely the trial judge’s application of the law of voluntariness that is challenged.

[25] Ms. Rowe-Boothe’s submission amounts to this: (i) she made specific references to the fact that she expected counsel to attend the interview in person and the police officer was aware of this expectation; (ii) when she was told that her lawyer was not coming, this information undermined her confidence in her lawyer; and (iii) this statement by her interrogator clearly had a significant impact on her because, after she heard it, she did not ask for an opportunity to speak to her lawyer during the remainder of the interview.

[26] We agree with the Crown that Ms. Rowe-Boothe’s argument is merely speculative. Beyond this speculation, there is no substantial evidence of what she thought about her lawyer or the advice that he might ultimately have given her. The appellant did not testify on the voir dire.

[27] Ms. Rowe-Boothe’s reliance on R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206 is of no assistance. Unlike the police in Burlingham, the police did not deliberately belittle her lawyer with the express goal of undermining her relationship with him, nor did they pressure her into accepting a deal without first giving her a chance to consult with her lawyer.

[28] Importantly, and as the trial judge noted, Ms. Rowe-Boothe had consulted with duty counsel and her own lawyer, the latter once before the interview and once at its commencement. The trial judge concluded that, at all material times, the police acted in good faith and that they never intended to mislead the appellant. At para. 83 of his reasons, he reasonably concluded that being told that her lawyer was not coming did not “enhance the submission that the interview became oppressive and resulted in the accused’s will being overborne.”

[29] The trial judge did not err in concluding that nothing had occurred that would have required the police to facilitate a re-consultation. The trial judge had sufficient evidentiary support for his conclusion that Ms. Rowe-Boothe consciously and deliberately decided to speak to the police and that her statements were voluntary.

DISPOSITION

[30] Ms. Rowe-Boothe has not demonstrated that the trial judge made any reviewable error in respect of either of his rulings on the voluntariness of her statements. First, the trial judge reasonably decided, based on an objective view of all of the circumstances, that her statements during the telephone interview were voluntary. Second, the trial judge did not fail to consider adequately the impact on Ms. Rowe-Boothe of the police officer’s assertion that Ms. Rowe-Boothe’s lawyer would be unavailable for the remainder of the interview at the police station. His decisions are fully supported by the evidence and no reason has been demonstrated for interference by this court.

[31] Accordingly, both grounds of Ms. Rowe-Boothe’s appeal are rejected and her appeal is dismissed.

“H.S. LaForme J.A.”

“Paul Rouleau J.A.”

“David Brown J.A.”