COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Joseph, 2020 ONCA 73
DATE: 20200131
DOCKET: C63237
Watt, Miller and Fairburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Phillip Joseph
Appellant
Najma Jamaldin, for the appellant
John A. Neander and Melissa Adams, for the respondent
Heard: September 9, 2019
On appeal from the conviction entered on October 16, 2015, and the sentence imposed on May 10, 2016, by Justice Michael Code of the Superior Court of Justice, sitting with a jury, with reasons reported at 2016 ONSC 3061.
Fairburn J.A.:
OVERVIEW
[1] During the evening of March 4, 2013, Michael Cocomello-Mandino told his mother that he was going to buy some TTC tokens. Fifteen minutes later, Mr. Cocomello-Mandino’s mother found her son bleeding to death outside of their home. Mr. Cocomello-Mandino told his mother that “Illi” had stabbed him and that some “punks” had been involved.
[2] There is no dispute that the appellant stabbed the deceased to death. The appellant testified that he acted in self-defence. He said that he met the deceased to address a situation arising from an earlier drug transaction. The appellant testified that the deceased was under the impression that the appellant had paid him with a counterfeit bill. The appellant said that when they met, the deceased pulled a knife on him. He managed to disarm the deceased and pull him to the ground, but that the deceased got on top of him and started choking him. The appellant testified that, just before he was about to lose consciousness, he was able to retrieve the knife that was located on the ground, somewhere around his head, and stab the deceased several times in order to get the deceased off of him. He then got in his car and left the scene.
[3] The deceased was stabbed 17 times in total, with 9 wounds to his abdomen, the fatal wound penetrating 9 cm into his chest cavity. The appellant also stabbed the deceased 5 times in his back, 2 times in his left thigh, and once in the area around his eye. The shape of the wound beside the deceased’s eye suggested that it may have been made by twisting the knife on his face.
[4] While the appellant said that the entire incident occurred on the roadway, the Crown alleged that the stabbing took place in a motor vehicle close to the deceased’s home. The Crown maintained that there was a third person involved in the incident, someone who held the deceased while the appellant stabbed him. That theory was supported by the fact that the deceased’s body showed no signs of defensive wounds and that he told his mother that “punks” had stabbed him. As well, a witness who was walking close to the deceased’s home heard screaming coming from a car and then saw a young man crawl through the window. She reported that at least two men remained in the car. Within a very short time, that same witness saw the deceased’s mother comforting her dying son.
[5] The Crown alleged that this was a first degree murder for two reasons: (a) planning and deliberation (s. 231(2) of the Criminal Code, R.S.C., 1985, c. C-46); and (b) unlawful confinement (s. 231(5)(e) of the Criminal Code). The defence claimed that the appellant acted in self-defence when the deceased confronted him with a knife on the roadway.
[6] The jury returned a verdict of second degree murder, meaning that the jury was not satisfied beyond a reasonable doubt that the appellant had either planned and deliberated upon the murder, or that the death had been caused while committing an unlawful confinement. The conviction also demonstrated that the jury was satisfied beyond a reasonable doubt that the appellant had not acted in self-defence.
[7] Given that the appellant was 17 years old at the time of the murder, the sentencing provisions under the Youth Criminal Justice Act, S.C. 2002, c. 1, (YCJA) applied. A lengthy sentencing proceeding took place. The primary focus at the hearing was whether the appellant should receive a youth or adult sentence. Ultimately, the sentencing judge imposed an adult sentence of life imprisonment with parole eligibility after seven years: Criminal Code, s. 745.1(c). That sentence was ordered to be served in a provincial reformatory, with specific recommendations about the location for classification.
[8] This is an appeal from both conviction and sentence. The conviction appeal rests on three alleged errors made by the trial judge. The appellant contends that the trial judge erred in:
(1) admitting the appellant’s statement, given to the police a couple of days following the murder;
(2) excluding pictures taken from the deceased’s phone that the defence wished to elicit; and
(3) instructions he gave the jury about the use of other evidence which showed bad character on the part of the deceased.
[9] The sentence appeal rests on a claim that the trial judge erred in imposing an adult sentence. Fresh evidence has been filed to support that claim.
[10] I would dismiss both the conviction and sentence appeals.
ANALYSIS
A. Conviction Appeal
(1) The Appellant’s Statement Was Admissible
(a) Overview
[11] The 911 call reporting the stabbing was received at 9:18 p.m. on March 4, 2013. By 3:48 a.m. the next day, the police had obtained the deceased’s phone records and identified the phone numbers that he had been in contact with in the two hours before he was killed. Among others, the deceased’s phone had been in contact with a phone that was registered to the appellant’s mother. The deceased’s phone and the phone registered to the appellant’s mother had exchanged 29 text messages and connected on 4 calls in the time leading up to when the deceased was killed. The police did not know the content of those text messages until much later.
[12] The police attended at the appellant’s mother’s home address the next day, still well less than 48 hours since the homicide. They spoke with the appellant’s mother, told her that they were investigating a homicide, and inquired about the phone. The appellant’s mother confirmed that the phone number was registered to her. She also told the police that her son, the appellant, was not at home. The police left a business card and asked the mother to have her son contact them. The police then proceeded to another address that corresponded to a different number with which the deceased’s phone had been in contact on the day of the homicide.
[13] Shortly after they had left the appellant’s home, the officers got a call from the appellant. They asked him to come into the police station to speak with them and he agreed to do so. Not long after that discussion, the then 17-year-old appellant, who would turn eighteen less than three months later, arrived at the police station with his mother. While the record does not reveal how the appellant got to the police station, it is clear that it was without police assistance.
[14] An officer met the appellant and his mother at the station and told the appellant that they were investigating a homicide and that they would like to speak with him about any information he may have. The appellant agreed to do so. His mother was present.
[15] The interview lasted 26 minutes. During that time, the police made numerous inquiries, including about whether the appellant knew the deceased, what he knew about the deceased, if he knew whether the deceased had a girlfriend, who the deceased hung out with, whether he knew anyone by the name of “Elliott”, and whether he knew whether the deceased was part of a gang.
[16] In addition, the police asked about the nature of the appellant and deceased’s relationship and when they had last had contact. While the appellant admitted that he had communicated with the deceased on March 4, 2013, and admitted to somewhere in the range of about four phone calls with the deceased, he vastly understated the number of text messages they had shared and the timing of those messages, particularly the ones closer to the time of the homicide.
[17] The appellant objected to the admission of the statement on two bases: (a) the police failed to comply with s. 146(2) of the YCJA, a provision governing the admissibility of statements from young persons in certain defined situations; and (b) the statement was involuntary. The appellant maintains that the trial judge erred in how he analysed both of those issues.
[18] I agree with the trial judge’s conclusion that the statements were admissible. I will first address the s. 146(2) YCJA issue and then move on to the voluntariness issue.
(b) Section 146(2) of the YCJA Does Not Apply
[19] The YCJA applies to young persons who are twelve years old or older, but less than eighteen years old: YCJA, s. 2. The appellant was 17 years old at the time that he gave his statement, bringing him within the statutory definition of a “young person”. Accordingly, the YCJA applies.
[20] The YCJA supplements the common law relating to the admissibility of statements of young persons: YCJA, s. 146(1). In defined circumstances, s. 146(2) provides numerous additional protections, beyond those provided at common law, to young persons giving written or oral statements to persons in authority. The provision responds to and cares for the accepted vulnerabilities of young persons. As Cory J. observed in R. v. J.(J.T.), 1990 CanLII 85 (SCC), [1990] 2 S.C.R. 755, at p. 767, when addressing the precursor to s. 146(2), (s. 56 of the Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110): “[i]t was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure.”
[21] Section 146(2) makes a young person’s statement presumptively inadmissible unless the Crown dislodges that presumption: R. v. N.B., 2018 ONCA 556, 362 C.C.C. (3d) 302, at para. 86. To this end, the provision has been described as an admissibility rule that is “exclusionary by nature, but inclusionary by exception”: R. v. M.D., 2012 ONCA 841, 293 C.C.C. (3d) 79, at para. 44. It places the onus on the Crown to demonstrate beyond a reasonable doubt one of two things: (a) why the provision does not apply; or, (b) if the provision applies, that its statutory requirements were met.
[22] There are three statutory prerequisites to the operation of s. 146(2): (a) the youth is arrested; (b) the youth is detained; or (c) the “peace officer or other person has reasonable grounds for believing that the young person has committed an offence”.
[23] This case is not about whether the statutory criteria within s. 146(2) were met. Many of them were not. Rather, the case is about whether the statutory prerequisites to the operation of s. 146(2) were present such that the police were statutorily obliged to meet the criteria within that provision.
[24] The appellant was not under arrest at the time that he gave his statement to the police. Accordingly, the first statutory prerequisite was not met. The appellant argues, though, that the other two prerequisites were operative, namely that, at the time that the statement was taken: (a) there were “reasonable grounds for believing that [the appellant had] committed an offence”; and (b) the appellant was detained. I disagree.
(i) There were no reasonable grounds to believe the appellant had committed an offence
[25] The trial judge concluded that the standard of “reasonable grounds for believing that the young person has committed an offence” in s. 146(2) of the YCJA is tantamount to the s. 495(1)(a) Criminal Code threshold for arrest without warrant. He ruled that the threshold test is one of “reasonable and probable grounds” to believe the appellant had committed the homicide or was “likely guilty”. He specifically rejected that “reasonable suspicion” or “possible guilt” would trigger the operation of s. 146(2).
[26] The trial judge considered the evidence available to the police at the time that the interview took place and concluded that it did not meet the requisite threshold. At the time of the interview, the only information connecting the appellant to the deceased were phone records which revealed a good deal of contact between them on the day of the homicide, up to and including just before the killing. The trial judge concluded that the telephone contact alone did not give rise to reasonable grounds to believe that the appellant was involved in the homicide. While the information suggested that the appellant may have had relevant information about the deceased’s whereabouts, activities and plans in the time shortly before he was killed, the trial judge concluded that, standing on its own, the telephone contact did not even amount to a reasonable suspicion that the appellant was the perpetrator of the offence.
[27] The appellant argues that the trial judge erred by relying on the subjective belief of the police that they did not have sufficient grounds to arrest the appellant at the time they conducted the interview. I do not accept this characterization of the trial judge’s reasons.
[28] I agree with the trial judge that the reference to “reasonable grounds for believing that the young person has committed an offence” in s. 146(2) is synonymous with the threshold test for arrest without warrant: R. v. T.(M.), 2009 CarswellOnt 8490 (S.C.), at paras. 53-55, aff’d 2014 ONCA 153, 306 C.C.C. (3d) 171, at paras. 18-20.
[29] The s. 495(1)(a) threshold test for arrest without warrant is time worn and well understood. The officer must have a subjective belief that the individual committed (or is about to commit) an indictable offence and that belief must be objectively reasonable in the circumstances: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51. In other words, the circumstances known to the police at the time of the arrest must be capable of permitting a reasonable person, “standing in the shoes of the police officer”, to believe that grounds for arrest exist: Storrey, at p. 250; R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 50, leave to appeal refused, [2015] S.C.C.A. No. 37.
[30] The police did not subjectively believe that they had grounds to arrest the appellant either when he arrived for or left the interview. The evidence about the officers’ subjective states of mind, though, did not drive the result in this case. Rather, the trial judge correctly focused on the facts that would have objectively supported a belief that the appellant was arrestable at the time of the interview. Necessarily, those facts needed to be known by the police at the time that the interview took place and not at some later point in time.
[31] The trial judge’s analysis was almost entirely informed by the objective reality of the situation as known by the officers less than 48 hours after the deceased had been killed. While the case against the appellant undoubtedly strengthened over time, including the discovery of the appellant’s and deceased’s DNA on a hat found close to the scene of the murder, the DNA results were not known at the time of the interview. I agree with the trial judge that at that time, there were simply insufficient grounds to believe that the appellant had “committed an offence” within the meaning of s. 146(2) of the YCJA.
[32] To use police parlance, while the phone contact made the appellant a “person of interest” to them, it did not make him arrestable. There could have been any number of reasons why the appellant had contact with the deceased on the day of the homicide, many of which would not point toward him being a party to the homicide. While there was much to trigger a police desire to speak with the appellant (and, for that matter, the other individual who had clearly been in contact with the deceased’s phone on the day of the homicide), the phone contact alone did not furnish grounds to believe the appellant was culpable in the homicide. Phone contact – the content of which is unknown – with a person who is killed shortly after will undoubtedly attract police attention. Standing on its own, though, that contact does not give rise to a reasonable belief that the communicator killed the other person.
[33] Accordingly, this was not a basis upon which to trigger the operation of s. 146(2).
(ii) The appellant was not detained
[34] The appellant also maintains that he was psychologically detained at the time of the interview and that the trial judge erred in failing to appreciate that fact. Importantly, the defence at the admissibility voir dire did not vigorously advance this theory. In fact, as properly noted by the trial judge, the “main argument on the voir dire concerned whether the police had ‘reasonable grounds’.” Even so, the trial judge addressed the issue of detention. In fairness, the alleged shortcomings in the reasoning process should be reviewed within that context.
[35] The trial judge is said to have erred when he applied the standard test for determining whether someone is psychologically detained: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. The appellant argues that when applying the test for psychological detention under s. 146(2) of the YCJA, courts must take into account the unique vulnerabilities of young people. According to the appellant, this is a more robust test for detention than exists outside of the YCJA context.
[36] I do not accept this submission. There is no special test to be applied when determining whether a young person is detained under the YCJA.
[37] Detention refers to a “suspension of the individual’s liberty interest by significant physical or psychological restraint”: Grant, at para. 44. Psychological detentions can develop where there is a legal obligation to comply with a request or demand, or from circumstances where a reasonable person would conclude that they have no choice but to comply: Grant, at paras. 30, 44.
[38] The sole question was whether the appellant was psychologically detained in the sense that he reasonably believed that he had been deprived by the police of any choice but to speak with them at the police station. In determining the answer to that question, the trial judge correctly relied on the test for psychological detention set out in Grant, at para. 44. Notably, that test requires that the individual circumstances of the alleged detainee, including the age of the detainee, be taken into account in assessing whether she or he was detained:
To determine whether a reasonable person in the individual’s circumstances would conclude that he or she has 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 …
(b) The nature of the police conduct …
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [Emphasis added.]
[39] This test for psychological detention already accounts for the alleged detainee’s specific individual circumstances, including her or his age. The test allows for the appellant’s youth to be taken into account when determining whether the youth perceived that he or she had no choice but to comply. Indeed, Mr. Grant’s “youth and inexperience” were specifically adverted to when determining that he was detained: Grant, at para. 50. That test for detention is directly transferrable to the s. 146(2) YCJA context: R. v. Todorovic, 2014 ONCA 153, 306 C.C.C. (3d) 171, at para. 12; N.B., at para. 112.
[40] Approaching the test for detention differently in the s. 146(2) YCJA context would create unnecessary confusion in the law and inject uncertainty into on-the-ground policing. I see no reason why the Grant test for detention, one that specifically accounts for the age of the alleged detainee, is not equally appropriate in the YCJA context. Nothing more is required.
[41] Having properly articulated the law of psychological detention, and quoting the exact passage from Grant, at para. 44, set out above, the trial judge went on to explain his conclusion that the appellant was not psychologically detained. In doing so, he made numerous factual findings that are owed deference by this court: Grant, at para. 43. Among other things, the trial judge highlighted the following findings of fact in determining that there was no detention:
• the appellant called the police of his own free will;
• the appellant attended at the police station of his own free will and left after the interview of his own free will;
• the appellant had his mother in attendance with him the whole time;
• the police questioning was entirely exploratory and of a general nature; and
• when he inquired, the appellant was specifically told he did not have to answer specific questions and decided not to answer a question.
[42] In addition to these facts, I would add the following observations. While the appellant was young, he was almost eighteen years of age. Contrary to the finding in Grant, at para. 50, there was nothing inherently intimidating about the interview process. Indeed, at one point the appellant took charge of the interview and told the officers to “skip” a certain line of questioning that he did not wish to answer. The interview was not adversarial in nature. While the interview room door was closed, there is no suggestion it was locked. The video recording that the trial judge viewed demonstrates a polite environment, where the police clearly informed the appellant that he did not have to answer any questions if he did not wish to do so. Although unnecessary, the appellant was repeatedly told he could speak with a lawyer if he wished to do so, but he chose not to do so.
[43] None of this suggests the conduct of a person who believed he had no choice but to comply.
(iii) Conclusion on YCJA
[44] The trial judge’s approach to s. 146(2) of the YCJA was sound. At the time of the interview, there were no reasonable grounds for believing that the appellant had killed the deceased. Nor was he detained. Accordingly, the prerequisites for triggering the operation of s. 146(2) of the YCJA were not present and, therefore, the police did not have to comply with the statutory requirements of the provision.
(c) The Statement was Voluntary
[45] The trial judge concluded that the appellant’s statement was voluntary. He found that there was nothing that could constitute an inducement that would have overborne the appellant’s will. Nor was there anything in the interview to suggest an atmosphere of oppression, a lack of an operating mind, or any trickery involved in the taking of the statement.
[46] The trial judge further concluded that the fact that the appellant was not given a caution about the right to counsel or the right to remain silent mattered not.[^1] As the appellant was not detained or under arrest, the trial judge found that the police were under no obligation to afford those cautions.
[47] The appellant argues that the trial judge erred in concluding that his statement was voluntary. The primary focus of the appellant’s argument rests on the suggestion that, at a minimum, the appellant was a suspect at the time that the interview commenced and certainly by the end of the interview. In light of his status as a “suspect”, the appellant contends that the police were under an obligation to caution him about his right to silence and right to counsel. He also maintains that the trial judge erred in concluding that there were no improper inducements made by the police.
[48] I do not accept these arguments.
(i) There is no requirement to caution a suspect who is not detained or arrested
[49] I disagree with the proposition that the police are obliged to caution a suspect, simply because he or she is a suspect, and that the failure to do so will render a statement involuntary.
[50] Section 10(b) of the Canadian Charter of Rights and Freedoms requires that an accused be informed of the right to counsel at the time of arrest or detention: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 20. Moreover, the residual constitutional protection afforded to the right to silence under s. 7 of the Charter also only arises after detention, when the superior power of the state is imposed upon the individual: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 184.
[51] For the reasons already discussed, the appellant was neither detained nor arrested at the time of the interview. Accordingly, even if he was a suspect at the time of the interview, a characterization that the trial judge specifically rejected, the police were under no constitutional obligation to caution him.
[52] The appellant says, though, that even if the caution were not constitutionally required, the failure to caution him rendered his statement involuntary under the common law confessions rule because he did not know that he could refuse to speak with the police.
[53] I reject the proposition that involuntariness flows directly from the absence of a caution, even where the interviewee is a youth.
[54] The appellant points to R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 31-32, in support of the suggestion that a caution must be given to a suspect. I do not read the passages in Singh the same way. Charron J.’s comments about the actual requirement for a caution are clearly made in the context of detention. For instance, she says:
After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position.… The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. [Emphasis added.]
[55] While Charron J. goes on to quote from a text, suggesting that a caution should be given when there are reasonable grounds to suspect that the person has committed an offence, this is described by Charron J. as nothing more than sound advice: Singh, at paras. 32-33, citing René J. Marin, Admissibility of Statements, loose-leaf (2006-Rel. 11), 9th ed. (Aurora: Canada Law Book, 1996), at pp. 2-24.2-24.3. In other words, while a caution may assist someone with deciding whether to speak with the police, and therefore may inform a voluntariness analysis, the absence of a caution is only a factor to consider in determining the voluntariness of a statement. It is not a prerequisite to the voluntariness of that statement: R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227, at para. 88, leave to appeal refused, [2011] S.C.C.A. No. 455; R. v. Pearson, 2017 ONCA 389, 348 C.C.C. (3d) 277, at para. 19, leave to appeal refused, [2017] S.C.C.A. No. 465.
[56] As the appellant was neither detained, nor arrested, I agree with the trial judge that his statement was not rendered involuntary through the lack of a caution.
[57] The question was whether, based on the factors set out in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Crown met its burden of establishing voluntariness beyond a reasonable doubt. The trial judge’s ruling clearly identifies the relevant legal principles and explained why he found the statement voluntary.
[58] While there was no s. 10(b) Charter compliant caution, the appellant was repeatedly told that he could speak with a lawyer if he wished to do so. He was also told that he did not have to answer questions if he did not wish to do so. These factors informed the voluntariness of the statement.
[59] The appellant argues that the trial judge erroneously rejected the submission that he was improperly induced to give his statement. He argues that there were two such inducements, underlined in the following passage:
Appellant: Uh, this is a – is this a statement I’m making? … me being a witness?
Officer: You could – you could be a witness to something. It all depends on what you tell me today.
Appellant: All right.
Officer: You’re okay with that?
Officer: Okay and you understand the importance of telling the truth right?
Officer: Right and you know like you can’t lie to me? This is your one opportunity to tell the truth?
Officer: And you understand that it’s against the law to make a false statement to the police?
Appellant: Yeah. [Emphasis added.]
[60] I disagree that these police comments constituted inducements, let alone inducements rising to the level of something that could render the appellant’s statement involuntary.
[61] The first impugned statement – that depending on what he said, the appellant could be a witness – relates to an inquiry that was initiated by the appellant, not the police. In any event, it was an honest answer to the appellant’s question about whether he was a witness. At that stage, the police did not know whether he was a witness to something or not. As the officer said, it would depend on what he told the police. The second impugned statement – that it was the appellant’s one chance to tell the truth – could have been phrased better, but was made in the context of the officer informing the appellant that it is an offence to lie to the police.
[62] Even if these police statements could be viewed as inducements, they were not improper in nature. There is nothing wrong with offering an interviewee an inducement to speak: Oickle, at para. 57. The voluntariness of a statement is not thrown into doubt simply because an accused is encouraged to speak, including through inducements. The question is whether such inducements cause the interviewee’s will to be overborne: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 18-19; Oickle, at para. 57. It is the “strength of the inducement”, the threat or promise – informed by all of the circumstances, that informs whether the will of the accused is overborne: Spencer, at para. 15; R. v. M.S.M., 2014 ONCA 441, at para. 9; Oickle, at paras. 47, 57.
[63] As reviewed previously, the interaction between the police and the appellant in this case demonstrates that the appellant’s will was never overborne. Even if the impugned police comments could be construed as inducements as the appellant suggests, he was in full control throughout the interview. This was clearly displayed at one point in the interview when the appellant queried whether he had to answer a particular question. He had already been told that he could not be forced to say anything. The police reinforced this fact, assuring the appellant that he did not have to answer anything he did not wish to answer. The appellant then told the police to “skip” that question. As noted by the trial judge, this is not the behaviour of someone whose will has been overcome.
[64] Finally, the appellant argues that the police misled the appellant about the purpose of the recording because he was told that the videotape would be for police “records only”. That comment must be set in its proper context. It only came up when the appellant’s mother expressed concern that the video would make its way onto television and she did not want her “face to go on T.V.”. It was in response to that expression of concern by the mother that the officer said that the videotape was for police records only. She was also told that this was the way that the “Toronto Police do their interviews” and that they wished to have a “true version of a statement” so that there are no “questions down the road.”
[65] I do not agree that the police misled the appellant about the purposes to which the recording could be put. The appellant was told shortly afterwards that he may be a witness in this matter, although it would all depend on what he had to say. Accordingly, at a minimum, he knew that the statement could be relevant to a criminal proceeding and that it was being recorded for accuracy so that there was no question as to what he said down the road.
[66] Moreover, it is difficult to conceive of this impugned statement as an inducement to speak. Like the above impugned passages, there was no quid pro quo, let alone an overcoming of the appellant’s will. There is no suggestion that the comment constitutes a police trick that would undermine the integrity of the criminal justice system: Oickle, at para. 65.
[67] The statement was voluntary.
(2) The Exclusion of Pictures from the Deceased’s Phone
[68] As part of the pre-trial applications, the appellant sought to elicit evidence from the deceased’s phone that he argued would substantiate his position that he acted in self-defence. There were a handful of digital photos contained on the memory card within the deceased’s phone that showed unknown individuals holding guns and currency and one where a person was pointing his finger like a gun. There were also photos of large amounts of money, what appeared to be marijuana, firearms, and knives. There were also a few images of slogans, including “Karma has no deadline” and “Money is the motive”.
[69] The appellant argued that the images would show that the deceased was the aggressor in the altercation that led to his death, which would in turn support the appellant’s claim of self-defence. At the least, the images would have shown that the deceased had a habit of carrying a weapon and was armed on the night in question.
[70] The trial judge dismissed the application. The appellant argues that the trial judge erred when he concluded that the photos had minimal probative value because they did not involve specific acts of violence by the appellant, they were remote in the sense that they were stored on the memory card long before the deceased was killed, and their admission would result in prejudice to the trial process.
[71] I find no error in the trial judge’s conclusions.
[72] The trial judge correctly reviewed the law. His decision to exclude the evidence is a discretionary one and is entitled to deference by this court: R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at paras. 54-55.
[73] It is important to recall that at the core of a Scopelliti application lies an inquiry into previous acts of violence by a deceased that show his or her disposition for violence: R. v. Scopelliti (1982), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.), at p. 535. While Martin J.A. observed in Scopelliti, at p. 537, that “previous specific acts of violence by a third person which have significant probative value to prove a disposition for violence are admissible where such disposition is relevant”, there were no prior acts of violence asserted here. The trial judge did not err in pointing out the fact that the pictures on the memory card did not involve the deceased. Nor did he err in pointing out that many of the photos were quite dated and of uncertain origin. These factors informed the degree of probity of the evidence.
[74] The trial judge performed a careful weighing exercise. He concluded that the images had little probative value because, among other things, a good portion of them were of guns, while the weapon in this case was a knife. He reasonably concluded that the photos of guns could inflame the jury. Moreover, he concluded that the money and marijuana images were redundant, given that it was not in dispute that the deceased was trafficking in marijuana.
[75] The trial judge was properly concerned with the prejudice to the trial that may arise from the admission of this evidence.
[76] Moreover, the Crown had signalled that, if the defence evidence was admissible, the Crown would seek the admission of evidence underscoring the appellant’s disposition, including the fact that a knife was found in the appellant’s bedroom and his possible connection to a street gang. The Crown was also proposing to call an expert witness to explain the significance of some of that evidence. The trial judge found that admitting the evidence from the deceased’s phone would protract the proceedings and lead to a lengthy and only marginally relevant duelling of dispositions.
[77] It was the trial judge’s obligation to manage the trial and keep it focused on the relevant issues for determination. Having considered all relevant circumstances within the context of the trial and the live issues to be determined, he decided that the probative value of the defence evidence was outstripped by the prejudice it would cause. It was open to the trial judge to come to this determination and I would defer to his assessment in that regard.
(3) The Instructions to the Jury on Bad Character Evidence
[78] The appellant maintains that the trial judge erred when he instructed the jury on bad character evidence. While the appellant acknowledges that the trial judge correctly instructed the jury to avoid propensity reasoning as it related to him, he suggests that the trial judge incorrectly placed him and the deceased as “equivalent[s]” when it came to that instruction.
[79] The impugned instruction, placed within its proper context, follows. After instructing the jury to “steel” themselves against reasoning that, because the appellant has engaged in various bad conduct, he is the kind of person who would commit murder, the trial judge addressed the evidence about the deceased:
It would also be improper to use this evidence to infer that [the deceased] was a drug dealer and a person of general bad character and therefore that he got what he deserved. So, don’t use it against the deceased either, that because he’s a bad person, he got what he deserved
This kind of reasoning is equally improper and prohibited and it would deny [the deceased] the protection of the rule of law. You can’t treat [the deceased] as simply collateral damage in the drug trade …
[Y]ou must be disciplined and use this body of evidence about drug deals and about counterfeit money for its legitimately relevant purposes, that is, in relation to the issues of motive, identity, and self-defence, which is why the parties put it in evidence and why they rely on it. You cannot use it to infer general bad character and therefore guilt against the accused or to infer general bad character and therefore some theory of just desserts against the deceased.
[80] I see no error in this instruction. It was right. It was designed to bring home to the jury that they could not engage in improper propensity reasoning about the appellant’s guilt and, despite what they may have thought about the deceased’s lifestyle, that it was not a “defence to a murder charge to show that the deceased’s demise was a civic improvement”: R. v. Varga (2001), 2001 CanLII 8610 (ON CA), 159 C.C.C. (3d) 502 (Ont. C.A.), at para. 71, leave to appeal refused, [2002] S.C.C.A. No. 278.
[81] If the appellant’s complaint is about what the trial judge did not say, the argument is equally flawed from a contextual perspective. There is no chance that the jury would have misunderstood what they were being asked to do with the evidence demonstrating the deceased’s drug-related activities. Those precise activities were what brought the deceased and appellant together on that fateful night. This was a central part of both the Crown and defence case.
[82] Moreover, if the trial judge had highlighted for the jury that they could consider the deceased’s character flaws in determining whether he was more likely to be the aggressor, it could have worked a disservice to the appellant. After all, those same character flaws were shared by the appellant.
[83] The trial judge specifically drew counsel’s attention to this very instruction that is now impugned on appeal. Counsel objected to much in the jury charge but did not object to this particular instruction. While a failure to object is not dispositive of a ground of appeal, the failure to do so will often provide insight into the strength of the complaint on appeal. Counsel in this case were best positioned to understand the instruction in the context of the case. The absence of any objection to the charge on this point is evidence that the defence thought that an instruction on this point may not have inured to the appellant’s benefit: R. v. Calnen, 2019 SCC 6, 430 D.L.R. (4th) 471, at paras. 38-41.
B. Sentence Appeal
[84] The Crown made an application to have the appellant sentenced as an adult: YCJA, s. 64(1). Therefore, the main issue on the sentencing hearing was whether the appellant – who was fewer than three months shy of his eighteenth birthday at the time he committed the murder – should receive an adult or youth sentence. If sentenced as an adult, he would be subject to a mandatory life sentence with parole eligibility after seven years: Criminal Code, s. 745.1(c). If sentenced as a youth, he would be subject to a sentence not to exceed a total of seven years, of which a maximum of four years would be served in custody from the date of committal, with the balance to be served under conditional supervision in the community: YCJA, ss. 42(2)(q)(ii), 42(2)(r)(iii). The only difference between sentences imposed under those two YCJA provisions is that a sentence given under s. 42(2)(r)(iii) of the YCJA includes an intensive rehabilitative custody and supervision (IRCS) order.
[85] At the time of sentencing, the appellant had already been in custody for over two years and eight months. Parole eligibility would run from the date he first entered custody: Criminal Code, s. 746(a). Therefore, under an adult sentence, the appellant would be parole eligible after four years and four months. He would then remain under the control and supervision of the parole board for life. If given a youth sentence, provided that no credit was given for pre-sentence custody, the appellant would have received four years in custody and then three years under conditional supervision in the community.[^2]
[86] The sentencing hearing was initially delayed because a pre-sentence report (“PSR”) suggested that the appellant has mental health issues. Therefore, the trial judge ordered a s. 34 YCJA assessment to assist with determining the correct disposition. When the report was returned to the court, it became clear that the appellant had provided the psychologist with a version of events that was inconsistent with aspects of the jury’s verdict. The trial judge then released a ruling setting out facts essential to the jury’s verdict and facts as found by the trial judge beyond a reasonable doubt. That ruling was then provided to the psychologist who had prepared the initial s. 34 report. She met with the appellant again, explored those facts with him and then provided an addendum to her initial report.
[87] In addition, because the s. 34 report and a PSR suggested that the appellant may have some mental health related issues, an IRCS report was prepared to assist the court with making a determination as to whether an IRCS order should be made pursuant to s. 42(2)(r)(iii) of the YCJA, having regard to the statutory criteria set out in s. 42(7). Ultimately, the authors of the PSR, s. 34 and IRCS reports, along with correctional witnesses, testified at the sentencing hearing.
[88] The appellant has been diagnosed with generalized anxiety disorder and major depressive disorder. At the time that he was still in the community, he would also have met the criteria for cannabis use disorder. The trial judge heard evidence that the most effective treatment for these disorders would be a combination of psychotherapy and medications.
[89] The trial judge concluded that, even if no credit were to be given for pre-sentence custody, the termination of all supervision and control of the appellant at the seven-year mark was not an appropriate disposition as it would provide inadequate protection to the public and would fail to meet the appellant’s rehabilitation and reintegration needs.
[90] Accordingly, the trial judge imposed a life sentence with no parole eligibility for seven years: Criminal Code, s. 745.1(c). The sentence was ordered to be served in a provincial reformatory: YCJA, s. 76(1)(b). In light of his mental health difficulties, the trial judge also “recommend[ed]” that the appellant be classified to either the Algoma Treatment and Remand Centre and/or the Ontario Correctional Institute so that he could “receive the intensive treatment and training available at those institutions.”
[91] The appellant raises a number of grounds of appeal relating to his sentence. He ultimately asks this court to convert the adult sentence to a youth one. I would decline to do so.
(1) The Trial Judge Did Not Err in His Findings of Fact
[92] The appellant takes issue with two of the facts as found by the trial judge: (a) that the murder took place in the appellant’s car; and (b) that the appellant was working with an accomplice. The appellant says that his acquittal on first degree murder arising from an unlawful confinement precluded the trial judge from making these findings of fact, given that it is implicit in the jury’s verdict that they had a reasonable doubt on each one.
[93] It is uncontroversial that a sentencing judge is bound by the express and implied factual implications of a jury’s verdict: R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, at p. 523; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17. The trial judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict”: Criminal Code, s. 724(2)(a). Only where factual implications arising from a jury’s verdict are ambiguous, can a sentencing judge make factual findings to fill the void by coming to an independent determination of those relevant facts: Ferguson, at para. 18.
[94] The trial judge understood and applied the law correctly. There is nothing about his findings that the murder occurred in the appellant’s car or with the assistance of an accomplice that stand in express or implied conflict with the jury’s reasonable doubt on unlawful confinement. As he explained, the fact that the murder did not occur “while committing a forcible confinement” in accordance with s. 231(5)(e) of the Criminal Code does not mean that there was no confinement in the vehicle or that someone else was not there assisting with that confinement. The acquittal may simply reflect that the jury was not satisfied beyond a reasonable doubt that the confinement and the killing were distinct criminal acts: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 27-29.
[95] Accordingly, it was open to the trial judge to come to these factual conclusions. He gave detailed reasons for doing so. I would defer to those conclusions.
(2) The Trial Judge Did Not Conduct a “Blended Analysis”
[96] Section 72(1) of the YCJA requires that an adult sentence be imposed where the judge is satisfied that:
(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
[97] The appellant argues that the trial judge erred by blending these two considerations together. By doing so, he is said to have overemphasized the seriousness of the offence and underestimated the fact that young people benefit from a presumption that they are less morally culpable than adults, even when it comes to serious offences.
[98] This court has warned against merging the two inquiries – “the [p]resumption and the issue of accountability” – to avoid the risk that a factor that is only relevant to one of the inquiries could result in a finding in relation to the other: M.W., at paras. 105-7. This does not mean, however, that there are not multiple factors relevant to both stages of the inquiry, such as: “(a) the seriousness and circumstances of the offence; (b) the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background, and previous record of the young person; and (c) any other factors the court considers relevant” (citations omitted): M.W. at para. 105.
[99] The respondent fairly observes that the trial judge did not technically follow the two-step approach this court has encouraged, but stresses that this is an unsurprising fact given that M.W. had not yet been decided. I agree.
[100] Despite the failure to adhere to a strict two-step approach, the trial judge did not improperly blend the s. 72(1) factors. The reasons reflect that he appropriately grappled with each and came to separate and distinct conclusions on both prongs. He found as follows:
Taking all of the above considerations into account, I am satisfied that the Crown has met its s. 72 burden. The combination of [the appellant’s] age, his maturity, and his relatively sophisticated conduct at the time of the offence and after the offence, all convince me that the “presumption of diminished moral blameworthiness” has been rebutted. The combination of the very serious offence, [the appellant’s] major role in that offence, his failure to undertake the recommended course of treatment for his underlying mental disorders in the past 2 1/2 years, and the uncertain length and prognosis for the required period of structured supervision and treatment of those disorders, all convince me that a 7 year “youth sentence” would not be “of sufficient length to hold [the appellant] accountable” for this offence or to achieve his “rehabilitation and reintegration into society.” [Emphasis added.]
[101] I would not accede to this argument. Although the two-step approach was not followed, the trial judge’s reasons evince a careful consideration of each of the s. 72 YCJA factors and the reasons for finding that the Crown had met its burden of establishing each of the relevant statutory criteria.
(3) The Trial Judge Did Not Misapprehend the Functioning of an IRCS Order
[102] The appellant also argues that the trial judge erred in failing to understand the proper “functioning of the IRCS”. In particular, the appellant argues that, where an IRCS order is in place, there is no requirement that the IRCS guarantee resolution of an offender’s mental health issues. Accordingly, the appellant says that the trial judge erred when he concluded that the lack of a precise treatment plan that could meaningfully resolve his mental health issues within seven years precluded a youth sentence.
[103] Had a youth sentence been appropriate, an IRCS order could have been made: s. 42(2)(r)(iii). The criteria for making such an order are enumerated within s. 42(7) of the YCJA, including that the young person suffer from a mental illness, a psychological disorder, or an emotional disturbance: YCJA: s. 42(7)(b). In addition, s. 42(7)(c) requires that before an IRCS order is made, the judge must be satisfied that:
a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence.
[104] The trial judge accepted that the appellant’s mental health conditions played a contributing role in the offence, and that treatment of the disorders would play an indirect role in reducing his risk of reoffending in the future. He exhaustively reviewed the evidence supporting an IRCS order, but came to the determination that the length of the youth sentence, and maximum corresponding period that the appellant would be governed by an IRCS order, was simply too short.
[105] While rehabilitation is an important factor for consideration when sentencing a youth, there are other “important factors that are integral to the accountability inquiry mandated by ss. 72(1)(b) and 38(1) of the YCJA”: R. v. A.O., 2007 ONCA 144, 84 O.R. (3d) 561, at para. 57. As this court noted in M.W., at para. 103, the concept of accountability in the YCJA context is “the equivalent to the adult sentencing principle of retribution”: see also, A.O., at paras. 42-48.
[106] Section 38(1) of the YCJA reads:
The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
[107] Section 38(2) sets out further principles that must be taken into account when imposing a youth sentence. Those principles were reviewed by this court in M.W., at para. 102:
The sentence: i) must not be greater than that imposed on an adult in similar circumstances; (ii) must be similar to sentences imposed on similar young persons in similar circumstances; (iii) must be proportionate to the seriousness of the offence and the degree of responsibility of the young person; (iv) subject to proportionality concerns, must be the least restrictive sentence capable of achieving accountability, the most likely to rehabilitate and reintegrate the young person into society, and promote a sense of responsibility in the young person and acknowledge the harm done to the victims and the community; and (v) subject to proportionality concerns, may serve the objectives of denunciation and specific deterrence.
[108] The trial judge turned his mind to all appropriate sentencing principles, including accountability, proportionality, rehabilitation and reintegration. Having regard to all of the appropriate principles, against the factual backdrop of the offence and the personal circumstances of the appellant, the trial judge came to the conclusion that a finite seven year sentence was simply inadequate to protect the public and hold the appellant to account for the offence.
[109] In coming to that determination, the trial judge relied on a number of factors, including:
• the very serious nature of the offence committed, including the fact that, among the 17 stab wounds, there was a “stellate” cut on the deceased’s face, close to his eye, associated with “twisting the knife in the wound”;
• the principal role played by the appellant in the murder;
• the fact that an accomplice was involved;
• the fact that the appellant had been described as being “mature” and “age appropriate”;
• the fact that the appellant’s mental disorders may have contributed to the commission of the offence, yet the appellant refused to engage in meaningful treatment for those diagnosed disorders;
• the fact that accepting responsibility for his actions and his role in the offence would be an aspect of a successful treatment program according to the author of the s. 34 report, yet the appellant had not accepted that responsibility, leaving the success and duration of any proposed treatment plan uncertain;
• his uncertain prognosis; and
• his conduct while in custody since the offence, including the fact that he had “fashioned a weapon” on one occasion.
[110] These are only some of the factors that led the trial judge to conclude that the Crown had met its s. 72 burden and that a youth sentence would not be sufficient for the protection of the public or for the appellant’s rehabilitation and reintegration into society: Todorovic, at para. 42. I see no error in that approach.
(4) The Trial Judge Did Not Err in How He Approached the Question of Placement
[111] Finally, the appellant argues that the trial judge erred by essentially concluding that he could achieve the effect of an IRCS order through the provincial jail system. I do not read the trial judge’s reasons as supporting that suggestion. As pointed out by the respondent, the trial judge’s reasons clearly demonstrate that he only considered placement in the provincial reformatory system after he had already determined that an adult sentence was appropriate. Upon determining that an adult sentence would be imposed, the trial judge was statutorily obligated to consider the appellant’s placement pursuant to s. 76(1) of the YCJA. There is no error in that approach.
(5) The Fresh Evidence
[112] The appellant asks this court to admit fresh evidence on appeal. That evidence includes an expert report authored by Dr. Jeffrey Wong, a clinical and forensic psychologist, dated September 10, 2018. Dr. Wong’s report is said to update a report prepared by the expert who prepared the s. 34 assessment for the sentencing hearing.
[113] Dr. Wong’s report largely repeats what was said by the author of the s. 34 YCJA report and concludes that an IRCS order is still an appropriate and, in fact, favoured disposition for the appellant over an adult sentence. The appellant points out that Dr. Wong has concluded that the appellant has a low to moderate risk of violence in the future.
[114] In cross-examination, Dr. Wong admitted that he did not have any of the trial judge’s findings of fact when he conducted his assessment. He also acknowledged that he only met with the appellant for about 30 minutes and administered 3 other tests which lasted for 1 hour. He perceived his role as updating the earlier psychologist’s report. He was not concerned with comparing what the appellant testified to at trial with what the appellant had told him during their short interview. Dr. Wong was only interested in the appellant’s current perception of the offence.
[115] Dr. Wong’s sole understanding of the offence came from that report and what the appellant told him. He seemed unaware of the fact that the earlier psychologist’s s. 34 report had not been that psychologist’s final view. Recall that the original report suffered in that it relied upon a set of facts that were inconsistent with the jury’s verdict, causing the trial judge to render a ruling setting out the facts implicit to the verdict and the facts that he found beyond a reasonable doubt. The original psychologist then provided an addendum to her report, one which addressed the actual facts, the appellant’s resistance in accepting those facts, and the psychologist’s acknowledgment that his refusal to do so created concern in terms of his treatment prospects.
[116] Dr. Wong was not aware of any of those facts and, indeed, said that his real concern was with knowing what the appellant had to say. He did not know whether the earlier psychologist’s addendum to her s. 34 report would change his opinion around the appellant’s mental disorders. Importantly, he did not know that the victim had been stabbed 17 times, referred to the victim as the “drug supplier”, thought that the victim had lured the appellant to the scene, and did not know whether there were others present during the murder.
[117] I would not admit Dr. Wong’s affidavit. In the context of this case it lacks cogency: R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 323, at paras. 31-39. The expert report was authored against a factual backdrop that is entirely removed from the factual findings of the jury and trial judge. While relevant, Dr. Wong’s evidence suffers from serious deficiencies which significantly undermine its probity such that it could not reasonably have affected the result at trial: Dudar, at para. 31; R. v. Plein, 2018 ONCA 748, 365 C.C.C. (3d) 437, at para. 63. In any event, and at most, Dr. Wong’s evidence repeats what the trial judge already had available to him under the s. 34 report and its addendum. There is nothing fresh about his report, especially given its reliance on the original s. 34 report.
[118] Nor would I admit the appellant’s affidavit evidence. He claims that he has completed all of the programs available to him and that there is nothing else for him to do. The respondent obtained the appellant’s institutional records demonstrating that he has joined one program and some educational classes but has not completed them. He was also provided with an application to Algoma Treatment Centre in 2016 but did not submit it for over a year. The circumstances of the appellant’s incarceration have no bearing on the sentence appeal given the trial judge’s conclusion that an adult sentence was necessary to hold the appellant accountable for the offence.
[119] There is nothing in either Dr. Wong’s report or the appellant’s affidavit that would reasonably be expected to have affected the result in this case.
CONCLUSION
[120] I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.
Released: “D.W.” January 31, 2020
“Fairburn J.A.”
“I agree. David Watt J.A.”
“I agree. B.W. Miller J.A.”
[^1]: Although the appellant was repeatedly told that he could call a lawyer if he wished to do so, the full informational component of a s. 10(b) caution was not given: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 198.
[^2]: At the time of sentencing, the trial judge noted that there was uncertainty in the law regarding whether pre-sentence custody applied to the custodial portion of a youth sentence. To the extent there was any uncertainty, it has since been clarified by this court in R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1, at para. 78, leave to appeal refused, [2017] S.C.C.A. No. 109. Although pre-sentence detention must be taken into account, the sentencing judge has the discretion not to assign credit for pre-sentence custody when designing an appropriate youth sentence: R. v. D.S., 2008 ONCA 740, 93 O.R. (3d) 211, at para. 26.