WARNING

THIS IS AN
    APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT
    TO:

110. (1)
Subject to this section, no
    person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

111. (1)
Subject to this section, no
    person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138. (1)
Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a)     is
    guilty of an indictable offence and liable to imprisonment for a term not
    exceeding two years; or

(b)     is
    guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. M.D., 2012
    ONCA 841

DATE: 20121130

DOCKET: C48312

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.D. (a young person)

Appellant

Mark C. Halfyard and Lance C. Beechener, for the
    appellant

Emile A. Carrington, for the respondent

Heard:  April 24, 2012

On appeal from the conviction entered by Justice Fern M.
    Weinper of the Ontario Court of Justice, sitting in the Youth Justice Court on
    October 24, 2007.

Watt J.A.:

[1]

M.D., who was 14 years old, spoke to the police twice about a robbery he
    had committed. The first time, one of the officers made notes of what M.D. said
    about the robbery. The second time, about an hour after the first, the
    discussion was videotaped.

[2]

Special rules govern the admissibility of statements made by young
    persons to police officers tendered for admission at the young persons trial.
    Compliance with these rules is essential if the prosecutor seeks to rely on the
    statements to establish the young persons guilt.

[3]

At M.D.s trial, the prosecutor conceded that the first statement recorded
    in a police officers notebook was not admissible. The prosecutor tendered, and
    the judge admitted, the videotaped interview that began about an hour after the
    first statement had concluded.

[4]

M.D. says that the judge was wrong when she admitted the videotaped
    statement because that statement was tainted by its connection to the first
    statement. These reasons explain why I think the judge was wrong to admit the
    videotaped statement and would allow the appeal and order a new trial.

THE BACKGROUND FACTS

[5]

Little need be said about the circumstances of the underlying offence,
    but some detail is essential to an appreciation of the circumstances
    surrounding the police interviews that yielded the statement admitted at trial.

The Robbery

[6]

In the early afternoon of April 15, 2006, two men and a woman left a
    convenience store with their purchases and walked towards their car. Their
    progress was impeded by an older man and a youth.  The older man produced a
    handgun, pointed it at one of the men, then pressed it against the mans neck
    to reinforce his demand for the mans wallet. In the end, the only property
    taken from the victims was a cell phone.

The Identification and Arrest

[7]

In the weeks that followed the robbery, one of the victims reported to
    the police that he had seen the youthful robber around the area in which the
    robbery had occurred. On one occasion, police arrested the wrong man as the
    robber.  The victim could not identify this person in a photo line up. Police
    released the man from custody.

[8]

About three weeks after the robbery, on May 4, 2006, the same victim saw
    the appellant on a mountain bike across the road from a convenience store. A
    police officer arrested the appellant and advised him of his right to counsel.
    The appellants mother arrived shortly after.

[9]

The appellant was taken to the 23 Division police station. There, the
    victim who had called police about seeing the suspect by the convenience store
    identified the appellant as the robber in a show-up procedure.

The First Interview

[10]

The
    appellant was lodged in an interview room at 23 Division after he had been
    booked on the robbery. The investigating officer, who had been summoned to the
    station after the appellants arrest, briefed a colleague about the
    allegations.

[11]

The
    officers entered the interview room where the appellant was seated.  They
    wanted to see whether the appellant wished to say anything to them about the
    robbery, to give his side of the story. The interview room did not have any
    video equipment. The investigating officer, Det. Peacock, would speak to the
    appellant and his colleague, Det. Alkins, would take notes about what was said.

[12]

The
    discussion in the interview room lasted 12 minutes, starting at 9:41 pm.  Det.
    Peacock confirmed the appellants understanding of the reason for his arrest (the
    charge of robbery), his right to counsel, and his right to call anyone. The
    appellant declined to call a lawyer, his mother, or his brother.

[13]

Det.
    Peacock then asked the appellant some questions. The appellant answered.  Det.
    Alkins noted the conversation:

Q.      Do you understand why you are here?

A.      Yeah, I robbed that guy at the store.

Q.      Do you remember the date it was?

A.      Not sure about the date.  I think a few weeks ago.   I
    think a Saturday.

Q.      Do you remember the time?

A.      Not really, I think it was afternoon.

Q.      What did the guys look like that you robbed?

A.      One tall guy, I dealt with the most, a shorter guy, he
    was with --- there was a driver, I think it was a girl.

Q.      Where did the robbery happen?

A.      At the convenience store.

Q.      Who were you with?

A.      I wasnt with him.  I met him.  I didnt know he was  going
    to do it.  I swear.

Q.      What is his name?

A.      I think Kyle Smith.

[
some

questioning about Kyle Smith ensues
]

Q.      Who had the gun?

A.      Kyle did.

Q.      Was it real?

A.      I dont know.  It looked real.

Q.      Tell me what happened.

A.      Went to the plaza to eat, saw Kyle. Kyle said, youre
    going to help me rob these guys. He showed me a gun, not sure if its real. I
    scared. Thats what he said.  Kyle went to this guy with his gun. Kyle went up
    to the guy with his gun and started robbing him, a big guy went to Kyle and I
    said dont touch him twice.

Q.      Do you want to tell us this on video?

A.      Yeah.  Ill tell you everything.

Q.      Before we get going I will read you something.

[14]

On
    the
voir dire
to determine the admissibility the videotaped interview,
    the appellant testified that Det. Peacock slapped him on the face five times
    during the first interview. The slapping started when the appellant denied that
    anyone else had been involved in the robbery or that a gun had been produced.

[15]

Both
    detectives agreed that they had not complied with the requirements of s. 146 of
    the
Youth Criminal Justice Act,
S.C.
    2002, c. 1,
(
YCJA
) when they first spoke to the
    appellant.

The Interlude

[16]

At
    the conclusion of the first interview, the appellant was left alone in the
    interview room for about an hour until the officers escorted him to a second
    room with video recording equipment.

The Second Interview

[17]

The
    second interview, which was videotaped, involved the appellant and the same
    police officers who had participated in the first interview. The second
    interview lasted about an hour.

[18]

Prior
    to any discussions about the circumstances of the offences with which the
    appellant was charged, Det. Peacock explained to the appellant the charges of robbery
    and using an imitation firearm in the commission of an indictable offence. The
    officer told the appellant that if he were found guilty, he could be sent to a
    detention center. Det. Peacock later advised the appellant that he could also
    be sentenced as an adult to a maximum term of imprisonment for life.

[19]

Det.
    Peacock then explained to the appellant that a statement included anything the
    appellant said, did, or wrote during the interview, and confirmed the
    appellants ability to read and to write. The officer advised the appellant
    about the evidentiary use of his statement in later proceedings and apprised
    him of its recording.

[20]

Det.
    Peacock read the secondary caution to the appellant, then explained and
    confirmed the appellants understanding of his several rights including:

·

the right to silence;

·

the right to counsel, including duty counsel;

·

the right to apply for legal aid;

·

the right to speak to a lawyer, parent, adult relative, or
    another appropriate adult and to have them present during the statement; and

·

the right to stop at any time during the making of the statement.

For each right he explained, Det. Peacock asked the
    appellant whether he understood what the officer had said. The appellant
    confirmed his understanding.  Det. Peacock then asked the appellant to explain
    the meaning of each right. The appellant did so.

[21]

After
    concluding the discussion about the appellants rights as a young person
    charged with a criminal offence, Det. Peacock continued:

PEACOCK   -        Since youve been in custody at 23 Division,
    here at 23 Division, youve had the opportunity to speak to your mom on the
    telephone?

[D.]    -                  Yes.

PEACOCK -          Okay  And a short time after that, I came
    in along with this officer here and we talked to you about certain things.

[D.]    -                  Yes.

PEACOCK   -        And at that time you expressed an interest
    in providing a statement, is that correct?

[D.]    -                  Yes.

PEACOCK   -        Okay  And even back then when I asked if
    you wanted to talk to a lawyer at that time you declined as well you didnt
    want to speak to a lawyer, is that correct?

[D.]    -                  Yes.

PEACOCK   -        So what well do now, is I want you to take
    me back, if you dont know the dates with the exact times thats fine.  I want
    you to take me back, and you tell me the story of what happened in your mind on
    that date.

[D.]    -                  Right now?

PEACOCK   -        And then what Ill do is ask you some
    questions afterwards, okay?

The interview continued.

The Positions of Counsel at Trial

[22]

Trial
    counsel for the Crown (who is not counsel on the appeal) sought admission of
    the videotaped interview only, but asked the trial judge to find that what the
    appellant had said during the first interview was voluntary. She contended that
    even if the failure to videotape the interview made its voluntariness and
    accuracy suspect, the evidence of the investigating officers provided a
    sufficient evidentiary basis upon which to make a finding of voluntariness.

[23]

Crown
    counsel at trial submitted that the videotaped interview was voluntary,
    compliant with s. 146 of the
YCJA
, and untainted by the earlier
    interview that was voluntary but not compliant with s. 146.

[24]

Trial
    counsel for the appellant (who is also not counsel on the appeal) contended
    that the first interview was not voluntary. The interview was suspect because
    the police had failed to videotape the interaction even though recording
    equipment was readily available at 23 Division. The appellants evidence about
    Det. Peacocks assault on him also raised a reasonable doubt about
    voluntariness.

[25]

Counsel
    for the appellant at trial urged exclusion of the videotaped interview on the
    basis that it was tainted by what had happened in the first interview. The time
    period between the two interviews was brief. The same officers were involved in
    both interviews. The second was simply a continuation of the first, as is indicated
    by the reference to the initial interview in the second.  The failure to remove
    the taint of the first interview, to make a clean break and begin anew, spelled
    exclusion for the second.

The Ruling of the Trial Judge

[26]

The
    trial judge was satisfied beyond a reasonable doubt that the first statement
    was voluntary. She concluded that the evidence on the
voir dire
rebutted the presumption of involuntariness created by the failure to record
    the interview when recording equipment was readily available. She rejected the
    appellants claims of threatened and actual violence by Det. Peacock. What
    would have rendered the first interview inadmissible, had it been tendered for
    reception, was the failure of investigators to comply with s. 146 of the
YCJA
.

[27]

The
    trial judge examined the relationship between the first and second interview to
    determine the link or nexus between them. She concluded that the videotaped
    interview would have taken place even if the first interview had not occurred.
    Neither the disqualifying factor that rendered the first interview inadmissible
    (non-compliance with s. 146 of the
YCJA
) nor the fact that the first
    statement had been made rendered the videotape interview inadmissible. The
    failure to comply with s. 146 of the
YCJA
, fatal to the admissibility
    of the first statement, exerted no influence on the videotaped interview that
    began with a lengthy discussion and confirmed understanding of the requirements
    of s. 146. The appellant wanted to give his side of the story, an intention
    confirmed by his demeanour during the videotaped interview.

the grounds of appeal

[28]

The
    appellant advances a single ground of appeal. He says that the trial judge was
    wrong to admit the videotaped interview as evidence. The two interviews were so
    closely linked in time and circumstances that the second was merely a
    continuation of the first. The failure to remove the taint of the first from
    the second rendered the second as inadmissible as its predecessor.

Ground #1: The Error in Admitting
    the Videotaped Interview as Evidence

[29]

A
    convenient point of departure for the discussion that follows is a summary of
    the arguments advanced by the parties on appeal.

The Arguments on Appeal

[30]

For
    the appellant, Mr. Halfyard says the derived confessions rule holds that
    subsequent statements of an accused made after an earlier inadmissible
    statement are also inadmissible, provided there is a sufficient connection
    between the statements and a failure to extinguish the taint of the earlier
    from the making of the later. The rule, he submits, originally developed in
    connection with the voluntariness requirement of the confessions rule at common
    law, applies with equivalent vigour where the contaminant is failure to comply
    with the requirements of s. 146(2) of the
YCJA
.

[31]

To
    engage the derived confessions rule in this case, Mr. Halfyard contends,
    requires a temporal or causal connection between the tainting failure in the
    first statement (failure to meet the requirements of s. 146(2) of the
YCJA
)
and the making of the second statement.
    The necessary connection may reside in the continuation of the tainting feature
    in the second statement or the fact that the making of the first statement was
    a substantial factor contributing to the making of the second statement.

[32]

In
    this case, Mr. Halfyard continues, the trial judge erred in her application of
    the derived confessions rule. Here, Mr. Halfyard says, the videotaped interview
    was a continuation of the first interview. Further, the fact that the first
    interview took place was a substantial factor that contributed to the second
    interview. No fresh start intervened to rid the second of the taint of the
    first.

[33]

Mr.
    Halfyard points out that the interviews were only an hour apart. The same
    investigators conducted both and followed the same question and answer
    approach. The first interview ended with a question, do you want to tell us
    this on video?, and the second included a reference to what the appellant had
    said in the first. The subject-matter discussed in both interviews was the
    same, as was the purpose of the interviews. No fresh start eliminated the
    taint, thus the videotaped interview should have been excluded.

[34]

For
    the respondent, Mr. Carrington acknowledges that the application of the derived
    confessions rule is not confined to cases in which the underlying taint is the
    involuntariness of the first statement. Other contaminants include
Charter
violations,
    which are subject to the application of s. 24(2) of the
Charter
, and, as
    here, failure of the first statement to satisfy the demands of s. 146(2) of the
YCJA
.

[35]

Mr.
    Carrington says that the principal focus and essential inquiry under the
    derived confessions rule is the nature and extent of the connection between the
    first and second (or subsequent) statement. Although the derived confessions
    rule may be engaged by either the continued presence of the contaminating
    features in the second statement or by the substantial contribution of the
    first statement to the making of the second, it will generally be easier to
    make out a case for exclusion under the rule when both conditions are present.

[36]

Mr.
    Carrington reminds us that the determination of issues like voluntariness and
    the nature and extent of the connection between the two statements involve
    largely, if not entirely, questions of fact. The findings made by the trial
    judge on both issues are owed substantial deference on appellate review, all
    the more so in the absence of any allegation that the trial judge
    misapprehended the governing principles or the evidence adduced on the
voir

dire
.

[37]

In
    the end, Mr. Carrington says, the trial judge properly concluded that the first
    statement was voluntary, not tainted by a failure to videotape it or by
    improper police conduct. The trial judge properly applied the derived
    confessions rule in deciding to admit the second statement. The tainting
    feature of the first statement was remedied at the outset of the second by a
    full explanation and confirmed understanding of each of the requirements of s.
    146(2) of the
YCJA
.  There was minimal reference to the fact and content
    of the first statement during the second interview and the appellant, despite
    his youth, made it clear that he wanted to provide
his
side of the
    story about the robbery.

The Governing Principles

[38]

The
    parties differ little on the legal principles that are at work in this case.
    They depart common ground, however, on the result the application of those
    principles should yield in this appeal. For discussion purposes, I have
    collected the applicable principles under three headings:

i.        the
    voluntariness issue;

ii.       the
    requirements of s. 146(2) of the
YCJA
; and

iii.      the
    derived confessions rule.

The Voluntariness Issue

[39]

The
    confessions rule is concerned with voluntariness, broadly defined:
R. v.
    Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 32. The application of
    the confessions rule is contextual, requiring a trial judge to take into
    account all relevant circumstances in order to determine whether the
    prosecution has established the voluntariness of the confession beyond a
    reasonable doubt:
Oickle
, at paras. 47, 68, and 71.

[40]

Recording
    police interviews of persons suspected or accused of crime can be of
    inestimable value in assessing their voluntariness at trial. Video recordings
    permit the trial judge to be an ear and eyewitness to the interview tendered
    for admission:
Oickle
, at para. 46. The
Oickle
court was not
    prepared, however, to consider non-recorded interrogations as inherently
    suspect:
Oickle
, at para. 46.

[41]

In
    this province, where a suspect is in custody in a place where recording
    facilities are available and police deliberately set out to interrogate the
    suspect without giving thought to the creation of a reliable record of the
    interview process, the resulting non-recorded statement is inherently suspect:
R.
    v. White
(2003), 176 C.C.C. (3d) 1 (Ont. C.A.), at para.
21;
R. v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at
    paras.
65-67. In these circumstances, the trial judge must decide
    whether there was a suitable substitute for a recording to satisfy the heavy
    onus on the Crown to prove voluntariness beyond a reasonable doubt:
White
,
    at para. 21;
Moore-McFarlane
, at paras. 65-67.

[42]

The
    application of the voluntariness rule to individual cases is contextual:
Oickle
,
    at para. 47;
Moore-McFarlane
, at para. 64. A disagreement with a trial
    judge about the weight to be assigned to individual items of evidence
    constitutes no basis upon which an appellate court can set aside a finding of
    voluntariness:
Oickle
, at para. 22. Trial judges findings of
    voluntariness are entitled to deference here. Interference with those findings
    should only occur where the trial judge has committed legal error in
    determining the test for voluntariness or has made overriding and palpable
    errors of fact:
Moore-McFarlane
, at para. 68.

The Requirements of s. 146(2)
YCJA

[43]

Section
    146(1) of the
YCJA
affirms that the law relating to the admissibility
    of statements made by persons accused of committing offences applies to young
    persons in similar circumstances, but is subject to the provisions of s. 146.

[44]

Section
    146(2) of the
YCJA
enacts an admissibility rule that applies to oral
    and written statements made by a young person under 18 to a peace officer or
    other person in authority on arrest or detention, or where a person in
    authority has reasonable grounds to believe the young person has committed an
    offence.  Like common law admissibility rules, s. 146(2) is exclusionary by
    nature, but inclusionary by exception.

[45]

To
    gain entry by exception to the general rule of exclusion, the oral or written
    statement of the young person to a person in authority must satisfy the
    cumulative requirements of s. 146(2) of the
YCJA
:

146. (2) No oral or written statement made by a young person
    who is less than eighteen years old, to a peace officer or to any other person
    who is, in law, a person in authority, on the arrest or detention of the young
    person or in circumstances where the peace officer or other person has
    reasonable grounds for believing that the young person has committed an offence
    is admissible  against the young person unless

(a)     the statement was voluntary;

(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.

[46]

Several
    features of s. 146(2) warrant examination in the circumstances of this case.

[47]

First,
    the conditions precedent to admissibility that s. 146(2) enacts impose
    correlative duties on peace officers and other persons in authority to whom the
    young person speaks in the circumstances described in the subsection. The
    duties include both informational and implementational obligations.

[48]

Second,
    informational duties are the focal point of s. 146(2)(b). The substance of the
    rights to which the section refers must be communicated to the young person in
    language that is appropriate to the young persons age and understanding. Said
    in another way, the language used must fit its consumer, a young person of
    immature years and qualified understanding.

[49]

Third,
    since the mandatory explanation must be appropriate to the age and
    understanding of the specific young person to whom authorities are speaking,
    reading a standardized form, without more, will not normally be enough to
    establish the sufficiency of the caution:
R. v. L.T.H
., 2008 SCC 49,
    [2008] 2 S.C.R. 739, at para. 27.  It also follows from the requirement that
    the explanation be appropriate to the age and understanding of the specific
    young person concerned that persons in authority will need to acquire some
    insight into the specific young persons level of comprehension:
L.T.H.
,
    at para. 27.

[50]

Fourth,
    the burden falls upon the Crown to prove by clear and convincing evidence that
    the person in authority to whom the statement was made took reasonable steps to
    ensure that the young person understood his or her s. 146
YCJA
rights.
    The standard of proof is proof beyond a reasonable doubt:
L.T.H
., at
    para. 6.

[51]

Fifth,
    where the Crown proves compliance with the informational component beyond a
    reasonable doubt, the trial judge is entitled, indeed expected to infer that
    the young person understood his or her s. 146
YCJA
rights, absent any
    evidence to the contrary:
L.T.H
., at para. 8. The Crown does not have
    to prove that the young person in fact understood the rights and options
    explained under s. 146(2)(b):
L.T.H
., at para. 21. Nor is it necessary
    for persons in authority to ask young persons in every case to read back or
    recite back the rights explained by investigators. That said, this practice
    may go some way to demonstrate that the explanation was at once appropriate and
    sufficient:
L.T.H
., at para. 26.

[52]

Sixth,
    the issue of whether a detained young person has received a clear explanation
    of his or her rights and options and whether he or she has understood those
    rights to the extent necessary for an effective waiver are essentially
    questions of fact. Findings made about the requirements of s. 146, like a
    finding of voluntariness, should only be overturned on appeal for some palpable
    and overriding error that affected the trial judges assessment of the facts:
L.T.H
.,
    at para. 55.

The Derived Confessions Rule

[53]

The
    derived confessions rule is a common law rule that governs the admissibility of
    a confession that has been preceded by an involuntary, thus inadmissible
    confession. The derived confessions rule is not a
per se
or bright
    line rule that excludes all subsequent confessions on the ground that they are
    tainted, irrespective of the degree of their connection to the prior
    inadmissible statement:
R. v. I (L.R.) and T. (E.)
, [1993] 4 S.C.R.
    504, at p. 526; and
R. v. Hobbins
, [1982] 1 S.C.R. 553, at p. 558.

[54]

To
    determine whether a subsequent statement will be excluded under the derived
    confessions rule because of the taint left by its involuntary and thus
    inadmissible predecessor, a trial judge must examine all the relevant
    circumstances to determine the degree of the connection between the two
    statements:
T. (E.)
, at p. 526.  The Supreme Court of Canada has set
    out some of the relevant circumstances or factors to consider in determining
    the degree of connection between the two statements, and thus the influence of
    the antecedent taint: see
T. (E.)
, at p. 526;
Hobbins
, at p.
    558; and
R. v. G. (B.)
, [1999] 2 S.C.R. 475, at para. 21. These
    include but are not limited to:

·

the time span between the statements;

·

advertence to the earlier statement during questioning in the subsequent
    interview;

·

discovery of additional information after completion of the first
    statement;

·

the presence of the same police officers during both interviews;
    and

·

other similarities between the two sets of circumstances.

[55]

The
    application of these factors will render a subsequent statement involuntary if
    either the tainting features that disqualified the first continue to be
    present, or if the fact that the first statement was made was a substantial
    factor that contributed to the making of the second statement:
T. (E.)
,
    at p. 526;
G. (B.)
, at paras. 21 and 23. It will generally be easier
    to establish that tainting affected the first when both these conditions are
    present. In the end, however, what matters most and mandates exclusion is that
    the connection is sufficient for the second to have been contaminated by the
    first:
G. (B.)
, at para. 23.

[56]

The
    inquiry required when the derived confessions rule is invoked to exclude a
    subsequent statement is essentially a causation inquiry that involves a
    consideration of the temporal, contextual, and causal connections between the
    proffered and earlier statements:
R. v. Plaha
(2004), 188 C.C.C. (3d)
    289 (Ont. C.A.), at para. 46. The inquiry is a case-specific factual inquiry:
R.
    v. Simon
, 2008 ONCA 578, 269 O.A.C. 578, at para. 69.

[57]

Despite
    its origins as a common law rule where lack of voluntariness is the
    contaminating factor, the derived confessions rule is of more general
    application.  The contaminating factor may be constitutional infringement, say
    a breach of s. 10(b) of the
Charter
. There, the subsequent
    statement is tainted if the breach and impugned statement can be said to be
    part of the same transaction or course of conduct. The admissibility analysis
    in these cases is performed under s. 24(2) of the
Charter
:
R. v.
    Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21;
Simon
, at
    para. 69; and
Plaha
, at paras. 42-45.

[58]

The
    derived confessions rule may also be engaged where the contaminant in the prior
    statement is a failure to comply with s. 146(2) of the
YCJA
, or its
    predecessor, s. 56 of the
Young Offenders Act
, R.S.C. 1985, c. Y-1, as repealed by
Youth
    Criminal Justice Act
, S.C. 2002, c. 1
:
T. (E.)
, at p. 527;
R. v. S.G.T
., 2010 SCC 20, [2010] 1
    S.C.R. 688, at para. 28.

[59]

To determine whether the derived confessions rule will warrant
    exclusion of a subsequent statement, a trial judge must follow a contextual and
    fact-based approach:
S.G.T
, at para. 29. The nature of the inquiry and
    the findings required in the derived confessions analysis have implications for
    the scope of appellate review. The admissibility of a confession that has been
    preceded by an involuntary (or otherwise) inadmissible confession, in other
    words, the application of the derived confessions rule, involves a factual
    determination based on factors designed to ascertain the degree of connection
    between the two statements:
T. (E.)
, at p. 526. This
    determination, like a determination of whether a statement is voluntary or
    compliant with s. 146(2)
YCJA
,
is largely a question of fact. Appellate review of the judges decision is
    limited to deciding whether the judge erred in her assessment of the evidence,
    failed to consider relevant circumstances, or failed to apply the correct
    principles:
T. (E.)
, at p. 526;
R. v. McIntosh
(1999), 141
    C.C.C. (3d) 97 (Ont. C.A.), at paras.
21-22.

The
Principles

Applied

[60]

I
    would give effect to this ground of appeal because, for reasons that I will
    explain, I am not satisfied that the trial judge properly applied the derived
    confessions rule when she decided to admit the appellants videotaped police
    interview as evidence at trial.

[61]

The
    derived confessions rule is a common law rule that governs the admissibility of
    a confession that has been preceded by an involuntary confession. In more
    general terms, the rule applies where a subsequent statement, sufficiently
    connected to an earlier inadmissible statement, is proposed for admission. The
    parties agree that the rule applies in the circumstances of this case where
    what rendered the prior statement inadmissible was a failure to comply with s.
    146(2) of the
YCJA
.

[62]

In
    this case, counsel for the Crown at trial did not seek to have the first
    statement admitted. The parties agreed that the first statement could not be
    admitted as evidence because of non-compliance with s. 146(2) of the
YCJA
.

[63]

The
    trial Crown sought a finding from the trial judge that the first statement was
    voluntary even though it could not be admitted if tendered because of
    non-compliance with ss. 146(2)(b)-(d) of the
YCJA
. Trial counsel for
    the appellant argued that the statement was involuntary because the
    investigating officer repeatedly assaulted the appellant or that voluntariness
    could not be established beyond a reasonable doubt because the police failed to
    videotape the interview when facilities were available to do so.

[64]

The
    trial judge found that the first statement was voluntary.  She rejected the
    appellants claim of physical abuse and was satisfied that the written record
    of the interview prepared by Det. Alkins was sufficient to permit her to make
    an informed decision on the issue of voluntariness.

[65]

On
    the evidence adduced at the
voir dire
on the voluntariness of the
    first statement, it was open to the trial judge:

i.        to
    reject the evidence of the appellant that he was repeatedly     assaulted by
    Det. Peacock;

ii.       to
    accept the evidence of the investigating officers about why    they did not
    videorecord the first interview with the appellant;

iii.      to
    accept the evidence of the investigating officers about the      completeness
    of Det. Alkins notes of the first interviews;        and

iv.      to
    conclude, on all the evidence adduced on the
voir dire
, that    the
    initial statement, the product of the first interview, was     voluntary.

[66]

The
    voluntariness inquiry and the application of the legal test for voluntariness
    involve a case-specific factual inquiry. In the absence of any error in the
    application of the governing legal principles, error in the assessment of evidence,
    or failure to consider relevant circumstances, the trial judges finding of
    voluntariness is entitled to deference on appellate review:
McIntosh
,
    at para. 21;
Oickle
, at para. 22. No such error or failure appears in
    the trial judges finding of voluntariness.

[67]

At
    trial, the appellant made no attempt to demonstrate that the first interview
    was also tainted by constitutional infringement. On arrest, the appellant was
    told the reasons for his arrest and advised of his s. 10(b)
Charter
rights. He indicated he understood both and did not want to call a lawyer. The
    trial judge concluded, rightly in my view, that the sole tainting factor at
    work in connection with the first interview and the basis on which it would be
    inadmissible, if tendered, was a breach of s. 146(2) of the
YCJA
.

[68]

The
    trial judge correctly described the standard to be applied under the derived
    confessions rule when she considered the admissibility of the videotaped
    interview. She appreciated that the videotaped interview would be inadmissible
    under the derived confessions rule if either the tainting features that
    disqualified the first statement from reception, the failure to comply with s.
    146(2)(b) of the
YCJA
, continued to be present in the second, or if
    the fact the first statement had been made was a substantial factor
    contributing to the making of the second.

[69]

In
    my respectful view, however, for reasons that I will explain, the trial judge
    erred in her application of the governing principles of the derived confessions
    rule in the circumstances of this case.

[70]

When
    Det. Peacock and Det. Alkins first approached the appellant in the interview
    room without video equipment, they claimed to have done so to build a rapport
    with M.D., to find out information about the other suspect and the gun, and to
    see whether M.D. wanted to give his side of the story.

[71]

Det.
    Peacock asked M.D. several questions that elicited admissions from him. The
    youth said that he robbed a guy at a convenience store on a Saturday afternoon
    a few weeks earlier.  He described his role in the robbery and identified the
    person with the gun as Kyle Smith. These experienced police officers knew, or
    should have known, that what M.D. told them amounted to an oral  statement
    within s. 146(2) of the
YCJA
. Further, they knew, or should have
    known, that the oral statement was taken in violation of s. 146(2)(b) of the
YCJA
and would not be admissible if it were tendered at M.D.s trial.

[72]

When
    the videotaped interview began, Det. Peacock attempted to comply with the
    informational component of s. 146(2)(b) of the
YCJA
. This advice
    lasted about 20 minutes and included subjects not expressly required by the
    subsection but relevant to issues of voluntariness and the right to counsel. In
    general terms, the appellants responses to inquiries about his understanding
    of the advice given reflected an appropriate level of comprehension except in
    connection with the secondary caution.

[73]

The
    advice provided by Det. Peacock at the outset of the videotaped interview
    represented at once an attempt to comply with s. 146(2)(b) of the
YCJA
,
    to establish the voluntary nature of the interview, and to cleanse the
    interview of any contaminating effects of the first interview. Nowhere,
    however, did Det. Peacock advise M.D. in the second interview that he should
    not be influenced in his decision whether to speak or to say nothing by the
    fact that he had earlier talked to the officers or by what he had said there:
Plaha
,
    at para. 53. Nor was M.D. told that the prior statement would not be admissible
    against him at his trial: R. v. J. L., [2000] O.J. No. 299 (C.A.), at para. 5.

[74]

In
    my respectful view, the error in this case consisted of a failure to consider
    all the relevant circumstances in the application of the derived confessions
    rule. Taken as a whole, the evidence disclosed that the tainting features that
    disqualified the first statement from admission continued to be present during
    the second and that the fact the first statement had been made was a
    substantial factor that contributed to the making of the second that was little
    more than a continuation of the first.

[75]

The
    first interview concluded with a question from Det. Peacock about whether the
    appellant wanted to tell the police about the robbery on video.  The appellant
    agreed. Immediately after completing his s. 146(2)(b) advice at the start of
    the second interview, Det. Peacock reminded M.D. of his offer and the interview
    proceeded. The same officers conducted both interviews without M.D. having any
    contact with anyone else in the hour that separated the two interviews.

[76]

The
    trial judge does not appear to have considered the effect of Det. Peacocks
    failure to tell M.D. about the inadmissibility of the prior statement at the
    outset, indeed at any time during the second interview. This admission left
    M.D., a 14-year-old grade 9 student, with an incomplete understanding of his
    jeopardy when deciding whether to speak or remain silent. In the circumstances
    of this case, such advice was necessary to dispel the taint associated with the
    first interview.  Its absence cemented the connection between the two
    statements.  In a similar way, the failure to advise M.D. that, in deciding
    whether to speak a second time, he should not be influenced by the fact that he
    had talked to the police earlier, or by what he had said then, was an essential
    factor that required, but did not receive consideration in the admissibility
    decision.

[77]

In
    the result, I am satisfied that the trial judge erred in her application of the
    derived confessions rule and erred in admitting the videotaped interview as
    evidence at trial.

CONCLUSION

[78]

I
    would allow the appeal, set aside the convictions, and order a new trial.

Released:
November 30, 2012  JL

David
    Watt J.A.

I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McCue, 2012 ONCA 773

DATE: 20121114

DOCKET: C55198

Doherty, Epstein JJ.A. and Cavarzan J.
(ad
hoc)

BETWEEN

Her Majesty the Queen

Appellant

and

Daniel Lee-David McCue

Respondent

Roger Shallow, for the appellant

Sarah Dover, for the respondent

Heard:  October 23, 2012

On appeal from the sentence imposed on February 22, 2012
by Justice Martha B. Zivolak of the Ontario Court of Justice.

By the Court:

[1]

After a trial before a judge sitting without a jury, the respondent was
convicted of several offences:

·

Possession of a loaded prohibited firearm (count 6);

·

Possession of a firearm while under an order made pursuant to a
robbery conviction prohibiting him from possessing firearms (count 5);

·

Possession of a firearm while under an order made pursuant to a
mischief conviction prohibiting him from possessing firearms (count 7);

·

Possessing a handgun without a licence (count 4);

·

Carrying a firearm in a careless manner (count 1); and

·

Mischief to property under $5,000 (count 2).

[2]

The weapons charges all involved the same handgun and the same event.
The mischief charge arose out of a separate event that occurred earlier on the
same day as the weapons offences.

[3]

The trial judge imposed a sentence of two years less two days on the
charge of possessing a loaded prohibited weapon.  She gave the respondent
credit on a 1:1 basis for 367 days spent in custody prior to sentencing,
resulting in an effective sentence of three years on the charge of possessing a
loaded handgun.

[4]

The trial judge stayed one of the convictions for possession of a
firearm while under an order prohibiting the possession of firearms pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.  She imposed one-year concurrent
sentences on all of the other weapons charges.  She imposed a 90-day concurrent
sentence on the mischief charge.  In the end result, the respondent received a
total sentence of two years less two days, having been given credit for 367
days of pre-sentence custody.  This sentence placed the respondent in the
reformatory.

[5]

The Crown appeals.  Counsel makes three arguments.  He argues that the
trial judge erred in adjourning the sentencing proceedings for over two months
to allow the respondent to accumulate sufficient dead time so that the
sentence the trial judge intended to impose would result in incarceration in a
provincial institution rather than a penitentiary.  Counsel also submits that
the trial judge significantly misapprehended the seriousness of the gun-related
offences and failed to give any appreciable weight to the respondents lengthy
and serious criminal record.  Finally, counsel submits that the trial judge
erred in principle in imposing concurrent sentences on the charge of possession
of a weapon while under court order not to possess weapons and on the mischief
charge.  Counsel contends that these offences required consecutive sentences.

the adjournment

[6]

After hearing counsels submissions on sentencing, the trial judge
decided that sentences totalling three years were appropriate.  She also concluded
that the respondent should receive 1:1 credit for his pre-sentence custody.  Had
the trial judge sentenced the respondent at that time, he would have gone to
the penitentiary.

[7]

The trial judge determined, however, based mainly on a letter given to her
by the respondent, that his rehabilitative prospects would be much better if he
went to the reformatory and not the penitentiary.  The respondent could only go
to the reformatory if he accumulated sufficient time in pre-sentencing custody
to reduce the sentence to be imposed to less than two years.  To achieve this
result, the trial judge adjourned the sentencing to allow the respondent to
accumulate a further 77 days of pre-sentence custody.

[8]

Crown counsel submits that the adjournment directed by the trial judge conflicted
with s. 720(1) of the
Criminal Code
:

A court shall, as soon as practicable after an offender has
been found guilty, conduct proceedings to determine the appropriate sentence to
be imposed.

[9]

Without commenting on the merits of this submission as a matter of
statutory interpretation, we are satisfied that the adjournment was inappropriate
in the circumstances of this case for two reasons.  First, the adjournment was premised
on the trial judges determination that a sentence totalling three years was
appropriate.  As we will explain below, the seriousness of the offences and the
respondents criminal background required a sentence well in excess of three
years.  Consequently, on a proper application of the applicable sentencing
principles, no purpose could be served by adjourning the sentencing for over
two months to allow the respondent to accumulate further dead time.

[10]

Second,
even if an adjournment to allow an accused to accumulate sufficient dead time
so that he or she can be sent to the reformatory rather than the penitentiary might
be appropriate in some circumstances, there was no evidence justifying an
adjournment for that purpose in this case.  If an accused asserts that the
nature of the facility in which he or she may be imprisoned is sufficiently
important to fixing the appropriate sentence to merit a considerable delay in
sentencing, the onus is on the accused to put the necessary information before
the trial judge identifying the benefits to the accused flowing from
incarceration in a particular institution or in the reformatory system.  The
material must allow the trial judge to make an informed decision as to the
potential placement of an accused within the reformatory or penitentiary
systems, the programs available at the various institutions to which the
accused may be sent, and the merits of the contention that the principles of
sentencing would be better served by placing the accused in one system as
opposed to the other.

[11]

In
this case, the trial judge relied entirely on the respondents statements in
his letter to the judge.  In that letter, the respondent purported to identify
the institutions to which he would be sent depending on whether he was placed
in the reformatory or the penitentiary system.  The respondent also purported
to describe the various programs available to him and to explain his strong
preference for the programs he would receive at a particular provincial institution.
The trial judge erred in simply taking this information at face value.  There
was no evidence to support most of what the respondent said in his letter.
Clearly, he had a vested interest in avoiding the penitentiary.  The trial
judge should have required evidence on those issues and not simply relied on
the respondents statements about where he would be sent and the programs that
would be available to him in that institution even if he received a sentence of
less than two years.

the proper characterization of the gun offences

[12]

It
is necessary to briefly outline the facts underlying these charges.  The police
were looking for the respondent in the late evening of February 20, 2011.  They
went to the residence where they understood he lived.  The police saw the
respondent leave the residence and enter a taxi.  They followed the taxi for a
few blocks, at which point the respondent got out of the vehicle and fled the
scene, running through backyards.

[13]

The
police chased the respondent through several backyards and eventually
apprehended him.  A police search of the route followed by the respondent after
he left the taxi led to the discovery of a loaded nine millimetre
semi-automatic handgun in the backyard of one of the homes.  The respondent had
thrown the gun away as he fled from the police.

[14]

In
describing the relevant events for the purposes of sentencing, the trial judge
said:

I do see this as a
minimal fact situation
if there is such a thing, when it comes to possession of a restricted and
loaded firearm,
on the following basis.  There was no attempt to use the
firearm, a restricted weapon, and in fact it would appear that the only attempt
by you was to get rid of it.  So theres no suggestion that it was in your
possession for you to actively use, and you didnt use it, and in fact you
disposed of it at the first opportunity you had, no doubt to avoid its
detection.  [Emphasis added.]

[15]

The
facts underlying the gun offences are not properly described as minimal.  The
respondent had a loaded gun when he left his residence and travelled in a taxi.
He clearly intended to have the gun on his person in public places.  His possession
of a loaded firearm while attempting to escape the police is a significant
aggravating factor.  He gets no credit for throwing the gun away while
attempting to avoid capture.  Furthermore, discarding a loaded handgun in
someones backyard in a highly populated residential area invites tragedy.  Had
the police not located the loaded gun, who knows what might have happened?  Finally,
we see no reason to infer anything other than that the respondent intended to actively
use the loaded gun for some purpose if he saw the need.  Why else would he
have it in his possession?

[16]

The
circumstances of the offence called for a significant sentence.  For reasons we
need not detail, the parties at trial proceeded on the basis that the
three-year minimum was inapplicable.  They should not have done so, but in our
view that error did not have any effect on the sentence imposed.  The
circumstances of the offence, particularly having regard to the offenders
serious criminal history, including prior convictions for robbery, called for a
sentence well in excess of three years.  The trial judges mischaracterization
of the circumstances of the offence as minimal led her to impose a sentence
that was outside of the appropriate range for this offender.

the imposition of concurrent
sentences

[17]

As
described above, the trial judge imposed concurrent sentences on all of the
charges.  The Crown submits that the sentence on the mischief charge and the
sentence on the charge of possession of a firearm while under a court order not
to possess firearms should have been consecutive to the other weapons charges
and consecutive to each other.

[18]

The
facts giving rise to the mischief charge occurred earlier on the same day as
the events that gave rise to the weapons charges.  The respondent went to the
home of an individual and insisted that he be allowed to see his ex-girlfriend,
who was apparently staying at the home.  When that person would not let the
respondent into the home, he became very angry and threw a bicycle through the
window of the home.

[19]

The
events underlying the mischief charge were no doubt frightening to the persons
affected by them, particularly in light of the respondents prior relationship
with one of the occupants of the home and his serious and well-established propensity
for acts of violence.  The respondent also had prior convictions for mischief.
Incarceration on this charge was fully warranted.

[20]

The
mischief conviction warranted a consecutive sentence.  That offence was
entirely distinct from the weapons offences.  It should have been treated as a
separate and distinct matter for the purposes of sentencing.  A concurrent sentence
denigrates the significance of the mischief charge and suggests that it is not
in and of itself worthy of punishment.  Of course, in fixing the appropriate length
of a consecutive sentence, a trial judge must have regard to the totality of
the sentences to be imposed.  Totality concerns can, however, be adequately addressed
by adjusting the length of the various consecutive sentences, if necessary.

[21]

The
Crown also contends that the sentence on the charge of possession of a weapon
while prohibited by a court order from possessing weapons should have been
consecutive to the other sentences.  Counsel submits that unless the sentence
is made consecutive, disregard of the court order goes unpunished.

[22]

We
think the trial judge had two options in considering the impact of the breach
of the prohibition order.  She could have taken the breach into account as a significant
aggravating factor when fixing the appropriate sentence on the possession of a loaded
firearm charge, and then imposed a concurrent sentence on the charge alleging a
breach of the prohibition order.  Alternatively, the trial judge could have ignored
the prohibition order in fixing the appropriate sentence on the possession of
the weapon charge and then imposed a consecutive sentence on the charge alleging
the breach of the prohibition order.  Clearly, the trial judge could not do both.
Unfortunately, she did neither.

conclusion

[23]

Having
regard to the circumstances of the offences and the offender, and taking into
account the totality of the sentences to be imposed, we would allow the appeal
and vary the sentences as follows:

·

Possession of a loaded prohibited firearm (count 6)  4 years;

·

Possession of a firearm while under an order made pursuant to a
robbery conviction prohibiting him from possessing firearms (count 5)  6
months consecutive to the sentence imposed on count 6;

·

Possession of a handgun without a licence (count 4)  1 year
concurrent to the sentence imposed on count 6;

·

Carrying a firearm in a careless manner (count 1)  1 year
concurrent to the sentence imposed on count 6;

·

Mischief to property under $5,000 (count 2)  90 days consecutive
to the sentences imposed on counts 6 and 5.

[24]

In total, the respondents sentence is varied to 4 years and 9 months.
He is, of course, entitled to credit for 367 days pre-sentence custody on a 1:1
basis, leaving a sentence to be served as of the date of sentencing by the
trial judge of just under 3 years and 9 months.

RELEASED:  DD  NOV 14
2012

Doherty
J.A.

G.J. Epstein J.A.

Justice
Cavarzan J. (per Doherty J.A.)


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mitchell, 2012
    ONCA 804

DATE: 20121120

DOCKET: M41861

Weiler J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Stacey Mitchell

Applicant

Erin Dann, for the applicant

Chris Dwornikiewicz, for the respondent

Heard: November 16, 2012

On a motion for an extension of time to file a notice of
    appeal from the finding of not criminally responsible on account of mental
    disorder on January 23, 2009 by Justice Richard D.  Schneider, of the Ontario
    Court of Justice.

Weiler J.A. (in chambers):

[1]

The applicant pled guilty to one count of uttering a threat to cause
    death, one count of weapons dangerous, two counts of mischief under $5000, one
    count of theft under $5000, and four counts of failing to comply with the conditions
    of her recognizance. On January 23, 2009, on consent, the applicant was found
    not criminally responsible on account of mental disorder (NCRMD). She now seeks
    an extension of time to appeal this verdict.

[2]

Despite the lapse of time of almost four years, an applicant is not
    barred from challenging a NCRMD finding. That said, finality concerns and the
    concern of the court that the mental disorder provisions of the Criminal Code
    operate effectively require a court to look closely at an application that
    would give the applicant the opportunity to resile by way of appeal from the
    NCRMD verdict.  See
R. v. Guidolin,
[2011] 280 O.A.C. 387, at para.
    11.

[3]

Before granting an extension of time, the court will consider: 1)
    whether the applicant had a
bona fide
intention to appeal within the
    prescribed appeal period; 2) the applicants explanation for the delay; and 3)
    the merits of the proposed appeal. Depending on the circumstances, other
    factors will include: whether the consequences of conviction are disproportionate
    to the penalty imposed; prejudice to the Crown; and whether the applicant has
    taken the benefit of the judgment. See:
R. v. Price
, 2010 ONCA 541, at
    paras. 19 and 20;
R. v. Menear
[2002} 162 C.C.C.(3d) 233. The list of
    factors is not closed.  Other factors that inform the decision are the position
    of the defence at trial, whether the proceedings were consensual in nature and,
    more generally, whether the proceedings appeared to be fair and whether they
    were fair:
R. v. Closs
[1998] O.J. No. 172 (C.A.);
R. v. Kankis
[2012]
    281 C.C.C. (3d) 113 at paras 37-38.

Overall, the court must consider
    whether the justice of the case requires that an extension of time be granted.

[4]

I must now apply these considerations to this case. The
    applicant concedes that she did not form an intention to appeal within the 30
    day appeal period.  Her explanation for the delay is that she consented to the
    verdict because she knew she would be going to a hospital for treatment and not
    to jail.  She says that she only learned about her ability to appeal the NCRMD
    verdict after speaking with a fellow patient at CAMH in April, 2012.

[5]

While I do not doubt the sincerity of the applicants belief respecting
    when she learned she could appeal the verdict, ineffective assistance of counsel
    is not alleged.  Thus, at the time she was sentenced, the applicant who was fit
    to stand trial and who was represented by counsel, whom it is agreed is
    competent and experienced, agreed that she was NCRMD. She has been receiving
    treatment since that time. This same counsel also represented the applicant at
    all but one subsequent Ontario Review Board Hearings. The applicant does not
    say that she told this counsel at any time that the disposition made at trial
    was wrong.

[6]

The respondent submits that

the present application is more
    consistent with the applicant becoming frustrated at continuing to remain under
    the jurisdiction of the Ontario Review Board (ORB) and the fact that, at her
    most recent ORB hearing, the applicant was ordered to return to detention. I
    agree with this submission. Overall, the applicant has not adequately explained
    the delay in initiating the appeal.

[7]

That said, mental illness can present a hurdle to initiating legal
    proceedings that the average person does not have. The applicants age at the
    time, 19, and her relative lack of familiarity with the criminal justice system
    are also factors to consider. Further, unlike the finite sentence that would
    have been ordered had the applicant been found criminally responsible, the
    NCRMD disposition does not have a specific time frame. If an error was made in
    the NCRMD disposition, the applicant continues to live that error by being
    subject to the ORBs jurisdiction. As a result, lack of an explanation for the
    delay cannot be determinative.

[8]

The real issue is, therefore, whether the proposed appeal has merit such
    that the justice of the case requires that an extension of time be granted. In
    this case, the proposed ground of appeal is that the verdict of NCRMD was
    unreasonable and should be set aside pursuant to s. 686(1)(a) of the Criminal
    Code.

[9]

Before dealing with this argument, a brief summary of the facts
    pertaining to the death threat and weapons charges will be helpful. I agree
    with the applicants counsels submission that, in relation to the theft
    charge, there is no evidence particular to that charge to indicate that the
    applicant did not appreciate the nature and quality of her act. The charges
    were, however, all dealt with together and she concedes that, here, the
    application should stand or fall on all charges.

[10]

The
    facts in relation to the other charges are summarized in
Mitchell (Re),
[2011] O.R.B.D. No. 2691 (Ont. Review Bd) and are as follows:

Ms. Mitchell and the victim lived in the same apartment
    building, and were known to one another. During the weeks prior to the
    offences, Ms Mitchell had bothered the victim by knocking on his door and
    yelling incoherently. On October 4, 2008, Ms Mitchell attended the victim's
    apartment with another female and knocked on his door. When he did not answer,
    they kicked his door, causing damage. The victim contacted police, but Ms
    Mitchell was not located. Two days later, Ms Mitchell attended again, and
    knocked on the victim's door. When he opened the door, Ms Mitchell yelled
    "I'm gonna kill you" as she walked away. She was holding a knife at
    the time. She then slashed two tires on his car. The victim contacted the
    authorities, and Ms Mitchell was arrested. She was released by the Court on a
    Recognizance with conditions. Approximately 12 hours after her release from
    custody, she breached the conditions of her Recognizance by going to the
    victim's residence. She was arrested and once again released on a Recognizance
    on October 21, 2008.  On October 30, 2008, she breached the conditions of this
    second Recognizance by going to the victim's residence again, in the company of
    another female, and communicating with him.

[11]

According
    to the transcript of November 19, 2008, when the victim, Steve Pinnock,
    realized who was at his door, he told the applicant to leave and said he was
    going to call the police. About five minutes later, she again knocked on his
    door.  He again told her he was going to call the police and did so.  While he
    was speaking to the police, the victim lost sight of the applicant and told the
    dispatcher to cancel the call.  A short time later, the victim went to leave
    his apartment when he saw the applicant standing in the lobby of his building.
    He went out the back door to avoid her. The transcript continues:

While Pinnock was talking to some neighbours at the back of his
    building, the accused approached him and sat on the stairs near him. Pinnock
    then walked away to the front of the building and the accused followed him
    there.  The building superintendent was present and he also told the accused to
    leave.  The accused would not leave the premise so Pinnock decided to go back
    inside.  The accused tried to follow him inside but Pinnock pushed her away and
    closed the door.

[12]

Following
    the applicants plea of guilty to the charges on November 19, 2008 the Crown
    sought to have the applicant detained for a period not exceeding 30 days for an
    NCR assessment. The applicant opposed the order but, on the basis of the
    applicants conduct and the fact that she had been subject to a civil
    commitment for mental disorder, the court held that there were reasonable
    grounds to believe the applicant might not be criminally responsible and
    ordered the assessment.  It was carried out by Dr. McDonald. Largely based on
    his report, the courts verdict was that the applicant NCRMD. Although there is
    no requirement that the applicant consent to this disposition, as I have
    indicated, the applicant consented to the proposed disposition at the time.

[13]

The
    applicant was committed only on the basis that she did not understood the
    nature and quality of her act under s. 16(1) of the
Criminal Code
. She
    was not committed on the basis that she did not know the act was morally wrong.

[14]

The
    applicants counsel concedes that Ms. Mitchell suffers from a mental disorder
    that likely was the driving force behind these offences. She submits that there
    is nevertheless no basis for a NCRMD verdict because the evidence falls short
    with respect to whether the applicant understood the nature and quality of her
    acts. She emphasizes the following statement in
Guidolin,
supra, at
    para. 13 by Doherty J.A. on behalf of the court: [I]f on a generous reading of
    the evidence, the NCRMD finding cannot pass the reasonableness standard, the
    finding cannot stand regardless of the negative impact an order setting it
    aside may have on the appellants treatment and the protection of the
    public.

[15]

The
    applicants counsels submissions are focussed on alleged shortcomings in the
    report of Dr. McDonald. She submits that nothing in the report of Dr. McDonald
    suggests that the applicant didnt understand the nature and quality of her
    acts; the report doesnt discuss the applicants mental status in relation to
    the particular offences; Dr. McDonald did a general report and a conclusory
    opinion without sufficient reasons.

[16]

In
    concluding that the applicant could not appreciate the nature or quality of her
    actions, Dr. McDonalds report included the following specific comments:

the issue of her fitness to stand trial was not raised, but I
    feel obliged to indicate that it could be a matter of concern;

she has at various times indicated that she has already pled
    guilty to her charges, or that that she hasn't. She has indicated that she was
    planning to move from her residence to avoid the victim prior to her arrest, or
    planning to move into his residence and live with him. She stated emphatically
    at one point "I never get paranoid", followed by "maybe I was
    paranoid";

the patient varies from stating that this neighbour is not a
    person of great consequence to her, or that indeed he is. She further varies
    from describing him as infatuated with her and following her around, involved in
    some kind of conspiracy against her, or having no great feelings about her at
    all;

on one occasion after being charged with slashing the neighbours'
    tires by using a knife, she reported that they had attacked her. Whether she
    meant literally the tires or someone else was unclear and remains so;

at one point, she described that the owner of the car (and
    tires) was watching her commit this act, looking out his apartment window, only
    to acknowledge that the car would not have been within view of his apartment
    window;

with respect to her expectations of what may happen when she
    returns to court, she stated initially that she expected all charges to be dropped,
    even after she already stated that she had pled guilty to all of them. She then
    stated tangentially, "I never tried to kill him at all";

among the things she reported frequently enough that I have
    confidence in believing them, are that she was hearing voices or at least
    sounds coming form the upstairs apartment that she interpreted as threatening.
    These varied from constituting direct threats from a clear voice which she
    still believes is real, although she also episodically stated that she never heard
    a voice at all and that if she did, it "might have been delusional";

[17]

In
    addition to the report of Dr. McDonald, facts that were brought to the courts
    attention including the following:

that police found the applicant rambling, crying, and not
    making sense after she was found near the entrance of the victims apartment in
    breach of her conditions of recognizance;

that, in speaking to the police, the applicant referred to the
    victim as her baby father and continued to attempt to contact with him even though
    they were merely neighbours.  She denied having any conditions to stay away
    from the place where the victim lived after having just received them.

that subsequent to her arrest, during the course of an
    interview with a mental health care worker, the applicant stated her intention
    to plead guilty to the allegations so she could get out of jail and get a gun
    and kill him (being the victim); and,

[18]

Considered
    as a whole, the evidence was sufficient for a reasonable trier of fact to
    conclude, on a balance of probabilities that the applicant was unable to
    appreciate the nature and quality of her acts at the time she committed them.
    The applicant has failed to discharge her burden that there is reason to doubt
    the correctness of the NCRMD verdict. The justice of the case does not require
    that an extension of time be granted. The application therefore fails.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mohammad, 2012
    ONCA 764

DATE: 20121109

DOCKET: C50613

Winkler C.J.O., Blair and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khalid Dousat Mohammad

Appellant

Howard L. Krongold, for the appellant

Susan G. Ficek, for the respondent

Heard and released orally: October 12, 2012

On appeal from the conviction entered on September 10,
    2008 and the sentence imposed on September 17, 2008 by Justice Jean-Marie Bordeleau
    of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant argues that the trial judges reasons are inadequate to
    permit meaningful review.  The defence called no evidence.  The reasons,
    delivered following a 10-day trial, are a sparse eight pages in length.  The
    appellant concedes the verdict is not unreasonable and considerable deference
    is due to the trial judge, particularly in a credibility case such as this.

[2]

We agree that it would have been clearly preferable if the trial judge
    had more fully addressed the alleged frailties in the complainants evidence.
    Nonetheless, on reviewing the record and the reasons as a whole, the pathway to
    the trial judges conclusion is apparent to this court.  In particular, the
    trial judge did address what we see as a potential frailty in the complainants
    evidence, namely that she lied to the police.  The trial judge found that she
    was terrified and could not bring herself to divulge the acts that she
    complained of, thereby demonstrating that he applied his mind to this
    important issue.

[3]

The appeal is accordingly, dismissed.

Warren Winkler C.J.O.

R.A. Blair J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Moore, 2012
    ONCA 770

DATE: 20121109

DOCKET: C53043

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jerome Moore

Respondent

Nadia Thomas, for the appellant

Craig Bottomley and Chris Sewrattan, for the respondent

Heard and released orally: November 2, 2012

On appeal from the acquittal, dated November 17, 2010, by
    Justice Julie Thorburn of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

After a trial on a multi-count indictment before a judge of the Superior
    Court of Justice sitting without a jury, the respondent was acquitted on a
    count that alleged that he did, while armed with a firearm, to wit: a handgun,
    rob Steve Howland, contrary to Section 344 of the
Criminal Code
.

[2]

The basis upon which the trial judge acquitted the respondent appears in
    the penultimate paragraph of her reasons for judgment. There the trial judge
    said:

[66]    I am not however, satisfied beyond a reasonable doubt
    that on February 2, 2009, Mr. Moore was carrying a handgun or that he pointed
    it at Mr. Howland.  While I do not doubt Mr. Howlands sincerity, he is not
    familiar with guns and saw and heard something only fleetingly.  Out of great
    fear for his safety, he quickly turned his head away from Mr. Moore toward the
    window. As such, I am not satisfied beyond a reasonable doubt that Mr. Moore
    was armed or that he pointed a handgun at Mr. Howland.

[3]

The Crown appeals the respondents acquittal and alleges two errors of
    law:

i.
    that the trial judge erred in law in considering that use of a        firearm
    was an essential element in the offence of robbery    failing proof of which
    the respondent must be acquitted; and

ii.
    that the trial judge erred in law in considering the offence with   which the
    respondent was charged as armed robbery.

[4]

The respondent acknowledges that s. 344 of the
Criminal Code
does not create the offence of armed robbery. Rather, the inclusion of the
    words while armed with a firearm, to wit: a handgun is for the purpose of
    putting the respondent on notice that, if convicted of a robbery and
    satisfactory proof is made of the use of a firearm, he will be subject to a
    minimum punishment of four years imprisonment.

[5]

The respondent acknowledges further that

i.        s.
    343 of the
Criminal Code
creates the offence of robbery and   defines
    the four ways that the offence may be committed; and

ii.

the
Criminal Code
does not create an offence of armed robbery
    as the trial judge erroneously believed.

[6]

The
Criminal Code
does not, in fact, create an offence of armed
    robbery. Section 343 of the
Criminal Code
creates the offence of
    robbery and describes the four ways in which robbery may be committed.  A count
    that charges robbery and refers to s. 344, the punishment provision, does not
    specify a particular mode of committing robbery nor limit the basis upon which
    the Crown may prove the substantive offence of robbery.

[7]

On the indictment in this case, it was open to the Crown to prove the
    respondents guilt of robbery under any definition of that offence in s. 343.
    To engage the minimum punishment provisions of s. 344 in the circumstances of
    this case, however, the Crown was required to prove, as a matter of sentence,
    that the respondent used the firearm in the commission of the robbery within
    any definition of s. 343. See
R. v. D. (A.)
(2003), 173 C.C.C. (3d)
    177 (B.C.C.A.), at paras. 29-31; and
R. v. Watson
, 2008 ONCA 614, at
    paras. 68-72.

[8]

In our view, the trial judge erred in law in acquitting the respondent
    of robbery, the offence with which he was charged in count 1 of the indictment.
    The error consisted of requiring proof of the respondents use of a firearm as
    an essential element of the offence, thus a condition precedent to a conviction
    of robbery. It follows that the acquittal of robbery must be set aside.

[9]

The Crown invites us to substitute a conviction for robbery in place of
    the acquittal.  We may only do so under s. 686(4)(b)(ii) of the
Criminal
    Code
if the trial judges findings of fact, viewed in the light of the
    prevailing jurisprudence, support a conviction beyond a reasonable doubt, see
R.
    v. Katigbak
(2011), 276 C.C.C. (3d) 1 (S.C.C.), at para. 50.

[10]

In
    our view, this is not a case in which it is appropriate to set aside the
    respondents acquittal of robbery and substitute a conviction for that
    offence.  Reading the reasons for judgment as a whole as we must, we simply
    cannot say that the trial judge made the findings of fact essential for us to
    enter a finding of guilt and conviction of robbery.

[11]

The
    appeal from acquittal is allowed and a new trial ordered.  It will be up to the
    Crown to determine whether it is in the interests of justice to proceed with a
    new trial in light of the remaining convictions and the sentences imposed on
    those convictions.

Janet
    Simmons J.A.

Robert P. Armstrong J.A.

David Watt J.A.