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YOUNG PERSONS - Admissibility of statements

Friday, March 13, 2020 @ 8:56 AM  


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Appeal by Joseph from his conviction, by jury, of second degree murder and the adult sentence imposed. The appellant, who was 17 years old at the time of the offence, admitted stabbing the victim but testified he acted in self-defence. He testified the victim pulled a knife on him and that during the ensuing scuffle, he gained control of the knife and stabbed the victim several times to get him off him. The victim was stabbed 17 times. His body showed no signs of defensive wounds. The day after the stabbing, the appellant attended at the police station and was interviewed by the police with his mother present. He was not arrested. The only information connecting the appellant to the victim at that time were phone records. The trial judge imposed an adult sentence of life imprisonment with parole eligibility after seven years. He found termination of all supervision and control of the appellant at the seven-year mark, under a youth sentence, 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.

HELD: Appeal dismissed. The trial judge correctly found the appellant’s statement to the police was admissible. There were insufficient grounds to believe at the time of the interview that the appellant killed the victim. The appellant was not psychologically detained at the time of the interview. The prerequisites for triggering the operation of s. 146(2) of the Youth Criminal Justice Act were not present and the police did not have to comply with the statutory requirements of the provision. The trial judge did not err in concluding the statement was voluntary. The appellant did not need to be cautioned as he was neither detained nor arrested at the time of the interview. No inducements were offered by the police that overcame the appellant’s will. The trial judge did not err in refusing to admit photographs from the victim’s phone showing unknown individuals holding guns and money. It was open to him to determine the probative value of the photographs was outweighed by their prejudice. The trial judge did not err in his instructions to the jury on bad character evidence. His reasons demonstrated a careful consideration of each of the s. 72 Youth Criminal Justice Act factors in determining a youth sentence was not appropriate. He turned his mind to all appropriate sentencing principles, including accountability, proportionality, rehabilitation and reintegration. The trial judge did not err in imposing an adult sentence. Sentence: life imprisonment, with parole eligibility after seven years.

R. v. Joseph, [2020] O.J. No. 426, Ontario Court of Appeal, D. Watt, B. Miller and J.M. Fairburn JJ.A., January 31, 2020. Digest No. TLD-March92020011