R. v. J.B., 2015 ONCA 684

• Judge: Feldman, MacPherson and Miller, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Friday September 11, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 684;(2015), 341 O.A.C. 23 (CA)

R. v. J.B. (2015), 341 O.A.C. 23 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.008

Her Majesty the Queen (respondent) v. J.B. (appellant)

(C58677; 2015 ONCA 684)

Indexed As: R. v. J.B.

Ontario Court of Appeal

Feldman, MacPherson and Miller, JJ.A.

September 11, 2015.

Summary:

A 15 year old complainant alleged that she had been sexually assaulted by the accused, a family friend.

The Ontario Superior Court convicted the accused of sexual interference. He appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was convicted of sexual interference - On appeal, he asserted that the trial judge had erred in finding that the accused was not denied his right to counsel of choice under s. 10(b) of the Charter - The Ontario Court of Appeal dismissed the appeal, rejecting the accused's assertion that the police officers had not facilitated his wish to contact his wife so that she could obtain a lawyer for him - This issue was not raised at trial - The trial judge found as a fact that the accused wished to speak to duty counsel and did so before his police interview - The accused made no complaint about the advice he had received - The accused clearly understood his right to silence - Nor had the officer attempted to deflect the accused's attention away from the retention of a private lawyer and toward duty counsel - The officer was simply trying to obtain sufficient information to be able to comply with his constitutional obligation to assist the accused in his desire to obtain legal advice - The officer's references to the duty counsel option were consistent with this goal - See paragraphs 14 to 18.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A 15 year old complainant alleged that she had been sexually assaulted by the accused, a family friend - The accused was arrested and exercised his right to counsel by speaking with duty counsel - During the police interview, the officer informed the accused that there might be an allegation that the accused had abused his own children - The accused made a statement - He was convicted of sexual interference - On appeal, he asserted that the trial judge had erred in finding that the accused was not denied his right to counsel under s. 10(b) of the Charter - The accused argued that he should have been given an opportunity to re-consult with counsel after the officer's information about possible charges relating to the accused's own children - The Ontario Court of Appeal dismissed the appeal - The conversation between the officer and the accused did not rise to the level that required a second s. 10(b) offer to the accused - There was no "elevated jeopardy" - Nor was there any suggestion of a quid pro quo such that, if the accused did not confess, he would face an entirely new set of charges - See paragraphs 19 to 23.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See both Civil Rights - Topic 4604].

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - [See first Civil Rights - Topic 4604].

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See both Criminal Law - Topic 5355].

Criminal Law - Topic 5341

Evidence and witnesses - Confessions and voluntary statements - Whether voluntary and admissible - Review of ruling of trial judge by appeal court - [See both Criminal Law - Topic 5355].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - A 15 year old complainant alleged that she had been sexually assaulted by the accused, a family friend - The accused was arrested and exercised his right to counsel by speaking with duty counsel - During the police interview, the officer informed the accused that there might be an allegation that the accused had abused his own children - The officer also raised the issue of consensual sex with the complainant - The accused stated that he had consensual sex with the complainant - He was convicted of sexual interference - On appeal, he asserted that the trial judge had erred in finding that his statement regarding consensual sex was voluntary - The accused argued that an atmosphere of oppression arose from the officer's child abuse allegations - The Ontario Court of Appeal dismissed the appeal - Raising a child abuse allegation did not create an atmosphere of oppression - That line of questioning lasted for less than five minutes - It did not cause the accused to confess - The accused's will was not overborne - See paragraphs 24 and 25.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - A 15 year old complainant alleged that she had been sexually assaulted by the accused, a family friend - The accused was arrested and exercised his right to counsel by speaking with duty counsel - During the police interview, the officer informed the accused that there might be an allegation that the accused had abused his own children - The officer also raised the issue of consensual sex with the complainant - The accused stated that he had consensual sex with the complainant - He was convicted of sexual interference - On appeal, he asserted that the trial judge had erred by failing to conclude that the accused's confession was unreliable because it flowed from the officer's disingenuous description of the legal consequences of consensual sex with a minor - The Ontario Court of Appeal dismissed the appeal - There was no improper police inducement - The trial judge accepted that the officer's intention was to reduce the moral blameworthiness of the accused's actions, making it easier for him to tell the truth - The officer did not tell the accused that the charges would be dropped if the sex with the complainant was consensual - See paragraphs 26 to 30.

Cases Noticed:

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 14].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 14].

R. v. Taylor (J.K.), [2014] 2 S.C.R. 495; 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, refd to. [para. 14].

R. v. K.W.J. (2012), 524 A.R. 75; 545 W.A.C. 75; 2012 NWTCA 3, refd to. [para. 14].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 18].

R. v. Sawatsky (W.L.) (1997), 103 O.A.C. 68; 35 O.R.(3d) 767 (C.A.), refd to. [para. 22].

R. v. D.T. (2013), 305 O.A.C. 58; 2013 ONCA 166, refd to. [para. 22].

Counsel:

Amy Ohler and Lynda Morgan, for the appellant;

Lorna Bolton, for the respondent.

This appeal was heard and determined on September 11, 2015, by Feldman, MacPherson and Miller, JJ.A., of the Ontario Court of Appeal. On October 7, 2015, MacPherson, J.A., released the following reasons for judgment for the court.