R. v. Teske (P.), (2005) 202 O.A.C. 239 (CA)

• Judge: Doherty, Weiler and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 12, 2005
• Jurisdiction: Ontario
• Citations: (2005), 202 O.A.C. 239 (CA)

R. v. Teske (P.) (2005), 202 O.A.C. 239 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. SE.043

Her Majesty The Queen (respondent) v. Peter Teske (appellant)

(C37895)

Indexed As: R. v. Teske (P.)

Ontario Court of Appeal

Doherty, Weiler and Goudge, JJ.A.

September 12, 2005.

Summary:

The accused was convicted of the second degree murder of his wife and was sentenced to life imprisonment without eligibility for parole for 16 years. The accused appealed against conviction and sentence.

The Ontario Court of Appeal dismissed the conviction appeal, but allowed the sentence appeal, reducing the period of parole ineligibility from 16 to 13 years.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - The Ontario Court of Appeal stated that "the police are under no legal obligation to stop questioning an accused under detention merely because the accused had invoked his right to silence on the advice of counsel. The Charter does not prohibit further questioning, as long as the detained person is not deprived of the right to choose whether to speak to the authorities" - See paragraph 65.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4608

Rights to counsel - General - Right to be advised of - The accused reported his wife missing two days after she allegedly assaulted him and left - The accused was asked to come to the police station to have his injuries photographed, but was asked to take a lie detector test once he got there, which the accused submitted to and failed - The accused had been told that he was not under arrest, was not detained and that he could decline the test and was free to go - The police told the accused that they believed that he killed his wife - The accused was questioned for a further 1.5 hours without admitting anything - He was repeatedly told that he was free to go at any time - After the 1.5 hours, the police were satisfied that the accused wished to terminate the interrogation and intended to release him - However, when the accused learned that the local Children's Aid Society would apprehend his children out of concern for their safety, the accused stated that he cremated his wife - The accused, after being advised of his right to counsel, explained that he accidentally pushed her down the steps in defending himself - The accused was arrested, readvised of his right to counsel and exercised that right - The accused gave two further statements, the latter one indicating where he disposed of the ashes - The accused alleged a denial of his s. 10(b) right to counsel subsequent to "failing" the lie detector test - The Ontario Court of Appeal held that the accused had no right to counsel until arrested or detained - He was not detained until he was arrested - There was no psychological detention prior to that time, as it was clear to the accused that he was free to leave at any time - The accused was not detained when he made the first three statements - Although detained when the final statement was made, it was made only after the accused exercised his right to counsel and chose to give a statement in spite of counsel's advice - See paragraphs 22 to 67.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 4608 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - The accused admitted killing his wife and disposing of the body by cremating her and hiding the remains - The accused admitted he was guilty of manslaughter, but denied the requisite intent to support a murder conviction - The trial judge used the accused's post-offence conduct to infer the requisite intent for murder - The Ontario Court of Appeal, in dismissing the accused's conviction appeal, stated that "after-the-fact conduct evidence is simply a species of circumstantial evidence. The evidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in the context of the entirety of the evidence and the issues raised at trial. ...  The [accused] engaged in an elaborate cover-up of his wife's killing. Faced with this evidence, the trial judge inferred that the [accused] had engaged in this concerted effort to cover up his wife's death because he had deliberately inflicted serious bodily harm likely to cause death. I think this was an eminently reasonable inference. More to the point, once it is acknowledged that the inference could be drawn, it was for the trier of fact to decide whether the inference should be drawn." - See paragraphs 81 to 88.

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 5211 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement made freely and voluntarily - The accused reported his wife missing two days after she allegedly assaulted him and left - The accused was asked to come to the police station to have those injuries photographed, but was asked to take a lie detector test once he got there, which the accused submitted to and failed - The accused had been told that he was not under arrest, was not detained and that he could decline the test and was free to go - The police told the accused that they believed that he killed his wife - The accused was questioned for a further 1.5 hours without admitting anything - He was repeatedly told that he was free to go at any time - After the 1.5 hours, the police were satisfied that the accused wished to terminate the interrogation and intended to release him - However, when the accused learned that the local Children's Aid Society would apprehend his children out of concern for their safety, the accused stated that he cremated his wife - The accused, after being advised of his right to counsel, explained that he accidentally pushed her down the steps in defending himself - The accused was arrested, readvised of his right to counsel and exercised that right - The accused gave two further statements, the latter one indicating where he disposed of the ashes - The accused alleged that the statements were not voluntary because, inter alia, they were induced by the suggestion that his children would not be apprehended if he told the truth and remained in custody - The Ontario Court of Appeal held that the trial judge did not err in finding the statements voluntary - Advising the accused of the impending apprehension of his children was an honest response to a question by the accused - It was not a ruse or strategy to extract a statement - See paragraphs 68 to 80.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The 41 year old accused was convicted of the second degree murder of his wife - He had cremated her body and hid the ashes in an attempt to hide the crime - The accused had no criminal record, but did receive a conditional discharge for assaulting his wife previously - The trial judge sentenced the accused to life imprisonment without eligibility for parole for 16 years - The trial judge referred to the "range" of parole ineligibility for brutal domestic murders (12-15 years), but stated that the "range" did not establish a "ceiling" - No reasons were provided as to why it was necessary to go above the 12-15 year range - The Ontario Court of Appeal agreed that the range was not a "ceiling", but a sentencing judge exceeding the range must clearly explain why he or she was doing so - The court substituted a 13 year period of parole ineligibility - See paragraphs 99 to 106.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Hawkins (J.G.) (1993), 151 N.R. 176; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179; 79 C.C.C.(3d) 576 (S.C.C.), refd to. [para. 50].

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 51].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 54].

R. v. Johns (M.) (1998), 106 O.A.C. 291; 123 C.C.C.(3d) 190 (C.A.), refd to. [para. 55].

R. v. Nicholas (E.S.) (2004), 184 O.A.C. 139; 182 C.C.C.(3d) 393 (C.A.), leave to appeal dismissed (2004), 335 N.R. 198 (S.C.C.), refd to. [para. 58].

R. v. Hebert (1990), 110 N.R. 1; 57 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 65].

R. v. K.S. (2000), 136 O.A.C. 238; 148 C.C.C.(3d) 247 (C.A.), refd to. [para. 69].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 70].

R. v. Moore-McFarlane (G.C.) et al. (2001), 152 O.A.C. 120; 160 C.C.C.(3d) 493 (C.A.), refd to. [para. 70].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80; 194 C.C.C.(3d) 1 (C.A.), refd to. [para. 76].

R. v. Burdick (1975), 27 C.C.C.(2d) 497 (Ont. C.A.), refd to. [para. 84].

R. v. Marinaro (G.) (1996), 197 N.R. 21; 91 O.A.C. 117; 105 C.C.C.(3d) 95 (S.C.C.), reving. (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), refd to. [para. 84].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 85].

R. v. White (R.G.) and Côté (Y.) (1998), 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 85].

R. v. Trochym (S.) (2004), 188 O.A.C. 330; 186 C.C.C.(3d) 417 (C.A.), leave to appeal granted (2005), 344 N.R. 194 (S.C.C.), refd to. [para. 85].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 85].

R. v. Poitras (J.P.) (2002), 154 O.A.C. 25; 57 O.R.(3d) 538 (C.A.), refd to. [para. 85].

R. v. Molnar (1990), 38 O.A.C. 62; 55 C.C.C.(3d) 446 (C.A.), refd to. [para. 93].

R. v. Sodhi (P.S.) (2003), 175 O.A.C. 107; 179 C.C.C.(3d) 60 (C.A.), leave to appeal dismissed (2004), 332 N.R. 396; 201 O.A.C. 199 (S.C.C.), refd to. [para. 100].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 135 C.C.C.(3d) 41 (C.A.), refd to. [para. 101].

Counsel:

Patrick F.D. McCann, for the appellant;

Carol Brewer and Shawn Porter, for the respondent.

This appeal was heard on May 19, 2005, before Doherty, Weiler and Goudge, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Doherty, J.A., and released on September 12, 2005.