R. v. Todorovic (M.), 2014 ONCA 153

• Judge: Rosenberg, Rouleau and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 27, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 153;(2014), 316 O.A.C. 323 (CA)

R. v. Todorovic (M.) (2014), 316 O.A.C. 323 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MR.005

Her Majesty the Queen (respondent) v. Melissa Todorovic (appellant)

(C53042; 2014 ONCA 153)

Indexed As: R. v. Todorovic (M.)

Ontario Court of Appeal

Rosenberg, Rouleau and Pardu, JJ.A.

February 27, 2014.

Summary:

In January 2008, the 15 year old accused's 17 year old boyfriend stabbed his former girlfriend to death. The boyfriend was convicted of first degree murder. The accused was tried separately for first degree murder. The Crown's theory was that the accused was obsessively jealous of the former girlfriend and had counselled and encouraged the boyfriend to kill her. The Crown relied on circumstantial evidence of computer chats, the accused's conduct immediately after the killing, and two video-taped statements to the police hours after the killing and while the boyfriend was still at large. The trial judge found the accused guilty of first degree murder and sentenced her as an adult to life imprisonment without eligibility for parole for seven years. The accused appealed against conviction and sentence. She argued that the statements were inadmissible under s. 146 of the Youth Criminal Justice Act and that the trial judge erred in not sentencing the accused to a youth sentence.

The Ontario Court of Appeal dismissed the conviction and sentence appeals. The statements were admissible and there was no error in imposing an adult sentence.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See first Criminal Law - Topic 8714 ].

Criminal Law - Topic 5881

Sentence - Murder - [See Criminal Law - Topic 8817.8 ].

Criminal Law - Topic 8714

Young offenders - General principles - Right to counsel - Under s. 146(2)(b) of the Youth Criminal Justice Act, a youth's statement was inadmissible unless authorities "clearly explained to the young person, in language appropriate to his or her age and understanding" the rights afforded by s. 146(2)(b) (informational requirement) - The 15 year old accused's boyfriend stabbed his former girlfriend - Police knew the accused was his girlfriend - The boyfriend was still at large - The police contacted the accused and her mother and requested that the accused come to the police station to assist in the investigation - The accused and mother obliged - Investigating officers placed them in an interview room - The door was shut, but the accused was told that she was not under arrest, that the door was not locked, and that she was not obliged to give a statement - The accused was not advised of her rights under s. 146(2)(b) - The accused cooperated and made statements to the police - When she made an incriminating statement indicating that her boyfriend had killed the victim at her request, the interview was terminated, the accused was advised of her s. 146(2)(b) rights and was given the opportunity to speak with duty counsel - At the accused's first degree murder trial, the accused sought exclusion of her statement, arguing that: (1) she went to the police station not freely, but under a demand or direction amounting to psychological detention; (2) she was detained when placed in the interview room with the door shut as she was not explicitly told that she was free to leave; and (3) when she was being questioned, the police already had reasonable grounds to believe she was a party to the offence - The Ontario Court of Appeal affirmed the admissibility of the statement on the ground that s. 146(2)(b) was not triggered until the accused made the incriminating statement - The trial judge's findings that the accused freely went to the police station, was not detained up until the time she made the incriminating statement, and that the police did not have reasonable grounds to suspect her involvement, were supported by the evidence - See paragraphs 10 to 20.

Criminal Law - Topic 8714

Young offenders - General principles - Right to counsel - [See Criminal Law - Topic 8714.3 ].

Criminal Law - Topic 8714.3

Young offenders - General principles - Right to consultation with or presence of parent or adult - In January 2008, the 15 year old accused's 17 year old boyfriend stabbed his former girlfriend to death - The accused and her mother freely came to the police station to assist in the investigation, as the boyfriend was still at large - When the accused made an incriminating statement to the effect that the victim was killed at her request, the interview stopped - The accused was arrested and afforded the opportunity to talk with duty counsel - She was subsequently advised of her rights under s. 146(2)(b) of the Youth Criminal Justice Act (right to consult with parent, counsel or other adult and to have them present during questioning) - The accused indicated that she wished her mother present - The accused and her mother spoke alone for 20 minutes - The mother testified that she was unsuccessful in convincing the accused not to speak with the police without a lawyer present - The police began their interview - The accused's rights were explained on multiple occasions - The accused acknowledged that she understood her rights and wished to be questioned without her mother or a lawyer being present - The accused acknowledged that she understood what duty counsel told her and did not wish further legal advice - The accused explicitly waived her right to have her mother or a lawyer present before making a statement - The trial judge found the accused guilty of first degree murder for encouraging and counselling her boyfriend to kill the victim - The Ontario Court of Appeal affirmed the conviction, rejecting the accused's submission that the police failed to meet the requirements of s. 146(2)(b) - The accused was repeatedly advised of her rights - She knew that she was not obliged to give a statement and that she was entitled to have a parent or lawyer present - The accused freely waived her rights - Her statement was admissible - See paragraphs 21 to 32.

Criminal Law - Topic 8719

Young offenders - General principles - Procedure - Waiver of statutory rights - [See Criminal Law - Topic 8714.3 ].

Criminal Law - Topic 8802

Young offenders - Decisions (incl. punishments) - Credit for time served - [See Criminal Law - Topic 8817.8 ].

Criminal Law - Topic 8817.8

Young offenders - Decisions (incl. punishments) - Adult sentence - In January 2008, the 15 year old accused's 17 year old boyfriend stabbed his former girlfriend to death - In separate trials, both were convicted of first degree murder - The accused was obsessively jealous of the former girlfriend, without reason, and encouraged and counselled the boyfriend to stab her - The trial judge sentenced the accused as an adult to life imprisonment without eligibility for parole for seven years - The judge had the benefit of a pre-sentence report, evidence from a psychologist, and evidence from the Crown and defence psychiatrists - Apart from her relationship with the boyfriend, the accused appeared to be a normal teenager - However, she was assessed as being manipulative, obsessively compulsive, and displaying a borderline personality disorder that was quite well established for her age - The accused lacked empathy or remorse - There were questions as to her receptiveness to needed psychological treatment - The accused admitted ongoing thoughts of hurting others - There was a risk of future similar behaviour - The judge was satisfied that the maximum youth sentence (six years' custody plus four years' community supervision), after credit for 18 months' pre-disposition custody, would not be of sufficient length to hold the accused accountable for her behaviour and properly monitor her - The accused appealed, arguing that the judge erred in taking into account pre-disposition custody in determining the maximum sentence, and thereby erred in finding that a youth sentence was not of sufficient length to hold her accountable - The Ontario Court of Appeal dismissed the appeal - The judge did not err in considering pre-disposition custody - In any event, the judge's concern, rightly so, was that just when the accused's personality would be fully developed (mid-twenties), she would no longer be subject to any kind of supervision, no matter how dangerous she then was - There was no error in finding that an adult sentence was needed to, inter alia, protect the public from the accused's risk of violently re-offending - See paragraphs 33 to 43.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 12].

R. v. S.S. (2007), 222 C.C.C.(3d) 545; 2007 ONCA 481, refd to. [para. 29].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 72(1) [para. 37]; sect. 146(2)(b), sect. 146(2)(c), sect. 146(2)(d) [para. 21]; sect. 146(6) [para. 31].

Counsel:

Brian Snell, for the appellant;

Jamie Klukach, for the respondent.

This appeal was heard on November 27, 2013, before Rosenberg, Rouleau and Pardu, JJ.A., of the Ontario Court of Appeal.

On February 27, 2014, Rosenberg, J.A., released the following judgment for the Court.