



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Todorovic, 2014 ONCA 153

DATE: 20140227

DOCKET: C53042

Rosenberg, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melissa Todorovic

Appellant

Brian Snell, for the appellant

Jamie Klukach, for the respondent

Heard: November 27, 2013

On appeal from the conviction entered on March 20, 2009
    and the sentence imposed on July 28, 2009 by Justice Ian V. B. Nordheimer of
    the Superior Court of Justice, sitting with a jury.

Rosenberg J.A.:

[1]

The appellant appeals from her conviction for first degree murder and
    the order of the trial judge, Nordheimer J., that she be sentenced as an adult
    to life imprisonment without eligibility for parole for seven years. The only
    issues on the conviction appeal concern two video-taped statements that the
    appellant gave to the police. The appellant submits that the statements were
    inadmissible by virtue of s. 146 of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (
YCJA
)
. As to sentence, the appellant argues
    that the trial judge should have imposed a youth sentence. She argues that the
    trial judge erred in holding that he would have been required to give the appellant
    credit for pre-sentence custody if he imposed a youth sentence. The appellant
    also submits that the trial judge relied on speculation in holding that the
    risk posed by the appellant could not be managed through a youth sentence. For
    the following reasons, I would dismiss the appeal from conviction and sentence.

THE FACTS

[2]

On January 1, 2008, the appellants former boyfriend, David Bagshaw, stabbed
    Stefanie Rengel to death outside her home. Bagshaw was tried separately and
    convicted of first degree murder. It was the theory of the Crown that the
    appellant, who was 15 years of age, counselled and encouraged Bagshaw, who was
    17 years of age, to kill the deceased. The Crowns case was based on a large
    body of circumstantial evidence including computer chats by the appellant with
    Bagshaw and others. The Crown argued that these communications showed that the
    appellant was obsessively jealous of the victim, who had briefly dated Bagshaw
    several years earlier. The Crown also relied upon the appellants conduct
    immediately after the killing as confirming that she had encouraged Bagshaw to
    commit the murder.

[3]

While this circumstantial evidence presented a compelling case of first
    degree murder, the Crown also relied upon statements the appellant made to the
    police within hours of the killing and while Bagshaw was still at large.

[4]

Bagshaw killed the victim around 6:00 p.m. on January 1, 2008. He then
    fled to the residence of his friend Steven Theodoru and confessed to Theodoru.
    While he was at Theodorus residence Bagshaw received two calls from the
    appellant, parts of which Theodoru overheard. He overheard the appellant ask,
    Did you do it?

[5]

Officers with the Homicide Squad first interviewed the appellant, in the
    presence of her mother, at the police station beginning at 3:05 a.m. on January
    2, 2008. By that time they had interviewed Theodoru, as well as a young girl
    whom they originally and mistakenly believed was Bagshaws girlfriend, and the
    victims parents and brother. As a result of this investigation, they knew that
    Bagshaw had killed the victim and that the appellant was his girlfriend. They
    also knew about an incident some three months earlier in which Bagshaw had
    attended at the victims home and told her that his girlfriend wanted him to
    stab her, that he was going to leave his cell phone to make it look like he had
    been interrupted in his effort to stab the victim and that he wanted the victim
    to confirm to his girlfriend that he had attempted to stab her so that his girlfriend
    would leave him alone about the subject. The victim told her mother about this
    incident and she and the victims stepfather (who both happen to be officers
    with the Toronto Police Service) had confronted Bagshaw. The victim's mother
    had also spoken with the appellant on the telephone about this incident. She
    had warned Bagshaw and the appellant to stay away from her daughter.

[6]

Before the first interview, the police gave the appellant a
K.G.B.
warning, as they had with other witnesses. She was told the following:

Nobody can force you to make a statement. This door is only,
    will, will be closed but its not locked. All right? Youre not, youre not
    here under arrest all right? Do you understand your right to choose whether or
    not to make a statement.

The appellant replied in the affirmative and agreed to
    give a statement. She was then placed under oath.

[7]

The first interview with the police was terminated when the appellant
    made an incriminating statement to the effect that she had asked Bagshaw to
    kill the victim. The appellant was left alone in an interview room for several
    hours until 7:10 a.m. when the investigating officers returned to the room to
    explain to the appellant her rights under s. 146 of the
YCJA
. By this
    time, the appellant had spoken to duty counsel. The appellant said that she
    wanted her mother to be present. When the appellants mother returned to the
    police station the officers resumed the questioning. They again explained the
    s. 146 rights. The appellant waived her right to have a lawyer present.

THE ISSUES ON THE CONVICTION
    APPEAL

[8]

As indicated, the issues on the conviction appeal only concern the
    admissibility of the statements that the appellant made at 3:05 a.m. and 8:15
    a.m. The Crown did not seek to introduce the 7:10 statement, which was solely
    concerned with the appellants rights under s. 146. The appellant submits that
    the 3:05 statement was inadmissible because the police did not comply with s.
    146. She argues that the 8:15 statement was inadmissible because the appellant did
    not waive her rights under s. 146 and in particular did not waive her right to
    have a lawyer present.

[9]

The Crown submits that the appellant was not detained during the 3:05
    statement until she made a specific incriminating statement at which point the
    interview ended.  Thus, s. 146 did not apply to the 3:05 statement.  Crown
    counsel submits that the police complied with s. 146 before the 8:15 statement.

ANALYSIS

(1)

The 3:05 Statement

[10]

The
    issue with respect to the 3:05 statement was whether the provisions of s. 146
    of the
YCJA
were triggered. Section 146(2) requires the police to
    provide the young person with information and rights beyond those provided for
    at common law or under s. 10 of the
Charter of Rights and Freedoms
if
    the young person is under arrest or detention or the officer has reasonable
    grounds for believing that the young person has committed an offence. The
    appellant submits that the appellant was detained within the meaning of
    subsection (2) and, in any event, that during the 3:05 interview and before the
    appellant made the incriminating statement at the end of the interview, the
    officer had reasonable grounds to believe that the appellant had committed an
    offence.

(i)

Was the appellant detained?

[11]

The
    trial judge found that the appellant was not detained. He set out his reasons
    for that finding at paras. 45-49 of his ruling on the admissibility of the 3:05
    and 8:15 statements. In short, the trial judge found that when the appellant
    and her mother were contacted by a police officer, P.C. Wells, they freely came
    down to the police station to assist with the investigation. Once at the
    station, the investigating officers told the appellant and her mother that
    while the door to the interview room was shut, it was not locked and that she
    was not under arrest. The officers also told the appellant she was not obliged
    to give a statement.

[12]

The
    test for whether a suspect is detained has most recently been set out in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. While the court was dealing
    with ss. 9 and 10 of the
Charter
, there was no suggestion that a
    different test should apply to s. 146(2) of the
YCJA
. The court
    summarized the test at para. 44:

1. Detention under ss. 9 and 10 of the
Charter
refers
    to a suspension of the individual's liberty interest by a significant physical
    or psychological restraint. Psychological detention is established either where
    the individual has a legal obligation to comply with the restrictive request or
    demand, or a reasonable person would conclude by reason of the state conduct
    that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal
    obligation, it may not be clear whether a person has been detained. To
    determine whether the reasonable person in the individual's circumstances would
    conclude that he or she had been deprived by the state of the liberty of
    choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they
    would reasonably be perceived by the individual: whether the police were
    providing general assistance; maintaining general order; making general
    inquiries regarding a particular occurrence; or, singling out the individual
    for focussed investigation.

(b) The nature of the police conduct, including the language
    used; the use of physical contact; the place where the interaction occurred;
    the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the
    individual where relevant, including age; physical stature; minority status;
    level of sophistication.

[13]

In
    his submissions, counsel for the appellant focused on two aspects of the
    encounter between the appellant and the police. First was the request by officer
    Wells for the appellant and her mother to attend the station. The appellant
    submits that the request by officer Wells was a demand or direction and a
    reasonable person in the appellants circumstances would conclude that she was
    deprived of the liberty of choice. Second, at the station, it was never made
    clear to the appellant that she could leave at any time.

[14]

The
    issue with officer Wells focuses on the contents of the telephone conversation
    between the officer and the appellants mother. The officer asked the
    appellants mother to bring the appellant to the station. The trial judge found
    the relevant facts on this aspect of the encounter as follows:

He [officer Wells] told M.T.'s mother that there had been an
    incident that the police wanted to speak to M.T. about. While P.C. Wells did
    not have a clear recollection of the conversation he had with M.T.'s mother, he
    acknowledged that he might have said that M.T.'s mother could either bring M.T.
    to the station or that the police could come and pick her up or words to that
    effect.

[15]

Since,
    the appellant had no legal obligation to comply with the request from officer
    Wells to attend at the station, the issue is whether the circumstances amounted
    to psychological detention as explained in
Grant
. As at trial, the appellant
    submits that the words used by the officer resulted in a demand or direction
    that would lead a reasonable person to conclude, by reason of the state conduct,
    that she had no choice but to comply. In finding that there was no detention
    the trial judge noted that: There is no evidence to contradict the position of
    the police officers involved that if M.T. and her mother had declined to attend
    at the station, that would have been the end of the matter at that point. And
    specifically with respect to officer Wells, the trial judge stated that if the
    appellants mother had refused to come to the station he would have simply
    returned to the police station and reported that fact to the homicide
    detectives.

[16]

The
    appellant submits that the trial judge erred in relying on the subjective view
    of the police, especially Officer Wells, which was never communicated to the
    appellant or her mother. These statements by the trial judge must be put in
    context. They were made in response to a submission at trial that officer Wells
    was giving the appellant and her mother an ultimatum and that the police had
    intended to gain control of M.T. for the purpose of questioning her. In
    other words, the comments by the trial judge as to officer Wells and the other
    officers states of mind were in response to a submission by the appellant as
    to the intention of the officers. The other findings by the trial judge, which
    are supported by the record, support the view that the appellant was not
    detained. These findings include the following:

·

The appellant and her mother freely attended at the station;

·

The appellants mothers reaction to the request from officer
    Wells was to assist the police in whatever way she and the appellant could;

·

The appellants mothers testimony at trial that she felt she had
    no choice but to attend at the station was at odds with her actions and
    statements at the time and during the interview.

These findings are sufficient to support the
    conclusion that there was no demand or direction amounting to psychological
    detention.

[17]

The
    appellant submits that the trial judge also erred in finding that the appellant
    was not detained when she and her mother were placed in the interview room and
    the door was closed. Again, the trial judges findings of fact run counter to
    this submission. The door was closed, but the appellant and her mother were
    told that the door was not locked. While they were not told explicitly that
    they could leave at any time, they were told that nobody could force the
    appellant to make a statement and that she was not under arrest. The appellant
    agreed that she understood she had the right to choose whether or not to make a
    statement. It was not necessary for the officers to expressly tell the
    appellant that she could leave at any time. The only reason she was there was
    to make a statement. If she chose not to make a statement there was no reason
    for her to remain.

(ii)

Reasonable grounds to believe the appellant committed an offence

[18]

In
    the alternative, the appellant submits that the investigating officers had
    reasonable grounds to believe that the appellant had committed an offence, in
    particular that she was a party to the murder committed by David Bagshaw. The
    appellant referred to a number of circumstances. The police believed that
    Bagshaw was the killer and that he had told people he was being pressured by
    the appellant to stab the victim. They had learned about the incident three
    months earlier in which Bagshaw had asked the victim to pretend that he had
    tried to kill her to appease the appellant. Finally, they also knew that
    shortly after the killing the appellant had called Bagshaw. Bagshaws friend
    who overheard part of the conversation heard the appellant ask: Did you do
    it?

[19]

The
    trial judge considered all these circumstances and concluded that the police
    did not have reasonable grounds prior to the appellants admission at the very
    end of the interview. The trial judges conclusion is supported by the
    evidence. As he points out, any information about the appellants possible role
    in the crime emanated from Bagshaw who the police reasonably believed was
    inherently untrustworthy. The police believed the appellant to be an
    important witness, not a suspect. She might have had valuable information about
    what Bagshaw had done, had planned to do, what his motive might have been and
    where he might be. It was open to the trial judge to reach this conclusion at
    para. 55 of his reasons:

Subjectively, the detectives say they did not suspect M.T. to
    be a party to the killing of S.R. Objectively, there was information that
    suggested that M.T. might have had some role. Put at its highest, however, that
    information could not give rise to anything more than the thinnest of
    suspicions regarding M.T.'s involvement. That information certainly fell well
    short of constituting reasonable grounds to believe that M.T. was a party to
    the killing. The homicide detectives are correct when they say that the only
    direct source purporting to link M.T. as a party to the killing was D.B. D.B.,
    of course, would have been seen as having every reason to want to deflect the
    blame for his suspected actions or at least share that blame with others. In
    light of that reality, the information available to the police was insufficient
    when the homicide detectives first sat down with M.T. and her mother to
    constitute reasonable grounds to believe that M.T. was caught up in this crime.
    As it turned out, it was M.T. herself who provided that corroboration and, when
    she did so, the homicide detectives immediately terminated the interview and
    arrested M.T.

The appellant submits that this finding cannot be
    supported by the evidence given the following exchange early on in the 3:05
    interview:

Appellant:    I talked to her [the victims] mom on the phone
    and her on the phone.

Det. Sansom:        And when was that?

Appellant:    Like three months ago.

Det. Sansom:        Okay. Can you tell me about that
    conversation.

Appellant:    Yes. Um my boyfriend, they, well she spread
    rumours about me.

Det. Sansom:        Um hum.

Appellant:    And she kept calling my boyfriend.

Det. Sansom:        Um hum.

Appellant:    And I was getting really like sick and tired of
    it.

Det. Sansom:        Right.

Appellant:    So then like joking I was like oh I want her
    dead.

Det. Sansom:        Um hum.

Appellant:    And then my boyfriend went to her house but this
    was three months ago and then he tried to get her out of the house right? And
    then he wasnt really gonna kill her. He just wanted to talk to her and to tell
    her to stop doing it.

[20]

In
    this part of the interview, the appellant was talking about an incident three
    months earlier. She said she was joking and nothing came of the incident at the
    time. It was open to the trial judge to find that the officers only had
    reasonable grounds to believe the appellant was a party to the offence much
    later in the interview when the following conversation took place:

Det. Sansom:        If and when we have well we will have David
    and we will speak to him, will he tell us that you had asked him to do this?

Appellant:    Probably.

Det. Sansom:        And hell say that, will he say that
    because you did ask him to do this?

Appellant: [nods head]

Mother:        Mel do you know what youre saying?

Appellant:    Yea. I told you three months ago I asked him to.

At this point, the police now knew that the appellant,
    contrary to what she said earlier in the interview, had not been joking three
    months earlier. And, at this point, the police properly broke off the
    interview, advised the appellant of her rights and gave her the opportunity to
    speak to duty counsel. Aside from re-informing the appellant of her rights at
    7:10 a.m., nothing further took place until 8:15 a.m., many hours after the
    admission that caused the police to stop the interview and arrest the
    appellant. I agree with the trial judge that s. 146 of the
YCJA
was not
    triggered until that time.

(2)

The 8:15 interview

[21]

The
    appellants submits that s. 146 was violated at the 8:15 interview because the
    police did not properly or adequately inform the appellant of her right to have
    counsel present during the interview. The relevant part of s. 146 is set out
    below. I have emphasized the important part of the provision:

(
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.
    [Emphasis added.]

Section 146(4) provides that the young person may
    waive the rights under para. (2)(c) or (d) to, among other things, consult
    counsel and make the statement in the presence of counsel.

[22]

The
    facts giving rise to the appellants submission are the following. After the
    3:05 interview was terminated, the appellant was informed of her right to
    counsel. The appellants mother advised the appellant to speak to a lawyer and
    the police arranged for the appellant to speak to duty counsel. There was no
    suggestion that there was any problem with the advice given by duty counsel.
    The police then placed the appellant in a locked room. At 7:10 a.m. the
    investigating officers returned to the room and informed the appellant of her
    rights under s. 146. This interview was audio taped. The officers explained to
    the appellant that she had the right to have counsel present in the following
    terms:

Det. Ryan:   You dont have to make a statement. If you decide
    to make a statement and you talk to a lawyer or parent or adult relative or any
    other adult, they must be here with you unless you dont want them to be here.
    Do you understand that?

Appellant:    No.

Det. Ryan:   You can have an adult present with you when you
    talk to us again, if you want. Get that?

Appellant:    Yes.



Det. Ryan: Now, Im gonna read to you whats called a Waiver of
    Rights and if you sit and talk to us without it, well have to do this all over
    again [unintelligible], okay, but this is I want you to understand this is what
    were gonna be reading to you.

Appellant:    Okay.

Det. Ryan:   Ive been given the opportunity to obtain free
    legal advice right now from a Legal Aid lawyer and the opportunity to talk to a
    lawyer and a parent. Correct?

Appellant:    Yes.

Det. Ryan:   Ive been informed that I have the right to have
    any of these people that Ive talked to here with me, if [unintelligible].  Correct?

Appellant:    Yes.

Det. Ryan:   My rights have been explained to me and I
    understand that.

Appellant:    Correct.

Det. Ryan:   And then we got some choices here. [Unintelligible]
    to you can talk to theres boxes here that well go over and says I do not
    choose to talk to any of these people. I have talked to or I have talked to
    somebody and I want them here with me during this interview. So, well go
    through that and would you want to have somebody present with you when you talk
    to us, or would you rather do it on your own?

Appellant:    My mom.

Det. Ryan:   You want to have her here with you?

Appellant:    Yes.

Det. Ryan:   So, thats what were gonna go over, so Im gonna
    get your mom here and then so if your mom comes back here, I can call her and
    tell her that you wanna talk to us but you want her here with you, is that
    right?

Appellant:    Yes.

[23]

Since
    the appellant wanted her mother to be present, the police officers left and
    called the appellants mother.  When she arrived, the appellants mother spoke
    to the appellant for 20 minutes. The appellants mother testified on the
voir
    dire
that she urged her daughter not to speak with the police officers without
    a lawyer being present. However, she was unable to persuade the appellant to
    have a lawyer present. When the 8:15 a.m. statement began, the investigating
    officers again reviewed the appellants common law and
Charter
rights
    with her. At each stage, the officers affirmed that the appellant understood
    what she was being told and often asked her to repeat back to them in her own
    words what she was being told. She was told in plain language that she had the
    right to speak to a lawyer again. She declined. She was told that any lawyer,
    parent or adult she had spoken to had to be present when she gave the
    statement. Since the appellant relies upon the wording of that part of the
    interview I set it out below:

Det. Sansom: Okay. Do you, uh sorry. You do not have to make a
    statement. If you decide to make a statement and you talk to a lawyer or parent
    or adult relative or any other adult, they must be here with you unless you do
    not want them here. Let me just word that in my, my own, my own way. In this
    case, you wanted to talk to your mom and you spoke to her in private. That
    means your mom has to be here during the taking of this statement unless you
    say ah you know what, I dont want mom here and then mom has to leave. Thats
    your choice but since you talked to her, she has to be here unless you say nah
    I dont want her here. Okay?

Appellant:    Okay.

Det. Sansom:        Do you understand that?

Appellant:    Yea.

Det Sansom:         What does that mean to you?

Appellant:    It means if I dont want my mom here, she doesnt
    have to be.

Det. Sansom:        Okay. You have talked to your mom. Do you
    want to have uh her here during this statement, if you give a statement?

Appellant:    Yes.



Det. Sansom:         So if you decide to make a statement here
    now, you can stop at any time and say all right, I want to talk to a lawyer or
    I want to talk to a parent. I want to talk to an adult relative or I want to
    talk to an appropriate adult. Sort of that list of people that you can, like go
    to people for, for a young person right?

Appellant:    Okay.

Det. Sansom:        Uh at any time you can stop and ask for one
    of those people. Okay?

Appellant:    Yep.

Det. Sansom:        Now this is sort of the last leg of it. It
    goes like this. I, you, I have been given an opportunity to obtain free legal
    advice right now from a Legal Aid Lawyer and the opportunity to talk to a
    lawyer and a parent. Do you agree with that?

Appellant:    Yes.

Det. Sansom:        Youve been given that opportunity?

Appellant:    [nods head]



Det. Sansom:        Yea well write your moms name here. Ive
    talked to and then tick that box. Uh I want them here during this and lets
    stroke that out and initial it. And but you did talk to a lawyer. So I have
    talked to Duty Counsel right?

Appellant:    How do you spell counsel?

Det. Sansom:        Um. C-O-U-N-S-E-L. I have talked to Duty
    Counsel and you dont want them here during this interview. Is that the person
    you talked to on the phone? Is that correct?

Appellant:    [nods head]

Det. Sansom:        Okay. So I guess tick that box as well. All
    right? So youre comfortable with that. Your moms here. You want her here.
    Youve talked to Duty Counsel and youre not interested in having them here. Signature
    and signature and you follow all this mom? Are you comfortable with this?

Appellants Mother:          Im really confused actually. Ive
    never been involved in any 

Det. Sansom:        --it can be confusing--

Appellants Mother:          --thing like this.

Det. Sansom:        I know it can be.

At this point, the appellants mother said she was
    terrified seeing the charge against her daughter and that she wanted her to
    be honest and tell the story but didnt want to see her implicated. Detective
    Ryan interjected and, in a brief exchange with the appellants mother, explained
    generally that the form the appellant was filling out went above and beyond
    to make sure that a minor understands everything. The exchange between
    detective Samson and the appellants mother continued:

Det. Sansom:        She has more, more rights than an adult. She
    can talk to a lot of people to get advice. Including parents.

Appellants Mother:          Um hum.

Det. Sansom:        Obviously because parents should be
    involved right?

Appellants Mother:          Yes.

Det. Sansom:        And thats what it says and she can have a
    parent in this room. If she was an adult and mom and dad wanted to come in, no
    way.

Appellants Mother:          Um hum.

Det. Sansom:        But because shes a young offender, you get
    to come in. Basically thats it.

Appellants Mother:          Okay.

Det. Sansom:        Really in a nutshell. So it asks for a
    witness. Im gonna sign this as a witness but I want, I just want you to be
    comfortable that you understand whats going on.

Appellants Mother:          I understand the form.

[24]

The
    trial judge found that the appellant had been afforded her rights under s. 146
    and had waived her right to have the lawyer she had spoken to, present during
    the questioning. The trial judge took into account what the appellant said to
    her mother when they met in private and then what she said to the police. As he
    said at paras. 62-3:

It remains the fact that the requirement in Section 146(2),
    that any person whom a young person consults is to be present for the taking of
    a statement is expressly made subject to the exception "unless the young
    person desires otherwise". The section therefore recognizes that a young
    person may not wish to have a lawyer or a parent or another adult present when
    he or she speaks with the police.
A young person has the right to make that
    choice. In this case, M.T. made it clear that she desired otherwise. She did so
    first to her mother and then later to the homicide detectives.

Further, during the course of the detectives explaining her
    rights under the
Youth Criminal Justice Act
in the opening portion of
    the second interview, M.T. was asked if she wished to speak to counsel again
    and M.T. said "No".
The detectives told her that any lawyer or
    parent that she had spoken to had to be present for the taking of a statement
    unless she did not want them there. M.T. expressly said that she wanted her
    mother present, thereby evidencing her understanding of the choices available
    to her. Still further, M.T. was told that she could stop the interview at any
    time and speak to a lawyer, or her parent, and M.T. indicated that she
    understood that. It ignores reality to suggest that in those circumstances, the
    mandates of the Youth Criminal Justice Act have been violated.
[Emphasis
    added.]

The trial judge concluded by finding that he was
    satisfied beyond a reasonable doubt that the requirements of s. 146 were fully
    complied with and he failed to see what else the officers could reasonably have
    been expected to do.

[25]

The
    appellant submits that when the circumstances are considered as a whole, while
    the police did properly inform the appellant of her right to have her mother
    present, they did not adequately inform her of the right to have the lawyer
    present. The appellant particularly relies upon the passage where the officer
    paraphrased the rights. I repeat that passage:

You do not have to make a statement. If you decide to make a
    statement and you talk to a lawyer or parent or adult relative or any other
    adult, they must be here with you unless you do not want them here.
Let me
    just word that in my, my own, my own way. In this case, you wanted to talk to
    your mom and you spoke to her in private. That means your mom has to be here
    during the taking of this statement unless you say ah you know what, I dont
    want mom here and then mom has to leave. Thats your choice but since you
    talked to her, she has to be here unless you say nah I dont want her here.
    Okay?
[Emphasis added.]

[26]

This
    short passage from the interview must, however, be considered with all the
    other evidence. In the 7:10 interview, the appellant was told that she could
    talk to a lawyer, parent or other adult and they must be here with you unless
    you dont want them to be here. When asked if she understood, the appellant
    said that she did not. The officer then broke down the advice into two parts.
    She was told she could talk to a lawyer, parent, adult relative or appropriate
    relative at any time and have that person here with you. This time the
    appellant said that she did understand. The officers then reviewed the waiver
    with the appellant and she indicated that she understood she had the right to
    have any of the people she had talked to here with me. The appellant agreed
    she had been told this. She was then told again that she had the right to have
    anyone she had talked to present and she said that she wanted her mother
    present.

[27]

As
    indicated earlier, after her mother came to the police station, the appellant
    talked to her and said she did not want a lawyer present.

[28]

Again,
    at the 8:15 a.m. interview, the police reviewed the appellants rights and the
    requirements of s. 146. She was told she could speak to a lawyer again. Her
    mother asked her if she wanted to talk to a lawyer again. The appellant said:
    I know what he said.  She told the investigating officer that she understood
    what the lawyer told her and she did not want to speak to a lawyer again. The
    part of the interview particularly relied upon by the appellant must be seen in
    the context of the appellant having repeatedly said that she understood she had
    the right to speak to a lawyer and did not want a lawyer present. Then the
    officer told the appellant that at any time she could talk to a lawyer and have
    that person here with you. Finally, in dealing with the waiver form, the
    officer read out the following:

I have talked to Duty Counsel and you dont want them here
    during this interview. Is that the person you talked to on the phone? Is that
    correct?

The appellant nodded her head. When the appellants
    mother expressed confusion at this point, the police officer focused on the
    idea that because the appellant was a young person she had more rights than an
    adult, particularly the right to have an adult present. The appellants mother
    then said: I understand the form.

[29]

The
    appellant submits that in this interview, the officers did not fulfill their
    obligations to inform the appellant that the lawyer to whom she had spoken was
    required to be present; that the officer in paraphrasing the obligation only
    told the appellant that her mother was required to be present. The appellant
    relies upon this courts decision in
R. v. S.S.
, 2007 ONCA 481, 222
    C.C.C (3d) 545. As Lang J.A. said in that case at para. 33, there is an
    important distinction between a right of a young person and a requirement
    placed on the police. Section 146(2)(b)(iv) expressly places an obligation on
    the police and Parliament deliberately distinguished between information
    about a young persons right and about an obligation on the police. Justice Lang
    went on at para. 35 to note that s. 146(2)(b) required the officer to clearly
    explain the information and it cannot be a clear explanation if the police
    fail to tell the young person that counsel and any other consulted third party
    must be present during the taking of any statement.

[30]

Whether
    the police complied with this provision is primarily a question of fact. In
R.
    v. S.S.
, the officer never told the young person that any person consulted
    must be present during the taking of the statement: see para. 9 of this courts
    reasons. In the appellants case, the officers did use the word must in
    relation to a lawyer, parent or adult relative to whom the appellant had
    spoken. It was open to the trial judge to find that the police therefore did
    fulfill their obligation. The fact that the police officer used as an example
    that, since the appellant spoke to her mother, her mother has to be here did
    not undermine the breadth of the earlier explanation that referred to talking
    to a lawyer and an adult relative who must be here. Interpreting what
    occurred between the appellant and the police officers and importantly whether
    the appellant understood her rights was a matter for the trial judge, absent a
    palpable and overriding error. I have not been persuaded that there was any
    such error.

[31]

The
    respondent submits in the alternative that any deficiency in the obligation on
    the police to comply with s. 146(2)(b)(iv), in the particular circumstances of
    this case, fell within subsection (6), which provides as follows:

(6) When there has been a technical irregularity in complying
    with paragraphs (2)(b) to (d), the youth justice court may admit into evidence
    a statement referred to in subsection (2), if satisfied that the admission of
    the statement would not bring into disrepute the principle that young persons
    are entitled to enhanced procedural protection to ensure that they are treated
    fairly and their rights are protected.

In
R. v. S.S.,
this court refused to apply
    subsection (6) because the young person in that case was deprived of a
    substantial informational component of s. 146(2)(b)(iv). Since I have found
    that there was no failure to comply with subsection (2), I need not decide
    whether this would be a proper case to apply subsection (6).

[32]

Finally,
    I see no basis for interfering with the trial judges conclusion at para. 57 of
    his reasons that the appellant clearly understood her rights to have a lawyer
    present and willingly chose to waive those rights and participate in the second
    interview. The entire context including the third interview and the
    appellants statement to her mother that she did not want counsel present
    support the trial judges conclusion.

SENTENCE

[33]

The
    appellant submits that the trial judge erred in principle in imposing an adult
    sentence. The primary focus of the submission was the manner in which the trial
    judge treated the pre-sentence custody. I will deal with this submission after
    setting out more of the evidence about the offence and the appellant.

[34]

The
    relationship between Bagshaw and the victim occurred when the victim was only
    12 and Bagshaw was 15 years of age. The relationship was short, non-sexual, and
    ended when the victims mother found a message from Bagshaw demanding that the
    victim perform a sexual act on him. The relationship between the appellant and
    Bagshaw began two years later. It was a relationship marked by jealousy and
    allegations of unfaithfulness. Even though there was no basis for it, the
    appellant developed a belief that Bagshaw had a love interest with the victim that
    included sexual activity. As the trial judge said, the appellants belief that
    the victim posed a threat to her relationship with Bagshaw grew from an
    irritation to an obsession. There was constant communication between the
    appellant and Bagshaw concerning the killing of the victim. The appellant
    threatened to end the relationship if he did not kill the victim. The trial
    judge noted the cold-blooded effort by the appellant to confirm that Bagshaw
    had killed the victim by calling her cell phone.

[35]

At
    the time of the killing the appellant was just a few days short of her
    sixteenth birthday. From her arrest on January 2, 2008, she had been in custody
    for about 18 months before she was sentenced by the trial judge. Outside of the
    appellants relationship with Bagshaw and her involvement in the murder, the
    appellant appeared to be a normal teenager. She did well in school and had
    friends. She had a good relationship with her brother and her parents. She was
    well-provided for and lived in a good neighbourhood. In determining sentence,
    the trial judge had the benefit of a pre-sentence report, evidence from a
    psychologist and evidence of Crown and defence psychiatrists: Dr. Klassen and
    Dr. Gojer. For reasons which are supported by the record, the trial judge
    placed greater emphasis on Dr. Klassens report. The psychological tests showed
    that the appellant exhibited more offender-like characteristics than would be
    apparent from her history and presentation. She has a capacity for manipulation
    and displays obsessive compulsive and borderline personality disorder features
    that are quite well-established despite her age. Those personality features may
    be difficult to modify.

[36]

Dr.
    Klassen found that the appellant lacked empathy or remorse over the murder. He
    was inconclusive in assessing the appellants future risk, finding that
    depending on the context the risk of aggressive behaviour could be low, medium
    or high. In his view, the appellant should receive psychological intervention
    for these symptoms but he had concerns about her receptiveness to treatment.
    Should the appellant re-offend, potential targets include intimate partners,
    third parties and possibly children. Dr. Klassen did believe that the appellant
    would do well with external supervision and rules designed to address the risk.
    The appellant admitted to the psychologist that she had ongoing thoughts of
    hurting other persons.

[37]

At
    the time the appellant was being sentenced, the applicable provision of the
YCJA
provided as follows
[1]
:

72.(1) In making its decision on an application heard in
    accordance with section 71, the youth justice court shall consider the
    seriousness and circumstances of the offence, and the age, maturity, character,
    background and previous record of the young person and any other factors that
    the court considers relevant, and

(a)     if it is of the opinion that a youth sentence imposed
    in accordance with the purpose and principles set out in subparagraph
    3(1)(b)(ii) and section 38 would have sufficient length to hold the young
    person accountable for his or her offending behaviour, it shall order that the
    young person is not liable to an adult sentence and that a youth sentence must
    be imposed; and

(b)     if it is of the opinion that a youth sentence imposed
    in accordance with the purpose and principles set out in subparagraph
    3(1)(b)(ii) and section 38 would not have sufficient length to hold the young
    person accountable for his or her offending behaviour, it shall order that an
    adult sentence be imposed.

If sentenced as a young offender, the maximum sentence
    under the
YCJA
would be ten years comprised of a period of custody not
    to exceed 6 years followed by placement in the community under conditional supervision
    for up to four years. If sentenced as an adult, the relevant provision of the
Criminal
    Code
provided that the minimum sentence was life imprisonment with parole
    eligibility between five and seven years, because the appellant was under 16
    years of age.

[38]

Thus,
    if sentenced as a young offender and not given any credit for pre-disposition
    custody, the appellant would not be free of supervision until she turned 27
    years of age. If sentenced as an adult and given the maximum parole
    ineligibility, the appellant would be eligible for parole shortly before she
    turned 23 years of age, but her release would be a matter for the parole board.
    And, in any event, she would be subject to parole supervision for life.

[39]

The
    trial judge considered the three sets of factors set out in former s. 72 of (1)
    seriousness and circumstances of the offence; (2) the age, maturity, character,
    background and previous record of the young person; and (3) any other relevant factors.
    As to the first set of factors, the seriousness and circumstances of the
    offence, the trial judge found that this offence was unequivocally serious. As
    to the second set of factors, the trial judge found that her relatively young
    age, her pro-social background and lack of any prior record were all positives.
    However, they were outweighed by other facts that suggested a character flaw
    that is frightening in its prospects.

[40]

The
    appellants submissions as to the alleged error in principle focus on the third
    set of factors: any other factors that the court considers relevant. Under this
    set of factors, the trial judge considered the interests of society and in
    particular the societal interest in ensuring that young persons who commit
    serious violent offences are subject to meaningful penalties. The trial judge
    concluded that the maximum youth sentence would not be consistent with ss. 3
    and 38 of the
YCJA
as required by s. 72. To repeat, former s. 72(1)(b)
    provides the following with respect to the order the court shall make:

(b)     if it is of the opinion that a youth sentence imposed
    in accordance with the purpose and principles set out in subparagraph
    3(1)(b)(ii) and section 38 would not have sufficient length to hold the young
    person accountable for his or her offending behaviour, it shall order that an
    adult sentence be imposed.

Because they are central to the trial judges
    conclusion and the focus of the appellants submissions I set out the relevant
    part of the trial judges reasons:

70
As acknowledged by
    both psychiatrists, a person's personality is not fully developed until a
    person is in his or her twenties. There are clear warning signals regarding
    Melissa's potential future mental state. While Melissa may only pose a risk in
    a narrow set of circumstances, that does not mean that the risk is any less
    real or the consequences of its emergence any less grave. Presented with an
    event such as occurred in this case, society has the right to expect that
    appropriate but balanced steps will be taken to protect the public while the
    rehabilitation and reintegration of the young person is undertaken.

71

If
    subject to the maximum youth sentence, Melissa would be out of custody in four
    and one-half years (after the necessary and appropriate credit for pre-sentence
    custody)
. If she was then subject to the maximum community supervision
    period of four years, Melissa would be free of all court ordered supervision
    when she was approximately twenty-five years old or about the time according to
    the psychiatrists when her personality should be fully developed. In that
    scenario, there would be no further monitoring of Melissa.



74

Of
    more importance, however, is the issue of monitoring. Ultimately, in this case,
    we are left with a horrific event caused by a young person for reasons that are
    still unfathomable. The evidence of the psychiatrists, fairly taken, is that
    there is some risk of a repetition of this conduct. While the precise degree of
    risk is unknown, the nature and extent of Melissa's role in this incident is
    cause for grave concern.

75

The
    concept that a young person would ultimately be left free of supervision where
    there has yet to be an accurate diagnosis of the problem, nor any effective
    treatment program developed, is as contrary to the need for the public's
    protection as one could imagine. Someone must be charged with the task of at
    least making an effort to follow Melissa's progress so that if a risk should
    again present itself there may be some hope of interrupting its path. A youth
    sentence fails to provide the needed level of protection that an adult sentence
    does. As MacPherson J.A. said in [
R. v.
]
Logan
, [2009 ONCA 402,
    97 O.R. (3d) 270], at para. 20:

Such supervision is entirely consistent with the overarching
    sentencing goal of protecting the public from violent criminal conduct.

76

It
    is that factor, more than any other, that leads me to the conclusion that
    Melissa Todorovic must be subject to an adult sentence. It is the only sentence
    that properly reflects the principle of accountability or retribution, that is,
    the moral culpability of the offender, having regard to the intentional
    risk-taking of the offender (which is high), the consequential harm caused by
    the offender (which was enormous), and the normative character of the
    offender's conduct (which was extreme).  [Emphasis added.]

[41]

The
    appellant submits that the trial judge erred in principle in holding that the
    maximum youth sentence had to take into account the pre-sentence custody. If no
    credit were given for pre-sentence custody, the appellant would be under
    supervision until she was 27 years of age not 25 years of age. The appellant
    submits that this would have been an appropriate case not to give any credit
    for pre-sentence custody.

[42]

In
    my view, the trial judge did not err in principle in his consideration of
    pre-sentence custody. First, it should be pointed out that it was defence
    counsel at trial (not Mr. Snell) who urged the trial judge to give credit for
    pre-sentence custody. Second, the amount of pre-sentence custody had no real
    impact on the appropriate disposition. In view of his findings, this is not a
    case where the trial judge would have imposed a youth sentence had he believed
    that the appellant would have been subject to supervision until she was 27
    rather than 25. The trial judges proper concern was that under a youth
    sentence, the appellant would be free of supervision of any kind once she
    reached her mid-20s. Whether that was age 25 or 27 was of no moment.  The
    important point was that just when her personality should be fully developed,
    the appellant would no longer be subject to any kind of supervision, no matter
    how dangerous she was. I agree with the trial judges concern that the
    appellant would be left free of supervision where there was yet to be an
    accurate diagnosis and any effective treatment programme developed. The trial
    judge was rightly concerned that imposing a sentence with a definite end period
    for supervision would not adequately protect the public. That factor together
    with the other sets of factors mandated by former s. 72 required imposition of
    an adult sentence so that the appellant would be under supervision of the
    parole board.

[43]

The
    appellant also submits that the trial judge erred in principle in imposing an
    adult sentence on the basis of speculation that the appellant would represent a
    risk to re-offend in a violent way. I do not accept this submission. The trial
    judge found the psychiatric evidence unhelpful in assessing the future risk.
    However, the trial judge was not limited to considering the psychiatric
    evidence in making that determination. There was the evidence of the murder
    itself. It was conceived out of the appellants distorted view of her
    relationship with Bagshaw and of his relationship with the victim. She also
    continued to show no empathy for the victim and harboured ongoing thoughts of
    hurting other persons. Those circumstances strongly suggested that the
    appellant was at risk to re-offend. The psychological testing showed that a
    disordered personality was well-established despite the appellants young age
    and the appellant would be difficult to successfully treat. The trial judge
    properly found that the three sets of factors set out in former s. 72 required
    imposition of an adult sentence.

DISPOSITION

[44]

Accordingly,
    I would dismiss the appeal from conviction and sentence.

Released: MR February 27, 2014

M. Rosenberg J.A.

I agree. Paul
    Rouleau J.A.

I agree. G. Pardu
    J.A.





[1]
This provision has since been amended by provisions that came into force on
    March 13, 2012.


