



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Guthrie, 2016 ONCA 466

DATE: 20160614

DOCKET: C61463

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Guthrie

Appellant

Dennis Guthrie, in person

Joseph Di Luca,
amicus

Tracy Kozlowski, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on June 2, 2014 by Justice
    Julianne Parfett of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant, Dennis Guthrie, was convicted of aggravated assault of a
    fellow resident at the Shepherds of Good Hope shelter in Toronto.

[2]

The appellant was arrested in the late evening, charged with assault
    causing bodily harm, and was cautioned about his right to silence and right to
    counsel. He met with duty counsel and was placed in a cell for the night. The
    next morning - about 11 hours after his arrest and initial caution  he was
    interviewed by the police. Although he had not been under the influence of
    alcohol or drugs at the time of his arrest, he advised the interviewing officer
    that he did not remember any of the events of the previous evening.

[3]

The interviewing officer asked the appellant if he wanted to speak to a
    lawyer. The appellant responded if I already have, then I already have. The
    interviewing officer reminded the appellant twice of his right to silence. In
    response, the appellant told the interviewing officer that he knew the drill
    and would have stayed in the cell if he was not willing to talk. The
    interviewing officer told him that he had been arrested for assault, at which
    point the appellant asked whether the victim was alive. He was assured that he
    was, and the interview continued.

[4]

The appellant was ultimately charged with assault with a weapon and
    aggravated assault, and was convicted at trial of aggravated assault. The
    appellant appeals that conviction on the basis that: (1) the trial judge
    misdirected the jury as to the nature of the appellants criminal record; and
    (2) the trial judge erred in finding that the appellants rights under s. 10(b)
    of the
Charter of Rights and Freedoms
were not infringed.

[5]

For the reasons set out below, the appeal is dismissed.

Issue 1: The appellants criminal record

[6]

The appellant argued on his own behalf without the assistance of
amicus
,
    that he was prejudiced at trial by the admission into evidence of his
    unredacted criminal record. At trial, the appellant was unsuccessful on a
Corbett
application to edit his criminal record to remove convictions from 2001 and
    2005, which he argued were too remote in time to be of probative value. The
    trial judge accepted the Crowns submission that if these convictions were
    removed, it would create a misimpression that the appellant had been
    law-abiding for a large stretch of time. The appellant believed that accepting
    this submission would suggest that he had been continuously criminally active from
    2001.

[7]

There is no merit to this ground of appeal. For the appellants unedited
    criminal record to be before the jury meant that both his convictions and the
    periods of time between convictions were in evidence. It did not communicate to
    the jury that he was engaged in criminal activity during the gaps in the
    record.

Issue 2: Voluntariness of
    the appellants statement and s. 10(b) of the
Charter

[8]

The
amicus
, on the appellants behalf, argued that the trial
    judge erred in finding that the appellants statement to the police was
    voluntary, and that his rights under s. 10(b) of the
Charter
were not
    violated. This argument is advanced on three bases: (1) a re-caution as to the
    right to counsel and the right to remain silent was required at the start of
    the police interview because of the length of time that had passed since the appellant
    was taken into custody and cautioned the previous night, (2) a re-caution was
    required because the appellant faced a change in jeopardy over the course of
    the police interview; and (3) a re-caution was required because the appellant
    had an absence of memory from the previous night, including the caution and
    meeting with counsel.

[9]

As set out below, the trial judge made no error in finding that the
    appellants s. 10(b) rights were not violated and that no re-caution was
    required.

[10]

First, the trial judge made no error in holding that a lengthy lapse of
    time between the exercise of the right to counsel and the start of a police
    interview does not automatically require an additional caution and opportunity
    to consult counsel. Significantly, as explained below, there was no change in
    jeopardy in the intervening period and, as the trial judge noted, the
    interviewing officer reminded the appellant of his right to remain silent
    before the interview began.

[11]

Second, the trial judges analysis of the change in jeopardy was
    carefully reasoned and grounded in correct legal principles. The appellant was
    arrested for assault causing bodily harm, but by the conclusion of the
    interview, the interviewing officer decided to charge him with aggravated
    assault and assault with a weapon. As the Supreme Court held in
R. v. Evans
,
    [1991] 1 S.C.R. 869 at para. 48, a change in jeopardy will require an accused
    to be provided with an additional opportunity to consult counsel, where there
    is either a discrete change in the purpose of the investigation, one involving
    a different and unrelated offence or a significantly more serious offence that
    that contemplated at the time of the warning.

[12]

The trial judge concluded that although aggravated assault and assault
    with a weapon are more serious offences than assault causing bodily harm, they
    are related offences and not significantly more serious as contemplated in
Evans
.
    We see no error in this conclusion. Although the interviewing officer commenced
    the interview by reminding the appellant that he had been arrested for
    assault, and did not specify further, the appellants immediate response 
    enquiring whether the victim was alive  indicated that he understood the
    jeopardy that he faced.

[13]

Finally, the trial judge made no error in rejecting the appellants
    argument that his claim to having no memory of his arrest, caution, and meeting
    with counsel, required a re-caution and additional opportunity to exercise the
    right to counsel.

[14]

The trial judge made a factual finding rejecting the appellants claim
    that he had no memory. She accepted the interviewing officers testimony that
    he believed the appellant to be lying in this regard, and noted the absence of
    any drug or alcohol abuse that might explain a blackout. She rejected the
    appellants argument that his bipolar disorder makes him prone to blackouts, on
    the basis that the appellant provided no evidence corroborating his assertion
    that he is bipolar or that suffering from bipolar disorder can make a person
    prone to blackouts. The appellant argued that the trial judge erred in not considering
    his statement in the police interview that he can tell when he is beginning a
    manic episode, and that his memory eventually returns. Although the trial judge
    did not specifically refer to this evidence, she was not required to. The trial
    judge did not accept the appellants evidence on this issue as truthful. The
    trial judges factual finding that the appellant did not suffer from any memory
    loss is entitled to deference, and there is no basis on which we could disturb
    it on appeal.

[15]

Although this factual finding is dispositive of this third limb of this
    ground of appeal, the trial judge also marshalled ample evidence to support the
    conclusion that, even if the appellant had no memory of the night of his
    arrest, the interviewing officer provided him with sufficient reminders of his
    right to silence and right to speak to a lawyer. At the outset of the
    interview, the interviewing officer asked if the appellant wished to speak to a
    lawyer and reminded him twice that he did not have to speak to the officer. The
    appellant assured the interviewing officer that he understood, that he knew his
    rights, that he knew the drill, and that he would have stayed in the cell
    if he did not want to talk. The trial judge did not simply take these statements
    at face value, but looked at the totality of the appellants statements and
    behaviour to determine that he in fact understood his rights. The appellant has
    not identified any reviewable errors.

[16]

We would like to express our appreciation for the assistance of the
amicus
on the appeal.

Disposition

[17]

The appeal is dismissed.

K. Feldman J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


