



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Joseph, 2020 ONCA 73

DATE: 20200131

DOCKET: C63237

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phillip Joseph

Appellant

Najma Jamaldin, for the appellant

John A. Neander and Melissa Adams, for the respondent

Heard: September 9, 2019

On appeal from the conviction entered on October 16, 2015,
    and the sentence imposed on May 10, 2016, by Justice Michael Code of the Superior
    Court of Justice, sitting with a jury, with reasons reported at 2016 ONSC 3061.

Fairburn J.A.:

OVERVIEW

[1]

During the evening of March 4, 2013, Michael Cocomello-Mandino
    told his mother that he was going to buy some TTC tokens. Fifteen minutes
    later, Mr. Cocomello-Mandinos mother found her son bleeding to death outside
    of their home. Mr. Cocomello-Mandino told his mother that Illi had stabbed
    him and that some punks had been involved.

[2]

There is no dispute that the appellant stabbed the deceased to
    death. The appellant testified that he acted in self-defence. He said that he met
    the deceased to address a situation arising from an earlier drug transaction.
    The appellant testified that the deceased was under the impression that the
    appellant had paid him with a counterfeit bill. The appellant said that when
    they met, the deceased pulled a knife on him. He managed to disarm the deceased
    and pull him to the ground, but that the deceased got on top of him and started
    choking him. The appellant testified that, just before he was about to lose consciousness,
    he was able to retrieve the knife that was located on the ground, somewhere
    around his head, and stab the deceased several times in order to get the
    deceased off of him. He then got in his car and left the scene.

[3]

The deceased was stabbed 17 times in total, with 9 wounds to his
    abdomen, the fatal wound penetrating 9 cm into his chest cavity. The appellant
    also stabbed the deceased 5 times in his back, 2 times in his left thigh, and once
    in the area around his eye. The shape of the wound beside the deceaseds eye
    suggested that it may have been made by twisting the knife on his face.

[4]

While the appellant said that the entire incident occurred on the
    roadway, the Crown alleged that the stabbing took place in a motor vehicle close
    to the deceaseds home. The Crown maintained that there was a third person
    involved in the incident, someone who held the deceased while the appellant
    stabbed him. That theory was supported by the fact that the deceaseds body
    showed no signs of defensive wounds and that he told his mother that punks
    had stabbed him. As well, a witness who was walking close to the deceaseds
    home heard screaming coming from a car and then saw a young man crawl through the
    window. She reported that at least two men remained in the car. Within a very
    short time, that same witness saw the deceaseds mother comforting her dying
    son.

[5]

The Crown alleged that this was a first degree murder for two
    reasons: (a) planning and deliberation (s. 231(2) of the
Criminal Code
,
R.S.C., 1985, c. C-46); and (b) unlawful confinement (s. 231(5)(e) of the
Criminal
    Code
). The defence claimed that the appellant acted in self-defence when the
    deceased confronted him with a knife on the roadway.

[6]

The jury returned a verdict of second degree murder, meaning that
    the jury was not satisfied beyond a reasonable doubt that the appellant had either
    planned and deliberated upon the murder, or that the death had been caused
    while committing an unlawful confinement. The conviction also demonstrated that
    the jury was satisfied beyond a reasonable doubt that the appellant had not
    acted in self-defence.

[7]

Given that the appellant was 17 years old at the time of the
    murder, the sentencing provisions under the
Youth Criminal Justice Act
,
    S.C. 2002, c. 1, (
YCJA
) applied. A lengthy sentencing proceeding took
    place. The primary focus at the hearing was whether the appellant should
    receive a youth or adult sentence. Ultimately, the sentencing judge imposed an
    adult sentence of life imprisonment with parole eligibility after seven years:
Criminal
    Code
, s. 745.1(c)
. That
    sentence was ordered to be served in a provincial reformatory, with specific
    recommendations about the location for classification.

[8]

This is an appeal from both conviction and sentence. The
    conviction appeal rests on three alleged errors made by the trial judge. The
    appellant contends that the trial judge erred in:

(1)

admitting the appellants
    statement, given to the police a couple of days following the murder;

(2)

excluding pictures taken from the
    deceaseds phone that the defence wished to elicit; and

(3)

instructions he gave the jury about
    the use of other evidence which showed bad character on the part of the
    deceased.

[9]

The sentence appeal rests on a claim that the trial judge erred
    in imposing an adult sentence. Fresh evidence has been filed to support that
    claim.

[10]

I would dismiss both the conviction and sentence appeals.

ANALYSIS


A.

Conviction Appeal

(1)

The Appellants Statement Was Admissible

(a)

Overview

[11]

The 911 call reporting the stabbing was received at 9:18 p.m. on
    March 4, 2013. By 3:48 a.m. the next day, the police had obtained the deceaseds
    phone records and identified the phone numbers that he had been in contact with
    in the two hours before he was killed. Among others, the deceaseds phone had been
    in contact with a phone that was registered to the appellants mother. The
    deceaseds phone and the phone registered to the appellants mother had exchanged
    29 text messages and connected on 4 calls in the time leading up to when the
    deceased was killed. The police did not know the content of those text messages
    until much later.

[12]

The police attended at the appellants mothers home address the next
    day, still well less than 48 hours since the homicide. They spoke with the
    appellants mother, told her that they were investigating a homicide, and
    inquired about the phone. The appellants mother confirmed that the phone
    number was registered to her. She also told the police that her son, the
    appellant, was not at home. The police left a business card and asked the
    mother to have her son contact them. The police then proceeded to another
    address that corresponded to a different number with which the deceaseds phone
    had been in contact on the day of the homicide.

[13]

Shortly after they had left the appellants home, the officers
    got a call from the appellant. They asked him to come into the police station
    to speak with them and he agreed to do so. Not long after that discussion, the
    then 17-year-old appellant, who would turn eighteen less than three months
    later, arrived at the police station with his mother. While the record does not
    reveal how the appellant got to the police station, it is clear that it was
    without police assistance.

[14]

An officer met the appellant and his mother at the station and
    told the appellant that they were investigating a homicide and that they would
    like to speak with him about any information he may have. The appellant agreed
    to do so. His mother was present.

[15]

The interview lasted 26 minutes. During that time, the police
    made numerous inquiries, including about whether the appellant knew the
    deceased, what he knew about the deceased, if he knew whether the deceased had
    a girlfriend, who the deceased hung out with, whether he knew anyone by the
    name of Elliott, and whether he knew whether the deceased was part of a gang.

[16]

In addition, the police asked about the nature of the appellant
    and deceaseds relationship and when they had last had contact. While the
    appellant admitted that he had communicated with the deceased on March 4, 2013,
    and admitted to somewhere in the range of about four phone calls with the
    deceased, he vastly understated the number of text messages they had shared and
    the timing of those messages, particularly the ones closer to the time of the
    homicide.

[17]

The appellant objected to the admission of the statement on two bases:
    (a) the police failed to comply with s. 146(2) of the
YCJA
, a
    provision governing the admissibility of statements from young persons in
    certain defined situations; and (b) the statement was involuntary. The
    appellant maintains that the trial judge erred in how he analysed both of those
    issues.

[18]

I agree with the trial judges conclusion that the statements
    were admissible. I will first address the s. 146(2)
YCJA
issue and
    then move on to the voluntariness issue.

(b)

Section 146(2) of the
YCJA
Does Not Apply

[19]

The
YCJA
applies to young persons who are twelve years
    old or older, but less than eighteen years old:
YCJA
,
s. 2. The
    appellant was 17 years old at the time that he gave his statement, bringing him
    within the statutory definition of a young person. Accordingly, the
YCJA

applies.

[20]

The
YCJA

supplements the common law relating to
    the admissibility of statements of young persons:
YCJA
,
s.
    146(1). In defined circumstances, s. 146(2) provides numerous additional
    protections, beyond those provided at common law, to young persons giving
    written or oral statements to persons in authority.
The provision responds to and cares for the accepted vulnerabilities of
    young persons. As Cory J. observed in
R. v. J.(J.T.)
, [1990] 2 S.C.R. 755, at p. 767, when addressing the
    precursor to s. 146(2), (s. 56 of the
Young Offenders Act
, S.C. 1980
‑
81
‑
82
‑
83, c. 110):
    [i]t was no doubt in recognition of the
additional
pressures and problems faced by young people that led
    Parliament to enact this code of procedure.

[21]

Section
    146(2) makes a young persons statement presumptively inadmissible unless the
    Crown dislodges that presumption:
R. v. N.B.
, 2018 ONCA 556, 362
    C.C.C. (3d) 302, at para. 86. To this end, the provision has been described as
    an admissibility rule that is exclusionary by nature, but inclusionary by
    exception:
R. v. M.D.
, 2012 ONCA 841, 293 C.C.C. (3d) 79, at para. 44. It places the
    onus on the Crown to demonstrate beyond a reasonable doubt one of two things:
    (a) why the
provision
does not apply; or, (b) if the provision applies, that its statutory
    requirements were met.

[22]

There
    are three statutory prerequisites to the operation of s. 146(2): (a) the youth
    is
arrested
;
    (b) the youth is detained; or (c) the peace officer or other person has
    reasonable grounds for believing that the young person has committed an
    offence.

[23]

This
    case is not about whether the statutory criteria within s. 146(2) were met.
    Many of them were not. Rather, the case is about whether the statutory
    prerequisites to the
operation
of s. 146(2) were present such that the police were statutorily
    obliged to meet the criteria within that provision.

[24]

The
    appellant was not under arrest at the time that he gave his statement to the
    police. Accordingly, the first statutory prerequisite was not met. The appellant
    argues, though, that the other two prerequisites were operative, namely that,
    at the time that the statement was
taken
: (a) there were reasonable grounds for believing that [the
    appellant had] committed an offence; and (b) the appellant was detained. I
    disagree.

(i)

There were no reasonable grounds to believe the appellant had committed
    an offence

[25]

The trial judge concluded that the standard of reasonable
    grounds for believing that the young person has committed an offence in s. 146(2)
    of the
YCJA
is tantamount to the s. 495(1)(a)
Criminal Code

threshold for arrest without warrant. He ruled that the threshold test is
    one of reasonable and probable grounds to believe the appellant had committed
    the homicide or was likely guilty. He specifically rejected that reasonable
    suspicion or possible guilt would trigger the operation of s. 146(2).

[26]

The trial judge considered the evidence available to the police
    at the time that the interview took place and concluded that it did not meet
    the requisite threshold. At the time of the interview, the only information connecting
    the appellant to the deceased were phone records which revealed a good deal of
    contact between them on the day of the homicide, up to and including just
    before the killing. The trial judge concluded that the telephone contact alone
    did not give rise to reasonable grounds to believe that the appellant was involved
    in the homicide. While the information suggested that the appellant may have had
    relevant information about the deceaseds whereabouts, activities and plans in
    the time shortly before he was killed, the trial judge concluded that, standing
    on its own, the telephone contact did not even amount to a reasonable suspicion
    that the appellant was the perpetrator of the offence.

[27]

The appellant argues that the trial judge erred by relying on the
    subjective belief of the police that they did not have sufficient grounds to
    arrest the appellant at the time they conducted the interview. I do not accept this
    characterization of the trial judges reasons.

[28]

I agree with the trial judge that the reference to reasonable
    grounds for believing that the young person has committed an offence in s.
    146(2) is synonymous with the threshold test for arrest without warrant:
R.
    v. T.(M.)
, 2009 CarswellOnt 8490 (S.C.), at paras. 53-55, affd 2014 ONCA
    153, 306 C.C.C. (3d) 171, at paras. 18-20.

[29]

The s. 495(1)(a) threshold test for arrest without warrant is
    time worn and well understood. The officer must have a subjective belief that
    the individual committed (or is about to commit) an indictable offence and that
    belief must be objectively reasonable in the circumstances:
R. v. Storrey
,
[1990] 1 S.C.R. 241, at pp. 250-51. In other words, the circumstances known
    to the police at the time of the arrest must be capable of permitting a
    reasonable person, standing in the shoes of the police officer, to believe
    that grounds for arrest exist:
Storrey
, at p. 250;
R. v. Stevenson
,
2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 50, leave to appeal refused, [2015]
    S.C.C.A. No. 37.

[30]

The police did not subjectively believe that they had grounds to
    arrest the appellant either when he arrived for or left the interview. The
    evidence about the officers subjective states of mind, though, did not drive
    the result in this case. Rather, the trial judge correctly focused on the facts
    that would have objectively supported a belief that the appellant was
    arrestable at the time of the interview. Necessarily, those facts needed to be
    known by the police at the time that the interview took place and not at some
    later point in time.

[31]

The trial judges analysis was almost entirely informed by the objective
    reality of the situation as known by the officers less than 48 hours after the
    deceased had been killed. While the case against the appellant undoubtedly strengthened
    over time, including the discovery of the appellants and deceaseds DNA on a hat
    found close to the scene of the murder, the DNA results were not known at the
    time of the interview. I agree with the trial judge that at that time, there
    were simply insufficient grounds to believe that the appellant had committed
    an offence within the meaning of s. 146(2) of the
YCJA
.

[32]

To use police parlance, while the phone
contact made the appellant a person of
    interest to them, it did not make him arrestable. There could have been any
    number of reasons why the appellant had contact with the deceased on the day of
    the homicide, many of which would not point toward him being a party to the
    homicide. While there was much to trigger a police desire to speak with the
    appellant (and, for that matter, the other individual who had clearly been in
    contact with the deceaseds phone on the day of the homicide), the phone
    contact alone did not furnish grounds to believe the appellant was culpable in
    the homicide. Phone contact  the content of which is unknown  with a person
    who is killed shortly after will undoubtedly attract police attention. Standing
    on its own, though, that contact does not give rise to a
reasonable
belief that the communicator
    killed the other person.

[33]

Accordingly,
    this was not a basis upon which to trigger the operation of s. 146(2).

(ii)

The appellant was not detained

[34]

The
    appellant also maintains that he was psychologically detained at the time of
    the interview and that the trial judge erred in failing to appreciate that
    fact. Importantly, the defence at the admissibility
voir dire
did not vigorously
    advance this theory. In fact, as properly noted by the trial judge, the main
    argument on the
voir dire

concerned whether the police had reasonable grounds. Even so,
    the trial judge addressed the issue of detention. In fairness, the alleged
    shortcomings in the reasoning process should be reviewed within that context.

[35]

The
    trial judge is said to have erred when he applied the standard test for
    determining whether someone is psychologically detained:
R. v. Grant
,
2009 SCC 32, [2009] 2
    S.C.R. 353, at para. 44. The
appellant
argues that when applying the test for psychological detention
    under s. 146(2) of the
YCJA
, courts must take into account the unique vulnerabilities of
    young people. According to the appellant, this is a more robust test for
    detention than exists outside of the
YCJA

context.

[36]

I
    do not accept this submission. There is no special test to be applied when
    determining whether a young person is detained under the
YCJA
.

[37]

Detention
    refers to a suspension of the individuals liberty interest by significant
    physical or psychological restraint:
Grant
,
at para. 44. Psychological
    detentions can develop where there is a legal obligation to comply with a request
    or demand, or from circumstances where a reasonable person would conclude that they
    have no choice but to comply:
Grant
,
at paras. 30, 44.

[38]

The
    sole question was whether the appellant was psychologically detained in the
    sense that he reasonably believed that he had been deprived by the police of
    any choice but to speak with them at the police station. In determining the
    answer to that question, the trial judge correctly relied on the test for
    psychological
detention
set out in
Grant
,
at para. 44. Notably, that test requires
    that the individual circumstances of the alleged detainee, including the age of
    the detainee, be taken into account in assessing whether she or he was detained:

To determine whether a reasonable person
in the individuals
    circumstances
would conclude that he or she has 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

(b) The nature of the police conduct

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

[39]

This
    test for psychological detention already accounts for the alleged detainees
    specific individual circumstances, including her or his age. The test allows
    for the appellants youth to be taken into account when determining whether the
    youth
perceived
that he or she had no choice but to comply. Indeed, Mr. Grants
    youth and inexperience were specifically adverted to when determining that he
    was detained:
Grant
,
at para. 50. That test for detention is directly transferrable
    to the s. 146(2)
YCJA

context:
R. v. Todorovic
, 2014 ONCA 153, 306 C.C.C. (3d) 171, at
    para. 12;
N.B.,
at para. 112.

[40]

Approaching
    the test for detention differently in the s. 146(2)
YCJA

context would create
    unnecessary confusion in the law and inject uncertainty into on-the-ground
policing
. I see no reason why the
Grant

test for detention, one that specifically accounts for the age
    of the alleged detainee, is not equally appropriate in the
YCJA

context. Nothing more
    is required.

[41]

Having
    properly articulated the law of psychological detention, and quoting the exact
    passage from
Grant
,
at para. 44, set out above, the trial judge went on to explain his
    conclusion that the appellant was not psychologically detained. In doing so, he
    made numerous factual findings that are owed deference by this court:
Grant
,
at para. 43.

Among other things,
    the trial judge highlighted the following findings of fact in determining that
    there was no detention:

·

the appellant called the police of his own free will;

·

the appellant attended at the police station of his own free will
    and left after the interview of his own free will;

·

the appellant had his mother in attendance with him the whole
    time;

·

the police questioning was entirely exploratory and of a general
    nature; and

·

when he inquired, the appellant was specifically told he did not
    have to answer specific questions and decided not to answer a question.

[42]

In addition to these facts, I would add the following
    observations. While the appellant was young, he was almost eighteen years of age.
    Contrary to the finding in
Grant,
at para. 50, there was nothing
    inherently intimidating about the interview process. Indeed, at one point the
    appellant took charge of the interview and told the officers to skip a
    certain line of questioning that he did not wish to answer. The interview was
    not adversarial in nature. While the interview room door was closed, there is
    no suggestion it was locked. The video recording that the trial judge viewed
    demonstrates a polite environment, where the police clearly informed the
    appellant that he did not have to answer any questions if he did not wish to do
    so. Although unnecessary, the appellant was repeatedly told he could speak with
    a lawyer if he wished to do so, but he chose not to do so.

[43]

None of this suggests the conduct of a person who believed he had
    no choice but to comply.

(iii)

Conclusion on
YCJA


[44]

The trial judges approach to s. 146(2) of the
YCJA

was
    sound. At the time of the interview, there were no reasonable grounds for
    believing that the appellant had killed the deceased. Nor was he detained.
    Accordingly, the prerequisites for triggering the operation of s. 146(2) of the
YCJA

were not present and, therefore, the police did not have
    to comply with the statutory requirements of the provision.

(c)

The Statement was Voluntary

[45]

The trial judge concluded that the appellants statement was
    voluntary. He found that there was nothing that could constitute an inducement
    that would have overborne the appellants will. Nor was there anything in the
    interview to suggest an atmosphere of oppression, a lack of an operating mind,
    or any trickery involved in the taking of the statement.

[46]

The trial judge further concluded that the fact that the appellant
    was not given a caution about the right to counsel or the right to remain
    silent mattered not.
[1]
As the appellant was not detained or under arrest, the trial judge found that the
    police were under no obligation to afford those cautions.

[47]

The appellant argues that the trial judge erred in concluding that
    his statement was voluntary. The primary focus of the appellants argument
    rests on the suggestion that, at a minimum, the appellant was a suspect at the
    time that the interview commenced and certainly by the end of the interview. In
    light of his status as a suspect, the appellant contends that the police were
    under an obligation to caution him about his right to silence and right to
    counsel. He also maintains that the trial judge erred in concluding that there
    were no improper inducements made by the police.

[48]

I do not accept these arguments.

(i)

There is no
    requirement to caution a suspect who is not detained or arrested

[49]

I disagree with the proposition that the police are obliged to
    caution a suspect, simply because he or she is a suspect, and that the failure
    to do so will render a statement involuntary.

[50]

Section 10(b) of the
Canadian Charter of Rights and Freedoms

requires that an accused be informed of the right to counsel at the time of
    arrest or detention:
R. v. Suberu
,
2009 SCC 33, [2009] 2 S.C.R.
    460, at para. 20. Moreover, the residual constitutional protection afforded to
    the right to silence under s. 7 of the
Charter

also only arises
    after detention, when the superior power of the state is imposed upon the individual:
R. v. Hebert
,
[1990] 2 S.C.R. 151, at p. 184.

[51]

For the reasons already discussed, the appellant was neither
    detained nor arrested at the time of the interview. Accordingly, even if he was
    a suspect at the time of the interview, a characterization that the trial judge
    specifically rejected, the police were under no constitutional obligation to
    caution him.

[52]

The appellant says, though, that even if the caution were not constitutionally
    required, the failure to caution him rendered his statement involuntary under
    the common law confessions rule because he did not know that he could refuse to
    speak with the police.

[53]

I reject the proposition that involuntariness flows directly from
    the absence of a caution, even where the interviewee is a youth.

[54]

The appellant points to
R. v. Singh
,
2007 SCC 48,
    [2007] 3 S.C.R. 405, at paras. 31-32, in support of the suggestion that a
    caution must be given to a suspect. I do not read the passages in
Singh

the same way. Charron J.s comments about the actual requirement for a
    caution are clearly made in the context of detention. For instance, she says:

After detention
, the state authorities are in control
    and the detainee, who cannot simply walk away, is in a more vulnerable
    position.
The fact of detention alone
can have a significant impact on
    the suspect and cause him or her to feel compelled to give a statement. The
    importance of reaffirming the individuals right to choose whether to speak to
    the authorities
after he or she is detained
is reflected in the
    jurisprudence concerning the timing of the police caution. [Emphasis added.]

[55]

While Charron J. goes on to quote from a text, suggesting that a
    caution should be given when there are reasonable grounds to suspect that the
    person has committed an offence, this is described by Charron J. as nothing
    more than sound advice:
Singh
,
at paras. 32-33, citing René J. Marin,
Admissibility of Statements
,
loose-leaf (2006-Rel. 11), 9th ed.
    (Aurora: Canada Law Book, 1996), at pp. 2-24.2-24.3. In other words, while a
    caution may assist someone with deciding whether to speak with the police, and
    therefore may inform a voluntariness analysis, the absence of a caution is only
    a factor to consider in determining the voluntariness of a statement. It is not
    a prerequisite to the voluntariness of that statement:
R. v. Bottineau
,
2011 ONCA 194, 269 C.C.C. (3d) 227, at para. 88, leave to appeal refused, [2011]
    S.C.C.A. No. 455;
R. v. Pearson
,
2017 ONCA 389, 348 C.C.C. (3d)
    277, at para. 19, leave to appeal refused, [2017] S.C.C.A. No. 465.

[56]

As the appellant was neither detained, nor arrested, I agree with
    the trial judge that his statement was not rendered involuntary through the
    lack of a caution.

[57]

The question was whether, based on the factors set out in
R.
    v. Oickle
,
2000 SCC 38, [2000] 2 S.C.R. 3, the Crown met its burden
    of establishing voluntariness beyond a reasonable doubt. The trial judges
    ruling clearly identifies the relevant legal principles and explained why he
    found the statement voluntary.

[58]

While there was no s. 10(b)
Charter

compliant
    caution, the appellant was repeatedly told that he could speak with a lawyer if
    he wished to do so. He was also told that he did not have to answer questions
    if he did not wish to do so. These factors informed the voluntariness of the
    statement.

[59]

The appellant argues that the trial judge erroneously
    rejected the submission that he was improperly induced to give his statement.
    He argues that there were two such inducements, underlined in the following
    passage:

[Appellant]: Uh, this is a  is this a
    statement Im making?  me being a witness?

[Officer]: You could 
you could be a
    witness to something. It all depends on what you tell me today.


[Appellant]: Okay.

[Officer]: Right?

[Appellant]: All right.

[Officer]: Youre okay with that?

[Appellant]: Yeah.

[Officer]: Okay and you understand the importance
    of telling the truth right?

[Appellant]: Yeah.

[Officer]: Right and you know like you cant
    lie to me?
This is your one opportunity to tell the truth?


[Appellant]: Yeah.



[Officer]: And you understand that its
    against the law to make a false statement to the police?

[Appellant]: Yeah. [Emphasis added.]

[60]

I disagree
that
these
    police comments constituted inducements, let alone inducements rising to the
    level of something that could render the appellants statement involuntary.

[61]

The
first impugned statement  that depending on
    what he said, the appellant could be a witness  relates to an inquiry that was
    initiated by the appellant, not the police. In any event, it was an honest
    answer to the appellants question about whether he was a witness. At that
    stage, the police did not know whether he was a witness to something or not. As
    the officer said, it would depend on what he told the police. The second
    impugned statement  that it was the appellants one chance to tell the truth 
    could have been phrased better, but was made in the context of the officer
    informing the appellant that it is an offence to lie to the police.

[62]

Even if these police statements could be viewed as inducements,
    they were not improper in nature.

There is nothing wrong with offering an
    interviewee an inducement to speak:
Oickle
,
at para. 57. The voluntariness
    of a statement is not thrown into doubt simply because an accused is encouraged
    to speak, including through inducements. The question is whether such
    inducements cause the interviewees will to be overborne:
R. v. Spencer
,
2007 SCC 11,

[2007] 1 S.C.R. 500, at paras. 18-19;
Oickle
,
at para. 57. It is the strength of the inducement, the threat or promise
     informed by all of the circumstances, that informs whether the will of the
    accused is overborne:
Spencer
,
at para. 15;
R. v. M.S.M.
,
2014

ONCA 441, at para. 9;
Oickle
,
at paras. 47, 57.

[63]

As reviewed previously, the interaction between the police and
    the appellant in this case demonstrates that the appellants will was never
    overborne. Even if the impugned police comments could be construed as
    inducements as the appellant suggests, he was in full control throughout the
    interview. This was clearly displayed at one point in the interview when the
    appellant queried whether he had to answer a particular question. He had
    already been told that he could not be forced to say anything. The police
    reinforced this fact, assuring the appellant that he did not have to answer
    anything he did not wish to answer. The appellant then told the police to
    skip that question. As noted by the trial judge, this is not the behaviour of
    someone whose will has been overcome.

[64]

Finally, the appellant argues that the police misled the
    appellant about the purpose of the recording because he was told that the
    videotape would be for police records only. That comment must be set in its
    proper context. It only came up when the appellants mother expressed concern
    that the video would make its way onto television and she did not want her
    face to go on T.V.. It was in response to that expression of concern by the
    mother that the officer said that the videotape was for police records only.
    She was also told that this was the way that the Toronto Police do their
    interviews and that they wished to have a true version of a statement so
    that there are no questions down the road.

[65]

I do not agree that the police misled the appellant about the
    purposes to which the recording could be put. The appellant was told shortly
    afterwards that he may be a witness in this matter, although it would all
    depend on what he had to say. Accordingly, at a minimum, he knew that the
    statement could be relevant to a criminal proceeding and that it was being
    recorded for accuracy so that there was no question as to what he said down the
    road.

[66]

Moreover, it is difficult to conceive of this impugned statement
    as an inducement to speak. Like the above impugned passages, there was no
quid
    pro quo
,
let alone an overcoming of the appellants will. There is
    no suggestion that the comment constitutes a police trick that would undermine
    the integrity of the criminal justice system:
Oickle
,
at para.  65.

[67]

The statement was voluntary.

(2)

The Exclusion of Pictures from the Deceaseds Phone

[68]

As part of the pre-trial applications, the appellant sought to
    elicit evidence from the deceaseds phone that he argued would substantiate his
    position that he acted in self-defence. There were a handful of digital photos
    contained on the memory card within the deceaseds phone that showed unknown
    individuals holding guns and currency and one where a person was pointing his
    finger like a gun. There were also photos of large amounts of money, what
    appeared to be marijuana, firearms, and knives. There were also a few images of
    slogans, including Karma has no deadline and Money is the motive.

[69]

The appellant argued that the images would show that the deceased
    was the aggressor in the altercation that led to his death, which would in turn
    support the appellants claim of self-defence. At the least, the images would have
    shown that the deceased had a habit of carrying a weapon and was armed on the
    night in question.

[70]

The trial judge dismissed the application. The appellant argues that
    the trial judge erred when he concluded that the photos had minimal probative
    value because they did not involve specific acts of violence by the appellant, they
    were remote in the sense that they were stored on the memory card long before the
    deceased was killed, and their admission would result in prejudice to the trial
    process.

[71]

I find no error in the trial judges conclusions.

[72]

The trial judge correctly reviewed the law. His decision to
    exclude the evidence is a discretionary one and is entitled to deference by
    this court:
R. v. Pilon
,
2009 ONCA 248, 243 C.C.C. (3d) 109, at
    paras. 54-55.

[73]

It is important to recall that at the core of a
Scopelliti

application lies an inquiry into previous acts of violence by a deceased
    that show his or her disposition for violence:
R. v. Scopelliti

(1982)
,
34 O.R. (2d) 524 (C.A.)
,
at p. 535. While Martin J.A. observed in
Scopelliti
,
at p. 537, that previous specific acts of violence by a third person which
    have significant probative value to prove a disposition for violence are
    admissible where such disposition is relevant, there were no prior acts of
    violence asserted here. The trial judge did not err in pointing out the fact
    that the pictures on the memory card did not involve the deceased. Nor did he
    err in pointing out that many of the photos were quite dated and of uncertain
    origin. These factors informed the degree of probity of the evidence.

[74]

The trial judge performed a careful weighing exercise. He
    concluded that the images had little probative value because, among other
    things, a good portion of them were of guns, while the weapon in this case was
    a knife. He reasonably concluded that the photos of guns could inflame the
    jury. Moreover, he concluded that the money and marijuana images were
    redundant, given that it was not in dispute that the deceased was trafficking
    in marijuana.

[75]

The trial judge was properly concerned with the prejudice to the
    trial that may arise from the admission of this evidence.

[76]

Moreover, the Crown had signalled that, if the defence evidence
    was admissible, the Crown would seek the admission of evidence underscoring the
    appellants disposition, including the fact that a knife was found in the
    appellants bedroom and his possible connection to a street gang. The Crown was
    also proposing to call an expert witness to explain the significance of some of
    that evidence. The trial judge found that admitting the evidence from the
    deceaseds phone would protract the proceedings and lead to a lengthy and only
    marginally relevant duelling of dispositions.

[77]

It was the trial judges obligation to manage the trial and keep
    it focused on the relevant issues for determination. Having considered all
    relevant circumstances within the context of the trial and the live issues to
    be determined, he decided that the probative value of the defence evidence was
    outstripped by the prejudice it would cause. It was open to the trial judge to
    come to this determination and I would defer to his assessment in that regard.

(3)

The Instructions to the Jury on Bad Character Evidence

[78]

The appellant maintains that the trial judge erred when he instructed
    the jury on bad character evidence. While the appellant acknowledges that the
    trial judge correctly instructed the jury to avoid propensity reasoning as it
    related to him, he suggests that the trial judge incorrectly placed him and the
    deceased as equivalent[s] when it came to that instruction.

[79]

The impugned instruction, placed within its proper context,
    follows. After instructing the jury to steel themselves against reasoning
    that, because the appellant has engaged in various bad conduct, he is the kind
    of person who would commit murder, the trial judge addressed the evidence about
    the deceased:

It would also be improper to use this evidence to infer that [the
    deceased] was a drug dealer and a person of general bad character and therefore
    that he got what he deserved. So, dont use it against the deceased either,
    that because hes a bad person, he got what he deserved



This kind of reasoning is equally improper and prohibited and
    it would deny            [the deceased] the protection of the rule of law. You
    cant treat [the deceased] as simply collateral damage in the drug trade



[Y]ou must be disciplined and use this body of evidence about
    drug deals and about counterfeit money for its legitimately relevant purposes,
    that is, in relation to the issues of motive, identity, and self-defence, which
    is why the parties put it in evidence and why they rely on it. You cannot use
    it to infer general bad character and therefore guilt against the accused or to
    infer general bad character and therefore some theory of just desserts against
    the deceased.

[80]

I see no error in this instruction. It was right. It was designed
    to bring home to the jury that they could not engage in improper propensity
    reasoning about the appellants guilt and, despite what they may have thought
    about the deceaseds lifestyle, that it was not a defence to a murder charge
    to show that the deceaseds demise was a civic improvement:
R. v. Varga

(2001), 159 C.C.C. (3d) 502 (Ont. C.A.), at para. 71, leave to appeal
    refused, [2002] S.C.C.A. No. 278.


[81]

If the appellants complaint is about what the trial judge did
    not say, the argument is equally flawed from a contextual perspective. There is
    no chance that the jury would have misunderstood what they were being asked to
    do with the evidence demonstrating the deceaseds drug-related activities. Those
    precise activities were what brought the deceased and appellant together on
    that fateful night. This was a central part of both the Crown and defence case.

[82]

Moreover, if the trial judge had highlighted for the jury that
    they could consider the deceaseds character flaws in determining whether he
    was more likely to be the aggressor, it could have worked a disservice to the
    appellant. After all, those same character flaws were shared by the appellant.

[83]

The trial judge specifically drew counsels attention to this
    very instruction that is now impugned on appeal. Counsel objected to much in
    the jury charge but did not object to this particular instruction. While a
    failure to object is not dispositive of a ground of appeal, the failure to do
    so will often provide insight into the strength of the complaint on appeal.
    Counsel in this case were best positioned to understand the instruction in the
    context of the case. The absence of any objection to the charge on this point
    is evidence that the defence thought that an instruction on this point may not
    have inured to the appellants benefit:
R. v. Calnen
,
2019 SCC
    6, 430 D.L.R. (4th) 471,

at paras. 38-41
.


B.

Sentence Appeal

[84]

The Crown made an application to have the appellant sentenced as
    an adult:
YCJA
, s. 64(1). Therefore, the main issue on the sentencing
    hearing was whether the appellant  who was fewer than three months shy of his
    eighteenth birthday at the time he committed the murder  should receive an
    adult or youth sentence. If sentenced as an adult, he would be subject to a
    mandatory life sentence with parole eligibility after seven years:
Criminal
    Code
, s. 745.1(c). If sentenced as a youth, he would be subject to a
    sentence not to exceed a total of seven years, of which a maximum of four years
    would be served in custody from the date of committal, with the balance to be
    served under conditional supervision in the community:
YCJA
,
ss.
    42(2)(q)(ii), 42(2)(r)(iii). The only difference between sentences imposed
    under those two
YCJA
provisions is that a sentence given under s.
    42(2)(r)(iii) of the
YCJA
includes an intensive rehabilitative custody
    and supervision (IRCS) order.

[85]

At the time of sentencing, the appellant had already been in
    custody for over two years and eight months. Parole eligibility would run from
    the date he first entered custody:
Criminal Code
,
s. 746(a).
    Therefore, under an adult sentence, the appellant would be parole eligible
    after four years and four months. He would then remain under the control and
    supervision of the parole board for life. If given a youth sentence, provided
    that no credit was given for pre-sentence custody, the appellant would have received
    four years in custody and then three years under conditional supervision in the
    community.
[2]


[86]

The sentencing hearing was initially delayed because a pre-sentence
    report (PSR) suggested that the appellant has mental health issues.
    Therefore, the trial judge ordered a s. 34
YCJA

assessment to assist
    with determining the correct disposition. When the report was returned to the
    court, it became clear that the appellant had provided the psychologist with a
    version of events that was inconsistent with aspects of the jurys verdict. The
    trial judge then released a ruling setting out facts essential to the jurys
    verdict and facts as found by the trial judge beyond a reasonable doubt. That
    ruling was then provided to the psychologist who had prepared the initial s. 34
    report. She met with the appellant again, explored those facts with him and
    then provided an addendum to her initial report.

[87]

In addition, because the s. 34 report and a PSR suggested that
    the appellant may have some mental health related issues, an IRCS report was
    prepared to assist the court with making a determination as to whether an IRCS
    order should be made pursuant to s. 42(2)(r)(iii) of the
YCJA
, having regard to the statutory criteria set out in
    s. 42(7)
. Ultimately, the authors of the PSR, s. 34 and IRCS reports,
    along with correctional witnesses, testified at the sentencing hearing.

[88]

The appellant has been diagnosed with generalized anxiety
    disorder and major depressive disorder. At the time that he was still in the
    community, he would also have met the criteria for cannabis use disorder. The trial
    judge heard evidence that the most effective treatment for these disorders
    would be a combination of psychotherapy and medications.

[89]

The trial judge concluded that, even if no credit were to be
    given for pre-sentence custody, the termination of all supervision and control
    of the appellant at the seven-year mark was not an appropriate disposition as
    it would provide inadequate protection to the public and would fail to meet the
    appellants rehabilitation and reintegration needs.

[90]

Accordingly, the trial judge imposed a life sentence with no
    parole eligibility for seven years:
Criminal Code
,
s. 745.1(c).
    The sentence was ordered to be served in a provincial reformatory:
YCJA
,
s. 76(1)(b). In light of his mental health difficulties, the trial judge
    also recommend[ed] that the appellant be classified to either the Algoma
    Treatment and Remand Centre and/or the Ontario Correctional Institute so that
    he could receive the intensive treatment and training available at those
    institutions.

[91]

The appellant raises a number of grounds of appeal relating to
    his sentence. He ultimately asks this court to convert the adult sentence to a
    youth one. I would decline to do so.

(1)

The Trial Judge Did Not Err in His Findings of Fact

[92]

The appellant takes issue with two of the facts as found by the
    trial judge: (a) that the murder took place in the appellants car; and (b)
    that the appellant was working with an accomplice. The appellant says that his
    acquittal on first degree murder arising from an unlawful confinement precluded
    the trial judge from making these findings of fact, given that it is implicit
    in the jurys verdict that they had a reasonable doubt on each one.

[93]

It is uncontroversial that a sentencing judge is bound by the
    express and implied factual implications of a jurys verdict:
R. v. Brown
,
[1991] 2 S.C.R. 518, at p. 523;
R. v. Ferguson
,
2008 SCC 6,
    [2008] 1 S.C.R. 96, at para. 17. The trial judge shall accept as proven all
    facts, express or implied, that are essential to the jurys verdict:
Criminal
    Code
,
s. 724(2)(a)
.
Only where factual implications arising
    from a jurys verdict are ambiguous, can a sentencing judge make factual
    findings to fill the void by coming to an independent determination of those
    relevant facts:
Ferguson
,
at para. 18.

[94]

The trial judge understood and applied the law correctly. There
    is nothing about his findings that the murder occurred in the appellants car
    or with the assistance of an accomplice that stand in express or implied
    conflict with the jurys reasonable doubt on unlawful confinement. As he
    explained, the fact that the murder did not occur while committing a forcible
    confinement in accordance with s. 231(5)(e) of the
Criminal Code

does
    not mean that there was no confinement in the vehicle or that someone else was
    not there assisting with that confinement. The acquittal may simply reflect
    that the jury was not satisfied beyond a reasonable doubt that the confinement
    and the killing were distinct criminal acts:
R. v. Pritchard
,
2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 27-29.

[95]

Accordingly, it was open to the trial judge to come to these
    factual conclusions. He gave detailed reasons for doing so. I would defer to
    those conclusions.

(2)

The Trial Judge Did Not Conduct a Blended Analysis

[96]

Section 72(1) of the
YCJA

requires that an adult
    sentence be imposed where the judge is satisfied that:

(a)
the presumption of
    diminished moral blameworthiness or culpability of the young person is
    rebutted; and

(b)
a youth sentence
    imposed in accordance with the purpose and principles set out in subparagraph
    3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young
    person accountable for his or her offending behaviour.

[97]

The appellant argues that the trial judge erred by blending these
    two considerations together. By doing so, he is said to have overemphasized the
    seriousness of the offence and underestimated the fact that young people
    benefit from a presumption that they are less morally culpable than adults,
    even when it comes to serious offences.

[98]

This court has warned against merging the two inquiries  the [p]resumption
    and the issue of accountability  to avoid the risk that a factor that is only
    relevant to one of the inquiries could result in a finding in relation to the
    other:
M.W.
,
at paras. 105-7. This does not mean, however, that
    there are not multiple factors relevant to both stages of the inquiry, such as:
    (a) the seriousness and circumstances of the offence; (b) the age, maturity,
    character (including sophistication, intelligence and capacity for moral
    reasoning), background, and previous record of the young person; and (c) any
    other factors the court considers relevant (citations omitted):
M.W.

at para. 105.

[99]

The respondent fairly observes that the trial judge did not
    technically follow the two-step approach this court has encouraged, but
    stresses that this is an unsurprising fact given that
M.W.

had
    not yet been decided. I agree.

[100]

Despite the failure to adhere to a strict two-step approach, the
    trial judge did not improperly blend the s. 72(1) factors. The reasons reflect
    that he appropriately grappled with each and came to separate and distinct
    conclusions on both prongs. He found as follows:

Taking all of the above considerations into account, I am
    satisfied that the Crown has met its s. 72 burden. The combination of [the
    appellants] age, his maturity, and his relatively sophisticated conduct at the
    time of the offence and after the offence,
all convince me that the
    presumption of diminished moral blameworthiness has been rebutted
. The
    combination of the very serious offence, [the appellants] major role in that
    offence, his failure to undertake the recommended course of treatment for his
    underlying mental disorders in the past 2 1/2 years, and the uncertain length
    and prognosis for the required period of structured supervision and treatment
    of those disorders,
all convince me that a 7 year youth sentence would not
    be of sufficient length to hold [the appellant] accountable for this offence
    or to achieve his rehabilitation and reintegration into society
.
    [Emphasis added.]

[101]

I would not accede to this argument. Although the two-step
    approach was not followed, the trial judges reasons evince a careful
    consideration of each of the s. 72
YCJA

factors and the reasons
    for finding that the Crown had met its burden of establishing each of the
    relevant statutory criteria.

(3)

The Trial Judge Did Not Misapprehend the Functioning of an IRCS Order

[102]

The appellant also argues that the trial judge erred in failing
    to understand the proper functioning of the IRCS. In particular, the
    appellant argues that, where an IRCS order is in place, there is no requirement
    that the IRCS guarantee resolution of an offenders mental health issues.
    Accordingly, the appellant says that the trial judge erred when he concluded
    that the lack of a precise treatment plan that could meaningfully resolve his
    mental health issues within seven years precluded a youth sentence.

[103]

Had a youth sentence been appropriate, an IRCS order could have
    been made: s. 42(2)(r)(iii). The criteria for making such an order are
    enumerated within s. 42(7) of the
YCJA
, including that the young
    person suffer from a mental illness, a psychological disorder, or an emotional
    disturbance:
YCJA
: s. 42(7)(b). In addition, s. 42(7)(c) requires that
    before an IRCS order is made, the judge must be satisfied that:

a plan of treatment and intensive supervision has been
    developed for the young person, and there are reasonable grounds to believe
    that the plan might reduce the risk of the young person repeating the offence
    or committing a serious violent offence.

[104]

The trial judge accepted that the appellants mental health
    conditions played a contributing role in the offence, and that treatment of the
    disorders would play an indirect role in reducing his risk of reoffending in the
    future. He exhaustively reviewed the evidence supporting an IRCS order, but came
    to the determination that the length of the youth sentence, and maximum
    corresponding period that the appellant would be governed by an IRCS order, was
    simply too short.

[105]

While rehabilitation is an important factor for consideration
    when sentencing a youth, there are other important factors that are integral
    to the accountability inquiry mandated by ss. 72(1)(b) and 38(1) of the
YCJA
:
R. v. A.O.
,
2007 ONCA 144, 84 O.R. (3d) 561,

at para.
    57. As this court noted in
M.W.
,
at para. 103, the concept of
    accountability in the
YCJA

context is the equivalent to the
    adult sentencing principle of retribution: see also,
A.O.
,
at
    paras. 42-48.

[106]

Section 38(1) of the
YCJA

reads:

The purpose of sentencing under section 42 (youth
    sentences) is to hold a young person accountable for an offence through the
    imposition of just sanctions that have meaningful consequences for the young
    person and that promote his or her rehabilitation and reintegration into
    society, thereby contributing to the long-term protection of the public.

[107]

Section 38(2) sets out further principles that must be taken into
    account when imposing a youth sentence. Those principles were reviewed by this
    court in
M.W.
,
at para. 102:

The sentence: i) must not be greater than that imposed on an
    adult in similar circumstances; (ii) must be similar to sentences imposed on
    similar young persons in similar circumstances; (iii) must be proportionate to
    the seriousness of the offence and the degree of responsibility of the young
    person; (iv) subject to proportionality concerns, must be the least restrictive
    sentence capable of achieving accountability, the most likely to rehabilitate
    and reintegrate the young person into society, and promote a sense of
    responsibility in the young person and acknowledge the harm done to the victims
    and the community; and (v) subject to proportionality concerns, may serve the
    objectives of denunciation and specific deterrence.

[108]

The trial judge turned his mind to all appropriate sentencing
    principles, including accountability, proportionality, rehabilitation and
    reintegration. Having regard to all of the appropriate principles, against the
    factual backdrop of the offence and the personal circumstances of the
    appellant, the trial judge came to the conclusion that a finite seven year
    sentence was simply inadequate to protect the public and hold the appellant to
    account for the offence.

[109]

In coming to that determination, the trial judge relied on a
    number of factors, including:

·

the very serious nature of the offence committed, including the
    fact that, among the 17 stab wounds, there was a stellate cut on the deceaseds
    face, close to his eye, associated with twisting the knife in the wound;

·

the principal role played by the appellant in the murder;

·

the fact that an accomplice was involved;

·

the fact that the appellant had been described as being mature
    and age appropriate;

·

the fact that the appellants mental disorders may have
    contributed to the commission of the offence, yet the appellant refused to
    engage in meaningful treatment for those diagnosed disorders;

·

the fact that accepting responsibility for his actions and his
    role in the offence would be an aspect of a successful treatment program
    according to the author of the s. 34 report, yet the appellant had not accepted
    that responsibility, leaving the success and duration of any proposed treatment
    plan uncertain;

·

his uncertain prognosis; and

·

his conduct while in custody since the offence, including the
    fact that he had fashioned a weapon on one occasion.

[110]

These are only some of the factors that led the trial judge to
    conclude that the Crown had met its s. 72 burden and that a youth sentence
    would not be sufficient for the protection of the public or for the appellants
    rehabilitation and reintegration into society:
Todorovic
,
at
    para. 42. I see no error in that approach.

(4)

The Trial Judge Did Not Err in How He Approached the Question of Placement

[111]

Finally, the appellant argues that the trial judge erred by
    essentially concluding that he could achieve the effect of an IRCS order
    through the provincial jail system. I do not read the trial judges reasons as
    supporting that suggestion. As pointed out by the respondent, the trial judges
    reasons clearly demonstrate that he only considered placement in the provincial
    reformatory system after he had already determined that an adult sentence was
    appropriate. Upon determining that an adult sentence would be imposed, the
    trial judge was statutorily obligated to consider the appellants placement
    pursuant to s. 76(1) of the
YCJA
.
There is no error in that
    approach.

(5)

The Fresh Evidence

[112]

The appellant asks this court to admit fresh evidence on appeal.
    That evidence includes an expert report authored by Dr. Jeffrey Wong, a
    clinical and forensic psychologist, dated September 10, 2018. Dr. Wongs report
    is said to update a report prepared by the expert who prepared the s. 34
    assessment for the sentencing hearing.

[113]

Dr. Wongs report largely repeats what was said by the author of
    the s. 34
YCJA

report and concludes that an IRCS order is still
    an appropriate and, in fact, favoured disposition for the appellant over an
    adult sentence. The appellant points out that Dr. Wong has concluded that the
    appellant has a low to moderate risk of violence in the future.

[114]

In cross-examination, Dr. Wong admitted that he did not have any
    of the trial judges findings of fact when he conducted his assessment. He also
    acknowledged that he only met with the appellant for about 30 minutes and administered
    3 other tests which lasted for 1 hour. He perceived his role as updating the
    earlier psychologists report. He was not concerned with comparing what the
    appellant testified to at trial with what the appellant had told him during
    their short interview. Dr. Wong was only interested in the appellants current
    perception of the offence.

[115]

Dr. Wongs sole understanding of the offence came from that
    report and what the appellant told him. He seemed unaware of the fact that the
    earlier psychologists s. 34 report had not been that psychologists final
    view. Recall that the original report suffered in that it relied upon a set of
    facts that were inconsistent with the jurys verdict, causing the trial judge
    to render a ruling setting out the facts implicit to the verdict and the facts that
    he found beyond a reasonable doubt. The original psychologist then provided an
    addendum to her report, one which addressed the actual facts, the appellants
    resistance in accepting those facts, and the psychologists acknowledgment that
    his refusal to do so created concern in terms of his treatment prospects.

[116]

Dr. Wong was not aware of any of those facts and, indeed, said
    that his real concern was with knowing what the appellant had to say. He did
    not know whether the earlier psychologists addendum to her s. 34 report would
    change his opinion around the appellants mental disorders. Importantly, he did
    not know that the victim had been stabbed 17 times, referred to the victim as
    the drug supplier, thought that the victim had lured the appellant to the
    scene, and did not know whether there were others present during the murder.

[117]

I would not admit Dr. Wongs affidavit. In the context of this
    case it lacks cogency:
R. v. Dudar
,
2019 ONCA 115, 371 C.C.C.
    (3d) 323, at paras. 31-39. The expert report was authored against a factual
    backdrop that is entirely removed from the factual findings of the jury and
    trial judge. While relevant, Dr. Wongs evidence suffers from serious
    deficiencies which significantly undermine its probity such that it could not
    reasonably have affected the result at trial:
Dudar
,
at para.
    31;
R. v. Plein
,
2018 ONCA 748, 365 C.C.C. (3d) 437, at para.
    63. In any event, and at most, Dr. Wongs evidence repeats what the trial judge
    already had available to him under the s. 34 report and its addendum. There is
    nothing fresh about his report, especially given its reliance on the original
    s. 34 report.

[118]

Nor would I admit the appellants affidavit evidence. He claims
    that he has completed all of the programs available to him and that there is
    nothing else for him to do. The respondent obtained the appellants
    institutional records demonstrating that he has joined one program and some educational
    classes but has not completed them. He was also provided with an application to
    Algoma Treatment Centre in 2016 but did not submit it for over a year. The
    circumstances of the appellants incarceration have no bearing on the sentence
    appeal given the trial judges conclusion that an adult sentence was necessary
    to hold the appellant accountable for the offence.

[119]

There is nothing in either Dr. Wongs report or the appellants
    affidavit that would reasonably be expected to have affected the result in this
    case.

CONCLUSION

[120]

I would dismiss the conviction appeal. I would grant leave to
    appeal sentence, but dismiss the sentence appeal.

Released: D.W. January 31, 2020

Fairburn J.A.

I agree. David Watt J.A.

I agree. B.W. Miller J.A.





[1]
Although the appellant was repeatedly told that he could call a lawyer if he
    wished to do so, the full informational component of a s. 10(b) caution was not
    given:
R. v. Bartle
,

[1994] 3 S.C.R. 173, at p. 198.



[2]
At the time of sentencing, the trial judge noted that there was uncertainty in
    the law regarding whether pre-sentence custody applied to the custodial portion
    of a youth sentence. To the extent there was any uncertainty, it has since been
    clarified by this court in
R. v. M.W.,
2017 ONCA 22, 134 O.R. (3d) 1, at
    para. 78, leave to appeal refused, [2017] S.C.C.A. No. 109. Although
    pre-sentence detention must be taken into account, the sentencing judge has the
    discretion not to assign credit for pre-sentence custody when designing an
    appropriate youth sentence:
R. v. D.S.
, 2008 ONCA 740, 93 O.R. (3d) 211,
    at para. 26.


