



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kamal, 2020 ONCA 213

DATE: 20200316

DOCKET: C61628

Watt, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kendall Kamal

Appellant

Kendall Kamal, appearing via videoconference

Jessica Smith Joy, for the respondent

Joseph Wilkinson, duty counsel

Heard and released orally: March 11, 2020

On appeal from the conviction entered on November 18,
    2015 by Justice Ian V.B. Nordheimer of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions on two counts of robbery entered
    after a trial before a judge of the Superior Court of Justice sitting with a
    jury.

The Background Facts

[2]

The appellant was alleged to have been the driver of the getaway car in
    two robberies of commercial premises about ten days apart. The principal
    evidence against him consisted of a videotaped interview of him by members of
    the Hold-Up Squad of the Toronto Police Service. The admissibility of this
    interview was challenged at trial on both voluntariness and constitutional
    grounds. The trial judge rejected the arguments and admitted the interview as
    evidence at trial.

The Grounds of Appeal

[3]

Assisted by duty counsel, the appellant contends that the trial judge
    erred in admitting the interview as evidence. To be more specific, the
    appellant says that the trial judge erred in failing to hold that the police
    were required to give the appellant a
Prosper
warning.

[4]

In our view, as this court held in
R. v. Fountain
, 2017 ONCA
    596, 136 O.R. (3d) 625 (C.A.), at para. 27 a
Prosper
warning is needed
    only if a detainee has asserted the right [to counsel] and then apparently
    change[s] his mind after reasonable efforts to contact counsel have been
    frustrated, citing
R. v. Smith
(1999), 44 O.R. (3d) 373 (C.A.), at p.
    384.

[5]

The trial judge came to a factual determination that the appellant had
    not asserted his right to counsel. That finding of fact was available to the
    trial judge on the record at trial. It is a finding of fact to which we owe and
    give deference.

[6]

The appeal from conviction is dismissed.

David Watt J.A.

David M. Paciocco J.A.

Fairburn J.A.


