



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boothe, 2016 ONCA 987

DATE: 20161229

DOCKET: C58922 and C59025

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garfield Boothe and Nichelle Rowe-Boothe

Appellants

Garfield Boothe, appearing in person, via
    videoconference

Delmar Doucette and Janelle Belton, duty counsel for the
    appellant, Garfield Boothe

Nichelle Rowe-Boothe, appearing in person

Mark Halfyard and Breana Vandebeek, duty counsel for the
    appellant, Nichelle Rowe-Boothe

Michael Bernstein, for the respondent

Heard: November 21, 2016

On appeal from the convictions entered on April 5, 2014
    and the sentences imposed on June 5, 2014 by Justice Fletcher Dawson of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

INTRODUCTION

[1]

This case concerns the prosecution of Garfield Boothe and Nichelle
    Rowe-Boothe for the killing of Shakeil Boothe, a ten year-old boy who was Mr. Boothes
    son and Ms. Rowe-Boothes stepson. Overwhelming medical and photographic
    evidence showed that Shakeil, who died in the familys home, (a) was
    malnourished and suffered from pneumonia and skin infections; (b) had clearly
    been physically abused for many months; and (c) in the final twelve hours of
    his life was brutally beaten. At trial both appellants admitted to abusing Shakeil,
    but each blamed the other for causing his death.

[2]

At trial the main issue was to determine who committed the final assault
    on Shakeil. Both appellants testified, and both admitted that they contributed
    to Shakeils death through various acts of abuse and neglect that rendered them
    guilty of manslaughter. However, each blamed the other in respect of the final
    assault in an attempt to avoid a finding of intent sufficient to transform conceded
    manslaughter into murder.

[3]

Both appellants were found guilty of second degree murder by a jury and
    convictions were entered by the trial judge. The trial judge sentenced both to
    life in prison, with Garfield Boothe eligible for parole after 18 years and Nichelle
    Rowe-Boothe eligible after 13 years. The judge set the sentence for each
    appellant on June 5, 2014, but both of them had been in custody since May 2011,
    so Mr. Boothe would become eligible for parole in May 2029, and Ms. Rowe-Boothe
    in May 2024. Both appeal from their convictions.

[4]

These appeals were inmate appeals and were heard together. Each
    appellant was ably assisted by duty counsel and each relied on the memorandums
    of law filed by duty counsel and the oral submissions counsel made at the
    hearing. Through duty counsel, each appellant focused his or her appeal on
    rulings made by the trial judge.

[5]

The appellants accept that in respect of each challenged ruling, the
    trial judge was aware of, and correctly described, the applicable law. Where he
    went wrong, they say, is in his application of the law.

[6]

We disagree with each of the appellants submissions. For reasons set out
    below, both appeals are dismissed. We discuss each of the appeals in order.

(1)

GARFIELD BOOTHES APPEAL

[7]

Mr. Boothe raises one ground of appeal. He claims that the trial judge
    improperly denied his mid-trial application for severance of the joint trial.
    It will be helpful to set out a brief description of the circumstances that
    gave rise to the severance application.

(a)

Background to the severance application

[8]

Just before the close of the Crowns case, counsel for Ms. Rowe-Boothe advised
    the court that he had come into possession of photographs that had relevance to
    the trial. The trial judge ordered the photographs to be disclosed to all
    counsel, with the result being that the Crown wished to tender the photographs
    in evidence. The Crown proposed to recall two witnesses: the mother of Ms.
    Rowe-Boothe and Dr. Pollanen. Dr. Pollanen was the chief forensic pathologist
    for Ontario, and he had provided expert testimony at trial on Shakeils
    injuries and the causation of Shakeils death. In response to the Crowns proposal,
    counsel for Mr. Boothe brought an application for severance, which the trial
    judge dismissed.

[9]

On appeal, Mr. Boothe asserts that, in dismissing his application for
    severance, the trial judge misapprehended the nature of the prejudice that
    accrued against Mr. Boothe through late disclosure of the photographs. In
    essence,
Mr. Boothe repeats
trial
    counsels argument that the late disclosure fundamentally undermined his
    strategy for cross-examination of Ms. Rowe-Boothes mother and bolstered the
    credibility of the Crowns only witness to give direct evidence against Mr.
    Boothe.

[10]

To use duty counsels description in oral argument, the trial judge
    misunderstood how deep the unfairness of not granting severance was to Mr.
    Boothe. Mr. Boothe asserts that trial counsels entire strategy of
    cross-examining Ms. Rowe-Boothes mother would have changed had he known of the
    photographs.

(b)

Discussion

[11]

To repeat, none of the legal principles that governs an application for
    severance of the trial of co-accused is contested on this appeal, and Mr.
    Boothe does not assert that the trial judge did not understand those principles.
    Mr. Boothes only argument is that the trial judge did not appreciate the degree
    of prejudice that late disclosure of the photographs caused to his ability to
    make full answer and defence. We disagree.

[12]

The trial judge was acutely aware of the prejudice (or unfairness)
    argument, which again is the same one now being advanced on appeal, except that
    the argument now impugns the trial judges conclusion. With respect, it is
    abundantly clear from the trial judges nuanced reasons that he completely
    understood Mr. Boothes unfairness assertion. He referenced virtually all of
    the same arguments and authorities that are being relied upon on appeal and
    gave thorough reasons for why he disagreed with Mr. Boothe. After his thorough
    analysis, he concluded:

The bottom line is I do not see what has occurred here as
    creating fundamental unfairness which impacts so adversely on Garfield Boothes
    ability to make full answer and defence that it overtakes societys interest in
    a joint trial.

[Mr. Boothes] counsel chose a path that is not rooted in the
    evidence.



Whatever the source of the tactical decision, it has led by
    unknown means, to the production of photographs that tend to support one aspect
    of [Ms. Rowe-Boothes mothers] evidence about which she was attacked. No
    disclosure obligation has been violated.

Based on my assessment of the overall situation, I do not see
    the fundamental fairness of the trial being upset at this point.

[13]

An essential question to answer on an appeal from denial of severance is
    whether there was a reasonable possibility that severance could have affected
    the verdict by creating a reasonable doubt as to the accuseds guilt. That is
    to say, was there a reasonable possibility that, at a severed trial with a
    fresh jury, the new jury would have had a reasonable doubt as to whether Mr.
    Boothe was guilty of murder. Such a reasonable doubt in the minds of the
    hypothetical new jurors must be one that the jury that has delivered Mr.
    Boothes verdict was not reasonably likely to have perceived:
R. v. Chow
,
    2005 SCC 24, [2005] 1 S.C.R. 384, at para.
49;
R. v.
    Savoury
(2005), 200 C.C.C. (3d) 94 (Ont. C.A.), at para.
29. Although
    the trial judge did not expressly reference the question of whether there was a
    reasonable possibility that severance would create a reasonable doubt in this
    sense, it is clear from the entirety of his reasons that he was alive to it and
    answered it.

DISPOSITION

[14]

The trial judges decision on the issue of severance is an exercise of
    discretion and is entitled to deference provided he has acted judicially and
    the ruling does not result in an injustice:
R. v. Last
, 2009 SCC 45,
    [2009] 3 S.C.R. 146, at para. 14;
Savoury
, at para. 26. The argument
    in this appeal was rightly focused on whether the trial judges ruling resulted
    in an injustice to Mr. Boothe. Mr. Boothe has failed to establish that it did,
    and he has not demonstrated any reason for this court to interfere with the
    trial judges decision. His appeal is dismissed.

(2)

NICHELLE ROWE-BOOTHES APPEAL

[15]

Ms. Rowe-Boothe raises two grounds of appeal. Specifically, she claims
    that the trial judge erred in concluding that her statements in both her
    pre-arrest telephone interview and her post-arrest interview at the police
    station were voluntary.

Pre-Arrest Telephone
    Interview

(a)

Background

[16]

Ms. Rowe-Boothe, in focused submissions, argues that the trial
    judge erred in finding that she was not a suspect at the time when she made
    the relevant statements to a police officer over the telephone. She claims,
    just as she did at trial, that, at the time of the pre-arrest telephone statements,
    she had ceased being a
person of interest
and had become a
suspect
.
    She submits that, as a consequence, the police were required to warn her that
    she may be charged, that she was not required to make a statement, and that
    what she did say
could be used as evidence
    against her.

[17]

Although she concedes that the trial judge was aware of the applicable
    law on whether an individual was a suspect when speaking with the police, Ms.
    Rowe-Boothe asserts that the trial judge failed to apply the legal standard
    properly. That standard involves an objective view of all relevant
    circumstances.

(b)

Discussion

[18]

A statement made by an accused person to a person in authority is
    admissible if the Crown has proven beyond a reasonable doubt that the statement
    was voluntary. The investigation into voluntariness is broad and contextual:
R.
    v. Oickle
, 2000 SCC 38,
[2000]
    2 S.C.R. 3, at paras. 68-71.

[19]

At para. 32 of his reasons for decision, the trial judge recited the
    correct law and concluded
, G
iven the
    totality of the circumstances  until the cause of death was known uncertainty
    remained as to whether Shakeils death was a homicide and a warning [to Ms.
    Rowe-Boothe] was not called for:
R. v. Boothe-Rowe
, 2014 ONSC 571. Later,
    at para. 35, he identified the time during the telephone interview at which a
    caution from the police officer would have been appropriate: once Ms.
    Rowe-Boothe had told the police officer that she had left her home in Brampton
    without having sought medical attention for Shakeil, after having told the
    officer that Ms. Rowe-Boothe had known that Shakeil was sick and that she had
    sensed that he might not survive. The trial judge commented that this part of
    Ms. Rowe-Boothes story amounted to an admission that, viewed objectively,
    would support a conclusion that she had failed to provide the necessaries of
    life.

[20]

T
he trial judge, at para. 45, properly
    noted that the absence of a caution was a factor to be taken into account and
    he did so.
He found that Ms. Rowe-Boothe knew beyond doubt that she
    could incriminate herself by choosing to speak to the officer. And, at para.
    46, he found that she was also in a position to control the situation. She was
    not in custody but at a location unknown to the police outside the
    jurisdiction. She was on a cell phone and could have terminated the call at any
    time.

[21]

The trial judge did not make any reviewable error in this ruling. His
    reasons reveal a thorough and correct application of the governing law,
    including the objective component of the voluntariness analysis, to the
    material circumstances. We find no basis to interfere with what was largely a
    fact-based assessment.

Post-Arrest Interview
    at the Police Station

(a)

Background

[22]

Ms. Rowe-Boothe argued at trial that the post-arrest interview was
    involuntary because it was the product of oppression. She claimed that the
    atmosphere of oppression arose from three factors: (1) the police officer continued
    to question her after she indicated that she wanted to wait to speak with her
    lawyer in person; (2) the interview was not stopped to give her lawyer the
    opportunity to speak with her upon his arrival at the station; and (3) the
    police officer told her that her lawyer was not coming to the station.  The
    trial judge held that none of these factors was sufficient to justify excluding
    the statement.

[23]

On appeal, Ms. Rowe-Boothe, in purposeful arguments, submits that
    the trial judge erred in his analysis of the third factor. That is, the trial
    judge focused on the police officers intention and the fact that Ms.
    Rowe-Boothe had already spoken one time to counsel, but failed to consider the
    impact of the police officers statements on her.

(b)

Discussion

[24]

The question on appeal, just as it was posed at trial, is whether the
    police officers statement to Ms. Rowe-Boothe that her lawyer would not be
    available for the remainder of the interview, in the full context of that
    interview, negated her capacity to make a meaningful choice between speaking to
    the officer and refusing to speak:
R. v. Hebert
, [1990] 2 S.C.R. 151,
    at p. 181. Once more, it is solely the trial judges application of the law of voluntariness
    that is challenged.

[25]

Ms. Rowe-Boothes submission amounts to this: (i) she made specific
    references to the fact that she expected counsel to attend the interview in
    person and the police officer was aware of this expectation; (ii) when she was
    told that her lawyer was not coming, this information undermined her confidence
    in her lawyer; and (iii) this statement by her interrogator clearly had a
    significant impact on her because, after she heard it, she did not ask for an
    opportunity to speak to her lawyer during the remainder of the interview.

[26]

We agree with the Crown that Ms. Rowe-Boothes argument is merely
    speculative. Beyond this speculation, there is no substantial evidence of what
    she thought about her lawyer or the advice that he might ultimately have given
    her. The appellant did not testify on the
voir dire.

[27]

Ms. Rowe-Boothes reliance on
R. v. Burlingham,
[1995] 2 S.C.R.
    206 is of no assistance. Unlike the police in
Burlingham
, the police
    did not deliberately belittle her lawyer with the express goal of undermining
    her relationship with him, nor did they pressure her into accepting a deal
    without first giving her a chance to consult with her lawyer.

[28]

Importantly, and as the trial judge noted, Ms. Rowe-Boothe had consulted
    with duty counsel and her own lawyer, the latter once before the interview and
    once at its commencement. The trial judge concluded that, at all material
    times, the police acted in good faith and that they never intended to mislead
    the appellant. At para. 83 of his reasons, he reasonably concluded that being told
    that her lawyer was not coming
did not
enhance the submission that
    the interview became oppressive and resulted in the accuseds will being
    overborne.

[29]

The trial judge did not err in concluding that nothing had occurred that
    would have required the police to facilitate a re-consultation. The trial judge
    had sufficient evidentiary support for his conclusion that Ms. Rowe-Boothe consciously
    and deliberately decided to speak to the police and that her statements were
    voluntary.

DISPOSITION

[30]

Ms. Rowe-Boothe has not demonstrated that the trial judge made any
    reviewable error in respect of either of his rulings on the voluntariness of
    her statements. First, the trial judge reasonably decided, based on an
    objective view of all of the circumstances, that her statements during the
    telephone interview were voluntary. Second, the trial judge did not fail to
    consider adequately the impact on Ms. Rowe-Boothe of the police officers assertion
    that Ms. Rowe-Boothes lawyer would be unavailable for the remainder of the
    interview at the police station. His decisions are fully supported by the
    evidence and no reason has been demonstrated for interference by this court.

[31]

Accordingly, both grounds of Ms. Rowe-Boothes appeal are
    rejected and her appeal is dismissed.

H.S. LaForme J.A.

Paul
    Rouleau J.A.

David
    Brown J.A.


