CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

ADMISSIBILITY OF ADMISSIONS TO PROBATION OFFICERS

In R. v. Browne, 2021 ONCA 836, November 24, 2021, the accused was convicted of the offence of manslaughter.  At his trial, the Crown led evidence connecting the accused to the scene of the offence through his telephone number.  The accused had provided this number to his probation officer who provided it to the police.  

The Ontario Court of Appeal indicated that the “probation officer testified on the voir dire that the provision of a phone number was not required as part of the probation order, and failure to provide a phone number would not result in a breach of the probation order”.

The accused appealed.  The Ontario Court of Appeal indicated that the accused argued that “the trial judge erred in not finding that his provision of the phone numbers was a compelled statement taken in violation of s. 7. He submits that the trial judge failed to consider that two probation officers explained to him that he could be prosecuted for violating his probation order. Further, he argues that he was subjected to a high level of coercion to provide his phone number and that he was in an adversarial relationship with the probation officers”. 

The appeal was dismissed.

The Court of Appeal found the accused’s submissions to be “unpersuasive”. It stated that the trial judge “carefully considered these issues, and I concur with and adopt his analysis. As noted, the appellant did not testify, and thus there was no direct evidence that he felt coerced to provide his telephone number. Nor am I satisfied that coercion can be inferred in the circumstances. The intake form filled out by the appellant indeed included a section that asked for a ‘telephone number, where you can be reached.’ However, the probation officer testified that the order did not have a term that a phone number be provided. Further, she testified that she did not tell the appellant that the failure to provide a phone number would be considered a breach of the probation order” (at paragraph 60).