R. v. Kamal
The trial judge's factual finding that the appellant did not assert his right to counsel was supported by the record and entitled to deference; therefore a Prosper warning was not required and the videotaped interview was properly admitted, so the appeal from conviction is dismissed.
Source-derived case information.
- Citation
- 2020 ONCA 213
- Parties
- Appellant: Kendall Kamal; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 16 March 2020
- Procedural Posture
- Criminal Appeal / Appeal From Conviction (court of Appeal)
- Outcome
- Appeal dismissed; convictions on two counts of robbery upheld.
- Legal Topics
- Right to Counsel, Prosper Warning, Admissibility of Videotaped Interview, Voluntariness, Standard of Review for Factual Findings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kendall Kamal
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction (court of Appeal)
Legal Issues
- 1 Whether a Prosper warning was required before police questioning
- 2 Whether the appellant asserted the right to counsel
- 3 Whether the trial judge erred in admitting the videotaped interview
Ratio Decidendi
The trial judge's factual finding that the appellant did not assert his right to counsel was supported by the record and entitled to deference; therefore a Prosper warning was not required and the videotaped interview was properly admitted, so the appeal from conviction is dismissed.
Court Disposition
Appeal dismissed; convictions on two counts of robbery upheld.
Orders
- Appeal from conviction dismissed.
- Convictions on two counts of robbery are upheld.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Kamal Collection Decisions of the Court of Appeal Date 2020-03-16 Neutral citation 2020 ONCA 213 Docket numbers C61628 Judges Watt, David; Paciocco, David M.; Fairburn, J. Michal Subject Criminal Decision Content 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.”