The Ontario Court of Appeal has overturned a manslaughter conviction in a 2011 Thunder Bay homicide case, ruling that a statement given by the accused should not have been included as evidence during the trial.
In October 2015 Shaldon Wabason was found guilty by a jury of manslaughter and break and enter in the death of 54-year-old Robert Topping, who was fatally stabbed in a Minnesota Street home after coming to the aid of his former partner during a home invasion.
Wabason was sentenced to 10 years in prison.
In a decision released late last month, the Ontario Court of Appeal granted Wabason’s appeal, which reverses the conviction and orders a new trial. Wabason, who was originally tried for second degree murder, can only be retried on manslaughter and break and enter charges.
Prior to the trial, former Superior Court Justice John McCartney denied efforts by defence lawyers to have the police statements ruled inadmissible, who argued the statement was not made voluntarily. Fellow Superior Court Justice Terrence Platana, the trial judge, upheld the previous ruling before the case was heard by the jury.
The case brought to the appeal court disputed the position that there were no threats or promises made by the interviewing officer.
“The transcript of the police interrogation shows that although the appellant attempted to assert his right to silence numerous times, police repeatedly told him that if he spoke, he would be in less jeopardy, while if he did not speak, he would ‘take the fall’ for a murder he did not commit,” the ruling reads.
“On one occasion, for example, the interviewing officer queried: ‘If I was in your shoes I wouldn’t be taking responsibility for that if I didn’t do it (pause) I mean you really wanna take the fall for something you didn’t do?”
“Moreover, the interviewing officer told the appellant that unless he spoke up immediately, he would ‘go down’ for first degree murder.”
While the appeal court found there was no direct promise made by police in exchange for Wabason speaking, it ruled the application judge did not look at the specific circumstances of the case.
“Yet, the application judge did not consider the effect of the threats and inducements upon a 19-year-old aboriginal youth who had attempted to assert his right to silence on at least six occasions during the interview, and who asked several times to return to his cell,” the ruling reads.
Acting Crown Attorney Andrew Sadler on Friday said Wabason remains in custody and the Crown will address its intentions and possibly future scheduling at a court appearance later this month.
Wabason was one of four people arrested in connection with the case. Nicholas Webber pleaded guilty to manslaughter and was sentenced to 10 years. Christopher Hawk pleaded guilty to break and enter. Cody Thompson died while in custody at the Thunder Bay District Jail in August 2011.
