R. v. A.Y.D., 2011 ABQB 356

Court of Queen ’ s Bench of Alberta Citation: R. v. A.Y.D., 2011 ABQB 356 Date: 20110527 Docket: 091470187Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - A.Y.D. and N.R.R. Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

By Court Order, there is a ban on publishing information that may identify the accused as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act, s. 75(3) . No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act , s. 110(1) . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person.

See the Youth Criminal Justice Act , s. 111(1) The ban pursuant to the Criminal Code,

section 517 has expired. Charges were stayed on July 8, 2011. ______________________________________________________

Reasons for Judgment of the Honourable Mr. Justice John .J. Gill _______________________________________________________

Summary [ 1 ] After a report of a truck being driven erratically, the two Accused were arrested by the City of Edmonton Police at approximately 2:45 a.m. on June 1, 2009. A search for the owner of the truck led the RCMP to a residence in Strathcona County where they discovered two bodies. The Accused were subsequently arrested by the RCMP and charged with a number of offences including two counts of second degree murder. [ 2 ] A voir dire was held from May 9 to May 12, 2011 to determine the admissibility of a statement made by the Accused N.R.R. on June 1, 2009 ( “ the statement ” ).

This decision addresses the admissibility of that statement. [ 3 ] The matter is scheduled for trial commencing September 19, 2011. Evidence on the Voir Dire Sgt. Kennedy [ 4 ] Sgt. Kennedy is a police officer with the serious crimes

section of the RCMP. He is based at K-Division in Edmonton. On June 1, 2009 he was assigned to arrest and interview N.R.R. who was in the custody of the Edmonton Police Service (EPS) having previously been arrested by the EPS at approximately 2:45 a.m. on June 1, 2009. [ 5 ] After receiving a briefing at the Strathcona Detachment of the RCMP, he drove to Edmonton and met with N.R.R. at approximately 11:40 a.m. and placed him under arrest for the murders of two people. N.R.R. had turned 14 approximately 3 weeks earlier. [ 6 ] Shortly after being arrested, Sgt.

Kennedy asked N.R.R.: “ Okay who would be considered your guardian? Right now ” . N.R.R. answered: “ My social worker ” (Booking Transcript (BT), ll. 44-45) and provided the name of Ms. Lisa Lowe and her telephone number. [ 7 ] Sgt. Kennedy also told N.R.R. while at the police station in Edmonton (BT, ll. 60-67): “ Because you are a youth you have extended rights okay which means before we proceed with our investigation you have a right to retain and instruct counsel without delay okay that means you can call a lawyer of your choice.

Also because you ’ re a youth you have the extended rights that you can call a parent, a guardian an adult relative or any other suitable adult that you feel that is in your interests to give ah give you advice or help you in the circumstances okay? ” And (BT, ll. 87-90):

“ Okay. Once we get to Sherwood Park I will give you an opportunity to contact ah a lawyer, Legal Aid, your guardian, any other adult relative or any other adult you feel is in your best interests okay? ” [ 8 ] N.R.R. was then examined by a forensic identification officer from the EPS while Sgt. Kennedy continued to interview him. When asked about his family, N.R.R. advised that he had an aunt and uncle whom he saw every second weekend and a brother aged 18 who lived with his aunt and uncle. [ 9 ] N.R.R. was asked about his medical condition. He identified that he had ADHD for which he took medication.

His medication consisted of five tablets in the morning and two at night. He had not taken those for approximately 24 hours. [ 10 ] N.R.R. was asked about a lawyer and said he never had a lawyer. He asked if he was allowed to call his family. Sgt. Kennedy responded (BT, ll. 415-418): “ Ya as I said essentially a lawyer, a guardian adult relative or any other suitable adult. So now it ’ s not meant to be a social time but if they ’ re going to help you get ah in the loop some legal advice then that ’ s important ” . [ 11 ] At 2:15 p.m. he was taken to a telephone room where Sgt.

Kennedy stated (BT, p. 18, ll. 483-487): “ Okay what ah what we ’ ll do you can have a seat is a you can do you can do a couple of things I can give you or we can dial a number for like a talk the, the legal aide free lawyer type stuff or because you ’ re already (unintelligible) contact guardian, parent whatever. My thoughts are let ’ s give Lisa a call ” . [ 12 ] Sgt. Kennedy then called Lisa Lowe and advised her of the situation. They discussed the need to get him some legal advice. [ 13 ] N.R.R. was given an opportunity to talk with Lisa. The call lasted less then one minute.

After that call N.R.R. asked (BT, l. 562): “ Is she allowed to talk to me ...when she comes here? ” A few minutes later he asked (BT, l. 598): “ Do I get to talk to my lawyer when he comes? ” [ 14 ] At 2:25 p.m. he was put back in the cells. Shortly thereafter he was taken to the Strathcona RCMP Detachment. [ 15 ] Once there, at 4:22 p.m. he was taken to meet with Lisa Lowe, her supervisor Lise Durand, and a Legal Aid lawyer Mr. Rick Stroppel. N.R.R. ’ s meetings with Mr. Stroppel and the two women lasted until 5:45 p.m. N.R.R. spent approximately one hour of that time meeting alone with Mr. Stroppel.

N.R.R. was then returned to the cell block. [ 16 ] At approximately 8:08 p.m. he was taken from the cell block to the formal interview. On the way N.R.R. asked (BT, ll. 736, 739): “ Is that lady still here? ” Sgt. Kennedy responded: “ That ah Lisa ’ s supervisor lady that lady ya ” . [ 17 ] The audio and video tape of the interview were played and entered as Exhibits. A transcript was also entered as an exhibit. [ 18 ] Prior to N.R.R. entering the interview room, the following exchange took place between Sgt. Kennedy and Lise Durand (Interview Transcript (IT), ll. 32-37): Sgt.

Kennedy:Any, anything else you can think of or Lise Durand:No, no I just want to see the, the if he really understands what his lawyer had said to him I don ’ t think that he Sgt. Kennedy:Ya

Lise Durand:fully comprehends and I think he ’ s in shock and so Sgt. Kennedy:Ya. [ 19 ] Present at the formal interview were N.R.R., Lise Durand, and Sgt. Kennedy. The interview started at 8:12 p.m. on June 1, 2009. There were two breaks. [ 20 ] The first part of the interview lasted approximately two hours. The first break was at around 10:19 p.m. The interview restarted at 10:56 p.m. During this first break N.R.R. stayed in the room and Ms. Durand and Sgt. Kennedy left. [ 21 ] A second break took place at 11:41 p.m. when Sgt. Kennedy left the interview room for a couple of minutes.

Lise Durand and N.R.R. stayed in the room. The interview ended at 12:07 a.m. on June 2, 2009. [ 22 ] At the beginning of the interview, Sgt. Kennedy read N.R.R. a document entitled “ Caution and Waiver Prior to Taking of a Statement Youth Criminal Justice Act s. 146 ” (the “ Caution form ” ). This is a four page document which Sgt. Kennedy and N.R.R. signed in various places. [ 23 ] As discussed in more detail, the portion of the interview dealing with the Caution form consists primarily of Sgt. Kennedy reading the form to N.R.R. [ 24 ] There is very little explanation and no discussion between N.R.R. and Sgt.

Kennedy as to the content. The Caution form is held by Sgt. Kennedy and N.R.R. is neither asked, nor given an opportunity, to read it. [ 25 ] N.R.R. was shown where to sign at different times. Portions of the Caution form which appear to apply have not been signed or have been stroked out by Sgt. Kennedy. [ 26 ] On cross examination, Sgt. Kennedy adopted the following evidence he had given during the Preliminary Inquiry on this matter: Q Sergeant, are you familiar with the idea of stress compliant confessions? AYes.

QDo you understand those to be confessions when the interpersonal pressures of the interrogation become so intolerable that the suspect just complies to terminate the interview? A Yes. QDid you have a concern here about your reaching that point with N.R.R.? AMy difficulty with that in this point in the interview is that I had very little real information to base on whether -- typically that sort of a confession or that sort of an admission is balanced off with trying to match it to reality, to match it to physical evidence from the scene,

to something else to bring veracity to -- to the admission. In this instance I wasn ’ t armed with any of that information. Yes, it is a concern in my mind as I ’ m conducting this interview; however, the greater obligation is to get a complete truthful version and the -- to match up after the fact. And in -- with all of these elements it is a real fine balance in timing, in, you know -- you know, where this was at the point in the investigation in the timing. It ’ s -- as an investigator or as an interviewer it ’ s a very fine balance-- QSure. A-- of considering all of these things.

And at that -- at -- you know, as I continued to deal with N.R.R. his -- it was a thought, one of my thoughts. [ 27 ] Sgt. Kennedy acknowledged that N.R.R. did not waive his right to have his counsel of choice present during the interview. Lise Durand [ 28 ] Ms. Durand is a Manager with the Government of Alberta Department of Children and Youth Services. She oversees two offices, one in Strathcona County and another in Fort Saskatchewan. She has 30 years experience. [ 29 ] N.R.R. has been under a permanent guardianship order for a number of years.

Several departmental employees had collective responsibility for him in May or June 2009. Lisa Lowe was his social worker and primary contact. Ms. Durand was one of Lisa Lowes ’ supervisors. [ 30 ] Ms. Durand became involved with this case at about 3:30 or 4:00 p.m. on June 1, 2009. She was informed that N.R.R. was detained on serious charges at the RCMP Detachment. [ 31 ] She had never met N.R.R. before. She was aware of him from files in her office. He had been in their care for some time and his most recent placement had been at Bosco Homes.

He had gone absent without leave on May 29 and May 30 for a day and was returned to Bosco. [ 32 ] At the RCMP Detachment N.R.R. spoke with Lisa Lowe and met Mr. Stroppel. N.R.R., Lisa Lowe, Mr. Stroppel and Ms. Durand met for about 5 to 10 minutes. She recalls N.R.R. was scared and fidgety. Lisa Lowe and Lise Durand then left. Mr. Stroppel met alone with N.R.R. After the meeting Mr. Stroppel came out and said he was leaving and that N.R.R. would be meeting with the RCMP to provide a statement. [ 33 ] Ms. Durand testified that she was surprised and shocked that Mr.

Stroppel was leaving. [ 34 ] During her career she has attended three or four similar interviews. [ 35 ] She then met briefly with N.R.R. and told him that she could be present if N.R.R. wanted her for the interview. [ 36 ] Lisa Lowe, Rick Stroppel and N.R.R. then met again for about five minutes. Mr. Stroppel left. Everyone took a supper break and Lise Durand came back for the interview at about 6:00 p.m. [ 37 ] She had never met N.R.R. before. All meetings before the interview itself were in the presence of someone else except for a short private conversation.

She described N.R.R. as having an engaging, nice personality. He was a “ pleaser ” , had a learning disability and was in a special program at school. He also had ADHD and a sleep disorder and took medication for both conditions. The police had obtained that medication from Bosco. She knew N.R.R. had never had a lawyer before.

[ 38 ] Ms. Durand ’ s capacity in June 2009 was guardian for N.R.R. She spoke to N.R.R. and told him he could stop the interview if he wanted to do so. She also felt that she could stop it if she so wished. [ 39 ] She told Sgt. Kennedy that N.R.R. was in shock and that she did not think he fully understood or comprehended. [ 40 ] She understood she could stop the interview but she deferred to N.R.R. Watching the interview she felt he was confused at times and also that he would go along with whatever Sgt. Kennedy wanted. [ 41 ] During the first break of the interview, she spoke to Rick Stroppel by phone.

She did not think about shutting down the interview. N.R.R. [ 42 ] N.R.R. testified. He has been in the child welfare system since he was 7 years old. Before June 1, 2009 he had never been in court before, been charged with anything, been interviewed by the police in a formal interview, or seen any documents like the Caution form. He had never spoken to a lawyer before, nor had he ever been involved in a formal criminal court process.

He had regular contact with his aunt and uncle, and two brothers who are 16 and 18 years old. [ 43 ] N.R.R. has been diagnosed with ADHD (attention deficit hyperactivity disorder) and a sleep disorder. He took medication in the morning and in the evening for these disorders. He also has FAS (fetal alcohol syndrome). [ 44 ] At the time of the interview which began at 8:12 p.m. on June 1, 2009, he had slept two or three hours since being arrested by EPS officers at about 2:45 a.m. He had eaten three quarters of a sub sandwich.

He was feeling drowsy, shocked and “ out of it ” . [ 45 ] In Court he was asked to review the Caution form. He does not understand the word “ consult ” on page 1. [ 46 ] He understood that he could speak to an adult of his choice. He wanted to speak with his aunt or his brothers, but was not given a chance to do so. He felt the issue was avoided every time he asked to speak to them. [ 47 ] He understood he could have either Lisa Lowe, Lise Durand or his lawyer in the interview room with him.

N.R.R. indicated the purpose of having someone present was to help him understand what was going on. [ 48 ] N.R.R. testified that his lawyer was not present because his lawyer chose not to be there. [ 49 ] Lisa Lowe arranged for Rick Stroppel and Lise Durand to be at the station. N.R.R. had not met Lise Durand before. He acknowledges that she helped him at one point to understand what was going on. [ 50 ] N.R.R. testified that he lied during the interview about some of the things he saw and heard. He stated that he lied because he wanted the interview to end. He was scared to tell Sgt.

Kennedy that he wanted the interview to end. He was scared of Sgt. Kennedy because of N.R.R. ’ s background. He is scared of older men because of his background and it is not easy for him to talk to older men due to what happened to him in the past.

[ 51 ] When he was left alone in the interview room he felt stressed out and scared. [ 52 ] He takes medication in the evening to help him sleep as he has a sleeping disorder. He also takes five pills in the morning. [ 53 ] On cross-examination, N.R.R. testified that he did not really know if he understood the role of a lawyer, nor did he really understand what he read in the Caution form about a lawyer being present. [ 54 ] He does not believe in social workers and he does not trust them.

Lisa Lowe would be higher on his trust scale than Lise Durand. [ 55 ] He signed “ okay ” on the Caution form and agreed with Sgt. Kennedy because Sgt. Kennedy was a professional and he did not expect his lawyer to be present. [ 56 ] He admits that some of the things he said during the interview were true but his statements concerning the murders and his conversation with his co-accused were not true. He had never spoken to a lawyer before, nor does he remember ever being in Court before despite his involvement in the child welfare system. [ 57 ] He told Sgt. Kennedy what he thought Sgt. Kennedy wanted to hear.

N.R.R. just wanted to answer the questions. He wanted to get out of the interview room. Issues [ 58 ] Defence counsel objects to the admissibility of the statement on four grounds: 1. Failure to comply with the informational requirement under s. 146 of the The Youth Criminal Justice Act , S.C. 2002, c. 1 (the YCJA ) in relation to the right to consult with a parent or other adult person chosen by N.R.R. 2. Failure to provide N.R.R. with an opportunity to contact an adult person of his choosing, resulting in a breach of s. 146 of the YCJA . 3.

Failure to advise N.R.R. of the requirement to have counsel present during the interview unless he desired otherwise, resulting in breach of s. 146 of the YCJA . N.R.R. did not waive this requirement. 4. The Crown has not established beyond a reasonable doubt that the statement was voluntary. Legislation [ 59 ] The following provisions of the YCJA are relevant to the issue on this voir dire :

INTERPRETATION

Definitions 2.

(1) The

definitions in this subsection apply in this Act... “ parent ” includes, in respect of a young person, any person who is under a legal duty to provide for the young person or any person who has, in law or in fact, the custody or control of the young person, but does not include a person who has the custody or control of the young person by reason only of proceedings under this Act. DECLARATION OF PRINCIPLE Policy for Canada with respect to young persons 3.

(1) The following principles apply in this Act: ... (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, . . . (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms... Act to be liberally construed

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1) EVIDENCE General law on admissibility of statements to apply 146.

(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons. When statements are admissible

(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless (

a) the statement was voluntary; (

b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that (

i) the young person is under no obligation to make a statement, (ii) any statement made by the young person may be used as evidence in proceedings against him or her, (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise; (

c) the young person has, before the statement was made, been given a reasonable opportunity to consult (

i) with counsel, and (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and (

d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person. Exception in certain cases for oral statements

(3) The requirements set out in paragraphs (2)(

b) to (

d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements. Waiver of right to consult

(4) A young person may waive the rights under paragraph (2)(

c) or (

d) but any such waiver (

a) must be recorded on video tape or audio tape; or (

b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

Waiver of right to consult

(5) When a waiver of rights under paragraph (2)(

c) or (

d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them. Admissibility of statements

(6) When there has been a technical irregularity in complying with paragraphs (2)(

b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected. Statements made under duress are inadmissible

(7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority. Misrepresentation of age

(8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver, (

a) the young person held himself or herself to be eighteen years old or older; (

b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and (

c) in all other circumstances the statement or waiver would otherwise be admissible. Parent, etc., not a person in authority

(9) For the purpose of this section, a person consulted under paragraph (2)(

c) is, in the absence of evidence to the contrary, deemed not to be a person in authority. Case Law on YCJA [ 60 ] In R. v. L.T.H. , 2008 SCC 49 , [2008] 2 S.C.R. 739 the Supreme Court recognized that young persons, more than adults, are inclined to feel vulnerable when questioned by the police. Therefore, s. 146 of the YCJA contains a set of enhanced procedural safeguards governing admissions of statements made to persons in authority.

The YCJA underscores the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons who are presumed on account of age and relative lack of sophistication to be more vulnerable than adults to suggestions, pressure or influence.

[ 61 ] The informational requirements set out in s. 146 are meant to ensure the reliability of a statement, that is to prevent false confessions by someone doing something to end the pressure of interrogation or please an authority figure. [ 62 ] In R. v. L.T.H. , the Supreme Court of Canada outlined the principles a trial judge is required to apply in addressing cases involving young persons under the YCJA . Some of the principles relevant to this case can be found in the reasons of Fish J.

On the issues of onus of proof and standard of proof, he stated: 6 ...In my view, the Crown's evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under s. 146 YCJA . A mere probability of compliance is incompatible with the object and scheme of s. 146, read as a whole.

Compliance must be established beyond a reasonable doubt. . . . 48 ...If the trial judge is satisfied, beyond a reasonable doubt, that the rights and options of the young person were in fact explained in the manner required by s. 146, a presumption will arise that the young person in fact understood those rights and the effect of waiving them. Trial judges will therefore be expected to draw that inference in the absence of evidence to the contrary. [ 63 ] Fish J. set out the following test for compliance with s. 146 : 21 In my view, the test for compliance with the informational component is objective.

It does not require the Crown to prove that a young person in fact understood the rights and options explained to that young person pursuant to s. 146(2)(b). That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular youth being questioned (N. Bala, Youth Criminal Justice Law (2003), at p. 220). 22 A purposive

interpretation of s. 146(2)(

b) makes clear that it requires persons in authority to make reasonable efforts to ensure that the young detainee to be questioned is capable of understanding the explanation of the rights being given. This follows from the clear wording of the section: The explanation must be provided in language appropriate to the particular young person's age and understanding.

Without some knowledge of the young person's level of understanding, the officer will be unable to demonstrate that the explanation was tailored to the capabilities of the young person concerned. 23 The kind of reasonable efforts that must be made by police officers were ably summarized in R. v. C.G. , 1986 CarswellOnt 1556 (Prov. Ct. (Fam. Div.)): ... persons in authority taking statements must learn something about the educational level of the child, the language and vocabulary skills of the child, his faculties of understanding, his emotional state at the time.

These inquiries do not call for the intervention of a psychologist, or a telephone call to the school teacher, or even to a parent. But they do require enough conversation with the young person, to permit the officer to determine how many phrases must be explained and to what extent he must use ordinary or street language or even slang to be sure the child understands what is being said. ...

Section 56 [of the Young Offenders Act , the predecessor to s. 146 YCJA ] will require evidence on a voir dire from the person(

s) in authority that he had a reasonable basis for forming an opinion as to the "age and understanding" of a young person [Emphasis in original; paras. 29 and 34.] . . . 27 The reading of a standardized form will not normally suffice in itself to establish the sufficiency of the caution required by s. 146(2) (b). Persons in authority must, in addition, acquire some insight into the level of comprehension of the young person concerned, since the mandatory explanation must be appropriate to the age and understanding of that young person. In the words of the Manitoba Court of

Appeal in R. v. B.S.M. (1995), (MB CA), 100 Man. R. (2d) 151: The simple reading of an appropriate waiver form to an accused young person will not generally constitute a clear explanation of hisrights or of the consequences of signing a waiver. What will constitute a clear explanation will depend on the facts of a particular case. Iwould suggest that the mere reading of a waiver form accompanied by the repeated question "do you understand?" would normally fallshort of satisfying the statutory requirements. Parliament has expressly stated that young people require more than the offering ofinformation.

They require not just explanations, but clear explanations that they are able to understand. [para. 9] 28 Properly crafted and scrupulously applied, standardized forms nonetheless provide a useful framework for the appropriateinterrogation of young detainees. This point was well made by the Ontario Court of Appeal in R. v.

S. (S.) (2007), 222 C.C.C. (3d) 545,2007 ONCA 481, at para. 37: It is apparent that a uniform form that correctly addresses all of the procedural protections would facilitate uniform compliance with s.146(2) and, more importantly, would ensure that a young person had his or her rights, and the obligations of the police, clearly explained. In short, adherence to standardized forms can facilitate, but will not always constitute, compliance with s. 146(2)(b). Compliance is amatter of substance, not form.

The trial court must be satisfied, upon considering all of the evidence, that the young person's rights werein fact explained clearly and comprehensibly by the person in authority.

As Sopinka J. explained in I.(L.R.): ... the purpose of the requirement that the explanation prescribed by s. 56 precede the making of the statement is to ensure that the youngperson does not relinquish the right to silence except in the exercise of free will in the context of a full understanding and appreciation ofhis or her rights. [Emphasis added; p. 528.] [64] Fish J. also addressed the issue of a young person’s waiver of rights under s. 146: 7 Finally, s. 146 provides that young persons, subject to certain conditions, can waive their right under that

section to consult withcounsel and an adult relative before making a statement and their right to have counsel and the relative present when the statement ismade. As we shall see, an unbroken line of authority, beginning with Korponay v. Attorney General of Canada, (SCC),[1982] 1 S.C.R. 41, establishes that a waiver must be established by "clear and unequivocal [evidence] that the person is waiving theprocedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiverwill have on those rights in the process" (p. 49 (emphasis deleted)).

Manifestly, where Parliament has specifically sought to endow youngpersons with enhanced procedural protections, this high standard has not been satisfied if the court is left with a reasonable doubt whetherthe requirements set out in Korponay and subsequently reaffirmed, have been met. Case Law on Voluntariness [65] The leading case on voluntariness, R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, outlines the appropriate principles to be applied. The Supreme Court confirmed that hard and fast rules cannot account for the variety ofcircumstances that vitiate the voluntariness of a confession.

Because of the criminal justice system’s overriding concern not to convictthe innocent, a confession will not be admissible if it is made in circumstances that raise a reasonable doubt as to its voluntariness. [66] Therefore, judges should strive to understand the circumstances surrounding the confession and ask if it gives rise to areasonable doubt as to the confession's voluntariness, taking into account all aspects of the rule.

Relevant factors include any threats orpromises, oppression, whether the accused had an operating mind, and police trickery. [67] An inducement made by a person in authority only becomes improper when the inducement, whether standing alone or in

combination with other factors, raises a reasonable doubt about the voluntariness of the confession. An important consideration in allcases is to look for a quid pro quo offered by the investigators regardless of whether it comes in the form of a threat or a promise.Oppressive conditions have the potential to produce an involuntary confession. Examples are deprivation of food, clothing, water, sleep,or being questioned aggressively for a long period of time.

For an accused to have an operating mind it is only necessary that he knowswhat he is saying and that it may be used to his detriment. [68] The Supreme Court described the different types of false confessions: 37 Ofshe & Leo (1997), supra, at p. 210, provide a useful taxonomy of false confessions. They suggest that there are five basic kinds:voluntary, stress-compliant, coerced-compliant, non-coerced-persuaded, and coerced-persuaded. Voluntary confessions ex hypothesi arenot the product of police interrogation.

It is therefore the other four types of false confessions that are of interest. 38 According to Ofshe & Leo (1997), supra, at p. 211, stress-compliant confessions occur "when the aversive interpersonal pressures ofinterrogation become so intolerable that [suspects] comply in order to terminate questioning". They are elicited by "exceptionally stronguse of the aversive stressors typically present in interrogations", and are "given knowingly in order to escape the punishing experience ofinterrogation" (emphasis in original). See also Gudjonsson & MacKeith (1990), supra.

Another important factor is confronting thesuspect with fabricated evidence in order to convince him that protestations of innocence are futile: see ibid.; Ofshe & Leo (1997a),supra, at p. 1040. . . . 42 From this discussion, several themes emerge. One is the need to be sensitive to the particularities of the individual suspect.

Forexample, White, supra, at p. 120, notes the following: False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especiallyvulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rareinstances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of theinterrogation.

And indeed, this is consistent with the reasons of Rand J. in Fitton, supra, at p. 962: The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, allcall for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what wassaid was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.

Ward, supra, and Horvath, supra, similarly recognized the particular circumstances of the suspects that rendered them unable to confessvoluntarily: in Ward, the accused's state of shock, and in Horvath, the psychological fragility that precipitated his hypnosis and"complete emotional disintegration" (p. 400). . . . 49 As noted above, in Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of "fear of prejudiceor hope of advantage". The classic "hope of advantage" is the prospect of leniency from the courts.

It is improper for a person inauthority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. Thereforein Nugent, supra, the court excluded the statement of a suspect who was told that if he confessed, the charge could be reduced frommurder to manslaughter. See also R. v. Kalashnikoff (1981), (BC CA), 57 C.C.C. (2d) 481 (B.C.C.A.); R. v. Lazure(1959), (ON CA), 126 C.C.C. 331 (Ont. C.A.); R. J. Marin, Admissibility of Statements (9th ed. (loose-leaf)), at p.1--15.

Intuitively implausible as it may seem, both judicial precedent and academic authority confirm that the pressure of intense andprolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, and that a conviction isinevitable. In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise areasonable doubt as to the voluntariness of any ensuing confession.

An explicit offer by the police to procure lenient treatment in returnfor a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances.

. . . 68 While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger.

If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

Analysis 1)Were N.R.R. ’ s rights in relation to consulting a parent or other adult clearly explained to him? 2) Was N.R.R. given a reasonable opportunity to exercise those rights? [ 69 ] Shortly after being arrested, Sgt. Kennedy asked N.R.R. who he considered his guardian to be. He identified his social worker (Lisa Lowe) and provided Sgt. Kennedy with her phone number. [ 70 ] Sgt.

Kennedy advised him at the police station in Edmonton (BT, ll. 60-67): “ Because you are a youth you have extended rights okay which means before we proceed with our investigation you have a right to retain and instruct counsel without delay okay that means you can call a lawyer of your choice. Also because you ’ re a youth you have the extended rights that you can call a parent, a guardian an adult relative or any other suitable adult that you feel that is in your interests to give ah give you advice or help you in the circumstances okay? ” And (BT, ll. 87-90): “ Okay.

Once we get to Sherwood Park I will give you an opportunity to contact ah a lawyer, Legal Aid, your guardian, any other adult relative or any other adult you feel is in your best interests okay? ” [ 71 ] Ms. Lowe was contacted by the police, went to the police station in Strathcona County and met with N.R.R. in the presence of her manager, Ms. Durand. Ms. Lowe also arranged for a lawyer to attend and meet with N.R.R. [ 72 ] Ms.

Lowe meets the definition of “ parent ” under s- s. 2(1) of the YCJA : “ parent ” includes, in respect of a young person, any person who is under a legal duty to provide for the young person or any person who has, in law or in fact, the custody or control of the young person, but does not include a person who has the custody or control of the young person by reason only of proceedings under this Act. [ 73 ] The wording of s-s. 146(2)(c)(ii) is disjunctive:

146(2)...(

c) the young person has, before the statement was made, been given a reasonable opportunity to consult... (ii) with a parent or, in the absence of a parent , an adult relative or , in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence... [emphasis added] [ 74 ] I am satisfied that the informational requirement under s. 146 as it relates to consulting a parent or other adult person was complied with. N.R.R. was advised of his options. N.R.R. identified Ms.

Lowe as his guardian (i.e.: a “ parent ” under the YCJA ) and the police arranged for Ms. Lowe to meet with him. In the circumstances of this case, there was no requirement to provide further information in this regard. [ 75 ] I am also satisfied that N.R.R. was given a reasonable opportunity to consult with a “ parent ” (s-s. 146(2)(c)) and that he was given a reasonable opportunity to make his statement in the presence of that person (s-s. 146(2)(d)). [ 76 ] After meeting with Lisa Lowe, Lise Durand and Mr. Stroppel it was decided that Ms. Durand would stay instead of Ms. Lowe. Ms.

Durand met the definition of “ parent ” under the YCJA . Although this was the first time that N.R.R. had met Ms. Durand, there was no evidence to suggest that N.R.R. had any concern about Ms. Durand replacing Ms. Lowe in the interview. [ 77 ] In

summary, I am satisfied that by permitting N.R.R. to contact and meet with his social worker whom he had identified as his guardian, the police complied with the YCJA requirements to clearly explain his rights with respect to consulting a parent or other adult, and to provide him with a reasonable opportunity to exercise those rights. 3) Was it clearly explained to N.R.R. that counsel was required to be present during the interview unless N.R.R. desired otherwise, and was he given a reasonable opportunity to exercise that right? [ 78 ]

Section 146 requires, before any statement is made, a clear explanation by the person in authority to the young person, in language appropriate for his or her age, that any statement is required to be made in the presence of counsel unless the young person desires otherwise. [ 79 ] At the start of the interview, Sgt. Kennedy used a Caution and Waiver form to explain the rights and requirements under s. 146 of the YCJA . The Caution form refers in five places to the requirement that any statement be made in the presence of counsel: 1.

Page 1, Paragraph 6: If you wish to give a statement, anything you say or write must be done in the presence of a lawyer and any other adult person who you consult unless you desire otherwise. [ 80 ] Immediately after reading this statement, Sgt. Kennedy provides the following commentary (IT, ll. 212 to 216): "So really [Lisa] is here for you if you don't want her here we can ask her to leave. If you want her to stay she can definitely stay I have no issue with it at all. Okay so it's all whatever ’ s going to make you feel most comfortable." [ 81 ] The explanation by Sgt.

Kennedy does not address the requirement to have a lawyer present. His comments are potentially misleading as they imply that paragraph 6 only addresses Lisa ’ s presence. 2. Page 2, Part B, Paragraph 1:

These next questions deal with whether you wish to use your rights or give up your rights. YOU make that decision. If you wish to use your rights, you should answer YES to either of the following questions, and you will be given a reasonable opportunity to arrange to consult with that person or those persons in private and to have that person or those persons present when you say or write anything. Even if you decide not to use your rights right now, you can change your mind at any time and use your right to consult with that person or those persons immediately.

Do you want to speak to duty counsel or any other lawyer before you say or write anything? YES_____ NO______ [ 82 ] N.R.R. wrote his initials beside "NO". [ 83 ] Sgt. Kennedy explained to N.R.R. (IT, ll. 260 to 263): "Before we go any further tonight would you like a further opportunity to speak with Mr. [Stroppel]. Okay you're shaking your head and um is that a yes or a no". N.R.R. replied: “ No ” . [ 84 ] Again at this stage no explanation is given as to the requirement to have a lawyer present. In fact, the comment by Sgt.

Kennedy suggests that this part of the Caution form relates only to speaking with a lawyer and not to the requirement to have a lawyer present. [ 85 ] Immediately below N.R.R. ’ s initials next to "NO" is the following instruction: "If the answer is "NO" then read this to the young person and move on to

Part C". 3. Page 2, Part B, Paragraph 2: I HAVE BEEN TOLD that before I make a statement, I have the right to consult with a lawyer. I HAVE ALSO BEEN TOLD that if I wish to consult with a lawyer, I will be given a reasonable opportunity immediately to speak in private with a lawyer. I HAVE ALSO BEEN TOLD that a lawyer must be present when I say or write anything unless I do not want the lawyer there. I HAVE ALSO BEEN TOLD that I can change my mind at any time and speak to a lawyer at any time in this investigation. I UNDERSTAND THESE THINGS AND I DO NOT WANT TO CONSULT WITH A LAWYER.

Young person's signature This part of the Caution form is not signed but is stroked out by Sgt. Kennedy. [ 86 ] This part of the Caution is only partially read out by Sgt. Kennedy (IT, ll. 274 to 281), concluding with: "I have also been ah you know na na na na na na na na na na I kay" . [ 87 ] Sgt. Kennedy appears to have assumed that this paragraph was not applicable; it clearly was applicable as N.R.R. had indicated "NO" following the preceding paragraph. The consequence is that Sgt.

Kennedy may have inadvertently given the impression that the second paragraph (which included the requirement that a lawyer be present unless the young person desires otherwise) was not relevant to the situation. This was clearly an error.

[ 88 ] N.R.R. immediately thereafter says something transcribed as follows (IT, l. 282): "(unintelligible) you say did not want (unintelligible)". The audio was played in Court and there was no consensus as to what was said. Having listened to the audio on several occasions I believe N.R.R. said one of two things: "He doesn't want to be here" or "You say you don't want him to be here". [ 89 ] The reference is to Mr. Stroppel, the lawyer who had met with N.R.R. earlier and then left the police station.

This statement by N.R.R. raises a concern as it is not clear from his response whether N.R.R. thinks that it is up to the police officer or counsel to decide if counsel should be present. Either understanding is problematic and suggests that at this point N.R.R. did not understand that counsel was required to be present unless N.R.R. desired otherwise. [ 90 ] Sgt. Kennedy responds but provides no clarification or explanation (IT, ll. 283 to 288): "Ya he well it ’ s not about him it's about you kay let's, let's (unintelligible) out front. What it says here is if your answer was no then move on

Part C cause this just all deals with clarifying what we ’ ve just talked about that you've already spoken to a lawyer that you ’ ve gotten legal advice I'm assuming you understood the advice that Mr. Stroppel has given you..." [ 91 ] These comments by Sgt. Kennedy do not amount to an explanation. In fact they could be misleading as they suggest this paragraph in the Caution form only addresses getting legal advice but in fact it addresses a number of other issues including the requirement that a lawyer be present. 4. Page 3,

Part C, Paragraph 2: I HAVE BEEN TOLD that before I make a statement, I have the right to consult with a parent or an adult relative, or any other appropriate adult. I HAVE ALSO BEEN TOLD that if I wish to speak to that person I will be given a reasonable opportunity to speak in private with them. I HAVE ALSO BEEN TOLD that a lawyer and any other person I consult must be present when I say or write anything unless I do not want them there.

I HAVE ALSO BEEN TOLD that I can change my mind at any time and speak to any of these people at any time in this investigation. ☐ I UNDERSTAND THESE THINGS AND I DO NOT WANT TO TALK TO ANY OF THESE PEOPLE AT THIS TIME. ☐ I DO NOT WANT ANY OF THESE PEOPLE HERE WHILE I HERE WITH THE POLICE. Young person's signature [ 92 ] N.R.R. did not initial or sign in the space provided. [ 93 ] After reading this paragraph, Sgt.

Kennedy provides the following explanation (IT, ll. 317 to 335): "I think that to put it in perspective we're kinda jumping ahead because this is the part where you'd say I ’ d really like to have [Lisa] here and I go out to the front and I'd say [Lisa] come on back he's asked for you to be here. We kind of jumped ahead of the game.... and just brought [Lisa] in from the get go.

So is it safe to say and I'm kinda du moving out of this document a little bit that you comfortable with proceeding with [Lisa] present or would you like an opportunity to speak to her in private before we go forward or it's really your, your choice.

N.R.R.:No I'm good with her here. Oh Okay. Okay so I have spoken to a parent, adult relative any other responsible adult I have been told that this person must be present when I say or write anything unless I do not want that person there. And the box I'm going to acknowledge here says I do want this person present when I say or write anything is that correct? Okay and I'm going write in here [Lisa's] name and just ask you to sign there." [ 94 ] Again, these comments by Sgt. Kennedy did not amount to an explanation.

In fact the comments are potentially misleading in that they suggest this paragraph only dealt with having an adult present but in fact it addresses a number of other issues including the requirement that a lawyer be present. [ 95 ] As noted in R. v. L.T.H. at paras. 27 and 28 , although forms can provide a useful framework for the appropriate interrogation of young detainees, the reading of a standardized form will not normally suffice in itself to establish the sufficiency of the caution required by s. 146(2)(b). [ 96 ] The Caution form was not followed precisely nor completed properly.

Very little, if any explanation was provided by Sgt. Kennedy as to the meaning of its content. He merely asked questions such as: “ Make sense? ” , “ Does that make sense? ” , “ Does that all make sense? ” , “ Do you understand all of that? ” , “ Concerns about it??? No concerns about that? ” [ 97 ] Significantly, no attempt was made to actually test N.R.R. ’ s understanding of the Caution form. [ 98 ] As noted above, several of Sgt. Kennedy ’ s comments are confusing and potentially misleading.

As a result, N.R.R. may have failed to understand the requirement that counsel be present. [ 99 ] It is notable that the Caution form was held by Sgt. Kennedy. N.R.R. was not given a copy to read or follow along. [ 100 ] N.R.R. testified that was there was at least one word in the first page of the Caution form ( “ consult ” ) that he did not understand. [ 101 ] Fish J. in R. v.

L.T.H. at para. 30 noted that in determining the appropriate language to use to explain a young person ’ s rights, police officers must make a reasonable effort to become aware of significant factors of this sort such as learning disabilities and previous experience within the criminal justice system. [ 102 ] In this case shortly after the arrest the police officer did ask some factual questions concerning N.R.R. ’ s age, and the school and program that he attended.

But there was no real testing done in terms of his level of comprehension or understanding either at that initial arrest stage or further on during or before the formal interview itself. There was no discussion about his previous experience in the justice system (essentially none) or his learning disability. [ 103 ] I also take into account the emotional and mental state of N.R.R. at the time of the interview. I note Ms. Durand ’ s comments to Sgt.

Kennedy just prior to the interview commencing (IT, ll. 32-36).: “ ...I just want to see the, the if he really understands what his lawyer had said to him I don ’ t think that he...fully comprehends and I think he ’ s in shock... ” This should have caused Sgt. Kennedy some concern and he should have followed up on it. It appears he either did not hear it, or ignored it. I note also that N.R.R. had been arrested at approximately 2:30 or 2:45 a.m. that same day. There was evidence that he had only slept for two or three hours before starting this interview at 8:12 p.m. [ 104 ] In

summary, I find the evidence in its totality raises a serious doubt as to whether it was clearly explained to N.R.R. that counsel was required to be present during the interview unless N.R.R. desired otherwise. In all of the circumstances, I doubt that he understood this. It necessarily follows that he was not given a reasonable opportunity to exercise that right.

[ 105 ] The issue of waiver was raised. Section 146(4) permits a young person to waive their rights until s-s. 2(

c) or (

d) but any such waiver must be recorded on video tape or audio tape, must be in writing and contain a statement signed by the young person that he or she has been informed of their rights being waived. It is conceded by the Crown that there was no waiver of rights by N.R.R. [ 106 ] In any event having not been properly advised of this requirement to have counsel present unless he desired otherwise, he could not be in a position to waive this right. As stated in R. v.

L.T.H. at para. 7 , waiver must be established by clear and unequivocal evidence that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. [ 107 ] The Crown suggests that these circumstances amount to a technical irregularity and that s-s. 146(6) applies. [ 108 ] The Ontario Court of Appeal was faced with a similar situation in R. v. S.S. , 2007 ONCA 481 , 222 C.C.C. (3d) 545 .

In that case the accused was not advised that the YCJA requires that any statement be taken in the presence of counsel or adult whom the young person had consulted. Lang J.A. for the Court concluded that this could not be considered a technical irregularity: 46 Since the respondent was deprived of a substantial informational component of s. 146(2)(b)(iv), the breach cannot be considered a "technical irregularity" of the kind to invoke a consideration of s. 146(6).

Accordingly, it is not necessary for me to weigh whether the admission of the statement would bring the principle of enhanced procedural protection for young persons into disrepute. [ 109 ] The same reasoning applies to this case. 4) Has the Crown established beyond a reasonable doubt that the statement was voluntary? [ 110 ] Defence counsel argues that the statement was not voluntary and that the circumstances support a finding that this was a stress compliant statement of the type described in Oickle at paras. 38 and 42, 49 and 68 (reproduced above). [ 111 ] The interview of N.R.R. commenced at 8:12 p.m. and finished shortly after midnight.

N.R.R. ’ s demeanour changes through the interview. At the beginning he appears calm and politely answers questions about his personal history, his recent placement at Bosco homes, meeting the co-accused and being absent with permission during the days leading up to his arrest. [ 112 ] He constantly denies knowledge about any murders and becomes irritated when pressed on this point. The first break occurs after about two hours. [ 113 ] During the first break he is left alone in the interview room for 40 minutes. It is evident that he is irritated and frustrated. He says (IT, l. 1952): “ Oh my god hurry up.

Oh what the ffff Oh ah ” . He then states (ll. 1957 to 1963): “ Ah fuck. Man its so gay. Fuck you man I just want to get out of this shit. Fucken done talking man. Uh Oh I ’ m fucking tired man. This guy talks forever [...] how long does it take him to take a break man I need a break. Not sitting in the same room man. I swear these fuckin guys I didn ’ t do shit. Hurry up fuck ... ” And then he states (l. 1972): “ I ’ m tired of talking fuck ... ” . [ 114 ] The interview recommences at 10:56 p.m.

N.R.R. asks immediately (IT, l. 1979): “ How long do we have to talk for? ” [ 115 ] N.R.R. continues to deny any knowledge of the murders. His denials are challenged and he becomes increasingly irritated and frustrated. His language becomes more aggressive and he uses expletives. [ 116 ] N.R.R. provides some information about what he heard and was told. Sgt Kennedy continues to challenge him. Sgt. Kennedy

says (IT, ll. 2277-2280): “ ...I ’ m going to push the pace here a bit because you ’ re tired we ’ ve all been up all day you ’ ve been up probably longer than that and ah let ’ s just cut to the chase here, give me the whole goods please. ” N.R.R. responds (l. 2281): “ What am I suppose to say. ” [ 117 ] A short time later, Sgt. Kennedy states (IT, l. 2322-2324, 2330): “ Okay let ’ s just do it once do the full deal and let ’ s just get this done. Okay [N] can we do that?

We ’ ve come so far let ’ s finish this off alright?...But I do need to get to the end of this story... ” [ 118 ] N.R.R. provides some more information about what he saw and heard. [ 119 ] Sgt. Kennedy then states (IT, ll. 2497-2499): “ ..If we ’ re going to get it done let ’ s get it done cause you know what it ’ s late. And I appreciate you staying up with me and getting through this... ” [ 120 ] The second break occurs shortly thereafter at 11:41 p.m. Sgt. Kennedy leaves. N.R.R. and Lise Durand stay in the interview room. [ 121 ] Sgt.

Kennedy returns and asks (IT, ll. 2776-2778): “ ...you know what they asked me to ask you one more thing. And I guarantee you then we ’ re done and I ’ ll walk you out of here... ” He then makes a suggestion as to the type of information they are seeking about a weapon. N.R.R. provides information about a weapon and the interview ends at 12:07 a.m. [ 122 ] N.R.R. eventually provides information that he has knowledge about the murders.

It is notable however that this information is in the context of getting the interview finished and done. [ 123 ] N.R.R. testified that he lied during the interview about some of the things he saw and heard. He indicated that he lied because he wanted the interview to end. He was scared to tell Sgt. Kennedy that he wanted the interview to end. N.R.R. testified that he is intimidated by older men. He was scared of Sgt. Kennedy because of N.R.R. ’ s background. He is scared of older men and it not easy for him to talk to older men due to what happened to him in the past.

When he was left alone in the interview room he felt stressed out and scared. [ 124 ] Lise Durand described N.R.R. as having an engaging, nice personality. He was a “ pleaser ” , had a learning disability and was in a special program at school. He also had ADHD and a sleep disorder and took medication for both conditions. She told Sgt. Kennedy at the beginning of the interview that N.R.R. was in shock and did not think he fully understood or comprehended. [ 125 ] Sgt.

Kennedy acknowledged at the Preliminary Inquiry that he knew what a stress compliant confession was and that it was in his mind at the time that this was crossing over to a stress compliant interview (Preliminary Inquiry transcript, p. 791, ll. 36-37). [ 126 ] Having considered all of the evidence regarding the circumstances surrounding the interview, I am left with a reasonable doubt as to the voluntariness of the statement.

I find the following to be of particular significance: 1)N.R.R. ’ s youth, his personality, his physical and emotional condition, his medical conditions, his lack of sleep and his lack of experience with the legal system; 2) the dynamic and length of the interview and in particular N.R.R. ’ s desire to get out of the room and end the interview resulting in what could have rendered the Sgt. Kennedy ’ s statement “ I guarantee we ’ re done ” to be, in effect, a quid quo pro ; 3) Sgt. Kennedy ’ s evidence that “ it was in his mind at the time that this was crossing over to stress compliant ” ;

4) N.R.R. ’ s testimony regarding his reasons for providing the statement and lying.

Summary [ 127 ] The statement is inadmissible for two reasons: 1. N.R.R. was deprived of a substantial informational component of s.146(2)(b)(iv). He was not clearly informed of the requirement that a lawyer must be present when he made his statement unless he desired otherwise. This was not a technical irregularity. Nor did he waive his rights under s. 146(2). 2. The Crown has not established beyond a reasonable doubt that the statement was voluntary. Heard on May 9 th to May 12 th , 2011. Dated at the City of Edmonton, Alberta this 27 th day of May, 2011. J.J. Gill J.C.Q.B.A.

Appearances: William Wister & Michelle Doyle Alberta Justice for the Crown Darin Sparke Pringle Peterson MacDonald & Bottos for the Accused A.Y.D. Mona Duckett, Q.C. Dawson Stevens Duckett & Shaigec

for the Accused N.R.R.