R. v. S.M., 2015 ONCJ 537

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. S.M. , 2015 ONCJ 537 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; COURT FILE No.: Region of Durham BETWEEN: HER MAJESTY THE QUEEN Crown/Respondent — AND — S.M. (a Young Person) Defence/Applicant Reasons for Excluding S.M.’s Statements to His Father Before Justice Susan C. MacLean Reasons for Ruling delivered on September 24, 2015 Ms. Paula Thompson..................................................................... for the Crown/Respondent

Mr. Jason Rabinovitch..................................................................... for the Accused/Applicant MacLean S.C., J.: [ 1 ] The issue on this Ruling is as follows: s hould the statements made by S.M. to his father, M.F., be admitted into evidence? At the time of these conversations, unbeknownst to his son, M.F. was acting as an agent of the state. Earlier in this trial the parties were advised that a decision had been made that the statements are inadmissible. These are the Reasons for that decision.

Overview of the Case [ 2 ] On August 28, 2013, a four-year-old boy, T.V., died as a result of complications of severe multiple blunt impact trauma injuries to his buttocks, upper thighs, and lower back, the result of being spanked/beaten with a belt dozens of times. He also suffered serious injuries to his head which contributed to his death. The expert evidence from the pathologist, Dr. Pollanen, was that the injuries were inflicted within hours to up to a couple of days prior to T.V.'s death. [ 3 ] At the time of T.V.’s death, S.M. was 15 years old.

T.V. was the son of S.M.'s half-sister S.F., so S.M. was a young uncle. S.M. had been looking after 4-year-old T.V. and his two siblings (a 2-year-old girl and a 6-month-old boy) for several days while their mother was out of the country in Jamaica and their father was working. S.M.'s own mother, T.B., had left him in charge of these three children as well as his 10-year-old brother, D.P., while she was at work and away from the home for up to 15 hours a day during the week.

At the time of this trial T.B. had been facing charges of Failing to Provide Necessities of Life in relation to T.V.'s death, however those charges have since been withdrawn by the Crown. T.V. and his siblings had been staying in T.B.'s home for a little over one week by the time that T.V. died on August 28, 2013. The key issue at this trial was the identity of the person or persons responsible for the injuries that led to T.V.'s death. Given Dr.

Pollanen’s evidence about the timing of those injuries, the only suspects with access to T.V. during the relevant time frame were S.M., his brother D.P. and his mother T.B. (when she was not away from the home at work). [ 4 ] On July 3, 2015, p art way through a lengthy trial, S.M. was found guilty of Manslaughter in the death of T.V. [ 5 ] S.M. had not made any inculpatory statements to the police with respect to who had injured T.V. when he was interviewed by them on August 28, 29 and 30, 2013.

The Crown’s case against S.M. had been circumstantial, until, on July 3, 2015, his brother, D.P., testified that he had been present and witnessed S.M. hitting/spanking T.V. with a belt many times. Prior that that testimony, D.P. had maintained that he did not know what had happened to T.V., and the police did not have this evidence during their investigation.

Following this change in D.P.'s evidence the Parties agreed that no further evidence would be called in the trial, an Agreed Statement of Facts was filed as Exhibit 17, and the Court was invited to find S.M. guilty of Manslaughter as charged. [ 6 ] A sentencing hearing is scheduled for September 24 and 25, 2015. A

section 34 Assessment has been conducted to assist in the sentencing. For the purposes of this Ruling, I specifically disregard any information contained in that Report about S.M. and his personal circumstances and vulnerabilities, as it was not part of the evidence placed before me on the Voir Dire. [ 7 ] The family constellation in this case is complicated enough that the Crown assisted the court by preparing Exhibit 5 which is a chart detailing how the family members are related to one another.

In order to protect S.M.'s identity all names have been edited in this Ruling, since naming any of them could identify S.M. The following explains how the members of this family are related/connected to one another. S.M. is the young person now convicted of Manslaughter in the death of his nephew T.V. He was 15 years old at the relevant time and 17-years-old by the time of trial. In the summer of 2013 S.M. lived with his mother, T.B., and his 10-year-old half- brother D.P. (same mother, different fathers).

T.B. also has a daughter, T.M. who is S.M.'s older sister (same mother, different fathers from both S.M. and D.P.). T.M. was not living in the house when T.V. died. The family moved from Toronto to a house in Bowmanville in July 2013. T.B. is married to S.B., but he was not living in the house with them at the time because he was working in western Canada. Several years earlier T.B. had been in a relationship with S.M.’s father M.F. M.F. has a criminal record and had been in and out of custody. M.F. had very little involvement with S.M. as he grew up and could easily be described as an absent father.

M.F. had earlier been in a relationship with another woman (not T.B.) and they had their daughter, S.F., who is S.M.'s older half-sister (same father, different mothers). S.F. is the mother of the little boy (T.V.) who died. S.F. and her husband had three children (the father and all children have the same initials T.V. so the deceased’s siblings are described below only by their age and gender and the father simply as T.V.’s father).

The three children were the 4-year-old boy who died (who is referred to a T.V. throughout this Ruling) as well as his 2- year-old sister and 6-month-old brother (their ages at the time T.V. died). S.M. had babysat for his nephews and niece on many occasions in the past to assist his sister S.F. S.M.'s mother, T.B., is not related to S.F. except by way of extended family. In late August 2013 S.F. had to travel to Jamaica, so she asked her brother and his mother T.B. if they could look after her children while she was away because her husband was working. T.B. and S.M. agreed to do this.

S.M. was left in charge of these three children and his brother D.P. while his mother went out to work in Toronto during the weekdays. T.B.'s mother, J.B., is S.M.'s maternal grandmother. C.M. [now C.R.] is S.M.'s maternal aunt, being T.B.'s sister and J.B.’s daughter. C.M.’s husband is A.R. The Positions of the Parties [ 8 ] The Crown tendered statements that S.M. made to his father, M.F., a police agent over a period of time. In particular, the Crown sought a ruling admitting the statements made by S.M. to his father, M.F., on March, 11 th , 2014.

It is the position of the Crown that these statements were voluntary and were taken in compliance with the Applicant’s Charter and Youth Criminal Justice Act ( Y.C.J.A.) rights. It is submitted that there was nothing done to infringe S.M.'s rights in the context of an out-of-custody youth where a police agent

is utilized. [ 9 ] The Defence argues that these statements are inadmissible on the basis that they undermine S.M.'s, Y.C.J.A . and Charter protected rights and that their admission would “shock the community” in a fashion similar to that described by the Supreme Court of Canada in relation to the “Mr. Big” statements caselaw. S.M. was a suspect at the time, and the police were aware that he had Counsel and that he did not wish to make a statement to the police.

It is argued that the use of S.M.'s father to elicit evidence from him “amounted to impermissible elicitation” aimed at subverting his desire to remain silent that was in violation of his right to remain silent pursuant to s. 7 of the Charter . The Defence also argues that special rules should be in place for the use of police agents with respect to out-of-custody youths that should be different from the rules for adults in similar situations. The Y.C.J.A.

Law with Respect to Statements Made by Young Persons [ 10 ] S.M. is now and was at the time of the alleged making of all of the impugned statements in this case, a young person within the meaning of the Y.C.J.A. For the purposes of this case, it is very important to examine this legislation to determine the important role that parents are expected to play in relation to their sons and daughters when they are being dealt with through the criminal process. [ 11 ] The

Preamble to the Y.C.J.A. includes the following principles: WHEREAS communities, families, parents and others concerned with the development of young persons should, through multi- disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes ; [Emphasis added] [ 12 ] The Declaration of Principle in the Y.C.J.A. includes the following: 3.

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

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must 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 , (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour .

(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). [Emphasis added] [ 13 ]

Section 146 of the Y.C.J.A. provides: Y.C.J.A. , S.C. 2002, c. 1 146.

(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.

(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.

(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.

(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 (

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.

(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.

(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.

(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.

(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 hadreasonable 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.

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

c) is, in the absence of evidence to the contrary, deemednot to be a person in authority. [Emphasis added] [14] These provisions make clear that the role of a parent in assisting young persons both at the time of a police investigationand throughout the criminal process is very significant. With respect to statements made to the police, a young person has the right toconsult a parent and have a parent present before making any statements. This right is an added protection for young persons. Apartfrom the right to consult a lawyer, adults have no similar protections to consult with anyone else.

One might expect a parent to advise ayoung person as to whether he or she should provide a statement to the police or remain silent. Where a lawyer has been retained, onewould expect that a parent might advise the young person to follow the advice received from Counsel. The use of S.M.'s father as apolice agent who attempted to undermine the right to silence and the advice received from Counsel is very significant in light of the rolethat a parent would normally play in relation to police statements.

This will be discussed further below in this Ruling. [15] The Crown argues that pursuant to s. 146(2) of the Youth Criminal Justice Act, the trigger for the rights that the Defenceasserts were violated here is the arrest or detention or the reasonable grounds of a peace officer (or person in authority) to believe thatthe young person has committed an offence. The Defence argues that because S.M. is a young person, an expanded view of those rightshas to be considered.

The Law with Respect to Statements Made to an Agent of theState [16] In addition to the Y.C.J.A. provisions, the Court must consider the traditional voluntariness rules. The Supreme Court ofCanada thoroughly reviewed the test for determining whether a statement to a person in authority is voluntary in R. v. Oickle 2000 SCC38 , [2000] S.C.J No.38.

A statement made by an accused to a person in authority may be said to be voluntary if it was theproduct of an operating mind, made without fear of prejudice or hope of advantage (that is, no improper threat, promise or inducement),and made in a non-oppressive atmosphere. The consideration of any police trickery is to be a discreet line of inquiry. Importantly, all ofthe circumstances surrounding the giving of the statement are to be considered since it is a contextual analysis. See R. v. Oickle, supra,at paras. 33, 107. The common law confessions rule has two historical underpinnings, both of which remain valid:

(1) Concerns aboutthe reliability of evidence, “where a statement is prompted by a threat or inducement held out by a person in authority, it can no longer bepresumed to be true.”; and

(2) Concerns of fairness in the criminal process, “in particular, the principle against self-incrimination.”See R. v. Hodgson (1998) (SCC), S.C.J. No. 66 at para. 17-18 [17] The Defence concedes that M.F. was not a person in authority in law and that S.M. was not in detention when M.F. andS.M. had the conversations in issue. This is significant because statements made to ordinary citizens who are not persons in authority arepresumptively admissible and do not require a voir dire into their voluntariness.

The Court accepts that M.F. did not meet the legaldefinition of a person in authority based on the following cases: R. v. Grandinetti 2005 SCC 5 , [2005] S.C.J. No. 3 at paras. 40-45 R. v. Hodgson, (SCC), [1998] S.C.J. No. 66 at paras. 25; 31–36; 39; 46-48. R. v. Wells [1998] S.C.J. No. 67 at para. 14. R. v. Carter [2011] O.J. No. 6299 S.C.J. at paras. 6-18; 24. R. v. Berger (1975), (BC CA), 27 C.C.C. (2d) 357 (B.C.C.

A) at pages 385-6. [18] The Crown concedes in her Factum as follows, however: 76. The only exception to the above application of the voir dire requirement is if the coercive power of the state is somehow engaged inthe manner in which the statement is obtained as when the receiver of the statement is a police agent or closely associated to theauthorities responsible for the investigation and prosecution of the offence: When a statement is received by a conventional state actor - such as a police officer or a prison guard - his or her status as a person inauthority will usually be quite obvious.

When the receiver of a statement is a private citizen, that person will not be treated as a person inauthority unless there is evidence of a real or a reasonably perceived connection between that person and the prosecution. The defencewill bear the evidential onus of making that person's status a live issue. If that evidential burden is discharged, it will fall to theprosecution to prove beyond a reasonable doubt that the receiver is not a person in authority or, if this burden cannot be discharged, that

the statement was made voluntarily. R. v. Carter, supra at para.7 77. In circumstances where the coercive of the power of the state was brought to bear when the statement was obtained, an inquiry intothe circumstances surrounding the taking of the statement is justified.

Cases of the accused speaking to a “police agent” or “agent of thestate” are one possible situation in which a voir dire into manner in which the statement was obtained may be justified despite the factthat the accused is unaware of the relationship between the police and their agent. [19] The Crown and Defence agree that M.F. was, however, an agent of the state at the time of the March 11, 2014 statements. The Court agrees with this conclusion based on the law as set out in: R. v. Broyles (SCC), [1991] S.C.J. No. 95 at para. 24. R. v. M.R.M. (SCC), [1998] S.C.J.

No. 83 at para.56. [20] The Supreme Court of Canada has carefully considered the issue of the Right to Silence in the cases of Broyles, supra,and R. v. Hebert (SCC), [1990] S.C.J. No. 64. The Crown’s Factum fairly summarizes the law in this area as follows: Hebert and Broyles Considerations - Detention, Agents and The Right to Silence 78. It must be remembered that “the purpose of the right to silence is to limit the use of the coercive power of the state to force anindividual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se.

Accordingly, if theperson to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence.” R. v. Broyles, supra at para. 22 79. In a case where the statements at issue are made to an informer, “it may be arguable whether or not the coercive power of the statewas brought to bear on the suspect in obtaining the statement from him or her.” R. v. Broyles, supra at para. 23 80. Here, there is no question that M.F. was an agent of the state. It is acknowledged that he had formally entered into an agentagreement with the police.

Despite this, it is respectfully submitted that a careful consideration of the relevant tests to be applied to thesecircumstances and the rationale behind those legal tests is important to a fulsome understanding of the issues to be determined on thisApplication. 81. As set out above, the test with respect to whether an individual is an agent of the state for purposes of a consideration of the s.7Charter right against self-incrimination is as articulated by the Supreme Court of Canada in R. v.

Broyles at paragraph 24: In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between theinformer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state isrelevant for the purposes of s. 7 only if it affects the circumstances surrounding the making of the impugned statement.

A relationshipbetween the informer and the authorities which develops after the statement is made, or which in no way affects the exchange betweenthe informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if therelationship between the informer and the state is such that the exchange between the informer and the accused is materially differentfrom what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of theexchange.

I would accordingly adopt the following simple test: would the exchange between the accused and the informer have takenplace, in the form and manner in which it did take place, but for the intervention of the state or its agents? 82. Prior to Broyles the Supreme Court had considered the s. 7 right against self-incrimination in R. v. Hebert (SCC),[1990] S.C.J. No. 64 and found that s. 7 of the Charter encompasses a right to silence which includes the right to choose whether or notto make a statement to the authorities. In Hebert, Madam Justice McLachlin described the right to silence at paragraph 80 as follows:

The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose -- the freedom tospeak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other. This right of choicecomprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives andtheir consequences, and that the actions of the authorities have not unfairly frustrated his or her decision on the question of whether tomake a statement to the authorities. 83.

In Broyles, supra (at paragraph 17) the Supreme Court defined the issue to be determined as “did the authorities obtain evidence ofthe appellant's conversation with [the police agent] in a manner that violated the appellant's right to silence, including his right to choosewhether or not to speak to the authorities?” 84. But it is respectfully submitted that in both Hebert and Broyles, the basic starting point triggering Charter scrutiny of the accused’ss.7 right to silence was the coercive power of the state that arose in relation to the accused’s detention.

In Hebert, Justice McLachlinspeaks to the relationship between the detention and the s. 7 right to silence as follows: The right to silence conferred by s. 7 reflects these values. The suspect, although placed in the superior power of the state upon detention,retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect beinformed of his or her right to counsel and be permitted to consult counsel without delay. If the suspect chooses to make a statement, thesuspect may do so.

But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will andnegate his or her choice. The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speakto the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scopeof the right must extend to exclude tricks which would effectively deprive the suspect of this choice.

To permit the authorities to trick thesuspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make astatement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordancewith the purpose of the Charter . . . . . . courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningfulchoice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.

R. v Hebert, supra, at paras. 64-65 and 69 R. v. Osmar 2007 ONCA 50 , [2007] O.J. No. 244 at para. 42-47 R. v. Unger (MB KB), [1993] M.J. No. 363 (Man. C.A.) at para. 72-78 85. In the approach advocated by Madam Justice McLachlin in Hebert, she explicitly addresses that the approach that she has developedto s.7 does not confer an absolute right to silence capable of being discharged only by a waiver.

She rejects the notion of an absoluteright to silence on the following basis, namely because: On [such an] approach, all statements made by a person in detention which were not knowingly made to a police officer would beexcluded because, absent knowledge that the suspect is speaking to a police officer, the Crown cannot establish waiver.

This wouldinclude statements made to undercover agents (regardless of whether the officer is merely passive or has elicited the statement) as well asconversations with fellow prisoners overheard by the police and statements overheard through mechanical listening devices on the wall.There is nothing in the rules underpinning the s. 7 right to silence or other provisions of the Charter that suggests that the scope of theright to silence should be extended this far.

By contrast, the approach I advocate retains the objective approach to confessions which hasalways prevailed in our law and would permit the rule to be subject to the following limits. R. v. Hebert, supra at para.72 86. The Respondent forcefully reminds the court that, in considering the arguments advanced by the Applicant, it is important toremember the following further and very clear direction from Justice McLachlin with respect to the scope of the right to silence:

First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. Second, it applies only after detention.

Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state.

After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected. Third, the right to silence predicated on the suspect's right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cell mates. The violation of the suspect's rights occurs only when the Crown acts to subvert the suspect's constitutional right to choose not to make a statement to the authorities.

This would be the case regardless of whether the agent used to subvert the accused's right was a cell mate, acting at the time as a police informant, or an undercover police officer. Fourth, a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent.

When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police.

If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. R. v. Hebert , supra , at paras. 73-76 87. In Broyles , the Supreme Court of Canada summarized the Hebert analysis of the relationship between the s.7 right to silence and the accused’s detention as follows: It is clear . . . that the right to silence is triggered when the accused is subjected to the coercive powers of the state through his or her detention.

The question of what right to silence, if any, remains after a detainee is released is a question not raised by the facts of this case. R. v. Broyles , supra , at para. 19 88. Thus, in an analysis which again only considered the s.7 right to silence to be engaged by the coercive power of the statement once triggered by the accused’s detention , Broyles held that: The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement.

Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? Only if the answer to both questions is in the affirmative will there be a violation of the right to silence in s. 7. R. v. Broyles , supra at para. 21 89.

In circumstances where an accused person is detained , the determination of whether a statement has been elicited requires a consideration of all the circumstances of the exchange between the accused and the state agent and a determination of whether there a causal link between the conduct of the state agent and the making of the statement by the accused?

The focus of the elicitation inquiry is on whether the exchange between the accused and the state agent was the functional equivalent of an interrogation and on whether the agent exploited any special features of the agent’s relationship with the accused to extract the statement or to manipulate the accused into making it. If those things are found to have occurred, then the statement has been elicited in violation of the accused’s s. 7 right to silence.

R. v. Broyles, supra, at para. 27 – 34 [21] Based on this law, it is clear that the rules which apply to the conduct of police agents where the adult accused person isneither detained nor in custody is quite different from those situations where the person is detained. The Crown submits that since S.M. was not detained when he spoke with the police agent, M.F., on March 11th, 2014, that different considerations apply than thosearticulated in Herbert and Broyles. The Crown argues that the same rules should apply to young persons as exist for adults.

TheDefence argues that the rules which exist for out-of-custody/detention adults do not provide sufficient protections for youths. [22] This important issue does not appear to have been resolved by the appellate courts yet, i.e. what rules should apply whenthe police are engaged in the investigation of a young person through the use of a police agent, when the young person is not indetention? Neither Crown nor Defence Counsel could find any caselaw to assist the Court with this scenario.

The Defence asks theCourt to make new rules for this situation, arguing that because of the s. 146 specially protected rights for young persons under theY.C.J.A., that where there are reasonable grounds to believe that an offence has been committed and when dealing with a young personwho is not detained or in custody, that the police must follow the same rules as would apply for an in-custody/detained adult. In otherwords, that the police agent must act as a “potted plant” and not ask eliciting questions.

The Defence argues that because M.F. went farbeyond that role, that the statements obtained by him from S.M. should be excluded from evidence. [23] In her written submissions, Crown Counsel argues that the law with respect to the Right to Silence for an out of custodyaccused, whether adult or young person, is currently as follows: The Right to Silence for the “Out of Custody” Accused 91. Put succinctly, generally speaking, in situations where an accused is not detained, the right to silence is not engaged even when he orshe speaks to an undercover police officer or a state agent.

Moreover, the confessions rule -- which requires the Crown to prove anaccused's statement to a person in authority is "voluntary" -- is inoperative because the accused does not know that the receiver of hisstatement is a police officer or police agent when he confesses. R. v. Hart 2014 SCC 52 , [2014] S.C.J. No. 52 at para.63 – 64 R. v. Osmar at para.53 R. v. Grandinetti, supra at paras. 40- 41 and 45-46 R. v. Unger (MB KB), [1993] M.J. No. 363 (Man. C.A.) at para. 64 and 71-78 92.

The right to silence is not engaged in circumstances where the accused is not detained, because the accused is not subjected to thecoercive power of the state. In fact, it is respectfully submitted that the rolled up concepts of agency, person in authority, elicitation, andright to silence advanced within the Applicant’s materials have been specifically rejected by the courts. 93.

The Applicant’s materials assert (on page three immediately above paragraph number 8 on the pre-printed “Form 1”) that: “The use of M.F. as a police agent to elicit a statement from the Applicant was in direct violation of his right to remain silent. M.F., asthe father of the Applicant, was a person of authority in his own right, was acting on behalf of and at the direction of the police and wasthe only parent to that the Applicant was legally allowed to speak to and get advice from.

The police saw the Applicant as the primarysuspect in the death of T.V. and were aware that the Applicant did not wish to provide any information to the police. The manner inwhich the police used the Applicant’s father in order to elicit incriminating evidence from him amounted to an impermissible elicitationaimed at subverting the Applicant’s desire to remain silent during the course of the investigation in a manner contrary to

section 7 of theCharter.” 94. Again, the Respondent respectfully submits that the Applicant confuses and conflates the legal principles which should govern theissues to be determined on this Application. In support of the submission that the Ontario Court of Appeal has specifically consideredand rejected the type of argument advanced by the Applicant, the Respondent points to the following passage of R. v.

Osmar, supra atpara. 43: It may be that the right to silence recognized in Hebert could be extended to a case where the accused, although not in detention, wasnevertheless under the control of the state in circumstances functionally equivalent to detention and equally needing protection from thegreater power of the state. But that is not this case. This appellant was not under the control of the state nor was the context such as to

require that he be protected from the greater power of the state. The appellant's assertion that elicitation and trickery are sufficient torequire Charter scrutiny is not supportable by the authorities or by a reasoned extension of the principles in those cases. 95. Moreover, the issue of detention (or lack thereof) as being of fundamental importance is further highlighted when the Ontario Courtof Appeal goes on to consider the effect of the Supreme Court of Canada decision R. v. McIntyre (SCC), [1994] 2 S.C.R.No. 480, [1994] S.C.J. No. 52, later within the Osmar judgment at paragraph 44.

The Supreme Court of Canada’s reasons in McIntyrewere described as brief and quoted as follows: The appellant argues that his statements made to undercover police officers after he had been released but while he was still the subjectof a murder charge are inadmissible under ss. 7 and 24(2) of the Canadian Charter of Rights and Freedoms. We share the view of themajority that the accused was not detained within the meaning of Hebert and Broyles, (SCC), [1991] 3 S.C.R. 595.Furthermore, the tricks used by the police were not likely to shock the community or cause the accused's statements not to be free andvoluntary.

The appeal is dismissed. 96. Important for the Ontario Court of Appeal in Osmar was that the issue of extending the Hebert doctrine to cases not involvingdetention was clearly before the court in McIntyre. The significance of this point was summed up by Justice Rosenberg on behalf of ourCourt of Appeal as follows: “I do not think it open to this court to reject the detention requirement for this aspect of the right to silenceunder s. 7. I would not give effect to the appellant’s Charter argument.” R. v. Osmar, supra, at paras. 43-47 97.

It is worthy of note that the British Columbia Court of Appeal explicitly adopted the reasons in Osmar when it held that “the right tosilence during an undercover operation applies only during detention.” R. v. Earhart [2011] B.C.J. 2286 (B.C.C.A.) at paras. 77 -78 R. v. Singh, supra, at para. 32 98.

Simply put, the importance of the fact that the Applicant was out of custody when the interactions with the agent took place cannotbe overstated. [24] The Court agrees with the Crown’s submissions that the fact that S.M. was out of custody/detention when he spoke to hisfather is a very important consideration, and that I should look to the existing appellate authorities with respect to adults for guidance asto how to determine the issues before me with respect to a young person. I remind myself of my role as a trial judge.

It is my view thatthe facts of the case before me, do not require that I create a new set of rules for young persons, as the issues can be decided withreference to the abuse of process law and residual power to exclude evidence, as set out by the Supreme Court of Canada in R. v. Hart2014 SCC 52 , [2014] S.C.J. No. 52 and described below. The Law Since the Supreme Court of Canada’s Decision in Hart– Residual Power to Exclude and Abuse of Process [25] In R. v.

Hart the Supreme Court of Canada recognized a new common law rule of evidence with respect to assessing theadmissibility of confessions made by accused persons during Mr. Big operations. A very important distinction to be made between theMr. Big cases and the case before me, however, is that in S.M.'s case, there is no risk of the prejudice that accompanies criminalpropensity evidence. There is nothing in the statements made by S.M. to his father that could be considered bad character evidence suchas exists where an accused in a Mr. Big operation engages in criminal activities in a criminal organization.

So the Supreme Court’sanalysis of probative value versus prejudicial effect has little bearing on the case before me. The analysis here is limited to anexamination of the abuse of process aspects of Hart. This law is relevant by analogy to the facts of this case, and the underlyingprinciples that guide the Supreme Court’s decision are of great assistance here. [26] The Defence argues that if one applies the principles in Hart, that the circumstances in this case would “shock thecommunity”, amounting to an abuse of process which should result in the exclusion of the statements made by S.M. to his father.

TheCrown argues that the conduct here does not rise to that level such as to amount to an abuse of process. [27] In Hart the Supreme Court of Canada created a two-pronged approach to the legal analysis required. It is set out byJustice Moldaver on behalf of the majority at paragraphs 84 to 89 as follows:

Summary of a Proposed Solution

84 In this section, I propose a solution that, in my view, strikes the best balance between guarding against the dangers posed by Mr.Big operations, while ensuring the police have the tools they need to investigate serious crime. This solution involves a two-prongedapproach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse ofprocess to deal with the problem of police misconduct. 85 The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The ruleoperates as follows.

Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit aconfession from him, any confession made by the accused to the state during the operation should be treated as presumptivelyinadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that theprobative value of the confession outweighs its prejudicial effect. In this context, the confession's probative value turns on an assessmentof its reliability.

Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and theconfession in context. If the Crown is unable to demonstrate that the accused's confession is admissible, the rest of the evidencesurrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case ofconventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule. 86 Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct.

I recognize that the doctrinehas thus far proved less than effective in this context. While the problem is not an easy one, I propose to provide some guidance on howto determine if a Mr. Big operation crosses the line from skillful police work to an abuse of process. 87 The purposes of this two-pronged approach are to protect an accused's right to a fair trial under the Charter, and to preserve theintegrity of the justice system. Those are the ends that must ultimately be achieved.

This approach strives to reach them by ensuring thatonly those confessions that are more probative than prejudicial, and which do not result from abuse, are admitted into evidence. 88 However, it must be remembered that trial judges always retain a discretion to exclude evidence where its admission wouldcompromise trial fairness (see R. v. Harrer, (SCC), [1995] 3 S.C.R. 562). This is because "the general principle thatan accused is entitled to a fair trial cannot be entirely reduced to specific rules" (ibid., at para. 23). It is impossible to predictevery factual scenario that could present itself.

As such, I do not foreclose the possibility that, in an exceptional case, trial fairnessmay require that a Mr. Big confession be excluded even where the specific rules I have proposed would see the confession admitted. 89 In practice, this two-pronged approach will necessitate that a voir dire be held to determine the admissibility of Mr. Bigconfessions. The Crown will bear the burden of establishing that, on balance, the probative value of the confession outweighs itsprejudicial effect, and it will be for the defence to establish an abuse of process.

Trial judges may prefer to begin their analysis byassessing whether there has been an abuse of process.

A finding of abuse makes weighing the probative value and prejudicialeffect of the evidence unnecessary. [Emphasis added] [28] In paragraph 113 Justice Moldaver further addresses the issue of abuse of process, which doctrine is described as“intended to guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system…thedoctrine provides trial judges with a wide discretion to issue a remedy – including the exclusion of evidence or a stay of proceedings --where doing so is necessary to preserve the integrity of the justice system or the fairness of the trial”. [29] Justice Moldaver indicates that while physical violence or threats of violence are examples of coercive police tactics thatwould almost certainly amount to an abuse of process (see paras. 115-116), Mr.

Big operations can be coercive in other ways as well. “Operations that prey on an accused's vulnerabilities -- like mental health problems, substance addictions, or youthfulness -- are alsohighly problematic”. (para. 117). [Emphasis added] 117 …Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system.

As this Courthas said on many occasions, misconduct that offends the community's sense of fair play and decency will amount to an abuse ofprocess and warrant the exclusion of the statement. 118 While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive inother ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much guidance that can be provided.

Our trial judges have long been entrustedwith the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context. [Emphasis added] [30] At paragraph 123 Justice Moldaver writes that the two-pronged approach is “also consistent with the demands of theprinciple against self-incrimination”, which has two purposes: “protecting against abusive state conduct, and guarding against unreliableconfessions”. [31] In separate concurring Reasons, Justice Karakatsanis describes the dangers of Mr. Big Confessions at paragraphs 171 to175:

171 Confessions to state agents raise special concerns for the criminal justice system. Over the centuries, our common law traditionhas responded to these dangers. The jurisprudence recognizes that individuals sometimes make false confessions that can result inmiscarriages of justice, affirms that respect for human dignity and free choice means that individuals should not be coerced by the stateto provide self-incriminating evidence, and discourages the state from conducting criminal investigations in a way that offends our senseof fair play or compromises the integrity of the administration of justice.

Recognizing that particular vigilance is required to protectagainst miscarriages of justice caused by unreliable confessions, the law has developed specialized rules that respect both fairness to theindividual and the societal interest in investigating crime and seeking the truth at trial. 172 Mr. Big operations have procured confessions when traditional investigative techniques have failed. Indeed, that is their solepurpose. These operations, often costly and complex, create elaborate false realities for their targets in which they are valued andrewarded.

Threats and inducements are tailored to exploit suspects' vulnerabilities, and confessing becomes necessary for their new livesto continue. The very structure of Mr. Big operations creates circumstances that (1) compromise the suspects' autonomy, (2) underminethe reliability of confessions, and (3) raise concerns about abusive state conduct. In addition, Mr. Big operations create prejudicialevidence of criminal propensity which has the potential to compromise accused persons' ability to make full answer and defence,undermining the fairness of the trial. 173 Despite these dangers, the Mr.

Big technique has not been extensively reviewed by this Court. In R. v. McIntyre, (SCC), [1994] 2 S.C.R. 480, the Court upheld the admissibility of the Mr. Big statements obtained in that case in a brief oral judgment,finding that "the tricks used by the police were not likely to shock the community" (p. 481). But McIntyre was very different from thiscase: the operation lasted for only 10 days; the police officers posing as criminals immediately revealed the illegal nature of theiractivities; and the "job" offer they made to McIntyre at the outset required him to prove he was capable of killing (see R. v.

McIntyre, (NB CA), [1993] 135 N.B.R. (2d) 266 (CA)). 174 Existing safeguards that govern confessions made to the state are rooted in traditional investigative techniques and fail to properlyregulate Mr. Big operations. The confessions rule does not apply in a Mr. Big operation because the suspect is not aware that he isspeaking to a person in authority (R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449, at paras. 24-29; R. v. Grandinetti, 2005SCC 5, [2005] 1 S.C.R. 27), nor does the right to silence, which arises only upon a suspect's detention (R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, at p. 184; McIntyre). Thus, Mr.

Big confessions fall into the gaps between the traditional rules. 175 The Court cannot countenance this void. The existing rules assist in identifying the interests affected and dangers generated byMr. Big operations and in structuring a principled and responsive legal framework. The confessions rule guards against unreliableconfessions and regulates state conduct to protect basic fairness in the criminal process (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, atparas. 68-69).

The right to silence focuses on autonomy, choice and fairness by protecting detained persons' "right to choose whether tospeak to the authorities or to remain silent" (Hebert, at p. 180). More broadly, the principle against self-incrimination from which theseprotections stem is based upon respect for an individual's autonomy and human dignity, which give that individual the right to choosewhether to incriminate herself. The principle serves "at least two key purposes, namely to protect against unreliable confessions, and toprotect against abuses of power by the state" (R. v.

White, (SCC), [1999] 2 S.C.R. 417, at para. 43; see also R. v. Jones, (SCC), [1994] 2 S.C.R. 229, at p. 250). [Emphasis added] [32] With respect to the right against self-incrimination, Justice Karakatsanis writes that, “A fair trial cannot be based onevidence obtained through fundamentally unfair state tactics.” (See paragraph 183). [33] In defining “coercion” Justice Karakatsanis describes at paragraphs 192 to 194: 192 A confession is coerced when the accused is deprived of a free choice whether to admit, deny, or refuse to answer (Black's LawDictionary (6th ed. 1990), at p. 258). In the context of a Mr.

Big operation, a confession is coerced when the suspect is deprived of anyreasonable alternative to confessing. While there will almost always be some degree of coercion in a Mr. Big operation, the issue at thisstage is the extent of that constraint. Coercion is not a binary. This means that even if the suspect had some alternative to confessing, thedegree to which his free choice was compromised must be examined. 193 While threats of violence are manifestly coercive, the principle of autonomy abhors coercion in all its forms. In Rothman v.

TheQueen, (SCC), [1981] 1 S.C.R. 640, and Oickle, this Court held that particularly manipulative trickery -- for example,a police officer pretending to be a chaplain or a legal aid lawyer to obtain a confession -- would shock the community. A Mr. Bigoperation is built upon layers of deception.

The target is exposed not only to a false confidante, but false friends, a false job, and a falselife. 194 In determining the degree of coercion, the court should consider the magnitude and duration of the operation; any explicit orimplied threats used; any financial, social, or emotional inducements applied; and the characteristics of the suspect, including any

mental, physical, social, or economic disadvantages. [Emphasis added] [34] With respect to abuse of power and police misconduct, Justice Karakatsanis writes at paragraphs 209 to 212: 209 The state must conduct its law enforcement operations in a manner that is consonant with the community's underlying sense offair play and decency. It cannot manipulate suspects' lives without limit, turning their day-to-day existence into a piece of theatre inwhich they are unwitting participants.

Such an approach does violence to the dignity of suspects and is incompatible with the properadministration of justice. 210 I agree with my colleague that the abuse of process doctrine recognized under s. 7 remains independently available toprovide a remedy for state misconduct in the Mr. Big context. However, the high threshold for its application means that conduct maytend to undermine the integrity of the administration of justice, yet fail to warrant a remedy under this doctrine.

The need to restrain statemisconduct is one of the rationales for the principle against self-incrimination (as well as the confessions rule and the right to silence).Therefore, police conduct in Mr. Big operations must be considered, even when it does not rise to the level of abuse of process. 211 State conduct throughout a Mr. Big operation must be scrutinized to determine whether the police unfairly, unnecessarilyor disproportionately manipulated the suspect.

This inquiry will also consider other objectionable police tactics such as involving thesuspect in dangerous conduct or exposing him to physical or psychological harm. 212 A certain degree of trickery is, of course, inherent to many effective and appropriate police tactics. But the more disreputable thepolice tactics become, and the less they comport with the responsibility to conduct a fair prosecution which respects the dignity of thesuspect, the more likely it is that s. 7 has been violated. 213 The entrapment doctrine -- a specific variant of abuse of process -- assists with this analysis.

While it is not directly applicableoutside the entrapment context, it nonetheless identifies useful factors to consider in examining the conduct of the state. R. v. Mack, (SCC), [1988] 2 S.C.R. 903 establishes that, unless the authorities have a reasonable suspicion that a suspect is alreadyengaged in criminal activity, or act pursuant to a bona fide inquiry, they cannot provide the suspect with an opportunity to commit anoffence.

Even when that threshold for suspicion is met, the authorities cannot go beyond providing an opportunity to commit an offenceby crossing over into inducing commission of the offence (Mack, p. 964). Lamer J. provided a useful non-exhaustive list of factors toconsider in determining whether that line has been crossed. In the Mr. Big context, these kinds of factors can assist in deciding whetherthe inducements, threats, and manipulation used constitute abusive state conduct. Adapting the factors from Mack, at p. 966, thefollowing considerations are relevant to Mr.

Big operations: 1. the type of crime being investigated and the availability of other techniques for the police detection of its commission; 2. the strength of the evidence causing the police to target the suspect; 3. the types and strength of inducements used by the police, including deceit, fraud, trickery or reward; 4. the duration of the operation and the number of interactions between the police and the suspect; 5. whether the police conduct involved an exploitation of human characteristics such as the emotions of compassion, sympathy andfriendship; 6. whether the police appear to have exploited a particular vulnerability of the suspect such as mental, social, or economicvulnerabilities or substance addiction; 7. the degree of harm to the suspect that the police caused or risked; 8. the existence and severity of any threats, implied or express, made to the suspect by the police or their agents, including threats madeto third parties where those threats carry an indirect threat to the accused; 9. whether an average person, with both strengths and weaknesses, in the position of the suspect would be induced to falsely confess; 10. the persistence and number of attempts made by the police before the suspect agreed to confess. 214 My intention is not to create a formalistic checklist or to overcomplicate the analysis.

These factors are simply examples whichmay help the court to determine whether the conduct of the police in obtaining a confession has contravened our society's basicexpectations of fair play or undermined the reputation of the justice system. More abusive state conduct makes it more likely that the

confession was obtained in a manner incompatible with the principle against self-incrimination. [Emphasis added] [35] Justice Karakatsanis indicates in paragraph 233 that “psychological manipulation by state agents harms not only thesuspect but the integrity of the justice system” and in paragraph 237 comes to the following conclusions regarding Mr. Hart’s case: 237 I am greatly troubled by the extreme lengths to which the police went to pursue the respondent, exploiting his weaknesses in thisprotracted and deeply manipulative operation.

The abuse of process doctrine always remains independently available to provide a remedywhere the conduct of the state rises to such a level that it risks undermining the integrity of the judicial process (R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, at para. 73; R. v. Babos, 2014 SCC 16, at para. 31). In my view, as will be clear from mydiscussion of the state conduct in this case, that threshold is met. To condone the actions of the police would "leave the impression thatthe justice system condones conduct that offends society's sense of fair play and decency" (Babos, at para. 35).

However, given theoutcome of this appeal, it is not necessary to discuss this issue further. [Emphasis added] [36] With respect to the appropriate remedy and s. 24(2) of the Charter, Justice Karakatsanis writes at paragraphs 240 to 242: 240 Under s. 24(2), the court must determine whether, in all the circumstances, admitting evidence obtained in breach of the Charterwould bring the administration of justice into disrepute. 241 In R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, McLachlin C.J. and Charron J. noted that statements by the accused engage thecornerstone principle against self-incrimination (at para. 89) and concluded that, while not an absolute rule, "as a matter of practice,courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring theadministration of justice into disrepute" (para. 91). 242 Statements obtained in violation of the principle against self-incrimination will almost always be excluded under s. 24(2).

In orderto find a s. 7 violation, the court will have already determined that the reliability of the statement is outweighed by abusive or coercivepolice conduct. If the statement was obtained in a manner that violated s. 7 due to reliability concerns, its admission would risk amiscarriage of justice and it must be excluded. Similarly, if the statement is reliable but was rendered unconstitutional because ofconcerns about coercion or state conduct, its admission would also bring the administration of justice into disrepute.

This case is noexception; both the risk of a miscarriage of justice and the abusive police conduct call for exclusion. [37] The Crown strenuously argues that the facts of this case do not amount to an abuse of process that should lead to theexclusion of S.M.'s statements to his father. In written submissions the Crown argues as follows: Residual Power to Exclude and Abuse of Process 99. The Respondent has taken great pains in the passages set out above to demonstrate that the arguments articulated by the accused donot apply to the facts of this case. 100.

The Respondent strenuously submits that the statements made to M.F. that are at issue in this application are properly admissibleinto evidence at the Applicant’s trial. 101.

The Respondent does concede that, in recent years, there has been a recognition that trial fairness and concerns regarding theproper administration of justice have emerged within the caselaw to permit the exclusion of accused person’s statementsobtained in circumstances that justify the exercise of the court’s residual discretion to exclude evidence where the probativevalue of that evidence is substantially outweighed by its prejudicial effect. Statements have also been excluded where theconduct surrounding the taking of the statement has been found to amount to an abuse of process. [Emphasis added] 102.

An example of this trend is found in R. v. Grandinetti, supra where the following passages appear in the Supreme Court ofCanada’s decision at paragraphs 35 and 36: The underlying rationale of the "person in authority" analysis is to avoid the unfairness and unreliability of admitting statements made

when the accused believes himself or herself to be under pressure from the uniquely coercive power of the state. . . . There is no doubt,as the Court observed in Hodgson, at para. 26, that statements can sometimes be made in such coercive circumstances that theirreliability is jeopardized even if they were not made to a person in authority. The admissibility of such statements is filtered throughexclusionary doctrines like abuse of process at common law and under the Canadian Charter of Rights and Freedoms, to prevent theadmission of statements that undermine the integrity of the judicial process.

The "abuse of process" argument was, in fact, made by Mr.Grandinetti at trial, but was rejected both at trial and on appeal, and was not argued before us. See also R. v. Hodgson, supra at para. 48 103. The Supreme Court of Canada has recently recognized the existence of a gap in the law that with respect to “Mr. Big” operations: At present, however, these operations are conducted in a legal vacuum.

The legal protections afforded to accused persons, which areoften intended at least in part to place limits on the conduct of the police in their investigation and interrogation of accused people, haveno application to Mr. Big operations. The confessions rule, for example, is intended not only to guard against the risk of unreliableconfessions, but also to prevent abusive state conduct (see R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449, at para. 20).Yet its protection does not apply because the accused does not know the person he is speaking to is a person in authority.

Otherprotections -- like the right to counsel under s. 10(

b) of the Charter -- are rendered inapplicable because the accused is not"detained" by the police while the operation is ongoing. And the doctrine of abuse of process -- intended to protect againstabusive state conduct -- appears to be somewhat of a paper tiger. To date, it has never operated to exclude a Mr. Big confession, norhas it ever led to the stay of charges arising from one of these operations. [Emphasis added] R. v. Hart, supra at para.79 104. It was held that the lack of an effective mechanism for monitoring the conduct of the undercover officers who engage in “Mr. Big”operations is problematic.

The law must enable trial judges to respond effectively to police misconduct in this context. [Emphasis added] R. v. Hart, supra at. para 80 105. Although, the Supreme Court of Canada in Hart specifically addresses the issues under consideration in that case in the context of a“Mr. Big” Operation, it is respectfully submitted that some of the considerations applied to address the concerns that the operations maybecome abusive and produce unreliable confessions provide a compelling rationale for rejecting the arguments advanced by theApplicant here. 106.

Justice Moldaver writing for the majority of the Supreme Court develops a two pronged approach to the issue. The first prongrecognizes a new common law rule of evidence for assessing the admissibility of these confessions arising in the course of an accused’sinteractions with police during a Mr. Big operation. This rule addresses the concern for the potentially unreliable confessions thatmay arise as a result of abusive state conduct by assessing the confession’s probative value on the basis of its reliability.

Thesecond prong is a more robust conceptualization of the doctrine of abuse of process which allows the court to deal with the problem ofpolice misconduct. [Emphasis added] R. v. Hart, supra paras. 84-86 107. According to Justice Moldaver, the purposes of this two-pronged approach are to protect an accused's right to a fair trialunder the Charter, and to preserve the integrity of the justice system. He also emphasizes that it must be remembered that trialjudges always retain a discretion to exclude evidence where its admission would compromise trial fairness. [Emphasis added] R. v. Hart, supra paras. 87 - 88 108.

Under the first prong of the approach, when giving consideration to the reliability of the confession it is suggested that the entirecircumstances surrounding the confession be examined with regard to the length of the operation, the number of interactionsbetween the police and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the

interrogation itself and the personality of the accused including his age, sophistication, and mental health. It is suggested that it is important to be especially mindful of the age and mental health of the accused as confessions in the circumstances of a “Mr. Big” operation may be more likely in the if the accused is a young person or if he suffers from a mental illness or disability. [Emphasis added] R. v. Hart , supra at paras. 102 and 103 109. Upon considering all of these factors, the trial judge is directed to look to whether the reliability of the confession is called in to doubt.

It is further suggested that the judge look to the confession itself for markers of reliability. Finally, it is emphasized that confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. R. v. Hart , supra at para. 104-105 110. It is respectfully submitted that the assertions of violations of the Applicant’s rights advanced within his materials do not withstand careful scrutiny when measured against the existing legal doctrines governing the admissibility of accused statements to agents of the state when the accused is out of custody. 111.

Moreover, when the Applicant’s statements to M.F. are examined against both the classic “voluntariness” standard and the “reliability of confessions standard” as recently articulated by Justice Moldaver in Hart , it is respectfully submitted that the clear and inescapable conclusion to be drawn from the content of the exchange and the surrounding circumstances is that the Applicant, despite his age, had a sophisticated understanding of his right to remain silent and of the possible consequences that might flow if he chose to speak to his father.

He demonstrated a clear awareness that his father might become a witness and, if so, that the statements he made could be used against him during a trial. 112.

In addition, there is nothing about the nature of this relationship between father and son (which can best be described as distant, tenuous, and devoid of the common features of familial closeness and authority of parent over child that are often hallmarks of the father-son paradigm) that suggests that there was some exploitation or manipulation of the bond between the Applicant and agent which would call the reliability of what was said into question. 113. The second prong of the Hart approach advocated by Justice Moldaver in the “Mr.

Big” context is the expansion of the doctrine of abuse of process to address instances of police misconduct . Under the heading abuse of process, the following direction is provided: The first step toward restoring the doctrine as an effective guard against police misconduct in this context is to remind trial judges that these operations can become abusive, and that they must carefully scrutinize how the police conduct them . It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply.

But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, para. 57 ). But police conduct , including inducements and threats, becomes problematic in this context when it approximates coercion . In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process . Physical violence or threats of violence provide examples of coercive police tactics.

A confession derived from physical violence or threats of violence against an accused will not be admissible -- no matter how reliable -- because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750 , 118 O.R. (3d) 253). Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused's vulnerabilities -- like mental health problems, substance addictions, or youthfulness -- are also highly problematic (see Mack, at p. 963).

Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system . As this Court has said on many occasions, misconduct that offends the community's sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statem ent. R. v. Hart, supra at paras. 114 - 117

114. It is important to be clear. The Respondent does not suggest that Hart is directly applicable to the facts and issues under consideration on this Application. The Respondent simply acknowledges the decision as a recent expansion of the legal protections previously afforded to accused persons in one specific scenario (the “Mr. Big” operation) in relation to their statements made to undercover agents of state. 115.

To the degree that Hart can be said to apply by way of analogy to the facts of this case, it would be as a tool against which to measure the reliability of the statements obtained and the existence or absence of police misconduct.

The Respondent submits that when the facts here are viewed through the lens of the Supreme Court’s recent pronouncements in Hart , the decision provides yet another set of legal guidelines and principles which strongly support the Respondent’s position with respect to the admissibility of the statements at issue in this case. [ 38 ] Although many aspects of the Crown’s capable submissions are very persuasive, when one examines all of the circumstances in this case, it leads to the conclusion that the statements made by S.M. to M.F. should not be admitted.

After a more thorough review of the relevant evidence in this case, the Court will discuss why, when applying the Hart principles to the facts of this case, there exists an abuse of process requiring the exclusion of S.M.'s statements to his father.

The Evidence Relevant to the Ruling [ 39 ] The evidence on this Voir Dire consisted of Exhibit 3 (an Agreed Statement of Facts on the Charter Motions), Exhibit 4.1 (the audio files of the S.M./M.F. intercepts), Exhibit 4.2 (a binder of Transcripts and other materials relating to the S.M./M.F. intercepts), Exhibit 5 (a Family Tree) and Exhibit 6 (a binder with the briefing notes regarding the M.F. statements). M.F. did not testify, as the Crown elected to rely on the contents of the conversations themselves, the admitted facts and whatever inferences could be drawn from them.

Counsel identified the most relevant audio portions and agreed on those intercepts which the Court should listen to, which consisted of several hours of audiotapes relating to March 11, 2014. The key portions of those transcripts relating to the March 11, 2014 intercepts are reproduced in Appendix 1 to this Ruling. Rather than quote extensively from those statements within the Ruling, the Court has included lengthy portions of those transcripts to allow for a better understanding of the nature and extent of the conduct of M.F. during those conversations with his son.

They will be summarized in this Ruling in relation to the issues raised. [ 40 ] In the conversations with his father on March 11, 2014, S.M. never confesses to hurting T.V. or doing anything to cause his death. The Crown advised that the main purpose for which she tendered these statements was because when asked by M.F. on several occasions whether his brother D.P. could have hurt T.V., S.M. unequivocally says no.

S.M. may not have realized that by discussing this issue with his father he was implicating himself by removing one of the other possible suspects as the source of T.V.'s injuries which led to his death. It is important to remember the purpose for which these statements were being tendered in assessing their probative value. [ 41 ] S.M. elected to not testify on the Voir Dire concerning the admissibility of the statements that he had made to his father. This Court draws no adverse inference from this.

The Court looks to the statements themselves as well as common sense in drawing any inferences about S.M.'s state of mind at the time they were made. [ 42 ] The parties filed an Agreed Statement of Facts that is Exhibit 3 on the Voir Dires concerning the admissibility of statements made by S.M. to the police on August 29 and 30, 2013 and to his father on March 11, 2014 (a separate set of Agreed Facts was later filed on the trial as Exhibit 17). In a separate Ruling, the statements to the police on August 29 and 30, 2013 were excluded.

While some of the admitted facts are more relevant to issues concerning the admissibility of those police statements, they are reproduced fully here as they provide important background information about the police investigation and other circumstances leading up to the statements made by S.M. to his father. Exhibit 3 (which has been edited to prevent S.M. from being identified reads as follows: R. v. S.M. Agreed Statement of Fact On Charter Motions 1. On the issue of voluntariness, it is conceded that at all material times S.M. possessed an operating mind. 2.

On the issue of voluntariness, there is no suggestion that there is any evidence beyond that called during the course of the voir dire or that contained in the facts set out below, that could or would give rise to a finding that any threats, promises, or inducements were made by persons in authority in order to obtain the statements that the Crown seeks to tender. 3.

Similarly, on the issue of voluntariness, there is no suggestion that there is any evidence, beyond that called during the course of the voir dire or that contained in the facts set out below, that could or would give rise to a finding that the statements the Crown seeks to tender are the result of an atmosphere of oppression.

4. On August 28 th , 2013, at approximately 9:45 p.m. T.B. [S.M.'s mother] made a 911 call from her home at [ address removed to protect the identity of S.M. ] in Bowmanville, Ontario regarding four year old T.V. who was reportedly not breathing and was possibly vital signs absent. Police, fire, and ambulance responded to the call. 5. Sergeant Robert Redford was among the responders. When Sergeant Redford arrived at [ address removed to protect the identity of S.M. ] at 9:55 p.m., Constable Shane Collins, Constable Street, Constable Shaw, and Constable Andrews were already on scene as were fire and ambulance.

Sergeant Redford observed Constable Collins to be speaking with an adult female (who was T.B.) and a te

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