2016 QCCA 869, 2016 QCCA 869

Unofficial English Translation LSJPA — 165 2016 QCCA 869 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-08-000167-147 (235-03-000041-133) DATE: MAY 24, 2016 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. JEAN BOUCHARD, J.A. DOMINIQUE BÉLANGER, J.A. X APPELLANT - Accused v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals from a judgment of the Court of Quebec, Youth Division, District A (the Honourable Judge Lucie Rondeau, J.C.Q.), rendered on November 18, 2014, convicting him of trafficking in cannabis and possession for the purpose of trafficking under subsections 5(1) and 5(2) and paragraph 5(3)( a.1 ) of the Controlled Drugs and Substances Act , after dismissing the appellant’s application to exclude evidence on October 1, 2014, and concluding that his school principal was not a person in authority, within the meaning of the rule governing the admissibility of an out-of-court statement made by a young person, at the time of his intervention with the appellant on November 29, 2013; [ 2 ] For the reasons of Rochette, J.A., with which Bouchard and Bélanger, JJ.A. agree, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] DECLARES that the statements made by the appellant on November 29, 2013, are inadmissible in evidence and ORDERS their exclusion; [ 6 ] SUBSTITUTES an acquittal for the conviction rendered by the trial judge.

LOUIS ROCHETTE, J.A. JEAN BOUCHARD, J.A. DOMINIQUE BÉLANGER, J.A. Mtre Fannie Côtes CÔTES, GARDNER For the appellant Mtre José Rhéaume CRIMINAL AND PENAL PROSECUTOR For the respondent

Date of hearing: January 12, 2016 REASONS OF ROCHETTE, J.A. [ 7 ] The main issue in this appeal may be set out as follows: did the trial judge err in fact and in law in her finding that the school principal was not a person in authority at the time of his intervention with the appellant on November 29, 2013, resulting in the filing in evidence of an out-of-court statement made by the appellant, who was consequently convicted of the charges against him? [ 8 ] The trial judge summarized the background to this case as follows: [ translation ] [6] The school board authorized the administration to enlist the services of a private dog handler and his detection dog to conduct random searches of the school.

The objective was to deter students from possessing drugs at school. At the beginning of the year, the parents and students were informed of the school’s policy to avail themselves of such services. The dog handler was also asked every year to give a presentation to the new students explaining how he worked. X admits to having attended one of these information sessions. [7] On the day of the events, the dog handler and his detection dog were already at the school when the students arrived.

The principal was well aware that the news of their presence usually spread quickly among the students, leading him to pay particular attention to latecomers. That was the case for X, who arrived after the second period had started. [8] The dog handler was near the principal when the latter asked X why he was late. X answered that he had to bring a USB key to B’s house. The principal doubted the truth of this story because B was at school. He told X that he wanted to verify the story with B’s mother. X admitted without hesitation that he lied.

The principal asked X to follow him to his office to protect the confidentiality of their conversation. [9] X was alone with the principal in his office. The principal told X that he thought X really went to [ translation ] “drop” something. Neither of them had time to sit down before X admitted that, having been informed of the presence of the dog handler, he went to get rid of the drugs that B had given him that same morning. [10] X cooperated with the principal, 1 giving him all the details concerning where he had hidden the drugs.

The principal called in the dog handler and the vice-principal, to whom X repeated, in as much detail, the instructions to find the substance. The dog handler and the vice-principal found the drugs at the location indicated by X, while he remained in the presence of the principal. [11] The principal told X that he was going to call the police and asked him to write down his version in the meanwhile. The principal wanted to obtain this version for X’s academic disciplinary record. X did so while alone in a room. [12] The principal met with the police officer who arrived on the scene.

He gave him the drugs, informed him of the situation, and put him in contact with X. For the principal, his intervention with X was finished and it was up to the officer to decide whether to charge him or not. [13] The officer met with X, who asked him if he needed the statement that he had started to write. The officer said no because he wanted to intervene in accordance with usual police procedure, without regard for X’s prior statement. He proceeded to arrest X and read him his rights. [14] X confirmed the versions of the principal and the police officer in regard to their interventions with him.

He added that nobody made promises or threatened him. He said that he believed that the dog handler was a police officer, but acknowledged that he was not dressed as such.

He admitted that he was probably not paying attention during the meeting with the dog handler at the beginning of the year when he said that he was not a police officer. _______________ [ 9 ] The appellant was accused of trafficking in cannabis (marijuana) and possession for the purpose of trafficking under the Controlled Drugs and Substances Act . [1] On September 8, 2014, he filed an application to exclude evidence to have the statements he made to the principal and the police officer declared inadmissible and to exclude the evidence obtained on the basis of sections 7 and 10 and paragraph 24(2) of the Canadian Charter of Rights and Freedoms ( Charter ) [2] and

section 146 of the Youth Criminal Justice Act ( YCJA ). [3] [ 10 ] On September 15, 2014, the judge held a voir dire on the admissibility of these statements, and on October 1, 2014, dismissed the appellant’s application. The judge found that the principal was not a person in authority at the time of his intervention with the appellant. She stated the following: [ translation ] [16] The concept of person in authority in the context of this rule systematically includes police officers and prison guards.

Other than them, nobody is automatically considered to be in a situation of authority in regard to an accused solely on the basis of his or her capacity or relationship with respect to the accused.

[17] The person in authority cannot be defined solely on the basis of the authority that he or she exercises over the accused, regardlessof whether the accused is an adult or a young person. The characterization of a person in authority must be conducted contextually according to the circumstances of each case.2 [18] That is the case for the person who is formally engaged in the arrest, detention, interrogation or prosecution of the accused.

Itmay also be the case if the accused could reasonably believe that the person was acting on behalf of the state and could influence orcontrol the prosecution against him or her.

This belief, which must be reasonable and objective, is analyzed from a subjective point of view.3 The Supreme Court found that the common characteristic of cases finding that the person was in a situation of authority was thatthe accused believed the person was “allied with the state authorities and could influence the investigation or prosecution against the accused”.4 [19] Other than these rules set out in the case law, in the present situation, the analysis must also take into consideration two relevantelements regarding drug offences committed in schools.

The first is the recognized need to give school authorities the necessary power to assume their responsibilities to see to the security and well being of the students in an atmosphere conducive to learning.5 The second isthe fact that easy access to drugs in schools is a scourge. [20] In the present case, the principal’s actions concerned an academic disciplinary sanction and not X’s arrest or indictment, whichwere left entirely in the hands of the police officer to the exclusion of all school staff. [21] The principal’s sole reason for obtaining the young person’s version was to apply the school code of conduct and possiblyimpose disciplinary measures.

It was once this disciplinary intervention was over that he informed the police of the situation inaccordance with the school’s policy. The existence of this policy does not ground a conclusion that the person applying it is in a“situation of authority” or that he or she is allied with the state authorities responsible for criminal prosecutions. [22] A person who reports an offence to a police force does not for all that formally engage in the arrest, detention or prosecution ofthe accused.

The fact that this person is part of a school authority applying a code of conduct does not affect the person’s status, which islimited to reporting to the police. [23] This observation is all the more meaningful when, as in the present case, the intervention takes place in two steps: the first beingdisciplinary in the school context to the exclusion of the police, and the second involving the police to the exclusion of school staff. [24] Moreover, the fact that X erroneously believed that the dog handler was a police officer does not constitute a reasonable andobjective basis on which he could ground his subjective belief that the principal was an ally of the state authorities who could influencethe investigation or prosecution against him. _______________ 2 R. v.

Grandinetti, 2005 SCC 5; LSJPA – 0949, 2009 QCCA 2171. 3 R. v. Grandinetti, 2005 SCC 5. 4 R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449. 5 R. v. M.(M.R.), (SCC), [1998] 3 S.C.R. 393. [11] On November 18, 2014, the appellant was tried and convicted on two counts.

He was sentenced to a probationary period fromNovember 18, 2014, to June 2, 2015. [12] At the outset, the appellant challenges the application of the concept of person in authority to the circumstances of this case. * * * [13] Pursuant to section 146(2) of the YCJA “No oral or written statement made by a young person who is less than eighteen yearsold, to a peace officer or to any other person who is, in law, a person in authority ... is admissible against the young person” unlesscertain conditions are met. The young person must have been informed of his or her rights and have waived them voluntarily.

The Crownacknowledges that these conditions have not been met here, hence the determinative impact of this issue. [14] The trial judge provided a good

summary of the applicable legal principles. [15] Since R. v. Hodgson,[4] it is well established that only police officers and prison guards are automatically considered persons inauthority. In other scenarios, the issue of whether someone is a person in authority depends on the circumstances and must be decided ona case-by-case basis.[5] This determination is in part subjective because it must be assessed from the offender’s point of view.

Theoffender’s belief that he or she was in the presence of a person in authority, however, must have an objectively reasonable basis.[6] [16] The underlying rationale of this rule has been set out as follows: The underlying rationale of the “person in authority” analysis is to avoid the unfairness and unreliability of admitting statements madewhen the accused believes himself or herself to be under pressure from the uniquely coercive power of the state.[7] [17] A person may be considered “objectively” in authority if they formally engage in “the arrest, detention, examination orprosecution of the accused”.[8] It is also necessary to consider whether the accused believed that the person had or could have an

influence on the possible prosecution against him or her. [9] [ 18 ] To better assess this belief, Jacques E. Roy, J.C.Q., asked the following questions in D.F.(J.) : [10] [ translation ] [ 23] Did the accused think that he or she would suffer a prejudice if he or she did not speak to this person who had the power to influence the legal proceedings? Was the accused under the impression that he or she would gain an advantage by making a statement?

If the accused was not under such an impression, the result is that the person to whom the statement was made, whether he or she was a teacher, doctor, parent or social worker, will not be considered a person in authority and the statement will be admissible. [ 19 ] Therefore, one school principal may be characterized as a person in authority in a given situation, while another, acting similarly but in a different context, would not necessarily be characterized as such.

The context and the circumstances of each case will be determinative. [ 20 ] In Hodgson , the accused was alleged to have sexually assaulted his friends’ daughter over a long period of time. When they found out, the victim’s parents and other members of her family went to the accused’s workplace to confront him. He quickly acknowledged his guilt. Although the YCJA was not applicable in that case, the concept of “person in authority” required clarification.

Cory, J. wrote the following for the Supreme Court: [34] … the accused’s belief that he is speaking to a person in authority must also be reasonable, in the context of the circumstances surrounding the making of the statement. If the accused were delusional or had no reasonable basis for the belief that the receiver of the statement could affect the course of the prosecution against him, the receiver should not be considered a person in authority.

Since the person in authority requirement is aimed at controlling coercive state conduct, the test for a person in authority should not include those whom the accused unreasonably believes to be acting on behalf of the state. Thus, where the accused speaks out of fear of reprisal or hope of advantage because he reasonably believes the person receiving the statement is acting as an agent of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her , then the receiver of the statement is properly considered a person in authority.

In other words, the evidence must disclose not only that the accused subjectively believed the receiver of the statement to be in a position to control the proceedings against the accused, but must also establish an objectively reasonable basis for that belief . For example, if the evidence discloses a relationship of agency or close collaboration between the receiver of the statement and the police or prosecution, and that relationship was known to the accused , the receiver of the statement may be considered a person in authority.

In those circumstances the Crown must prove beyond a reasonable doubt that the statement was made voluntarily. … [37] Finally, something must be said about the respective burdens which must be borne by the accused and the Crown on a voir dire to determine whether a statement of the accused to a person in authority should be admitted. The Crown, of course, bears the burden of proving beyond a reasonable doubt that the statement was made voluntarily .

However, in relation to the person in authority requirement, the evidence required to establish whether or not a person should be deemed a person in authority will often lie primarily with the accused . The accused therefore must bear some burden in relation to this aspect of the confessions rule.

The burden should be an evidential and not a persuasive one . [11] [Emphasis added.] [ 21 ] Cory, J. stated that the accused must therefore ensure that there is some evidence on the record to make it a live issue [12] and added the following: [38] In the vast majority of cases, the accused will meet this evidential burden by showing the accused’s knowledge of the relationship between the receiver of the statement and the police or prosecuting authorities .

For example, the fact that the statement was made to a police officer who was in uniform or identified himself or herself as a peace officer will satisfy the accused's evidential burden in relation to the person in authority requirement. … [Emphasis added.] [ 22 ] In Grandinetti , Abella, J. returned to these notions and wrote the following for the Supreme Court: 37 In Hodgson , the Court delineated the process for assessing whether a confession should be admitted.

First, there is an evidentiary burden on the accused to show that there is a valid issue for consideration about whether, when the accused made the confession, he or she believed that the person to whom it was made was a person in authority . A “person in authority” is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused.

The burden then shifts to the Crown to prove, beyond a reasonable doubt, either that the accused did not reasonably believe that the person to whom the confession was made was a person in authority, or, if he or she did so believe, that the statement was made voluntarily . The question of voluntariness is not relevant unless the threshold determination has been made that the confession was made to a “person in authority”. 38 The test of who is a “person in authority” is largely subjective, focusing on the accused’s perception of the person to whom he or she is making the statement .

The operative question is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution , believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment. 39 There is also an objective element, namely, the reasonableness of the accused’s belief that he or she is speaking to a person in authority. It is not enough, however, that an accused reasonably believe that a person can influence the course of the investigation or prosecution . … [13] [Emphasis added.]

[ 23 ] This Court considered the concept of person in authority in LSJPA-0949 , which the trial judge felt was of limited significance [ translation ] “given its particular facts, which are different from the present case”. [14] In that case, Côté, J.A. considered the facts and concluded from her analysis that a security guard hired by school authorities was a person in authority.

That case is different from this one, but Côté, J.A.’s reasoning is nevertheless enlightening: [ translation ] [16] It should be noted that the situation in this case is particular, and we should not stop school authorities from implementing disciplinary supervision in their schools.

There is a determinative factor in this file, however; that is, when the respondent’s statements were taken on June 13, 2007, A., the security officer, had already met with the victim and his mother on June 11, 2007, the day of the incident, and the victim’s mother had informed him of her intention to file a complaint with the police.

This information alone put A. in a situation in which he was, to some extent, conducting an investigation to gather evidence, especially since the usual manner of proceeding when a complaint was filed was to give the statements obtained to the liaison officer acting as a [ translation ] “youth worker” at the police station .

In addition, police officers were present when the respondent’s statement was taken by A. [17] As the trial judge noted, the following facts are also relevant: A. was the person in charge of security in the school; The students were well aware of his role and the disciplinary power he had over them; A former police officer, he acted as the coordinator of disciplinary issues and described himself as a security officer during his testimony; He stated that the students have no choice but to come to his office if they are summoned in regard to an incident between young persons at the school; Students who refuse to prepare a statement and provide their version of the incident are sent to the principal’s office, and the consequences can range from suspension to expulsion from the school; He accompanies any police officers who come to make arrests in the school; He insisted that the respondent complete a second statement. [18] Upon reading the trial judgment and on the basis of the findings of fact contained therein, it is clear that the officer was a person in authority. … [15] [Emphasis added.] [ 24 ] In a judgment rendered a few weeks after the judgment a quo , and of which the trial judge did not have the benefit, this Court considered the issue submitted to us in the case of an incriminating statement made by a minor to her school principal.

The Court concluded as follows: [ translation ] [14] The respondent was thirteen years old at the relevant time. She was well aware that A., the principal, was the ultimate authority figure at her school. He asked her to follow him out of the classroom and to his office. Concerned, she of course complied. A. had [ translation ] “a stentorian voice”, and he told the respondent that he wanted her to tell him the truth. There is little doubt that this unexpected situation caused her to become afraid as she soon started to cry.

The meeting was followed by an inspection of her locker and the questioning of two other students. In addition, it appears from the record that a police officer, Nathalie Duschesneau, served as liaison with the school through frequent scheduled visits. She was in fact in charge of the investigation on that day and arrived on the premises approximately one hour later. [15] These circumstances clearly correspond to the situation described by Cory, J. in paragraph [39] of Hodgson , supra .

The school principal objectively exercised internal authority that could lead to a disciplinary sanction or result, and did in fact result in this case, in a report to the police. It is not surprising, moreover, that when called upon to determine the status of a headmistress for the purpose of ruling on the admissibility of an incriminating statement in 1962, the English Court of Criminal Appeals found that she was a person in authority for the purpose of applying the traditional common law rule in Ibrahim v. R : see R. v.

McLintoc k. [16] [Emphasis added, references omitted.] [ 25 ] Finally, it is important to remember that the YCJA must be given a broad

interpretation that ensures that young persons will be treated in accordance with its guiding principles: [ translation ] [10] Certain general principles contained in the YCJA , or arising therefrom, are worth repeating before addressing the merits of the appellant’s arguments. A pressing concern figures prominently in the YCJA : subparagraph 3(1) ( b )(ii) provides that the criminal justice system for young persons established by the law is based on “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity ”.

Subsection 3(2) specifies that the YCJA “shall be liberally construed” in the application of its guiding principles. … [17] * * *

[ 26 ] Therefore, a school principal cannot always be considered a person in authority within the meaning of section 146(2) of the YCJA , regardless of the circumstances. It is up to the accused to present evidence characterising the person in authority as such. The accused bears the burden, but it is evidential, not persuasive. [ 27 ] In a given example, the evidence will address the accused’s belief that the principal had some power or influence over the charges that could be laid against him or her and seek to establish that this belief was “objectively reasonable” .

In most cases, it will be sufficient for the accused to show that he or she knew of the existence of a relationship of agency or close collaboration between the principal and the police or prosecuting authorities. [ 28 ] The accused was sixteen years old at the time of the events. At the voir dire , he testified as follows on his understanding of the measures that could be taken against him at the time of his conversation with the principal on the morning of November 29, 2013: [ translation ] Q. No, OK. What do … what do you know about the school rules on … everything to do with drugs? A.

That when ... that we’re not allowed to have any, and if we get caught, the consequences, it could be that … it depends on the … the case, but it’s pretty sure that you’ll be suspended. After that, well it depends of the seriousness of the case . If it’s more serious, well you could be expelled from the school or they call your parents and that’s it . Q. OK. What do you know about what the administration does or must do or … A. That, I don’t know . Q. With respect to drugs, if they find drugs or if there are … A.

I know that … me, no, I don’t know much about that . [Emphasis added.] [ 29 ] The school rules are in fact provided to the students and included in their planners.

They provide, inter alia , that students [ translation ] “must respect the laws of society”, including those concerning drugs, and set out the possible negative consequences of violating the rules as follows: [ translation] “ warnings”, communication with parents, meeting with the administration, internal and external suspensions, community work, [ translation] “ expulsion from school” and [ translation] “referral to the police”. [ 30 ] With respect to the dog handler, the appellant remembers him leading an awareness-raising activity and testified that he thought he was a police officer: [ translation ] Q. Eh!

You remember that activity? You were there? A. Yes. Q. With the dog handler who was presented as being a private service? A. Uh, that … that … Q. Do you remember that? A. … I found that out recently, because the whole time we thought it was the police. Everyone at school thought that it was the police. I was surprised when I found out it was private . Q. OK. Because he announced it. Did you listen during the awareness-raising activity ? A. Yes. Q. He said he was an ex-police officer, do you remember that, that he was retired ? A. Yes. Maybe that part, I didn’t … Q. You didn’t … you didn’t hear that part? A.

No. [Emphasis added.] [ 31 ] During cross-examination, he said [ translation ] “I was sure that he was a police officer”. [ 32 ] The trial judge reported the appellant’s belief and did not dismiss it on the ground that it was not credible. [18] Rather, she found that [ translation ] “there was no reasonable and objective basis on which he could ground his subjective belief that the principal was an ally of the state authorities who could influence the investigation or prosecution against him”. [19] [ 33 ] Moreover, the judge concluded that the purpose of the principal’s intervention was an academic disciplinary sanction, not the appellant’s arrest or indictment, which were left up to the police officer to the exclusion of all school staff. [20] In short, the officers were not involved until after the disciplinary intervention was finished.

Therefore, it could not be found that the principal was an ally of the state authorities, and reporting an offence to a police force does not change this. [21] [ 34 ] With great respect for the trial judge, I believe that she erred and that our intervention is required.

The appellant presented evidence supporting the argument that the principal in this case had power or influence over the charges that could be laid against him and that this inference was “objectively reasonable”. [ 35 ] First, from the appellant’s point of view, it was not at all obvious that the principal’s intervention was limited to an academic disciplinary sanction and excluded his potential indictment.

The appellant knew that the measures taken would vary depending on the seriousness of the act, but he did not know where the line would be drawn between disciplinary and criminal sanctions, especially since [ translation ] “referral to the police” is one of the consequences expressly contemplated in the school rules in the case of a violation. Students are informed of this in various ways by the administration upon their arrival and throughout the year.

[ 36 ] Moreover, the school administration maintains a close relationship with the dog handler, who is a retired police officer employed by a private company, but who the appellant thought was a police officer. He was hired along with his detection dog, in both a preventive manner, for example during information sessions at the beginning of the year, and in a concrete and targeted manner during random or other search operations.

The administration is quite rightly trying to eliminate drug trafficking in the school, which is a [ translation ] “scourge” in the judge’s opinion. [ 37 ] On the day of the intervention at issue here, the dog handler played an important role. Accompanied by his dog, he carefully scrutinized the school buses, the students’ lockers, and certain classrooms. The principal was present for the operations unfolding at the school. [ 38 ] When the principal questioned the appellant upon his arrival at school, the dog handler was nearby, dressed in black and accompanied by his sniffer dog.

The appellant could not avoid seeing the close collaboration between the dog handler and the principal when the principal began to question and confound him. The dog handler approached his locker. The noose was tightening. [ 39 ] The appellant was then told to follow the principal into his office, answer his questions, [22] and prepare a statement in an adjoining room that had one locked door and another door that opened into the administration office.

The appellant had no choice, and the principal agreed that it would have been quite inappropriate for the appellant to refuse to follow him and answer his questions. The information obtained from the appellant was provided to the dog handler who, accompanied by the vice-principal, found the drugs and brought them back to the school. [ 40 ] The principal informed the appellant that he would call the police. [ 41 ] In the circumstances, the evidence shows that there was a sufficiently close link between the principal, who received the appellant’s statement, and the prosecuting authorities to make it a live issue .

Moreover, there was a reasonable basis for the accused’s belief that the person receiving his statement was working in concert with the police and could therefore influence the situation’s outcome; he was not delusional. [ 42 ] In addition, the principal could not overlook the fact that the appellant decided to confess and that criminal charges were likely to be filed against him, which would go far beyond the scope of disciplinary measures. He nevertheless continued to question the appellant, who had the right to silence under

section 7 of the Canadian Charter of Rights and Freedoms . [ 43 ] From the moment the principal decided to involve the police, he had to be considered a person in authority. [23] In a recent judgment of the Ontario Superior Court, R. v. S.(R.) et al ., Wakefield, J. found that a school vice-principal who intended to provide the details of the interrogations he was conducting to the police was a person in authority.

He was therefore, to some extent, conducting an investigation that went beyond his role: [24] [21] In the case at bar, the investigation by the Principal of the Defendants, after a meeting with the investigating officer, where the Principal knew he would be sharing the fruits of the investigation with the officer, takes the role of the Principal beyond that of normal discipline and into the “time when such consequences are inevitable and the principal becomes an agent of the police in detecting crime”. [ 44 ] In the present case, as soon as the discussion in his office was finished, the principal called the police and asked the appellant to prepare a statement while waiting for them to arrive.

The principal also acknowledged that he had contacted the police in the past when he had discovered drugs in his school. He testified as follows: [ translation ] Q. When were the police called? A. That is an excellent question. I didn’t write it in … in my notes. I don’t even remember if it was me who called them or if it was C. It happens quite frequently in a given year, I could … specifically regarding the police, I can’t tell you if it was me or C. who called them . I don’t … I don’t remember that. But the police were called quickly . Q. C. was the vice-principal? A. The vice-principal, that’s right.

But I can’t remember if it was me who called them or not. I didn’t take note of that. [25] [Emphasis added.] [ 45 ] The principal also explained the distinction between a student who has taken drugs and one who has brought drugs to school: [ translation ] A. … So when we have information, that is often when we proceed, when we check if the information is accurate, all that. And the way that we work is that when we have a student who has consumed drugs, but there is no substance as such, well it is handled with … intern … internally , as one might say, at the school with the sanctions of … of the school. Q.

They’re academic sanctions?

A. It is academic sanctions only whereas the police are called only when we have … drugs, that we have … regardless of the quantity , whether it is a small baggie, a gram, or a large quantity, we have the … we have the legal obligation to get rid of them in an appropriate manner, you know. … So, it’s systematic, we call the police, and at that time it’s them who take over the file, you know. … [26] [Emphasis added.] [ 46 ] The judge therefore erred when she concluded that the principal’s intervention concerned only an academic disciplinary sanction and not the possible criminal prosecution of the appellant.

Once they became aware that it was not a simple case of consumption without any [ translation ] “substance as such”, there was necessarily a continuum between the intervention of the school and that of the police once they took over. And even if it is up to the Crown to bring charges, the exercise of this discretion is closely related to the evidence that has been previously gathered.

It is precisely because of the appellant’s original statement and the evidence obtained pursuant to it that the Crown’s evidence is overwhelming. [ 47 ] In short, the appellant discharged his evidentiary burden by showing that the principal was a person in authority when he received his statement.

As the conditions set out in subsection 146(2) of the YCJA were not met, this statement is not admissible into evidence. [ 48 ] It is well established that school authorities are responsible for providing a safe environment and maintaining order and discipline in the school . [27] The school must provide an atmosphere that encourages learning, and the possession of illicit drugs in school challenges the ability of school officials to fulfill their responsibility. [28] In 1998, the Supreme Court noted in R. v.

M. (M.R.) , [29] that the possession of illicit drugs in schools has increased and that it is necessary to provide school administrators with the flexibility required to deal with discipline problems. [30] That case was specifically concerned with the search and seizure of items prohibited at school, an issue that is different from the one before us. [ 49 ] This is a reality that remains troubling and should not be trivialized. The YCJA , however, grants rights and procedural guarantees to young persons who may be charged and tried before the courts. It must be given a generous

interpretation and prohibits the use as evidence against a young person of a statement, whether oral or written, made to a person in authority without first protecting the young person’s rights, which was not done here. That is why our intervention is necessary. * * * [ 50 ] There remains the issue of the admissibility of the second statement, made to the police officer. This issue was not decided by the trial judge, who did not need to do so.

Counsel for the respondent wrote the following in regard to this statement, characterized as [ translation ] “derived”: [ translation ] [30] To come to the conclusion that the derived statement was not admissible, the trial judge also had to rule on the effect that the first statement had on the second as well as the elements introduced to separate the two statements and [ translation ] “start from scratch”.

The Honourable trial judge did not need to rule on this issue given the conclusion she reached that there was no violation of the applicable rules when the principal obtained the appellant’s statement. [ 51 ] The respondent asks that a new trial be ordered if the Court concludes that the principal was a person in authority [ translation ] “to determine whether the statement obtained by the police officer was a derived statement within the meaning of the Supreme Court of Canada’s judgment in Wittwer ”. [ 52 ] It is well established that the inadmissibility of a first statement does not necessarily lead to the same conclusion in regard to a subsequent statement.

To determine whether the second statement is admissible, it is necessary to analyze various criteria and consider the degree of connection between the two statements. In R. v. I.(L.R.) and T.(E.) , the court had to decide whether the statement made by a sixteen-year-old young man accused of murder was admissible in evidence although a first statement had been set aside pursuant to

section 56 of the Young Offenders Act . [31] Sopinka, J. stated the following for the Supreme Court: Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements.

These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances. … In this regard I adopt the language of Laskin C.J. in Hobbins, supra , at p. 558, when he states : There can be no hard and fast rule that merely because a prior statement is ruled inadmissible a second statement taken by the same interrogating officers must be equally vulnerable.

Factual considerations must govern, including similarity of circumstances and of police conduct and the lapse of time between the obtaining of the two statements . In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement . … [32] [Emphasis added.]

[ 53 ] After considering the second statement made by the accused to the police officers one day after his first incriminating statement and after having consulted his counsel, Sopinka, J. concluded that it was also inadmissible and that the accused should be acquitted: … Not only was there a close temporal relationship between the statements, but the second statement was a continuation of the first , and the first statement was a substantial factor leading to the making of the second . The statements were taken less than a day apart by the same officer.

There is no evidence that the police in the interval between the two statements had gathered further evidence tending to incriminate E.T. to which E.T. might be asked to respond . … All of the evidence in this case leads to the conclusion that the second statement was causally connected to the first . … In the end, then, as the appellant put it, "[o]nce the first statement was given, the rationale for further restraint in self-incrimination was gone ".

In short, in these circumstances, communication with counsel cannot be said to have the determinative effect that it would have had if it had taken place before the first statement. In view of the finding that the existence of the first statement was a substantial factor in inducing the making of the second statement, the latter is inadmissible both on the basis of the common law test and the exclusionary language of s. 56 .

Moreover, had it been necessary, I would have also excluded it under s. 24(2) . [33] [Emphasis added.] [ 54 ] A review of the relevant factors supports the conclusion that, similarly, the second statement made by the appellant to the police officer must be set aside. There is a close temporal connection between the two statements made a few minutes apart, the second being the continuation of the first, which necessarily led him to make the second. The hidden drugs had already been found, and there is nothing suggesting that additional evidence incriminating the appellant was gathered by the police.

Finally, even before the police officer met with the appellant, the principal explained the elements of the case to him and gave him the drugs that were seized. [ 55 ] For these reasons, I would allow the appeal, set aside the trial judgment, declare that the statements made by the appellant are inadmissible into evidence, and acquit the accused on both counts. LOUIS ROCHETTE, J.A.