R. v. A.L.E.D. Date:, 2014 BCPC 276

Citation: R. v. A.L.E.D. Date: 20141201 2014 BCPC 0276 File No: 23261-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Youth Justice Court) REGINA v. A. L. E. D. RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: J. Krupa Counsel for the Defendant: J. Dyck

Place of Hearing: Vancouver , B.C. Dates of Hearing: October 21, 22, 23, 24, 28, 29, 2014 Date of Judgment: December 1, 2014 INTRODUCTION [ 1 ] The accused, A.L.E.D, is charged pursuant to the Youth Criminal Justice Act (“ YCJA ”) with a series of offences arising from an alleged break and enter of an apartment in Vancouver on April 9, 2014.

Those offences include the alleged break and enter, two counts of robbery, two counts of confinement and one count of use of an imitation firearm. [ 2 ] In the evening hours of April 9, 2014, the accused and a second suspect were arrested at gunpoint outside of an apartment building at 1060 Alberni Street, Vancouver, by members of the Vancouver Police Department. [ 3 ] The accused has submitted that his rights pursuant to s. 7 and s. 10(

b) of the Canadian Charter of Rights and Freedoms (“ Charter” ) were violated by the police after he was arrested by Constable Rich and provided with his s. 10(

b) Charter right. [ 4 ] The accused has submitted that after he was provided with his s. 10 (

b) Charter right, he told Constable Rich that he wished to speak to a lawyer, but Constable Rich wilfully failed to comply with his request to speak to a lawyer. [ 5 ] The accused has submitted that even after invoking his s. 10(

b) right, Constable Rich questioned him at the scene of the arrest about a suite located in the apartment building on Alberni Street. As a result of those questions, the accused told Constable Rich that he had been in Suite 1203. [ 6 ] The accused has submitted that after he disclosed that suite number, the police attended at that suite and located evidence that would tend to incriminate him in relation to the indexed offences. [ 7 ] The accused has submitted that the questioning by Constable Rich resulted in breaches of the Charter protections afforded by s. 7 and s. 10(b) .

On this basis, the accused has submitted that all of the evidence that relates to Suite 1203, including statements made by the occupant of that suite, S.W.L (the complainant), ought to be excluded by operation of s. 24 (2) of the Charter . [ 8 ] In addition, the accused asserts that, as he was a “young person” at the time of his arrest, he has the further benefit of protections afforded by s. 25(1) and (2) of the YCJA .

ISSUES [ 9 ] The Court must determine whether or not there have been breaches of the accused’s rights under the Charter in relation to s. 7 and s. 10(b) . [ 10 ] In the event that the Court were to find that the accused’s rights under either or both sections of the Charter were breached, or that there was a breach of s. 25(1) and (2) of the YCJA, what would be the appropriate remedy for such a violation or violations? BACKGROUND [ 11 ] There is no dispute that on April 9, 2014, the complainant was operating a bawdy house at 1203 - 1060 Alberni Street in the City of Vancouver, British Columbia.

At various times prior to April 9, 2014, the complainant had several female employees who would provide sexual services to clients at this bawdy house. It would appear that the female employees were either from Hong Kong or Mainland China, and that they did not hold working visas while in Canada. [ 12 ] Obviously, the operation of a bawdy house is illegal and, in all likelihood, the female employees at this bawdy house could potentially face legal difficulties with the Canadian Border Services Agency (“CBSA”) for providing sexual services to clients. [ 13 ] The complainant testified in this voir dire .

She requested, and was granted, protection pursuant to s. 5(2) of the Canada Evidence Act . The complainant requested this protection as she could potentially face legal difficulties relating to the operation of the bawdy house due to her providing evidence at this voir dire . In addition, she could potentially face legal difficulties relating to human trafficking. [ 14 ] Like her employees, the complainant is Chinese and came to Canada from Mainland China in 2012. She testified that she did not provide any sexual services, but was the operator of the bawdy house.

She testified that she commenced the business in or around December 2013, and that all business was by way of cash for services rendered by the employees. [ 15 ] The complainant would charge her employees a “flat rate” based upon the time they spent per client; the employee would spend time with their client in one of the bedrooms of the bawdy house. The employee would receive the balance of the funds over and above the flat rate.

The complainant testified that the services provided were a matter between the employee and the client. [ 16 ] The complainant testified that during the evening hours of April 9, 2014, one of her employees, S.C., was in one of the bedrooms with a client. The complainant testified that she received a call from one of her employees informing her that a client would be arriving within a few minutes.

[ 17 ] The complainant testified that within seconds of receiving that call, she received a further phone call, though she did not recall talking to that person. She speculated that it might have been her boyfriend as she was expecting him at some point that evening. [ 18 ] In any event, the complainant testified that she had just unlocked the door to the apartment when suddenly, two males rushed into her apartment. The first male, later identified as T.A., had a gun in his hand which he pointed at the complainant’s forehead.

The second male, later identified as the accused, had a knife in his hand. [ 19 ] The complainant described the ensuing events in the apartment as chaotic and terrifying. At times, it was difficult to determine the exact sequence of events from the testimony of the complainant, in both direct examination and cross-examination. [ 20 ] However, from the complainant’s evidence, it is clear that the accused and T.A. were intent on stealing property, including money, located in the apartment.

From photographs that were filed in this v oir dire , it was evident that the whole apartment was ransacked by T.A. and the accused. [ 21 ] The complainant testified that, at some point, the accused had grabbed her from behind and held a knife to her neck. The complainant was concerned that he would cut her neck, so she grabbed the knife to pull it away.

In this physical interaction with the accused, the complainant’s right hand was cut. [ 22 ] The complainant testified that, at one point, the accused took some zap straps from a bag that he was carrying and bound her hands and the hands of another employee who was present, known as “Brooke.” [ 23 ] T.A. and the accused permitted S.C.’s client to get dressed and told him to leave the apartment.

The complainant testified that just before the client left, T.A. took a photograph of the client with a cell phone, warning the client that he would know where to find him in the future, or words to that effect. [ 24 ] The complainant also testified that, at one point, the complainant and two employees were directed into a bedroom and were instructed to stay there.

Following this, T.A. went into the living room and, apparently, searched through the living room looking for property of interest. [ 25 ] The complainant testified that she was bleeding from the knife wound and had asked the accused if he could help her. He got a towel and wrapped her hand in the towel. [ 26 ] As previously noted, the sequence of events as relayed in the complainant’s testimony is unclear. However, the complainant clearly recalled that T.A. had received a telephone call on his cell phone. The cell phone was on speaker mode, and the complainant thought that she heard a female voice.

T.A. then went out onto the balcony where he apparently continued his conversation with the caller. [ 27 ] When T.A. came back into the living room area, he became extremely agitated and was described by the complainant as almost going “crazy.” T.A. began to toss furniture around in the living room. [ 28 ] It was likely T.A. was looking for the Apple iPad that the complainant had in her hands when T.A. and the accused rushed the front door of the apartment. Somehow, this Apple iPad ended up on the floor in the living room, partially concealed by a couch or a table.

T.A. was unable to find this device. [ 29 ] The complainant testified that the bags or purses of all of the women in the apartment were searched by T.A. and the accused, and that their contents were stolen. Those contents included identification in Chinese, along with Hong Kong currency. [ 30 ] In addition, the complainant testified that the accused and T.A. also stole at least two of her cell phones, a small change purse and a small wallet which contained keys and a fob for her apartment.

Those items were later located on both the accused and T.A. after they were arrested and searched. [ 31 ] The complainant testified that, at some point, the accused directed her to either squat down or get down onto the floor, asking her who the boss of the operation was. As well, the complainant testified that the accused became quite concerned when she told him that the boss would be coming to the apartment soon. [ 32 ] The complainant also testified that, at some point, T.A. took Brooke into one of the bathrooms and closed the door.

The two were in the bathroom for some period of time until the accused called through the closed door to T.A. to tell him that the complainant’s boss was coming. [ 33 ] The complainant testified that when Brooke and T.A. came out of the bathroom, either T.A. or the accused directed all three of the women into the master bedroom, and then into the bathroom. They were told by T.A. to stay in the bathroom for five minutes and to not make any noise. [ 34 ] The complainant testified that they remained in the bathroom for a few minutes and then left the bathroom as all had gone quiet in the apartment.

The complainant testified that the accused and T.A. were gone when she and her employees left the bathroom. The complainant and Brooke were able to free themselves of the zap straps. Shortly after that, the police arrived. [ 35 ] While events were unfolding in Suite 1203, Constable Burridge was on duty in the area of 1060 Alberni Street.

Constable Burridge testified that he was flagged down by a taxi driver who told Constable Burridge that he had just dropped off two males at 1060 Alberni Street. [ 36 ] Constable Burridge testified that the taxi driver was concerned because he saw one of the males pass a handgun to the other male in the backseat of the taxicab. Constable Burridge testified that the taxi driver told him that the males wanted him to stay nearby and wait for them as they would return shortly. The taxi driver told Constable Burridge that the males had left two bags in the backseat of

the taxicab. [ 37 ] Constable Burridge testified that the taxi driver described one of the males to be Caucasian, approximately 20 to 30 years of age, heavy build, wearing a green jacket and dark pants. The taxi driver told Constable Burridge that the second male looked 25 to 30 years of age, had short hair, was Chinese-looking, had a 10-day shadow of a beard and was wearing a dark blue or green zippered jacket. [ 38 ] Constable Burridge testified that he was relaying this information along to dispatch as he received it. This information was also being relayed to police members in the area via police radio.

Constable Burridge testified that he then searched the bags and, in one of the bags, he located a large machete in a sheath. [ 39 ] Constable Burridge testified that when he found the machete, his concerns were elevated because he became concerned that something untoward could be taking place in the apartment building at 1060 Alberni Street.

Constable Burridge testified that he did not know what specifically may be taking place, but in light of the information provided by the taxi driver, there was an immediate need for the police to follow up on the two suspects. [ 40 ] Constable Burridge testified that he directed the taxi driver to return to the apartment building at 1060 Alberni Street. Constable Burridge testified that he was aware that other police members were dispatched to 1060 Alberni Street.

Constable Burridge testified that he arrived sometime later at the Alberni Street apartment building, whereupon he saw two males in handcuffs being searched by police officers. These two males were later identified as the accused and T.A. [ 41 ] The police officers who were dispatched to provide containment at 1060 Alberni Street were aware of the information being relayed by Constable Burridge through dispatch.

The police officers who were part of the containment team testified that although they did not know what was taking place within the apartment building at 1060 Alberni Street, they were all of the belief that there was the potential for violence, including the potential for gunfire. [ 42 ] The police officers who were assigned to provide containment all took positions close to the main entrance of the apartment building at 1060 Alberni Street.

Some of the police officers had weapons drawn and were being directed by Constable Alvarez, who was stationed in an “eye” position relative to the main entrance of 1060 Alberni Street. [ 43 ] The taxi driver had also returned to 1060 Alberni Street and had positioned his car across the street from the main entrance.

Shortly after that, Constable Alvarez observed two males who matched the description given by the taxi driver to Constable Burridge leaving the main entrance of 1060 Alberni Street. [ 44 ] Constable Alvarez testified that he was certain that the males were the two suspects and immediately called for their takedown.

In response to Constable Alvarez’s command for a takedown, Constable Pavlic and Constable Colenut left their containment position and ran towards the two males yelling words to the effect of, “Police, police, show your hands.” [ 45 ] The two males were observed by Constable Pavlic and Constable Colenut to be approximately halfway across the road and heading towards the taxicab. Constable Pavlic testified that he took control of one of the males and put him face down on the ground in a prone position.

This male, later identified as the accused, was compliant. [ 46 ] Constable Colenut tried to take control of the other male who was resistant to officer directions. With the assistance of another police officer on scene, Constable Colenut was soon able to take control of this male, and like the accused, this male was taken to the ground in a prone position. This male was later identified as T.A. [ 47 ] Constable Colenut testified that after T.A. was proned out on Alberni Street, he conducted an officer safety search of T.A.

This search resulted in Constable Colenut locating, what appeared to him to be, a semi-automatic type of gun in the rear waistband of T.A.’s pants. [ 48 ] Constable Colenut testified that, while within close proximity of other police members, he shouted out words to the effect that he found a gun. Constable Colenut testified that when he found the gun, in his mind, he believed that there was the potential that victims could be hurt in the apartment building at 1060 Alberni Street. [ 49 ] Constable Colenut recalled that T.A. told him, within quick order of the takedown, that the gun was not a real gun.

That information did not appear to have an impact on Constable Colenut’s safety concerns for the potential victims in the apartment building. [ 50 ] Constable Colenut testified that it was his belief that he had a duty to ensure that the people within the apartment building were safe.

Constable Colenut testified that it was his opinion that it would be proper for him to kick down doors within that apartment building in order to access the suites, if necessary. [ 51 ] Constable Colenut testified that after the police entered the apartment building, he was made aware, probably by the building caretaker, that there was CCTV footage from the elevator which could be useful to their investigation. Constable Colenut testified that he seized the elevator CCTV footage and when and he viewed that footage he observed that T.A. and the accused were in the elevator at 7:51 pm.

The image appears to depict T.A. pressing an elevator floor button. [ 52 ] Constable Rich was also part of the police containment effort at 1060 Alberni Street. Constable Rich testified that, in his mind, he believed that there may be a “violent situation” underway at the apartment building and that his belief was based upon the information relayed by Constable Burridge. [ 53 ] Constable Rich testified that he took up a containment position with his partner, Constable DeSousa, a short distance away from 1060 Alberni Street.

When Constable Alvarez called for the takedown, Constable Rich testified that he ran the short distance to 1060 Alberni Street, whereupon he saw the accused and T.A. proned out on the road surface with Constable Burridge and Colenut in control positions.

[ 54 ] Constable Rich testified that he was tasked with physically taking control of one of the two suspects. Constable Rich testified that there was an outstanding concern in his mind that weapons were potentially involved in this takedown. [ 55 ] Constable Rich testified that he handcuffed the accused and then had him stand up. The accused was then directed to an area off the roadway, but next to 1060 Alberni Street.

Constable Rich testified that at that point when he moved the accused off Alberni Street, he was aware that someone had located a firearm on T.A. [ 56 ] Constable Rich testified that although he did not know what had gone on in the apartment building, he was nonetheless of the belief that the accused and T.A. were “somehow involved in a violent offense.” It was in the mind of Constable Rich that this could possibly be a “drug rip” situation. [ 57 ] Constable Rich testified that he was not familiar with the accused nor was he aware that the accused was a “young person” as defined by the YCJA .

Constable Rich arrested the accused for robbery and possession of a weapon. Constable Rich advised the accused at approximately 8:30 PM of his rights pursuant to s. 10(

a) and s. (

b) of the Charter . [ 58 ] Constable Rich testified that the accused told him that he wanted to speak to his lawyer, Ms. Dyck. Constable Rich testified that he then searched the accused; this search was incidental to lawful arrest. During the course of the search, Constable Rich located a four to five inch long knife, Canadian currency, Chinese currency, identification in Chinese, two cellular phones, USB cables, and a BB gun magazine. [ 59 ] Constable Rich testified that he was also aware at this time that Constable DeSousa had located the handgun and bear spray on T.A.

Constable Rich testified that having searched the accused and considering the discovery of the handgun and bear spray on T.A., in his mind, it was critical for the police to determine whether or not anyone in the apartment building at 1060 Alberni Street was hurt. [ 60 ] Constable Rich described this determination as part of his common-law duty to protect potential victims in the apartment building.

He testified: “I simply had to find out where this suite was… was anyone injured.” [ 61 ] Constable Rich testified that he was aware that the accused had the right to silence and that he was also aware that the accused had requested to speak to Ms. Dyck. Constable Rich testified that by questioning the accused, he knew that he could potentially jeopardize any criminal investigation into the accused.

However, Constable Rich testified that he was prepared to take that risk as he felt it was his duty to ensure that no one was hurt in the apartment building. [ 62 ] Constable Rich testified that he then asked the accused, “I need to know if someone is hurt in the building.” Constable Rich did not receive a response from the accused. Constable Rich then asked the accused, “If someone is injured in the building and does not get help, then you could go to jail for a long time. I need to know the suite number.” In response to that question, the accused stated, “1203.

Someone’s hand is cut, but not badly.” [ 63 ] Constable Rich testified that he did not ask the accused any further questions. Constable Rich described the accused as being “calm” and “very cooperative” while in his custody. [ 64 ] Constable Rich testified that the information he received from the accused in relation to Suite 1203 was relayed to other police officers on scene.

Constable Rich testified that shortly after that, he received word that police officers entered Suite 1203 and found the injured complainant. [ 65 ] Constable Rich testified that he was in possession of a personal cell phone, but he was not in possession of a work-issued cell phone. Constable Rich testified that in due course, the accused was transported to the police station by a police wagon which had been dispatched to the scene. [ 66 ] One of the police officers who went to Suite 1203 was Constable Pavlic.

Constable Pavlic testified that when he went to the suite, he still did not know what had happened within that suite. He testified that it was necessary to get into that suite and to conduct a clearing of that suite. [ 67 ] Constable Pavlic testified that after the complainant opened the door to Suite 1203, he went into the suite with several other police officers. He described the suite as looking as if it had been ransacked.

He noted that during his search, he observed pieces of zap straps in the kitchen and also what appeared to be some blood on the kitchen floor. [ 68 ] Constable Bal was also one of the police officers who entered Suite 1203. Constable Bal spoke some Cantonese. He spoke to the complainant about what happened in Suite 1203. Constable Bal testified that he suspected Suite 1203 was a brothel, and when he put that suspicion to the complainant, she refused to answer.

The complainant was also uncooperative in responding to other questions put to her by Constable Bal. [ 69 ] Constable Bal testified that he observed some red marks on the wrists of the complainant and observed bandages on the fingers of her right hand. [ 70 ] Photographs of Suite 1203 were taken by Constable Cox. Those photographs depicted the interior of Suite 1203 and included photographs of the complainant.

Constable Cox testified that she observed red abrasions on the complainant’s wrists, and that the complainant appeared to have cuts on her right hand. [ 71 ] The photographs of Suite 1203 taken by Constable Cox depicted pieces of zap straps in the kitchen, along with blood markings on the floor in the kitchen. These photographs support the evidence of Constable Pavlic, namely, his observation that the living room had been ransacked. [ 72 ] Admissions of Fact were also filed pursuant to s. 655 of the Criminal Code .

Those admissions, in part, established the fact that the blood found on the knife taken from the accused when he was searched outside of 1060 Alberni Street on April 9, 2014, was the

complainant’s blood. [73] The Admissions further established, in part, that a security fob was located on the accused when he was searched outside of 1060 Alberni Street, and that that fob would only grant the holder of the fob access, via the elevator, to the 3rd and 12th floors of the 1060Alberni Street apartment building. POSITION OF THE PARTIES (

i) Position of the Accused [74] The accused submits that his rights pursuant to s. 7 and s. 10(

b) of the Charter were violated by the police after he was arrestedby Constable Rich and then advised of his right to counsel. With regard to s. 10(b), the accused submits that although he requested thathe speak to his lawyer, Ms. Dyck, he was denied the opportunity to do so.

As for the right to silence under s. 7, the accused submits thathe was wrongfully questioned by Constable Rich about where within the apartment at 1060 Alberni Street he had come from. [75] The accused submits that there is a sufficient temporal and causal connection between the breaches and the subsequent evidencethat was discovered which would justify exclusion of the evidence located or seized (including any photographs or statements taken, andexcluding the CCTV evidence), pursuant to s. 24(2) of the Charter (see R. v. Andel, [2014 B.C.J.

No. 882, at paragraph 31). [76] The accused submits that once Constable Rich was aware that the accused wanted to exercise his right to counsel, ConstableRich was obliged to implement that request without delay. In addition, the accused submits that once he invoked his right to speak tocounsel, Constable Rich was obliged to cease questioning of the accused or attempting to elicit evidence from him (see R. v. Ross, (SCC), [1989] 1 SCR 3, at paragraph 17). [77] The accused submits that Constable Rich deliberately breached his right to silence and his right to access counsel.

The accusedsubmits that his will was overborne when Constable Rich threatened him by saying, “If someone is injured in the building and does notget help, then you could go to jail for a long time. I need to know the suite number”. [78] The accused submits that not only did Constable Rich wilfully disregard his s. 7 and s. 10(

b) Charter rights, but he also wilfullydisregarded his rights pursuant to s. 25(1) and (2) of the Youth Criminal Justice Act. [79] The accused submits that after he was arrested at the roadside, he was never given the opportunity to access counsel. It wasonly when the accused was taken to the police station that he was finally given the opportunity to speak to counsel. [80] The accused further submits that this is not a case where the evidence would be inevitably discovered by the police.

Theaccused submits that Constable Rich made a tactical decision to question the accused, not for any legitimate common-law public orofficer safety concerns.

Rather, the accused submits that Constable Rich’s questioning was designed to obtain further evidence incontravention of the accused’s asserted Charter rights. [81] The accused submits that there were other options for gaining entry into the apartment building that were potentially availableto the police on scene, such as locating and questioning the property manager. [82] The accused emphasizes that, as a “young person”, he is in an elevated state of vulnerability. The accused submits that it is thiselevated state of vulnerability which makes the state conduct more egregious.

The accused further submits that the Court ought notcondone the police conduct in this case by admitting the evidence gathered after the breaches occurred. [83] The accused submits that applying the above considerations to the three-step analytical framework set out in R. v.

Grant, 2009SCC 32 , [2009] 2 S.C.R. 353, will demonstrate that the evidence gathered by the police after the breaches occurred ought to beexcluded. (ii) Position of the Crown [84] The Crown submits that there has not been any breach of the accused’s rights pursuant to the Charter or to the YCJA. [85] In the alternative, the Crown submits that if the court were to find that there was a breach, the evidence that was gatheredshould be admitted by the application of the three-step analysis as set out in Grant. [86] The Crown submits that in the particular circumstances of this case, it was urgent that Constable Rich continue to question theaccused about where within the apartment building at 1060 Alberni Street he had come from, even in the face of his asserted Charterrights, as it was necessary to determine if anyone was hurt within the apartment building. [87] The Crown submits that there is significant jurisprudence on what constitutes urgent and dangerous circumstances, and that thiscase fits squarely within that jurisprudence. [88] The Crown submits that the circumstances of this case unfolded in a context in which the police simply did not know what wastaking place at 1060 Alberni Street.

The Crown submits that the concerns of the taxi driver as related to Constable Burridge, and thenrelayed to other police officers, would clearly establish an atmosphere of urgency. [89] The Crown submits that the police officers who testified in this voir dire all described the situation as being dynamic, fluid andpotentially dangerous. The Crown submits that there were legitimate public and officer safety concerns given the potential that a gunwas involved, and the discovery of the machete.

[90] The Crown submits that these concerns were borne out when T.A. was searched and the police located what was believed to bea handgun on his person. In addition, when the accused was searched by Constable Rich, he was found to be in possession of a four tofive inch long knife, Canadian currency, Chinese currency, identification in Chinese, two cellular phones, USB cables and a BB gunmagazine.

The Crown submits that the discovery of all of these items would establish an urgent need in Constable Rich’s mind that hehad to find out where within the apartment building at 1060 Alberni Street the accused had come from. [91] The Crown submits that Constable Rich and the other police officers on scene were genuinely concerned that someone withinthe apartment building at 1060 Alberni Street could be, or had been, harmed by the accused and T.A.

The Crown submits that thisconcern was of such magnitude that Constable Rich was prepared to potentially “torpedo” the case against the accused by questioninghim after he had asserted his right to counsel. [92] The Crown further submits that because of the urgent circumstances of this case, the police were eventually going to get intothe apartment building and ultimately to Suite 1203, even if it required breaking down the doors of every suite in the building until theyfound the victim within requiring assistance.

Thus, the Crown submits that, inevitably, Suite 1203 would have been entered and theevidence within discovered. [93] The Crown submits that even if the Court were to find breaches of the accused’s Charter rights, the evidence ought to beadmitted nonetheless.

The Crown notes that there were only two questions asked by Constable Rich and that those questions were notdesigned to advance the investigation, but were asked purely out of public safety concerns. [94] The Crown submits that once the accused told Constable Rich the suite number and the fact that someone was hurt, there wasno further questioning of the accused.

The Crown submits that at no time, notwithstanding the dynamics of this case, was the accusedabused or dealt with in any improper or coercive way. [95] The Crown submits that the information that was related to Constable Rich by the accused was accurate: the suite number wascorrect and the complainant was injured.

The Crown submits that the evidence pertaining to the description of the interior of Suite 1203(location of blood markings, pieces of zap straps, observable injuries to the complainant) is the type of real and enduring evidence whichshould not be excluded. [96] The Crown further submits that there is no indication that Constable Rich was subjectively aware that he was dealing with a“young person”, as defined by the YCJA. when he arrested and then questioned the accused.

The Crown submits that based on thedescription the taxi driver gave to Constable Burridge, and the photographs taken of the accused shortly after his arrest, there were no redflags alerting officers to the fact that the accused was a “young person”. [97] The Crown submits that the application of the three-stage analytical framework as set out in Grant would favour admission ofthe evidence that was gathered after the accused provided the suite number to Constable Rich. CONSTITUTIONAL AND STATUTORY FRAMEWORK [98]

Section 7 of the Charter reads as follows: Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [99] The right to remain silent is protected by s. 7 of the Charter as a principle of fundamental justice. This right rests on the notionthat a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself, but ratherhas the right to choose whether to speak or to remain silent (see R. v. Hebert, (SCC), [1990] 2 S.C.R. 151). [100]

Section 10(

b) of the Charter reads as follows: Arrest or detention 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right; and … [101] Once engaged, s. 10(

b) imposes both informational and implementation of duties on the police. In R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, at paragraph 42, the Supreme Court of Canada established the purpose of s. 10(

b) as follows: 42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-definedand unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. Whatconstitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room formisunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a rightthat imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the

police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [Emphasis Added] [ 102 ] Section 25(1) and (2) of the YCJA read as follows: Right to counsel 25.

(1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person. Marginal note:Arresting officer to advise young person of right to counsel

(2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel. [ 103 ] In R. v. T.W., 2005 ONCJ 225 , the Court found that s. 25(1) and (2) of the YCJA created an additional obligation on the police to inform a young person of the right to counsel at all stages of a police investigation, whether Charter rights were engaged or not (at paragraph 29). [ 104 ] Similarly, the Court in R. v. B.G.H. , 2009 SKPC 54 affirmed a young person’s s. 10 (

b) Charter rights, but held that, by operation of s. 25(2) of the YCJA , there was an added procedural protection which requires that a young person be given the opportunity to obtain counsel (at paragraph 30). [ 105 ] In the Declaration of Principle set out in s. 3 of the YCJA , young persons are identified as having, in their own right, particular rights and freedoms: “young persons have special guarantees of their rights and freedoms” (see s. 3(1)(d)(i)). [ 106 ] It would appear the Declaration of Principle recognizes the need to hold young persons responsible for their crimes while, at the same time, recognizing their vulnerability and their special needs. [ 107 ] The

interpretation and application of the YCJA to the particular facts of any given youth case are to be determined through the prism of the Declaration of Principle: R. v. S. (R.) , 2009 ONCJ 333 . [ 108 ] Any statement given by a young person to an authority figure is governed by s. 146 of the YCJA . In this case, the accused gave two statements to Constable Rich after he asserted his right to speak to legal counsel. The first statement was: “1203”.

The second statement was: “Someone’s hand is cut, but not badly”. [ 109 ] By operation of s. 146, no statement given by a young person to a person in authority is admissible unless a number of conditions are met, including a finding that the statement was voluntary and the young person was given a reasonable opportunity to consult with counsel. [ 110 ] The onus rests with the Crown to establish beyond a reasonable doubt that these procedural obligations have been met: R. v.

L.T.H. , 2008 SCC 49 . [ 111 ] There are exceptions respecting the admissibility of a statement given by a young person to a person in authority. The exceptions are found in s. 146(8) of the YCJA which reads as follows: Misrepresentation of age

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

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

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

c) in all other circumstances the statement or waiver would otherwise be admissible. [ 112 ] While the YCJA does not establish the standard of proof that must be met to demonstrate non-compliance with s. 25(1) or (2), the case law has developed a governing principle, specifically, that the approach to a s. 10(

b) Charter asserted breach is the same for a youth as for an adult. That said, the additional protections contained in s. 25 of the YCJA make any established Charter breach that much more serious. ANALYSIS AND FINDINGS Do “Exigent Circumstances” Preclude a Finding that the Accused’s Rights were Violated?

[113] The great ancestor of the exigent circumstances exception is found in R. v. Manninen, (SCC), [1987] SCJ No.41, in which the Court acknowledged certain limits to a detainee’s s. 10(

b) Charter rights at paragraphs 22 and 24: 22 In my view, this aspect of the right to counsel was clearly infringed in this case. The respondent clearly asserted his right to remainsilent and his desire to consult his lawyer. There was a telephone immediately at hand in the office, which the officers used for their ownpurposes. It was not necessary for the respondent to make an express request to use the telephone. The duty to facilitate contact withcounsel included the duty to offer the respondent the use of the telephone.

Of course, there may be circumstances in which it isparticularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication withcounsel. There was no urgency in the circumstances surrounding the offences in this case. … 24 This aspect of the respondent's right to counsel was clearly infringed in the circumstances of this case. Immediately after therespondent's clear assertion of his right to remain silent and his desire to consult his lawyer, the police officer commenced hisquestioning as if the respondent had expressed no such desire.

Again, there may be circumstances in which it is particularly urgent thatthe police proceed with their questioning of the detainee before providing him with a reasonable opportunity to retain and instructcounsel, but there was no such urgency in this case. (Emphasis Added) [114] The exigent circumstances exception was again examined by the Supreme Court of Canada in R. v. Bartle, (SCC), [1994] SCJ No. 74, where a more full-bodied explanation of the exception is found at paragraph 17: 17 This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities whoarrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). (See, for example, Manninen, at pp. 1241-42; R. v.

Evans, (SCC), [1991] 1 S.C.R. 869, at p. 890; and Brydges, at pp.203-4.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature ofimplementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. (Emphasis Added) [115] The duty of a police officer to immediately comply with the informational and implementation of components of s. 10(

b) wereclarified by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33 , [2009] SCJ No. 33 at paragraphs 38 and 42: 38 Once engaged, s. 10(

b) imposes both informational and implementational duties on the police. The informational duty requires thatthe detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the policeunder s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel.

This obligationalso requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunityto reach a lawyer, or the detainee has unequivocally waived the right to do so. … [42] To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-definedand unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. Whatconstitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room formisunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a rightthat imposes specific obligations on the police.

In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention. [116] There are many examples where courts have applied the principle of exigent circumstances, in varying degrees.

Many of thecases involve high risk, volatile or urgent situations where firearms were known to be involved such that it was incumbent upon thepolice to gain control over the high risk, volatile or urgent situation before permitting an accused to access counsel: see for example, R. v.Strachan, (SCC), [1988] SCJ No. 94 at paragraph 34. [117] Legitimate officer or public safety concerns recognize the practical realities of law enforcement, namely, that certain situationshave such urgency and real potential for danger that officer or public safety concerns must take priority over an individual’s s. 10(

b) rights. [118] In this case, police anxiety with respect to officer and public safety concerns was principally founded on the information relatedto Constable Burridge by the taxi driver. That information included the taxi driver’s observation that the accused and T.A. exchanged afirearm.

Police officers who took up a containment position at 1060 Alberni Street were also advised by Constable Burridge that he hadlocated a machete in one of the bags left in the taxicab by the accused and T.A. [119] I find that police anxiety with respect to officer and public safety concerns when they took up their containment position at 1060Alberni Street was justified in light of the information relayed to them by Constable Burridge. [120] I further find that police officer and public safety concerns were elevated when bear spray and the gun were found on T.A.following his arrest.

Officer and public safety concerns were very much in the mind of Constable Rich. In particular, Constable Rich’spublic safety concerns were heightened when he searched the accused and located a 4 to 5 inch long knife, Canadian currency, Chinesecurrency, identification and Chinese, to cellular phones, USB cables and a BB gun magazine. [121] Constable Rich testified that he asked the accused about where within the apartment building he had come from even after theaccused had asserted his right to legal counsel because Constable Rich “simply had to find out where the suite was… was anyoneinjured”.

This conversation with the accused was brief and specific. Once the accused identified Suite 1203, the questioning ceased. [122] It must be kept in mind that the accused was arrested outside of the apartment building at 1060 Alberni Street.

Constable Rich’sconcerns over potential victims in the apartment building were exacerbated by the fact that he faced an additional obstacle in addressingpublic safety concerns, to wit, he and the other police officers on scene would have to find the potential victims before they could helpthem. [123] Theoretically, the police on scene could have entered the building, and gone floor by floor to each and every suite, and, ifnecessary, broken down the door of each and every suite. However, such a tactic would not be realistic.

I accept the testimony ofConstable Rich that the situation was urgent and that there was a legitimate need to determine, as soon as possible, if someone was hurtin one of the suites of that apartment building. [124] Constable Rich testified that this urgent need to find potential victims was based on his common-law duty to protect potentialvictims. In R. v. Godoy, (SCC), [1998] SCJ No. 85, the Supreme Court of Canada confirmed the police common-lawauthority to enter a private dwelling place in response to a dropped 911 call.

The court explained this authority as a vital part of the policeduty to protect life: 8 In considering the first element of the test, Finlayson J.A. found that the police have a power at common law to enter a privatedwelling in response to a disconnected 911 call in the circumstances of this case. The police were acting in the course of their duty to"protect life" which includes preventing death or serious injury. They entered the apartment with the knowledge that a 911 call was madefrom that residence. Entry was necessary to determine the cause of the distress and to give aid if necessary.

Giving aid to persons indistress is the very essence of the police duty to "protect life". [125] The statement given by the accused to Constable Rich that he had come from Suite 1203, and his further statement that someonehad a cut hand, were confirmed ex post facto: when the police entered Suite 1203, they observed that the suite appeared to be ransacked;pieces of zap straps were located along with some blood markings on the floor; the complainant was observed to have a cut to her handalong with red marks on her wrist. [126] I accept the observations made by the police officers regarding the interior of Suite 1203 and the complainant.

Thoseobservations confirm the legitimacy of the public safety concerns expressed by police officers at the time that the accused and T.A. werearrested and searched. [127] As for the accused’s status as a “young person”, I accept the testimony of Constable Rich that at the time that he elicited thestatements from the accused, namely, the statements about where within the apartment building he had come from and that someone washurt but not badly, that he was not aware that he was dealing with a “young person” as defined by the YCJA. [128] The police dispatch had relayed information from the taxi driver that the accused was Caucasian, 20 to 30 years of age with aheavy build.

A photograph taken of the accused later that evening by the police gives credence to the belief in Constable Rich’s mindthat he was dealing with an adult and not a young person. [129] I find the photograph of the accused taken by the police reasonably depicts a person who is Caucasian, 20 to 30 years of agewith a heavy build. In addition, a photograph taken of T.A. depicts an individual who looked 20 to 30 years of age, had short hair and hada 10 day shadow of a beard.

While T.A. is not Chinese as the taxi driver described, his appearance otherwise is completely consistentwith an adult. [130] The accused has submitted that his rights pursuant to s. 7 and s. 10(

b) of the Charter were violated when he providedincriminating statements to Constable Rich after he had asserted his right to speak to legal counsel. In addition, the accused has submittedthat the breaches are even more serious when s. 25(1) and (2) of the YCJA are factored into the consideration. [131] I find that the Crown has established that there were exigent circumstances that were urgent, and that these exigentcircumstances were potentially dangerous and unpredictable respecting both officer and public safety.

As a result of those exigentcircumstances, it was both necessary and appropriate that the police locate the Suite, and any potential victims within the Suite, in the1060 Alberni Street apartment building as soon as possible. [132] I do not find that there has been a breach of the rights of the accused pursuant to s. 7 and s. 10(

b) of the Charter.

[ 133 ] I do not find that there has been a breach of the rights of the accused pursuant to s. 25(1) and (2) of the YCJA . [ 134 ] I find that the statements made by the accused to Constable Rich are otherwise admissible in the circumstances of this case pursuant to s. 146(8)(

c) of the YCJA . DISPOSITION [ 135 ] Having found that the accused’s rights pursuant to s. 7 and s. 10(

b) of the Charter and s. 25(1) and (2) of the YCJA were not violated, it follows that the application by the accused to exclude evidence resulting from his admissions to Constable Rich must be dismissed. The Honourable Judge G. Rideout The Provincial Court of British Columbia