R. v. A.J.M., 2012 NSPC 8

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. A.J.M., 2012 NSPC 8 Date: February 14, 2012 Docket: 2336343, 2336344, 2336345, and 2336346 Registry: Halifax Her Majesty the Queen v. A.J.M. DECISION ON VOIR DIRE Judge: The Honourable Judge Jamie S. Campbell Heard: January 11, 2012 Oral Decision: February 14, 2012 Charges: CC 271(1)(a); and 145(5.1) YJCA 137 x 2 Counsel: Jamie VanWart - Crown Attorney Eugene Tan - Defence Attorney

By the Court: 1) A.M. was questioned by Corporal Drummond of the RCMP with respect to charges of sexual assault and two breaches. Theissue in the voir dire portion of the proceedings is whether the statement made by A.M. is admissible. 2) Specifically, the question is whether the process required under s. 146 of the Youth Criminal Justice Act (“YCJA”) wasfollowed. 3)

Section 146 of the YCJA deals with the enhanced procedural protections for young people. The importance of thoseprotections was emphasized by the Supreme Court of Canada in R. v. H. (L.T.) (2008), 2008 SCC 49 , 234 C.C.C. (3d) 301. Thecourt said that there had to be proof beyond a reasonable doubt that the requirements for admission of a statement by a young person hadbeen met. 4)

Section 146 is designed to address the power imbalance when a young person is a suspect in a criminal investigation. Formany young people, the process of being brought to a police interrogation room is in itself an intimidating experience.

Dealing with thatis not a matter of simply reading warnings from a form and having the young person nod or speak the word “yes”. 5) The young person must have his or her rights explained in language that is appropriate to his or her age and understanding.As Corporal Drummond noted in this case, it is important to find out a bit about the person in order to be able to speak to him or her inlanguage that the person can understand.

It would seem that there is a need to hit that spot between condescending and comprehensible.Efforts are usually made to engage the young person, as Corporal Drummond did in this case, by asking in plain language whether theyoung person does in fact understand what is going on and by departing from the written script. 6) The young person has to be given the right to consult with a lawyer and a parent or other appropriate adult. If the youngperson asks for such a person the statement has to be made in that person’s presence unless the young person doesn’t want the personthere.

That waiver of the right to consult with a parent or other adult and the right to have such a person there while the statement isbeing given has to be both informed and voluntary. It has to be either recorded or in writing and contain a statement that the youngperson has been informed of the right being waived. 7) Having seen a number of recorded statements given by young people, it is striking just how cumbersome the process can be.The police are required to inform a young person of his or her rights and must take great care to make sure that the young personunderstands.

There are a number of questions that have to be asked and what seems like a large number of hoops that have to be jumpedthrough before the statement itself can get under way. For an officer investigating an offence, it must at times be frustrating. 8) The frustration goes both ways. The young person whose patience with such a process can be limited becomes frustratedwhile a police officer tries to keep the interview on some kind of track. As in this case, the young person may start the process bywondering out loud why he or she is there at all.

Response may be in the form of sullen grunts which the officer has to ask to haverepeated in the form of intelligible words. Each time the young person is asked to repeat the frustration level rises. 9) A young person may well fully understand what is being said but, like many teenagers, doesn’t appreciate the significanceof it until later. The combination of bravado, fear and frustration makes the processing of the entire exchange difficult. For many youngpeople relevance is in the moment.

The desire to just get on with things or to appear to be independent can overtake any other concerns. 10) In the effort to insure that a young person is fully informed it may be that the well meaning concern has created a process thatto too many young people sounds like a stream of words, the meaning of which they understand but the implications of which they havenot processed. On paper it all sounds well and good.

In reality the police are required when dealing with a young person to go through amore lengthy process than when dealing with an adult, yet are often dealing with people who are less capable of maintaining focus onthe implications of what is happening. 11) In this case, Corporal Drummond appears to have done an admirable job in engaging the young person in order to make anassessment of his ability to appreciate what he was being asked. The interview started at around 8:30 am. She is solicitous toward theyoung person, takes note of his bloody nose and asks him how he’s feeling.

There is no effort on her part to be intimidating. She tells theyoung person that she has to go through a rather lengthy form. She makes it clear that if he is having trouble understanding anything he

should stop her. At points she rephrases what has been said and tries to avoid the mechanical reading of a form. 12 ) She tries to break up the monotony of the process. She takes note that he is chewing his fingernails and says, “You’re not going to have any nails left.” He acknowledges that. She responds, “You don’t have to stop on my account. Aren’t your fingers getting sore?” She then gets back to business. She tells the young person about his right to retain counsel and to get advice from a lawyer right away.

When he says that he doesn’t want a lawyer, Corporal Drummond on her own initiative it seems, follows the recommendation of Peter Harris and Justice Miriam Bloomenfeld in the Youth Criminal Justice Act Manual. The corporal asks why the young person did not want to speak to a lawyer.

The authors of the text suggest that this is really the relevant question whenever a young person waives the right to have a parent or lawyer present. 13 ) “ In the context one must always ask the rhetorical question: what would cause a youth to voluntarily agree to waive the right to have the power imbalance adjusted in his or her favour and to refuse the opportunity to consult trusted adults and counsel and have them present to offer support at a time of great anxiety and stress” YCJA Manual p. 7-19 14 ) Corporal Drummond went beyond merely a rhetorical question and put it directly to the young person so that he would address that issue himself.

Why would anyone not want a lawyer, especially if the lawyer’s services are free? It’s a question that to an adult observer may sound like a no brainer. To a young person, there may well be other distractions. 15 ) In this case, the young person replied, “I don’t know. Doesn’t really matter. I’m just going to get one when one when I go to court.” 16 ) The Constable asked again, to make sure. He said, “Ah, no.” 17 ) She then went on, to say, “Okay. So you have decided not to have a lawyer present at this time, but you can change your mind at any time.

If you change your mind, tell me and all questioning will stop until you have a lawyer present.” 18 ) The young person responds, “Yeah”. 19 ) Corporal Drummond reiterates. “You’ve decided not to talk to a lawyer at this time, but you can change your mind at any time. If you change your mind, tell me and all questioning will stop until you’ve talked with a lawyer and decided if you want the lawyer here with you. You understand?” 20 ) The young man says “Yeah”. 21 ) The corporal asks about calling a parent and he says no.

Then she repeats the comment about stopping the interview if he changes his mind. “So, I guess, just to reiterate, at any time if you change your mind about wanting to call someone for some advice… you know… if it’s T., your parents or a lawyer… just let me know. Okay.” 22 ) There really isn’t much more that Corporal Drummond or any other officer could do at that point.

The young man has said clearly that he doesn’t want to talk with a lawyer or to have a parent present. 23 ) At this point in the process, a person would be entitled to assume that while he or she has waived the right to have someone there, the right can be invoked at any time. All he has to do is to tell the Corporal that he wants to speak with someone and all questioning will stop. That’s what was said. 24 ) Corporal Drummond then goes on to have the young person sign the required forms indicating that he does indeed understand that he is waiving the right to have someone present.

She once again inquires as to how he’s feeling and explains what the interview is going to be about.

25 ) When the issue of sexual assault is raised, the young person says that he just wants to make it clear that he didn’t assault anyone. It seems as though he wants to make a statement on his terms with no questions. Corporal Drummond explains the seriousness of the charge and puts to him some of the evidence she believes implicates him in the incident. 26 ) The young person at page 30 of the transcript says, “Just pointless talking to you.” The corporal asks why. He says, “Why? Because this is… this is going nowhere.

I need the lawyer.” The officer doesn’t respond to that. 27 ) She then asks if he wants a Kleenex. She reassures him that when something like this happens there are two people who know what happened, and there are two sides to each story. She tells him that they have her side and asks him once again what happened. At this point, he appears to have forgotten about his earlier comment saying that he wanted the lawyer.

While not explicitly talking him out of getting a lawyer, the comments may have had that unintended effect and distracted him from the request. 28 ) The protections of s. 146 have resulted in the requirement for officers to make a series of inquiries before interviewing a young person. The issue is not over once the inquiries have been completed. 29 ) Here, a young person was made aware of his rights by an officer engaging in her duties scrupulously ensuring that those rights were understood. He waived the right to have a lawyer present with him.

In this case, that was a conditional waiver given on the understanding that should he at any time ask for a lawyer the questioning will stop. At page 30, he said, he wanted a lawyer. 30 ) Both parties to the interview seem to have become distracted at that point. A waiver of the protections under s. 146 must be clear and unequivocal. When it is waived in this kind of conditional way, it can then be invoked again. At that point, the waiver must again be explicit.

Here a comment was made that suggested rather clearly that the young man wanted a lawyer. 31 ) That statement cannot be a kind of talisman to ward off the police. The mere mention of a lawyer would not have to bring an interview to an immediate halt. When, as here, the waiver was given on the understanding that the interview would stop if a lawyer was requested, when a lawyer or other adult is requested, one of two things should happen. Either the interview should be stopped in its tracks or the young person should be asked to confirm whether indeed that is what he wants.

Being distracted and going back to the interview is not an option given the significance of those protections. 32 ) If at the outset it must be clear and explicit that a young person wants to give a statement without a lawyer, it would stand to reason that if the young person later in the process asks for a lawyer, believing that it will bring the questioning to a stop, that request cannot simply be ignored. The same considerations regarding the imbalance of power are involved. It may well be that the young person only realizes the extent of that imbalance once the interview has got underway.

An adult can be questioned after a lawyer has been requested. Diligent efforts have to be made. Young people are different and the protections afforded them recognize that. There should be no requirement for a young person to stand up to an authority figure, such as a police officer, and demand that questioning stop until a lawyer is obtained. 33 ) In this case, once the young person made the request for a lawyer to be present, the waiver was no longer in effect.

From that point onward the interview was undertaken in contravention of his rights under s. 146. 34 ) Section 146(6) provides that where there has been a technical irregularity in complying with requirements of s. 146, the court may still allow the statement as evidence if the judge is satisfied that the admission of the statement “would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.” That provision does not apply to the requirement that the statement be made voluntarily. 35 ) A technical breach in this context would be one that did not result in the principle of enhanced procedural protection being diminished in the particular case.

It has been acknowledged that taking a statement from a young person can, for the police, be a complicated process. (A Guide to the Youth Criminal Justice Act , 2012, Tustin and Lutes, p. 237.) 36 ) Given the number of things that have to be done in specific ways, it is not hard to imagine how something could be innocently overlooked. A possible example set out in the Youth Criminal Justice Act Manual, might be the failure to have the young person initial

all pages of a written waiver. That would be a technical matter if the court is satisfied that the waiver was voluntary and fully informed. The purpose of s. 146 is to adjust the power imbalance. If the defect in the procedure is one that does not diminish the effectiveness of the process in achieving that goal, the defect may be procedural. 37 ) In this case, the waiver of the right to speak with a lawyer and to have a lawyer present was given following the assurance that questioning would stop if a lawyer were requested. The young person is entitled to rely on that assurance.

Even if his request for a lawyer was, as here, made in a less than entirely forceful way, the interview could not simply proceed. It doesn’t mean that it has to be stopped. The officer would be entitled to make a further inquiry as to whether that is indeed what the young person wanted. Given the purpose of s. 146 to adjust the power imbalance, the onus is not shifted to the young person to make diligent efforts to get a lawyer or to insist that the interview stop. 38 ) The defect here was not merely procedural.

The continuation of the interview in light of the young person’s reference to wanting a lawyer, on page 30 of the transcript, went to the root of the protections afforded by s. 146. That part of the statement is not admissible. Jamie S. Campbell Judge of the Provincial Court of Nova Scotia