Her Majesty The Queen v. B.R.J. DECISION ON STATEMENT VOIR DIRE Editorial Notice Identifying information has been removed from this electronic version of the judgment . JUDGE: The Honourable Anne S. Derrick, 2012 NSPC 25

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA R. v. B.R.J. 2012 NSPC 25 Date: March 23, 2012 Docket: 2364452, 2364455 Registry: Halifax BETWEEN: Her Majesty The Queen v. B.R.J. DECISION ON STATEMENT VOIR DIRE Editorial Notice Identifying information has been removed from this electronic version of the judgment . JUDGE: The Honourable Anne S. Derrick HEARD: March 16 and 19, 2012 DECISION: March 23, 2012 CHARGES: sections 344 and 267 (

b) of the Criminal Code COUNSEL: Gary Holt, for the Crown Claire McNeil and Mark Russell, senior law student, for B.R.J.

By the Court: Introduction [ 1 ] B.J. is charged that on or about September 20, 2011, he robbed D.J.A., contrary to

section 344 of the Criminal Code and that at the same time he committed an assault on D.J.A. causing him bodily harm, contrary to

section 267 (

b) of the Criminal Code . Although jointly charged with two other young persons, B.J. proceeded to trial on his own. His trial commenced with a voir dire on the issue of whether a statement he provided to police investigators complied with

section 146 of the Youth Criminal Justice Act , and was voluntary. [ 2 ] Voluntariness was not the focus of the voir dire and I do not find it to have been an issue. The real issue is

section 146 of the YCJA and particularly whether the right to counsel aspects of

section 146 were complied with. B.J.s’ Arrest [ 3 ] B.J. was arrested at his home on * in Spryfield on the evening of September 20, 2011 at around 10:40 p.m. Although Sgt. Stephen Calder, the arresting officer, recalled that he arrested B.J. for robbery and assault with a weapon, I find that other evidence indicates B.J. was arrested for robbery and threats. This is the recollection of another police officer at the scene, Cst. Robert Arab, and is what duty counsel was later advised. [ 4 ] Sgt. Calder and Cst. Arab were both members of the Quick Response Team for the Spryfield area. Sgt. Calder directed Cst.

Arab to provide B.J. with his Charter right to counsel and the police caution. This was done while Sgt. Calder wrapped up a conversation at the doorway of the B.J.s’ residence with B.J.s’ mother and stepfather. [ 5 ] Cst. Arab had been advised during his September 20 shift that B.J. was arrestable for robbery and theft of an IPod. He was not familiar with B.J. He drove to the B.J.s’ residence on *, met Sgt. Calder there and accompanied him to the front door. After B.J. was called to the door and Sgt. Calder informed him he was being arrested for robbery, Cst. Arab escorted him to Sgt.

Calder’s vehicle and read him his full Charter right to counsel and police caution from his notebook. The sufficiency of those rights and caution is not in issue. [ 6 ] Cst. Arab told B.J. he was under arrest for robbery and uttering threats. B.J. indicated he understood his right to counsel and said he did not want to speak to a lawyer. His response, delivered according to Cst. Arab in a matter-of-fact manner was that, no, he didn’t want to speak to a lawyer “because I don’t give a fuck.” This was not said in anger or emotionally, it was simply stated. [ 7 ] After this exchange, Cst.

Arab asked B.J. if he wanted his parents to go with him to the police station. He did not. The Drive to the Police Station [ 8 ] The rights and caution were given by Cst. Arab at Sgt. Calder’s unmarked police vehicle. When Sgt. Calder returned to his car, he placed B.J. in the front seat and drove him to the police station on Gottingen Street. He noted during the drive that B.J. was “quite upset.” He could tell this from his demeanor: B.J.s’ head was down and his shoulders were slumped. He was very quiet. According to Sgt.

Calder’s testimony, he was not “bawling” but a tear may have rolled down his cheek. [ 9 ] Sgt. Calder testified that the trip to the police station from B.J.s’ home had taken 10 – 12 minutes. He had a general conversation

with B.J. about the group he was associating with and the trouble they were getting into. He did not ask B.J. about the incident that had led to his arrest, made no threats or promises, and did not try to extract any information. It was “just small talk” is how Sgt. Calder described it . At the Police Station [ 10 ] Once at the police station, Sgt. Calder took B.J. straight upstairs to an interview room. He placed him in the room and waited for the GIS detectives to arrive. He thinks he probably told B.J. they were waiting for the other police officers to arrive.

He did not discuss the incident with him. [ 11 ] The GIS detectives who came upstairs were Cst. Burns and Cst. Beer. Sgt. Calder gave them a short briefing. He told them that he had had no conversation with B.J. on the way to the police station that would be of any interest to their investigation. He told them Cst. Arab had given B.J. his rights and caution. [ 12 ] After giving B.J. his rights and the police caution at * Cst. Arab next saw him in the interview room at the police station. He took up a position sitting outside the door. While waiting for the GIS members to arrive, Cst.

Arab asked B.J. again if he wanted to speak to a lawyer. B.J. had changed his mind, he did want to. The Call to Duty Counsel [ 13 ] On B.J.s’ behalf, Cst. Arab called duty counsel. It was 11:02 p.m. The lawyer who answered the phone identified himself as Rob Sutherland. Cst. Arab identified himself, informed Mr. Sutherland of B.J.s’ name and his date of birth and told him it was a “cell” matter which meant that the police intended to detain B.J. in custody and bring him to court the next day to go before a judge. [ 14 ] The evidence to this point is not contentious. It is what followed from Cst.

Arab’s contact with duty counsel and the subsequent interview of B.J. by Cst. Burns that raises the issues that are the subject of this voir dire. [ 15 ] Both Cst. Arab and Mr. Sutherland testified at the voir dire. Their evidence confirms that Mr. Sutherland informed Cst. Arab that he had already spoken to B.J.s’ co-accused. Although Mr. Sutherland, mindful of solicitor-client privilege, did not disclose the identity of this co-accused when giving his testimony, I know from the voir dire evidence that it was S.S. [ 16 ] Cst. Arab testified that Mr.

Sutherland indicated that as a result of speaking with S.S., he could only offer B.J. a partial exercise of his right to counsel. [ 17 ] Mr. Sutherland has no independent recollection of the conversations he had on the night of September 20, 2011, first with Cst. Arab and subsequently, with B.J. He referred, without objection, to log notes he made of his duty counsel calls. He testified that on September 20, prior to speaking with Cst. Arab, he had been called by Cpl. Kennedy to speak with another young person and did so. This was the call with S.S.

He finished that call, which started at 8:24 p.m., at 8:42 p.m. [ 18 ] At the time of the S.S. duty counsel call, Mr. Sutherland was informed there was a co-accused who had not yet been arrested. According to his notes, Mr. Sutherland informed Cpl. Kennedy that there would be a conflict situation if the co-accused was arrested that night. [ 19 ] It does not appear that Cpl. Kennedy and Cst. Arab had any communication as it was Mr. Sutherland who informed Cst. Arab about the conflict he found himself in having previously spoken to S.S.

[ 20 ] Mr. Sutherland testified he told Cst. Arab that due to his having fully talked to the co-accused, he could not fully advise B.J. It was Mr. Sutherland’s practice in circumstances of having given full legal advice to the first accused to only provide general, non-specific advice to any co-accused he subsequently spoke to. This general, non-specific advice covers right to silence and release. It does not involve any discussion about the facts or the accused person’s connection to those facts. [ 21 ] Mr.

Sutherland testified that where there is a conflict, it is also his practice, which he would have followed in this case, to advise the police officer that because he is unable to provide full legal advice the accused person is entitled to call a second lawyer, and that questioning should stop until the accused gets to make this second call. Mr. Sutherland added that if the police officer wants him to speak to the accused, he will do so. [ 22 ] It has been Mr. Sutherland’s experience that, in conflict situations, police officers will sometimes ask how to go about locating a second lawyer for the accused person.

He does not recall if Cst. Arab asked this. I find, on Cst. Arab’s evidence, that he did not. [ 23 ] Cst. Arab’s testimony painted a somewhat different picture of what occurred in the conversation he had with Mr. Sutherland. According to Cst. Arab, upon learning about the conflict, he told Mr. Sutherland he would terminate the conversation and find B.J. another lawyer. He recalls Mr. Sutherland was resistant to this suggestion and said he would speak to B.J. Cst. Arab testified that he pushed back, reiterating to Mr. Sutherland that it would be more prudent for him to contact other counsel for B.J. It was Cst.

Arab’s testimony that Mr. Sutherland’s response was to tell him that he was dictating which lawyer B.J. spoke to. [ 24 ] It was Cst. Arab’s evidence that Mr. Sutherland did not tell him that B.J. would need to contact another lawyer. As Cst. Arab told Mr. Sutherland upon hearing about the conflict that contacting another lawyer for B.J. is what he was proposing to do, I think it is unlikely that Mr. Sutherland would have raised this. I accept that it is his practice as duty counsel to do so in conflict situations but in this case, Cst.

Arab identified an intention to contact another lawyer so it would have been unnecessary for Mr. Sutherland to mention this. [ 25 ] As I noted earlier, Mr. Sutherland does not have an independent recollection of the conversations with Cst. Arab and subsequently, B.J. Cst. Arab on the other hand did appear to recall his conversation with Mr. Sutherland and I am satisfied to accept his evidence as reliable. [ 26 ] It was raised in cross-examination that Cst. Arab had written in his notes that it would be a “waste of time” for B.J. to speak to another lawyer. Cst. Arab does not think he said that to Mr. Sutherland.

He testified it was in his mind that it would be a waste of time or “redundant” for B.J. to speak with Mr. Sutherland and then another lawyer. Cst. Arab’s thought was that he would get the Yellow Pages and find B.J. another lawyer to speak with. He had previously run into the situation before where duty counsel had already spoken to a co-accused and he had obtained another lawyer through the Yellow Pages. He was “absolutely prepared” to do this in B.J.s’ case. On cross-examination he explained his note by saying that he thought if Mr.

Sutherland could not provide B.J. with the opportunity to fully exercise his right to counsel it made more sense, rather than have Mr. Sutherland speak with B.J., just to find B.J. a lawyer who did not have a conflict. [ 27 ] Cst. Arab was clear in his evidence: he was not indicating in his note that it would be a waste of time to arrange a second lawyer to talk to B.J. It was his evidence that this was what he wanted to do. I accept Cst. Arab’s testimony on this issue. [ 28 ] It was Cst. Arab’s evidence that he had never before met the resistance he encountered with Mr.

Sutherland when he proposed moving on to find B.J. another lawyer. Previously when Cst. Arab had told duty counsel he would rather find another lawyer, they had said okay and that had been the end of the conversation. In some cases, Cst. Arab had experienced duty counsel refusing to talk with the accused where they had already spoken to a co-accused. According to the Nova Scotia Legal Aid Telephone Duty Counsel Manual from October 2009 tendered into evidence through Mr. Sutherland, this was an option available to duty counsel. It was not Mr.

Sutherland’s practice to choose this option in conflict situations. [ 29 ] I think it is likely Mr. Sutherland challenged Cst. Arab’s plan to search the Yellow Pages for another lawyer for B.J. In his evidence, Mr. Sutherland referenced an Alberta case he had become familiar with which, he recalled, treated a police officer selecting a lawyer’s name for an accused from the Yellow Pages as an unnecessary interference with the accused’s rights to make the selection himself. He mentioned this case in response to being asked what his reaction would have been if Cst.

Arab had said he wanted to find another lawyer by going through the Yellow Pages. Mr. Sutherland testified that he would have been “surprised” by such a proposal as it is his understanding “from other provinces” that the accused has the right to pick out a lawyer’s name.

[ 30 ] This suggests to me that Mr. Sutherland would not have been amenable to Cst. Arab’s proposal of consulting the Yellow Pages and calling another lawyer for B.J. Armed with the belief, as expressed in his testimony, that B.J. was entitled to pick the lawyer he talked to, it is likely that Mr. Sutherland pressed for B.J. being given the opportunity to speak to him. [ 31 ] I find that Cst. Arab’s resolve to contact another conflict-free lawyer for B.J. faded in the face of Mr. Sutherland’s insistence that B.J. had the right to speak to him if he wanted to. Cst.

Arab relented and asked B.J. if he wanted to speak to Mr. Sutherland, which he did. He told B.J. that Mr. Sutherland had spoken to his co-accused and had a conflict. B.J. spoke with Mr. Sutherland on the telephone in the cubicle while Cst. Arab waited outside. The call concluded at 11:20 p.m. [ 32 ] Mr. Sutherland testified in detail about the comprehensive and densely constructed right to silence recitals he provides to accused persons which, he says, takes about 15 minutes to go through.

Calculating from the time lines I heard in the evidence, that would be about how long it must have taken on September 20 after Mr. Sutherland got off the phone with Cst. Arab and spoke to B.J. With a young person Mr. Sutherland also explains

section 146 of the Youth Criminal Justice Act . Otherwise he provides the same rights recital. [ 33 ] Mr. Sutherland testified that he would have explained the conflict issue to B.J. and that his advice was partial advice only because there would have been no discussion of the facts. [ 34 ] Cst. Arab’s decision to offer B.J. the opportunity to speak to Mr. Sutherland as Mr. Sutherland had urged seems to have been influenced in part by his understanding that the GIS officers would go through B.J.s’ rights with him again before they took a statement. Cst.

Arab testified he knew B.J. would have another opportunity to consult with counsel. When B.J. indicated he wanted to speak with Mr. Sutherland, Cst. Arab testified he was not going to deprive him of that right if that is what he wanted. It was Cst. Arab’s evidence that had B.J. said he wanted to talk to another lawyer, he would have facilitated his being able to do so. [ 35 ] As a trained police officer, Cst. Arab was aware about the issue of lawyers being in a conflict and not being able to advise an accused and co-accused in the same matter. Cst.

Arab did not explain the conflict/partial rights exercise issue to B.J. He simply informed him that Mr. Sutherland had spoken with a co-accused. [ 36 ] Cst. Arab testified that he saw nothing to indicate that B.J. did not understand what was going on. However he did not make any inquiries of B.J. about his school performance or marks or his prior involvement in the criminal justice system to ascertain his ability to understand the rights and caution given to him. [ 37 ] Mr.

Sutherland testified that his notes of the conversation with B.J. indicate that B.J. understood everything they discussed concerning the “second phone call”, the right to remain silent and the release plan. In the “Q & A” with Mr. Sutherland he noted that B.J. responded with “yes” to everything. The Interview by Cst. Michael Burns [ 38 ] The next development on the night of September 20 was the interview of B.J. by Cst. Burns. Cst. Arab assumes he would have spoken to Cst. Burns when Cst, Burns arrived as that would be his typical practice. He testified that he probably would not have done so in much depth.

He does not recall advising Cst. Burns that B.J. had received only a partial exercise of his counsel rights or the issue of providing B.J. with another lawyer. He was sure Cst. Burns would give B.J. his rights again “before the interview.” [ 39 ] By the time Cst. Burns went to interview B.J. at the police station, he had already monitored the S.S. interview conducted by Cst. Beers. S.S. was also a suspect in the robbery and assault. From monitoring the interview, Cst. Burns knew that S.S. had spoken to duty counsel. Cst. Burns used a standardized form - Statement of a Young Person - to review B.J.s’ rights.

It is apparent from his providing Sutherland’s name to B.J. during his review of the standardized form that he knew Sutherland was duty counsel that night. Cst. Burns knew there was only one duty counsel on for the province. [ 40 ] Although Cst. Burns does not recall being told about Sutherland having a conflict and only being able to provide B.J. with a partial exercise of his right to counsel, he must have known. He testified that before going in to talk to B.J. he knew that he and S.S. had spoken to the same duty counsel. Cst.

Burns was aware of conflict issues and the restrictions on lawyers advising co-accused on the same matter.

[ 41 ] Cst. Burns testified he did not know what B.J. had been read for rights before his contact with him. He was prepared to give B.J. an ample opportunity to call a lawyer if he wished to. [ 42 ] Before going through the standardized form, Cst. Burns learned that B.J. had only been arrested once before, four to five years earlier. B.J. advised that he had never been charged, only arrested. In response to Cst. Burns asking him if he “had ever dealt with the police in regards to questioning or anything like that before?”, B.J. told him: “No.” [ 43 ] B.J. told Cst.

Burns he had been “picked up for” robbery and threats. Cst. Burns set the record straight: “And it wasn’t for threats; it’s for assault, okay? And maybe assault causing bodily harm, okay?” He told B.J. he would “probably be charged with that, okay?” B.J. indicated he understood. [ 44 ] Cst. Burns went through the Standard Form quite quickly with B.J. indicating he understood. He was told he did not have to make a statement “now” even if he had “already dealt with police…” B.J. was told about his right to consult with a parent. Cst.

Burns said he understood B.J.s’ parents already knew he was at the police station (information that must have come from Sgt. Calder or Cst. Arab) and put it to B.J., “they didn’t want to come down tonight?” B.J. shook his head and confirmed he did not want them to be present. Reading from the Standard Form, Cst. Burns also informed B.J. he could give his statement to police with a parent and a lawyer present. [ 45 ] When he got to the portion of the form dealing with the right to counsel, Cst. Burns read the following: You’ve a right to retain and instruct counsel, which is a lawyer, in private without delay.

This means you can talk to and get advice from a lawyer now without the police present. The lawyer’s job includes telling you what your rights are and giving you advice about whether or not you should talk to the police or sign this form. Do you understand that? [ 46 ] B.J. said he did. Cst. Burns told him he understood B.J. had already spoken with counsel which B.J. confirmed. Cst. Burns continued: “Okay. You’re satisfied with what he was telling you?” B.J. nodded his head. [ 47 ] Shortly after this Cst.

Burns confirmed again that B.J. had spoken with a lawyer and was satisfied with what had transpired: “You said you were already satisfied with counsel?” When B.J. could not remember the name of duty counsel, Cst. Burns supplied “Sutherland” which B.J. said he thought sounded right. Cst. Burns told him he would “find out”. When B.J. confirmed in response to Cst. Burns’ inquiry that he did not want the lawyer to attend at the police station, Cst.

Burns advised him he could change his mind at any time. “If you change your mind, tell me and we’ll stop until the lawyer’s here.” B.J. said he understood this option. [ 48 ] Cst. Burns did not provide B.J. with the telephone numbers for contacting legal aid. He did not tell him he could call any lawyer he wished. These recitals in the form were not repeated to B.J. by Cst. Burns. On cross-examination it was Cst. Burns’ evidence that reading the phone numbers to young persons “does not make sense” to them.

I understood him to be saying these details go right over the heads of the young persons he interviews. [ 49 ] Cst. Burns went on to say the following to B.J.: “Okay. You’ve decided not to talk to a lawyer at this time, but you can change your mind at any time. That’s not really applicable because you already talked to a lawyer. Do you want to consult with your parent, an adult relative or another appropriate adult in private?” B.J. told him, no. [ 50 ] Shortly after this, having been told he could stop the questioning at any time if he decided he did want a parent present, B.J. told Cst.

Burns he did not want to make a statement. Cst. Burns then launched into a review of what he told B.J. was “a waiver of rights.” He informed B.J., “I’m just going to read them, and I’m going to get you to initial them. It just shows they were explained to you, okay?” B.J. dutifully initialed where required. [ 51 ] After Cst. Burns had reviewed with B.J. what he had indicated, that he did not want a lawyer or a parent present and that he knew he had the right to their presence, he started to ask B.J. about his earlier arrest. He then inquired about his marks, “Your marks decent?” B.J. told him: “All right.

Not the best.” Cst. Burns asked if he had passed the year before and he confirmed he had, from Grade 10 to Grade 11. These inquiries were not made before the review of the standardized form when they could have assisted Cst. Burns’ assessment of B.J.s’ ability to grasp what he was being told. Cst. Burns had entered the interview room at 11:19 p.m. He completed his

review of the standardized form at 11:30 p.m. It was after this that he inquired about B.J.s’ school performance. [52] Cst. Burns went on to ask about the other boys who were suspects in the incident. They were younger than B.J. When he got toasking B.J. for his version of the events, B.J. told him: “I don’t have to talk now. I ain’t talking.” Cst.

Burns acknowledged this andcontinued. [53] After some meandering through questions about what B.J. had been doing that night (“Just playing basketball”), his familyrelationships, whether he had been smoking “weed” that night or drinking (“No”), and noting that his hand was cut up, Cst. Burns left theinterview room briefly. When he returned he told B.J. he was not going to lie to him, “I’m not going to pull any punches”, and said: “Thiskid got stomped pretty good…He can identify you…We’ve spoken to other people that have been arrested for this.

They put you there aswell…They’re saying you’re the ringleader…It’s pretty serious shit.” B.J. indicated he was absorbing all this. [54] Cst. Burns then tried to get B.J. to identify with the victim and imagine if it was his sister who had been robbed or himself. Heasked him: “Is this like a planned fucking thing? Is it something you guys do all the time…” B.J. told him no. After this exchange, Cst.Burns succeeded in drawing a statement out of B.J., telling him “they’re saying it was your idea, and I’m not lying to you.” Cst.

Burnstestified on cross-examination that S.S. may have said that it was B.J.s’ idea, which he put to B.J. by saying “they’re saying it was youridea.” Law and Analysis [55] The burden rests on the Crown to establish beyond a reasonable doubt that the statement obtained from the young person wasvoluntary and complied with the requirements of

section 146 of the Youth Criminal Justice Act. If compliance isn’t satisfied, thestatement will be inadmissible. As I indicated earlier in these reasons, voluntariness was not made an issue in the voir dire and there is noevidence to indicate to me that the statement was not voluntary. [56] The issue in this case is B.J.s’ right to consult with counsel in accordance with section 146(2)(c)(

i) of the YCJA and to have had thatright “clearly explained to [him], in language appropriate to his…age and understanding” as required by section 146(2)(b)(iii). TheDefence submits that there was no waiver by B.J. of his rights and that the failure to comply with the requirements under

section 146 ofthe YCJA is not in the nature of a “technical irregularity” as contemplated by section 146(6). [57] As indicated in R. v. L.T.H., 2008 SCC 49 , [2008] S.C.J. No. 50, “Section 146 gives statutory expression to common lawrules and constitutional rights that apply to adults and to young persons alike…it reaffirms the right to counsel enshrined in s. 10 of theCanadian Charter of Rights and Freedoms.” (paragraph 2)

Section 146 is a recognition by Parliament that, …procedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account oftheir age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of policeinterrogators. (paragraph 3) [58] The Crown must discharge its evidentiary burden “by clear and convincing evidence” that reasonable steps were taken by thestatement-taker to ensure the young person understood his or her right to counsel.

The standard is proof beyond a reasonable doubt andwhere this is established, in the absence of evidence to the contrary, for the informational component of right to counsel, the judge isexpected to infer that the young person in fact understood his or her

section 146 rights. (L.T.H., paragraphs 6 and 8) [59] Compliance must be achieved by following an individualized approach, giving an explanation of the right to counsel using“language that is appropriate to the particular young person’s age and understanding.” (L.T. H., paragraph 22) This requires somethingmore than merely reading a standardized form. The police officer must also “acquire some insight into the level of comprehension of theyoung person concerned, since the mandatory explanation must be appropriate to the age and understanding of that young person.”(L.T.H., paragraph 27, emphasis in the original) [60] A young person can waive the rights accorded them in

section 146 but the validity of such a waiver is held to a very high standard.The young person must be shown to have had “a true understanding of the rights involved and the consequences of giving them up.”(L.T.H., paragraphs 40 and 41) A statement should not be admitted where the judge is not satisfied that the young person appreciatedthe consequences of waiving his or her right to counsel. (L.T.H., paragraph 46)

B.J.s’ Right to Counsel [ 61 ] B.J. was give his right to counsel as required by section 146(2)(b)(iii). I find he understood that right because he exercised it, telling Cst. Arab at the police station that he had changed his mind and wanted to talk to a lawyer. It is primarily in the implementation of that right that I find the problem in this case lies although there are informational failings as well. [ 62 ] Cst. Arab got the implementation of B.J.s’ right to counsel off on the proper footing. He contacted duty counsel. What was on offer through duty counsel was not optimum.

Duty counsel had earlier spoken with B.J.s’ co-accused. Cst. Arab recognized the problem this created and I find, wanted to obtain another lawyer for B.J. to speak to. He did not persist in the face of Mr. Sutherland indicating that B.J. was entitled to speak to him if he wanted to. Cst. Arab believed B.J. would be given another opportunity to contact counsel because he expected Cst. Burns would re-visit his counsel rights with him before taking the statement. [ 63 ] I find that the decision by Cst.

Arab not to pursue his original intention to obtain a conflict-free lawyer for B.J. to talk to clouded what B.J. understood about his options once Cst. Burns came into the picture. When that occurred, B.J. had exercised his right to talk to a lawyer but it was an incomplete and compromised exercise of his right. As held in R. v. Ward, [2010] N.S.J. No. 265 : …The mere fact that an accused or detainee has spoken with a lawyer does not fulfill the implementation component of s. 10(

b) if the lawyer, because of a conflict of interest, cannot fully discuss the situation with that person. In such a case, it cannot be said that an accused or detainee has received advice from counsel who is uncompromisingly dedicated to the interests of one person. (paragraph 47) [ 64 ] I know from Mr. Sutherland’s testimony that he would not have discussed the facts of the alleged offences with B.J. as he had given full legal advice to S.S. Cst. Burns knew going into the interview with B.J. that there was a conflict issue. He knew that B.J. and S.S. had both spoken to Mr. Sutherland. Notwithstanding this he followed up the right to counsel component of his

section 146 compliance by stating: D/Cst. Burns: I understand you already spoke with counsel? B.J.: “Yeah” D/Cst. Burns: Okay. You’re satisfied with what he was telling you? B.J.: (Nods head) [ 65 ] After this, Cst. Burns forged on. Shortly after confirming that B.J. had spoken to a lawyer, but had forgotten his name, Cst. Burns engaged in the following exchange: D/Cst. Burns: You’ve 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 we’ll stop until the lawyer’s here. Understand that? B.J.: Yes. D/Cst. Burns: Okay.

You’ve decided not to talk to a lawyer at this time, but you can change your mind at any time. That’s not really applicable because you already talked to a lawyer… [ 66 ] I find that D/Cst. Burns’ statement “That’s not really applicable…” immediately following his having told B.J. that he could

change his mind at any time about talking to a lawyer can only have been confusing. By this point, B.J.s’ rights were compromised by the failure to facilitate his being able to speak to a conflict-free lawyer, which Cst. Arab had viewed as an entirely achievable objective, and by the approach taken by Cst. Burns. Cst. Burns’ approach may have had the effect of leaving B.J. with the clear impression that by speaking with Mr. Sutherland he had exhausted his right to consult with counsel. [ 67 ] I find that Cst.

Arab should have pressed ahead with his original plan to get B.J. the benefit of advice from a lawyer without any conflict. I find that facilitating this by calling lawyers with after-hours numbers in the Yellow Pages would not have been inconsistent with B.J.s’ rights. It would have been a proper implementation of B.J.s’ rights. Cst. Arab had succeeded in doing this in the past so the likelihood of success was high. [ 68 ] Cst. Burns should have acted on his awareness of the conflict and implemented B.J.s’ second call to counsel.

He knew B.J. had only spoken with duty counsel and that duty counsel had a conflict. Instead he proceeded on the basis that B.J. was satisfied with that exercise of his rights. He did not ask himself how B.J. could be satisfied with something that was inherently unsatisfactory. He focused on going through the standardized form but whatever B.J. may have understood about the various components of that recital, he could not have understood that he was entitled to speak to a lawyer with no prior involvement in the case. Cst.

Burns did not tell B.J., even as the standardized form provided, that he could call any lawyer he wished. He left that

section of the form out of his recitals. In the circumstances, I do not find B.J. received “a clear explanation of his rights and options…” ( L.T.H. , paragraph 55 ) [ 69 ] And although Cst. Burns’ review of the standardized Statement of a Young Person informed B.J. about his rights under

section 146 of the YCJA , he was also told that while he could “change his mind at any time” about talking to a lawyer, “That’s not really applicable because you already talked to a lawyer.” [ 70 ] The situation was also confused by Cst. Burns’ earlier statement to B.J. that he could “talk to a lawyer, an adult or both of them and have them both here with you while you’re talking if we take a statement from you.” This language has been criticized as incorrect and lending to confusion. The taking of a statement was not an “if”, it was “an immediate certainty, not a subsequent possibility.” (R. v.

S.R.D.H., [2009] N.S.J. No. 341 (S.C.) , paragraph 32 ) This mistake in the process of advising B.J. of his rights would not be fatal by itself but it should be noted in assessing the

section 146 compliance issue. Were Any Errors Merely a “Technical Irregularity”? [ 71 ] The most significant errors occurred in relation to B.J.s’ right to counsel. The failure to accord B.J. his right to counsel was not a “technical irregularity” as contemplated by section 146(6) of the YCJA . I agree with my colleague, Campbell, Y.J.C.J., that what section 146(6) contemplates as a technical irregularity is an oversight that does not compromise the enhanced procedural protections afforded by

section 146. “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.” (R. v. A.J. M., [2012] N.S.J. No. 81 (Y.J.C.) , paragraph 36 ) [ 72 ] B.J. was a sixteen year old who had very limited experience dealing with police. The police interrogation process was unfamiliar to him.

Even if he had been more familiar with the criminal justice system, he still would have been entitled to have the police officers provide him with the protections contemplated by Parliament. As it was he was particularly vulnerable. The Crown has conceded that when informed by Cst. Arab about duty counsel having a conflict, B.J. would not have understood the legal implications of the situation he was in. Waiver [ 73 ] In these circumstances B.J.s’ purported waiver of his right to counsel was not a fully informed waiver.

I find that B.J. could not have properly understood that the legal advice he received was subject to the limitations imposed by the conflict issue. B.J. could not waive what he did not fully understand. As I have already indicated, the implementation of B.J.s’ right to counsel fell short of what is required because all it got B.J. was advice from a lawyer with a conflict. Conclusion [ 74 ] In conclusion, I find the Crown has not established beyond a reasonable doubt that

section 146 of the YCJA was complied with

particularly as it relates to B.J.s’ right to counsel. B.J. did not receive the enhanced procedural protections the legislation affords a young person whom the police wish to question. Accordingly, B.J.s’ statement to Cst. Burns is not admissible into evidence.