R. v. F.J., 2013 MBPC 25

R. v. F.J. (R.G.T.) Citation No. 2013 MBPC 25 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Sheila R.M. Seesahai, for the Crown - and – ) ) R. v. F.J. (R.G.T.) ) ) Daniel Manning, for the Accused ) ) Judgment delivered: ) April 26, 2013 Restriction on Publication: Please note that the Youth Criminal Justice Act, section 110(1), which prohibits the publication of any information that may identify a person as having been dealt with under this Act, applies to this judgment. HEINRICHS, P.J.

Ruling on the Voir Dire THE ISSUE [ 1 ] Was the comment, “I might know where the purse is”, made by F.J. (R.G.T.), ( hereinafter referred to as F.J. ), while in the back of a police car, to an officer who had just been involved in detaining her, a spontaneous utterance, as contemplated by section 146 (3) of the Youth Criminal Justice Act (herein after referred to as YCJA)? THE LAW [ 2 ] Section 146 (3) of the YCJA is as follows: “The requirements set out in paragraphs (2)(

b) to (

d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.” WHAT LED UP TO THE COMMENT? [ 3 ] Shortly after midnight on Sept. 4, 2010, Acting Patrol Sergeant Errol Brown of the Winnipeg Police Service volunteered to

assist on a call concerning a robbery that had just been reported to have occurred at the intersection of Portage Avenue and Wall Street in the City of Winnipeg. He was in the vicinity of the Polo Park Shopping Centre, driving solo, in a marked police car. The radio reports and the computer in his car told him that there were a number of suspects in their twenties, that they had walked and or ran from the scene on foot, and that other officers were now at Portage and Wall to assist the victims.

He then heard that a number of individuals had been seen running through a yard in the 600 block of Valour Street, which was not too far from the location of the robbery. He was north of Portage Avenue at the time and when he heard a further radio report about a group of females walking westbound on Wolever Avenue, he immediately drove to the area.

When he was approaching Denson Place, in the area where Wolever Avenue turns south, he saw a group of five or six females walking west. [ 4 ] Sergeant Brown called in to his communication centre to advise them that he had spotted the group and then exited his police cruiser. It was approximately 12:55 a.m. He told the group of females that he was detaining them with respect to a robbery investigation, explaining that it had just occurred at Portage Avenue and Wall Street. He asked if they understood. No one replied.

He was trying to keep the group close together, to make sure no one left; two of them separated from the others and, in his words, "I had to kind of corral them and have them brought back to where everyone was standing." At this point in time, another police car pulled up and Constables Tokariwski and Lazarus joined him. He quickly had them look after two individuals from the group.

The officers placed the two, who turned out to be J.G. and D.S., in the back of their cruiser car. [ 5 ] Sergeant Brown still had control of the other four females and was aware from his radio contact that other patrol units had been asked to assist him. He then made radio contact to see if the officers at the scene of the robbery could give him a better description of the suspects. He was provided with a physical description of a female person, described as being large and aboriginal in appearance, who was definitely involved.

The description best matched one of the four remaining females and so he asked for her identification. She identified herself as F.J. Constables Olazo and Phan had now arrived in their police car, and Sergeant Brown asked them to look after F.J. The officers escorted her to the vicinity of their car. While it is not entirely clear, due to the less than satisfactory note taking of Constable Olazo, the Court is satisfied that he did place F.J. in the back of their police car, after searching and handcuffing her.

He then gave her the notice of arrest, read her the right to counsel, asked her if she wanted to have counsel and then read her the police caution. From speaking with her and getting her date of birth, Constable Olazo was also aware of the fact that F.J. was a youth; however, at this time he did not go through the youth waiver form with her. Constable Olazo and his partner then left F.J. in the back of their car and rejoined the remainder of the group standing outside the police cars.

All of this took place sometime between the officer's estimated time of arrival of 12:53 a.m. and 1:45 a.m. [ 6 ] In the meantime, Sergeant Brown had given A.H., one of the three remaining females, her notice of arrest and placed her in his cruiser car. This left the two remaining female suspects outside while he was waiting for another police car to come. Once the car had arrived, the two additional officers were able to assist with the last two suspects.

While all of this was happening, Sergeant Brown was on his radio, getting updates about the victims, and was asking for any other information the investigating officers might be able to give him. [ 7 ] At some point between 1:15 a.m. and 1:30 a.m., Sergeant Brown was standing with Constables Olazo and Phan near their police car and was discussing what should happen next. He heard a knocking sound coming from the police car being driven by Constables Olazo and Phan.

As he was the closest officer to the vehicle, he went to the driver's side rear passenger side and opened the door to see why F.J. was knocking on the window. F.J. stated to him, "I might know where the purse is." [ 8 ] Sergeant Brown also testified to the fact that he had, at one point in time, asked A.H. if she knew where the purse was. This conversation took place outside and happened after Constables Olazo and Phan had taken custody of F.J. Sergeant Brown conceded that it was possible that F.J. heard his question, as he is not completely sure where the other officers were with her at the time.

However, he also testified that as they were standing outside with the police vehicles running, it was highly doubtful that F.J. would have heard his conversation with A.H.

SECTION 146 OF THE YCJA [ 9 ] What the law sets out as requirements before a statement can be admitted as evidence in an adult proceeding;

section 146 of the YCJA has additional requirements to meet before the statement of a youth can be admitted into evidence. As well, in R. v. H. (L.), 2008 CarswellNS 454 , 2008 SCC 49 , the S.C.C. concluded that the standard of proof throughout

section 146 must be that of proof beyond a reasonable doubt, and explained why as follows: “The provisions of the YCJA should be read harmoniously. In accordance with the presumption of coherence, s. 146 must be interpreted in light of the YCJA ’s declaration of principles (s. 3). Those principles emphasize fairness and proportionality consistent with young persons’ higher levels of dependency and lower levels of maturity and the related need for greater procedural protections.

Section 146, in its entirety, is aimed at fulfilling one of the objectives of the legislation - to offer enhanced protection to young persons and ensure they

are treated fairly. In practical terms, adopting the single standard ensures that the trial judge's mind is properly directed to this task.” [10] The S.C.C. also explained that there should be a purposive

interpretation of

section 146. As noted in the Alberta ProvincialCourt decision of R. v. D. (C. L.) 2012 ABPC 26 , 2012 CarswellAlta 170, 2012 A.B.P.C. 26, this means that police officersmust be given a reasonable opportunity to comply with

section 146 or the exception in section 146 (3) is meaningless. In that case thecourt heard evidence that the process to comply with the informational components of

section 146 took 3 – 4 hours and was done at aninterview room in the police station while being recorded by video. [11] The Ontario Court of Appeal, in R. v. W. (J.) (ON CA), 1996 CarswellOnt 3149, 30 O.R. (3d) 342, 109 C.C.C (3d) 506, 2 C.R. (5th) 233, 92 O.A.C. 299, used the Shorter Oxford English Dictionary in defining "spontaneous", as used in thissection, when it read the exact same way in the YOA.

It means, they said, "arising, proceeding, or acting entirely from natural impulse,without any external stimulus or constraint." With the youth they were dealing with in that appeal, the police had stopped some youngoffenders outside a business premises at 2:00 a.m. Questions that were asked about what they were up to and if the police could lookinside their knapsack led to a comment by one of the youth about a crowbar inside the bag and who it belonged to.

This, the Courtfound, was a statement induced by external stimula and was not voluntary. [12] Another example of a Court finding a statement to a police officer to not be spontaneous is R. v. W. (D.P.) 2008 SKPC 54, 2008 CarswellSask 792, 2008 S.K.P.C 54, 319 Sask R 242, where the police officer was at the scene of a hit and run accident. The officer had noted damage to the youth's vehicle and was aware that the description of the vehicle and license plate number of thesuspect vehicle matched his.

When the officer was asking the youth questions at the driver’s side window, he blurted out, "I know, Iknow, I fucked up." As a result, this comment was found to not be spontaneous. [13] Examples of where comments made to police officers have been found to be spontaneous include: 1. R. v.

S. (C.L.) 2011 MBQB 22 , 2011 CarswellMan 15, 2011 M.B.Q.B 22, [2011] 6 W.W.R. 494, where the trial judgeconcluded that the questions and answers being asked of the youth, who was now in the back of the police cruiser, were still being askedof him because the police had reason to believe that he was a witness, and not a suspect. 2. R. v. D. (C.L.), as cited earlier, where a youth had been arrested and given his Charter rights, right to counsel and police caution.One of his responses was, "I know why you are here".

Then, on the way to the police station, while the two officers were talking to eachother, the youth stated, from the back of the police car, "I heard he died twice. I felt bad about that." The Court found that the policehad not yet had an opportunity to reasonably comply with

section 146 and that these were spontaneous utterances. 3. R. v. O. (K.) 2004 BCPC 210 , 2004 CarswellBC 1666, 2004 B.C.P.C 210, this is a case where, while the police wereescorting a youth, who had been arrested, to another police car for transport, the youth stated, "I didn't hit him, seriously I didn't." TheCourt ruled that this was a spontaneous utterance, done without prompting; said on his own volition. 4. R. v. L. (K.) 2005 ONCJ 339 , 2005 CarswellOnt 3284, 2005 O.N.C.J. 339, 66 W.C.B. (2d) 585, where a youth wasarrested at gunpoint.

The youth, together with other individuals, had allegedly been involved in approaching the driver of a van at gunpoint and stealing the vehicle. He had been read his rights and now the officer had him in the back of his police car and was waiting atthe police station before parking the car. No conversation was taking place between the two of them when the youth stated, "I did notknow the car was stolen and the only thing I know was the guys I was with had a beef with someone in the van. I don't know what thebig deal was.

It was not a real gun, it's a pellet gun." [14] The Court found that there was no "oppressive atmosphere in the cruiser" or anything else that made this an involuntarystatement, in spite of the fact that the youth had earlier been arrested at gun point. As well, the Court found that the officer was notunder any obligation to interrupt the youth and stop him from speaking - or caution him again - when he started to make the comments. The police officer had said nothing during this time. In the circumstances, it was a spontaneous utterance.

CONCLUSIONS [15] The Court is satisfied that given the situation Acting Patrol Sergeant Brown encountered that morning - being alone with six

possible suspects in a robbery and then relying on officers as they came on scene to separate and hold onto each of them - he did the best he could to keep control of the situation. When it became apparent that the description he had received concerning one of the suspect’s best matched F.J., he separated her and let the first available officers put her in their cruiser car. He possibly still needed these officers to help him on the scene and so they were discussing and assessing the situation when he heard the knock on the window, which he responded to.

While the Court has heard that a Youth Waiver Form can be completed in a matter of minutes, not hours, this was not the time or place for Constable Ozano to even try and complete it. He did the best he could with the Charter rights, right to counsel and police caution. As well, F.J. was treated appropriately by the officers; there were no threats or assaults on her when she was placed in the back of the cruiser car. On her own initiative, without prompting, she knocked on the cruiser car window to get the attention of the officers.

Her comment was clearly voluntary and whether she heard - or did not hear - the conversation between Acting Patrol Sergeant Brown and A.H., in these circumstances, does not matter. The police officers had not asked her about the purse; they were not asking her any questions at all. In spite of being under arrest, being handcuffed and being in the back of the police car at the time, the knocking on the window and the offering of information about the purse was

an act of "natural impulse". The Court is satisfied that it is similar to the other cases where statements were blurted out by accused youth as they were being walked to another police car or where they were in the back of a police car being transported. When F.J. knocked on the window of the car and said, "I might know where the purse is" it was not as a result of any “external stimulus or constraint". This was a spontaneous utterance and will be admitted into evidence. Original signed by: HEINRICHS, P.J.