Her Majesty the Queen - v. -, 2022 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2022 SKPC 17 Date: April 12, 2022 Information: 991166121 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - T.S. Appearing: S. Fillo For the Crown V.

Harvey For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . DECISION ON VOIR DIRE S.S. ANAND, ACJ I. INTRODUCTION [ 1 ] On July 10, 2021, thirteen-year-old T.S. was charged with committing an aggravated assault on another young person by

stabbing him in the neck with a knife. After speaking with witnesses at the scene of the stabbing, police determined that the person responsible for this incident was T.S., and they located an address for him. When police arrived at his house, T.S. opened the door and was put under arrest. T.S.’s mother came to the door, police informed her of the charge, and she became upset. She asked T.S. questions about the weapon that was involved in this incident, and he responded by making certain inculpatory statements directed to her but in the presence of police officers.

The matter in dispute is the admissibility of these statements. [ 2 ] In resolving this matter, the first and most significant question is whether T.S. made the statements to persons in authority. This issue is important because if T.S.’s statements were made to persons in authority, the enhanced procedural protections contained in s.146 of the Youth Criminal Justice Act , SC 2002, c 1 [ YCJA ] apply, and the police failure to adhere to these additional requirements, may render T.S.’s statements inadmissible in his trial.

The Crown contended that T.S.’s statements were made to his mother and, on the facts of this case, his mother should not be considered a person in authority. As a result, Crown counsel maintained that the protections contained in s.146 , pertaining to statements made to persons in authority, do not apply. Defence counsel did not take issue with the proposition that T.S.’s mother was not a person in authority.

Nevertheless, counsel did submit that the presence of the police officers when T.S. made his statements means that the statements were made to them, and because of their status as persons in authority, the protections contained in s.146 do apply.

Essentially then, I was asked to address the following key issue: Can an accused’s statement be considered “made to a person in authority” when it is not directed to, or prompted by, that person? [ 3 ] The second issue arising in this case only does so if I rule that T.S.’s statements, directed to his mother in the presence of the police, constituted statements to the police.

Section 146 of the YCJA provides that the enhanced procedural protections contained in the provision do not apply, and the statement is admissible, if the statement is an oral one made spontaneously by the young person to a person in authority before that person in authority has had a reasonable opportunity to comply with the legislation. Consequently, were T.S.’s statements spontaneously uttered before the police had a reasonable opportunity to comply with the protections contained in s.146 of the YCJA ?

Although Crown counsel took the position that T.S.’s statements fell under the spontaneous utterance exception, defence counsel championed the opposite view. [ 4 ] The voir dire pertaining to the admissibility of T.S.’s statements commenced on December 16, 2021, and I heard evidence from only one witness, Constable Vossen of the Saskatoon Police Service. After he gave his evidence, the voir dire was adjourned to February 9, 2022 to allow counsel to make submissions.

After I heard counsel’s submissions, I indicated that I would adjourn for an hour with a view to giving an oral ruling concerning the admissibility of T.S.’s statements. I chose to proceed in this fashion, as opposed to adjourning proceedings for a lengthier time to give a written decision, to avoid further delays in completing T.S.’s trial.

These trial delay concerns were particularly pressing because T.S. had been denied judicial interim release. [ 5 ] Immediately after rendering my oral decision and reasons, I indicated to counsel that I also intended to subsequently give them a written judgment and for good reason. The need to produce a written ruling was not prompted by any uncertainty in the law governing when statements will be deemed spontaneous. A significant body of case law already provides guidance in this area.

Moreover, there exists jurisprudence outlining the factors that should be considered when determining whether an individual is a person in authority. But there is a paucity of case law indicating whether a statement needs to be directed to, or prompted by, a person in authority to be considered a statement made to a person in authority. In fact, counsel were unable to cite any authorities involving an accused directing a statement to a private individual knowing that the police could overhear the statement.

As a result, grappling with such a fact pattern, and being asked whether a statement in this scenario should be considered as one made to the police as persons in authority, is unique. The written reasons, provided in the paragraphs that follow, reflect the analyses expressed in my oral decision and further flesh out those analyses, particularly pertaining to the issue of what kind of statements can be considered “made to a person in authority.” [ 6 ] In these written reasons, I first produce a recitation of the evidence presented in the voir dire .

Next, I examine the common law governing the admissibility of statements made by accused persons. I proceed to apply this common law to the evidence and conclude that T.S.’s statements directed to his mother in the presence of the police are properly construed as statements made to the police who are persons in authority.

Having found that s.146 of the YCJA applies to T.S.’s statements, I then examine this provision, and the jurisprudence interpreting it, and conclude that T.S.’s statements are inadmissible because the statements were not uttered spontaneously before there was time for police to comply with the YCJA ’s enhanced procedural protections. II. THE EVIDENCE PRESENTED IN THE VOIR DIRE [ 7 ] Constable Vossen of the Saskatoon Police Service testified that he and his partner, Constable Atkinson, responded to a report of a stabbing.

They arrived on scene and, using information obtained from witnesses there, they determined that the person responsible for the stabbing was T.S. [ 8 ] Forty minutes later, Constables Vossen and Atkinson arrived at T.S.’s dwelling, which was a townhouse. As the officers approached, Constable Vossen noticed someone standing in the window. As he got closer, he could see the individual’s face, and he realized that it was T.S. Constable Vossen took his flashlight out and flashed it at T.S. so the young person could see him.

The officer then asked T.S. to come to the door, and he complied with this request. [ 9 ] Once T.S. opened the door, Constable Vossen told him he was under arrest for aggravated assault and that T.S. would be handcuffed with the assistance of Constable Atkinson. While the officers were handcuffing T.S., he began to yell for his mother. She came to the door and asked what was happening. [ 10 ] Constable Vossen heard Constable Atkinson tell her why T.S. was being arrested and what charges he was facing. T.S.’s mother then became quite upset and began yelling at T.S.

She asked him where the knife was, and he told her that he had thrown it and left it at the scene of the stabbing. She continued to ask him where it was, and then he told her that it was in the sink and there was nothing on it because he had washed it. T.S.’s mother told Constable Vossen that she did not want the knife in the house. She directed Constable Vossen to the sink, and she asked T.S. to identify the knife in question. T.S. responded by saying it was the one with a red

handle. Constable Vossen went to the sink and seized a paring knife with a red handle. [11] On cross-examination, Constable Vossen admitted that, prior to handcuffing T.S., no one read him his rights and warnings. Infact, T.S. was never given a caution that anything he said could be used against him. According to Constable Vossen, T.S. was only toldthe charges for which he was being arrested before he was put in handcuffs and the yelling started. III.

THE COMMON LAW AND STATEMENTS MADE TO PERSONS IN AUTHORITY [12] The common law makes a distinction between the admissions of an accused person and the confessions of an accused person.An admission of an accused person is a statement made by him or her to someone who is not a person in authority. Such a statement ispresumptively admissible without the necessity of a voir dire (see R v S.G.T., 2010 SCC 20 at para 20, [2010] 1 SCR 688).

As noted bySopinka J. in R v Evans, (SCC), [1993] 3 SCR 653 at para 28: “Its admissibility rests on the theory of the adversarysystem that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of theunreliability of his or her own statements.” A confession of an accused person is a statement made by him or her to someone who is aperson in authority. Persons in authority are individuals who carry with them the coercive power of the state.

The actions and words ofsuch state agents may be more apt to overwhelm the will of an accused (to elicit them to speak, and, perhaps, even to provide a falseconfession) than the actions and words of non-state agents (R v Singh, 2007 SCC 48 at para 40, [2007] 3 SCR 405). As a result, thecommon law has established special rules governing the admissibility of confessions that are designed to ensure that accused are treatedfairly and to guard against the admission of unreliable statements.

These special rules are often referred to collectively as the confessionrule or voluntariness rule, and they apply to accused of any age. For young people, there are additional statutory pre-requisites that mustbe met before a youth’s confession can be admitted into evidence at trial, and the additional pre-requisites will be discussed later in thisjudgment. [13] The modern version of the confession rule was articulated in R v Oickle, 2000 SCC 38, [2000] 2 SCR 3 [Oickle].

In this case,the Supreme Court of Canada held that, for statements made to a person in authority to be admissible at trial, the Crown must establish,in light of all the circumstances and beyond a reasonable doubt, that the will of the accused to choose whether to speak has not beenoverborne by inducements, oppressive circumstances, or the lack of an operating mind.

In addition, there must not be police trickery thatunfairly denies the accused’s right to silence (see, also, R v Coaster, 2014 MBCA 108 at para 19, 317 CCC (3d) 339 and R v J.D. andD.B., 2019 ONSC 195 at para 72). [14] So, the confession rule imposes a significant burden on any prosecutor who wishes to tender an accused’s statement at trial,but the rule only applies if the accused’s statement was made to a person in authority. [15] The seminal case on the person in authority concept is R v Hodgson, (SCC), [1998] 2 SCR 449 [Hodgson].In Hodgson at para. 48, the Court articulates the following principles regarding persons in authority: Though no absolute definition of ‘person in authority’ is necessary or desirable, it typically refers to those formally engaged in the arrest,detention, examination or prosecution of the accused.

Thus, it would apply to persons such as police officers and prison officials orguards . . . Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and couldtherefore influence or control the proceedings against him or her may also be persons in authority. That question will have to bedetermined on case by case basis . . . The issue as to who is a person in authority must be resolved by considering it subjectively fromthe viewpoint of the accused.

There must, however, be a reasonable basis for the accused’s belief that the person hearing the statement[emphasis added] was a person in authority. [16] The above quoted last line from Hodgson bears special comment, especially when one considers defence counsel’ssubmissions at the conclusion of the voir dire in the present case and the evidence heard at that hearing. The last line from Hodgsonrefers to the person who heard the accused’s statement potentially being a person in authority.

There is no additional explicit requirementthat the person who heard the statement also had to be the interrogator who prompted the statement or had to be the person to whom thestatement was directed.

Therefore, this passage provides some doctrinal support for defence counsel’s proposition that, when an accusedmakes an inculpatory statement, provided he or she is aware that a person of authority is present, and reasonably considers that individualto be a person in authority, the statement should be considered “made to a person in authority.” The statement does not need to bedirected to, or prompted by, the person in authority. [17] If I accept this proposition advanced by defence counsel, I must conclude that T.S.’s statements directed to his mother shouldbe construed as statements made to the police, who were persons in authority.

The evidence tendered in the voir dire in the present caseindisputably establishes that T.S. was aware of the presence of the police at the time he uttered his statements, as they were in the processof arresting him and putting handcuffs on him. The only reasonable inference to draw from the evidence was that T.S. quite reasonablyconsidered the police to be persons in authority. The police did not question T.S., but they did overhear the answers he provided to hismother’s questions. [18] There are other passages in Hodgson that support defence counsel’s proposition.

Numerous paragraphs in the decision refer tothe person in authority as a receiver of the accused’s statement as opposed to a questioner who prompted the statement (see, for example,paras. 14, 34, 35, 36, 38, 39, 41, 42, 43, 45, 46, and 47 of Hodgson). [19] In addition, there is dicta from the Ontario Court of Appeal decision in Hodgson that could be seen as supportive of defencecounsel’s position.

The Court of Appeal ruling, which was upheld by the Supreme Court of Canada, albeit without explicit reference tothis point, seemed to contemplate that the mere presence of a conventional authority figure at the time when an accused made aninculpatory statement should put the trial judge on notice that a voluntariness voir dire might need to be held (see para. 11 of Hodgson). [20] Nevertheless, a literal approach to the question of what kinds of statements should be considered made to persons in authority

would lead to the conclusion that T.S.’s statements were not made to such persons. A literal approach would mandate that onlystatements directed to persons in authority be construed as statements made to persons in authority. T.S.’s statements were directed to hismother, who counsel agreed could not, on these facts, be considered a person in authority. [21] The Supreme Court in Hodgson strongly eschews a formalistic approach to defining who might be considered a person inauthority (see para. 36 of Hodgson).

Therefore, one could argue that I should, in like manner, reject a formalistic approach todetermining what kinds of statements should be considered statements made to a person in authority. [22] Although this argument holds great appeal, what I found most persuasive in helping me to resolve this interpretative disputewere the policy objectives animating the relevant principles of law.

It must be remembered that the confessions rule, of which the personin authority requirement is an integral component, is predicated upon two main policy objectives: the need to ensure the reliability of anaccused’s statement and the need to ensure fairness, in particular fairness in the guise of the principle of self-incrimination, by guardingagainst improper coercion by the state (see paras. 17-23 of Hodgson). [23] Precluding an accused’s statement from being considered “made to a person in authority,” merely because the person inauthority did not pose the question that prompted the statement or because the statement was not directed to the person in authority, risksjeopardizing the fulfillment of the policy objectives underpinning the confessions rule.

As the Court noted at para. 28 of Hodgson, “The[confessions] rule is generally not concerned with conversations between private citizens that might indicate guilt, as these conversationswould not be influenced or affected by the coercive power of the state.” Yet, it is not difficult to contemplate situations in which thepresence of the police and the exercise of their power may impact the nature of conversations between private citizens. [24] The present case constitutes just such a situation.

In this case, the only reasonable inference to draw is that the conversationbetween T.S. and his mother conducted in the presence of the police was affected by the coercive power of the state in the guise of thepolice arrest of T.S. His mother very likely would never have had reason to question T.S. in the manner that she did had it not been forthe arrival of the police at the townhouse and their actions in arresting her son. [25] Although the evidence presented in the voir dire does not establish that the police intended to manipulate the situation inwhich they found themselves, a narrow

interpretation, whereby only statements directed to persons in authority qualify as statementsmade to persons in authority, could encourage police manipulation in future cases with adverse consequences.

This type of manipulation,involving police engineering their confrontations with accused to ensure that they occur in the presence of family and friends, with aview to hoping that the latter elicit statements from the accused that the police could overhear, may have deleterious effects as far as theputative reliability of accused’s statements and fairness to accused are concerned. [26] The Supreme Court has observed that, in construing the component aspects of the confessions rule, judges must ensure thatthey get the balance right by not unduly frustrating the effective investigation of crime (see Oickle at paras. 33 and 57 and R v Paterson,2017 SCC 15 at para 24, [2017] 1 SCR 202).

It must be kept in mind that the broader approach to the kinds of statements that should beconsidered statements made to persons in authority advocated by defence counsel would not necessarily render inculpatory statementsmade by an accused to a private citizen in the presence of the police inadmissible.

To obtain admission of such a statement, if it weredeemed made to the police as persons in authority, at least in a case involving an adult accused and in the absence of any Charter issues,the Crown would simply have to demonstrate that the accused’s will was not overborne in the context of all of the circumstances thatexisted at the time the statement was made and that admission of the statement was not obtained by police trickery that would shock thecommunity.

It is difficult to conceive how these additional requirements would lead to unduly frustrating the effective investigation ofcrime committed by accused. [27] Although there are even more requirements that must be met before a statement made by a young person to a person inauthority can be admitted into evidence, these enhanced procedural protections for youth should not play a role in curtailing the types ofstatements that qualify as being made to persons in authority.

The enhanced procedural protections afforded to youths regardingstatements made to persons in authority, which will be outlined and discussed in more depth in the next

section of the judgement, arerooted in the special characteristics of young people.

The Supreme Court has observed that, “Teenagers may . . . be more susceptible tosubtle threats arising from their surroundings and the presence of persons in authority.” (R v J. (J.T.), (SCC), [1990] 2SCR 755 at 767.) The Court has also noted that the additional safeguards, put into place by Parliament pertaining to youth statements,must recognize . . . the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect youngpersons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressureand influence[.] (R v L.T.H., 2008 SCC 49 at para 3 [L.T.H.]) Indeed, if anything, the higher levels of dependency and lower levels of maturity associated with many young people, as well as theirrelated need for greater procedural protections in their interactions with persons in authority, further bolster the argument that the kind ofstatements that should qualify for this protection should be broad. [28] Consequently, I reject the narrow, formalistic approach advocated by Crown counsel to the types of statements that should beconsidered made to persons in authority.

Instead, I accept defence counsel’s proposed approach to such statements. I hold that anaccused’s statement can be considered “made to a person in authority” even when the statement is not directed to, or prompted by, theperson in authority.

Therefore, an accused’s statement will be deemed “made to a person in authority” even when it is directed to, orprompted by, a private person as long as the person in authority overhears the statement and the accused has subjective awareness of theperson in authority’s presence and reasonably considers him or her to be a person in authority. [29] Applying this approach, the statements made by T.S. to his mother in the presence of police officers were, in fact, statementsmade to persons in authority, namely the police officers. Therefore, the protections of s.146 of the YCJA apply to T.S.’s statements.

IV.

SECTION 146 OF THE YCJA AND THE ADMISSIBILITY OF THE STATEMENTS [ 30 ] The text of s.146 of the YCJA makes clear that its most robust protections pertain to statements made by young persons to persons in authority.

Section 146 reads as follows: 146

(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.

(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless (

a) the statement is voluntary; (

b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that (

i) the young person is under no obligation to make a statement, (ii) any statement made by the young person may be used as evidence in proceedings against him or her, (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise; (

c) the young person has, before the statement was made, been given a reasonable opportunity to consult (

i) with counsel, and (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and (

d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

(3) 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.

(4) A young person may waive the rights under paragraph (2)(

c) or (

d) but any such waiver (

a) must be recorded on video tape or audio tape; or (

b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

(5) When a waiver of rights under paragraph (2)(

c) or (

d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.

(6) When there has been a technical irregularity in complying with paragraphs (2)(

b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if 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.

(7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.

(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.

(9) For the purposes of this section, a person consulted under paragraph (2)(

c) is, in the absence of evidence to the contrary, deemed not to be a person in authority.

[31] Despite the length of s.146 of the YCJA, the provision can be summarized quite concisely. Section 146(7) is the onlysubsection that extends some additional protection to youth who make statements to persons who are not persons in authority. Thissubsection provides that a youth statement made to a person not in authority may nevertheless be inadmissible if the young personsatisfies the judge that the statement was made under duress. The rest of s.146’s protections only apply to youth statements made topersons in authority.

These protections, and how they compare to the safeguards enjoyed by adult accused, were discussed by RothsteinJ. at para. 94 of L.T.H. in the following terms: The requirements of s. 146 are substantially broader than those under the Canadian Charter of Rights and Freedoms. A young personmust be advised of the right to silence and warned of the potential use of any statement against him or her, as well as of the right toconsult with counsel and a parent and to have those persons present while a statement is made (s. 146(2)(

b) YCJA). If any of theserequirements are not satisfied, the statement will automatically be inadmissible (s. 146(2) YCJA). In contrast, an adult only has to beinformed of the reason for arrest and the right to retain counsel (s. 10(

a) and (

b) of the Charter). Police may question an adult who hasretained counsel in the absence of that legal adviser, unless the accused asks for counsel to be present. “Police persuasion, short ofdenying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” . . . In the case ofyoung persons, however, any statement made by the young person is required to be made in the presence of counsel and any other personrequested by the young person, unless the young person desires otherwise (s. 146(2)(b)(iv) YCJA).

If the police do not comply with the enhanced procedural protections noted by Rothstein J., the statement made to them by a youngperson will be inadmissible in the trial of the young person, except in respect of oral statements if they are made spontaneously to thepolice before the police officer has had a reasonable opportunity to comply with s.146’s requirements (s.146(3) of the YCJA).

In addition,the enhanced procedural protections that apply to youth statements made to persons in authority can be waived by young people, but thewaiver must be recorded on video or audio tape or must be in writing (s.146(4) of the YCJA). If the waiver is not recorded as mandateddue to a technical irregularity, the young person’s statement may still be admissible (s.146(5) of the YCJA).

Likewise, s.146(6) of theYCJA permits a youth statement to be admitted if the enhanced procedural protections noted by Rothstein J. have been breached providedthat the breach is a technical irregularity and the Court is satisfied that admission of the statement would not bring into disrepute theprinciple that young persons are entitled to enhanced procedural protection. Section 146(8) allows a court to rule admissible anystatement or waiver by a young person in certain circumstances involving the young person holding himself or herself out to be eighteenyears of age or older.

Finally, s.146(9) makes clear that an adult person consulted by a youth, prior to the youth making a statement to thepolice, is, in the absence of evidence to the contrary, deemed not to be a person in authority. [32] Most of the above noted provisions were not put in issue by counsel in the present case. Defence counsel did not argue thatT.S.’s statement to his mother was made under duress. Indeed, it would have been difficult to make out that claim, especially since T.S.chose not to testify in the voir dire.

Crown counsel did not argue that there was any type of waiver of T.S.’s enhanced proceduralprotections under s.146 or that any breach of these protections was due to “a technical irregularity.” Nor was a misrepresentation of ageby T.S. involved in this case. [33] However, the applicability of s.146(3)’s exception to the YCJA’s enhanced protections for oral spontaneous statements madeby a young person to a person in authority was an issue. Crown counsel contended that the officers did not have an opportunity to adviseT.S. of his rights and warnings under s.146 before he made his statements.

Defence counsel argued that T.S.’s statements were notspontaneous, largely because of the presence of the police.

Defence also submitted that the police had the time to recite the appropriatecautions but chose not to do so. [34] At the outset, it is important to remember that, for s.146(3) to apply, the young person’s statement to a person in authoritymust be both spontaneous and uttered before the police had an opportunity to give the YCJA cautions. (See R v B.C.W. (1986), (MB CA), 27 CCC (3d) 481 at 485 (Man CA) and R v A.N., 1998 ABPC 48 at para 16 [A.N.] Both decisions interpret theidentically worded statutory exception contained in s. 56(3) of the Young Offenders Act, RSC 1985, c Y-1 [YOA].) In addition, for theexception to apply to allow the admissibility of the youth statement, the Crown has to prove beyond a reasonable doubt that both pre-requisites have been met. (See R v W. (J.) (1996), (ON CA), 30 OR (3d) 342 at 346 (Ont CA) [W. (J.)] This case alsoinvolved the identically worded statutory exception contained in s. 56(3) of the YOA.) [35] Defence counsel’s argument that the mere presence of the police officers rendered T.S.’s statement nonspontaneous, despitehaving some foundation in jurisprudence, is difficult to understand and even more difficult to apply.

In W. (J.) at paras. 7 and 8, theOntario Court of Appeal endorsed the following definition of “spontaneous” for the purposes of the youth justice legislation in issue: [Spontaneous means] . . . “Arising, proceeding, or acting entirely from natural impulse, without any external stimulus or constraint.” This[definition] seems very apt in the context of the [legislation] . . . An external stimulus need not be a question or directive from a person inauthority. The mere presence of that authority in certain circumstances could be considered a stimulus giving rise to an unnaturalresponse or reaction.

On the other hand, the mere presence of a person in authority cannot, in and of itself, be considered as defeatingspontaneity. The Court of Appeal did not give any further guidance on when the mere presence of a person in authority would negate the spontaneityof an accused’s statement. Counsel suggested that any time a young person made a statement shortly after being arrested and in a state ofheightened anxiety, that statement was the result of a stimulus and should not be considered spontaneous. However, counsel herselfadmitted that everyone who was arrested experienced heightened anxiety.

Taking her argument to its logical conclusion, any statementmade by a young person immediately upon arrest should be deemed nonspontaneous. It is clear from the jurisprudence interpretings.146(3), and its predecessor provision in the YOA, that courts have not endorsed this latter proposition (see, for example, R v M. (C.J.)

(1986), (MB KB), 43 Man R (2d) 138 (Man QB)). [36] What the above quoted passage from W. (J.) does make clear is that a youth statement prompted by an external stimulus willmean that the statement is not spontaneous within the meaning of s.146(3) of the YCJA. Moreover, the passage also clarifies that thestimulus need not emanate from the person in authority. In R v A.N., the mother of a youth who had learned that the police suspected herson of having committed a break and enter brought him to the police station. She then directed him to tell something to the police officeron duty.

The youth responded by making an inculpatory statement to the officer. Judge LeGrandeur ruled that this statement was given inresponse to an external stimulus, specifically the direction of the youth’s mother. Consequently, he held that the youth’s statement wasnot spontaneous. Because the police did not give the youth the appropriate YCJA cautions, prior to him making his statement, the Courtruled that the youth’s statement was inadmissible (A.N. at para. 17). [37] I see no reason why Judge LeGrandeur’s reasoning would not be dispositive of the s.146(3) issue in the present case.

Just asoccurred in A.N., in the present case, T.S.’s statements were not spontaneous but rather were given in response to an external stimulus,the prompting of T.S.’s mother. [38] Given my conclusion that T.S.’s statements were not spontaneous within the meaning of s.146(3) of the YCJA, and thattherefore the spontaneous oral statement exception does not apply, it is unnecessary for me to determine whether the police officers hadtime to give T.S. his YCJA cautions before he made his statements. Nevertheless, I can, and shall, resolve this issue.

According to thevoir dire evidence, the police officers had the time to inform T.S.’s mother why he was being arrested, and she had the time tosubsequently ask T.S. a series of questions. These facts suggest that the police may have had sufficient opportunity to give T.S. at leastthe rudiments of the s.146 caution, such as advising him of the right to silence and of the right to consult with a parent and counsel beforemaking a statement, yet this was not done.

Without additional evidence about how long the officers took to arrest and handcuff T.S., theduration of their interaction with T.S.’s mother, and how short the duration of time was from T.S.’s questioning to the making of hisinculpatory statements, the Crown cannot establish beyond a reasonable doubt that T.S. uttered his inculpatory statements before thepolice had an opportunity to give him the YCJA cautions. As a result, T.S.’s statement is inadmissible at his trial. V.

CONCLUSION [39] Although the issue that I was called upon to decide in this case was the admissibility of a young person’s statement, the firststep in this inquiry required me to resolve an issue that has implications for the admissibility of youth and adult statements.

Mydetermination that an accused’s statements can be considered “made to a person in authority” even when the statements have not beendirected to, or prompted by, that person ensures that a greater number of youths will have the protections of s.146 of the YCJA and agreater number of adults will have the protection of the confession rule than would have been the case had I ruled otherwise. Myadoption of a broad approach to the kinds of statements that should be considered “made to persons in authority” finds some support inthe dicta of the Supreme Court of Canada.

But, more importantly, this approach best addresses concerns about the reliability of suchstatements and best ensures fairness to accused while simultaneously not unduly hampering the investigation of crimes. [40] The above-mentioned policy concerns need to continue to inform the development of the law pertaining to the admissibilityof accused’s statements.

These concerns played a pivotal role in my holding that T.S.’s inculpatory statements were made to persons inauthority, namely the police. [41] For these inculpatory statements to be admissible at trial, the Crown needed to discharge a heavy burden under s.146(3) of theYCJA. The prosecution had to establish, beyond a reasonable doubt, that T.S.’s oral statements were spontaneously made, and that thestatements were made before the police had a reasonable opportunity to comply with the YCJA cautions. The evidence tendered in thevoir dire failed to meet this exacting standard.

As a result, I find that T.S.’s statements are inadmissible at his trial. _________________________ S.S. Anand, ACJ