R. v. A.M., 2013 MBPC 12

CITATION: R. v. A.M. , 2013 MBPC 12 Date: 2013 01 15 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Neil Steen ) for the Crown ) and ) ) ) A.M. ) Matthew Raffey ) for the Accused ) ) ) ) Reasons for Decision delivered: ) January 15, 2013 HEINRICHS P.J. INTRODUCTION [ 1 ] By way of a motion filed December 5, 2012, A.M. has asked this Court to determine whether he was a youth or an adult between […] and May 24, 2011. He has been charged as an adult, with a total of 15 Criminal Code offences between these dates.

They have been laid on three adult Informations because the Altona Town Police and the Royal Canadian Mounted Police believed that, at all relevant times, A.M. was an adult. Answering this question may not be as simple as it sounds. [ 2 ] What we do know is that A.M. was born in Sudan. After his father died in the country’s civil war, he fled the country with his mother and siblings and ended up in a refugee camp in Uganda. Birth records and documentation were apparently lost when his father left for the civil war and did not return.

He, his siblings, and his mother ended up in a refugee camp without any proper documentation. Sometime later his mother was able, through the United Nations refugee assistance, to relocate to Canada. [ 3 ] A.M., his mother and three of his four siblings were assigned […] birth dates for various years; the Government of Canada Permanent Resident Card for A.M. at the time of his entry into Canada stated that his date of birth was […], 1993. That birth date is what the Police Officers relied on in charging him as an adult in the spring of 2011.

A.M. and his mother, D.M., now state that he was born on […], 1994; if so, he was under 18 years of age at the time of the alleged offences. The Court is being asked to accept that evidence and decline jurisdiction on these charges. THE LAW [ 4 ]

Section 2 of the Youth Criminal Justice Act (“ YCJA ”) defines “young person” as: “a person who is or, in the absence of evidence to the contrary, appears to be 12 years old or older, but less than 18 years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he was a young person ...” [ 5 ] Sections 14(1) and 3(1)(

b) of the YCJA mandate that a youth justice court, separate from that of the adult criminal justice system, is the court of exclusive jurisdiction when dealing with a “young person” and his alleged criminal offences; the charges are to be dealt with as provided for by the YCJA .

[6]

Section 658 of the Criminal Code of Canada, which is repeated with some necessary modifications in

section 148 of the YCJA,sets out what evidence can be accepted when determining the age of a person in circumstances where it is at issue. As this Court willrefer to most of the sections later on, it will be quoted in full now: 658(1)In any proceedings to which this Act applies, the testimony of a person as to the date of his or her birth is admissible as evidenceof that date.

(2) In any proceedings to which this Act applies, the testimony of a parent as to the age of the person of whom he or she is a parent isadmissible as evidence of the age of that person.

(3) In any proceedings to which this Act applies, (

a) a birth or baptismal certificate or a copy of it purporting to be certified under the hand of the person in whose custody thoserecords are held is evidence of the age of the person named in the certificate or copy; and (

b) an entry or record of an incorporated society or its officers who have had the control or care of a child or young person at or aboutthe time the child or young person was brought to Canada is evidence of the age of the child or young person if the entry or record wasmade before the time when the offence is alleged to have been committed.

(4) In the absence of any certificate, copy, entry or record mentioned in subsection (3), or in corroboration of any such certificate,copy, entry or record, a jury, judge, justice or provincial court judge, as the case may be, may receive and act on any other informationrelating to age that they consider reliable.

(5) In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or provincial court judge, asthe case may be, may infer the age of a child or young person from his or her appearance.

THE APPLICATION OF THE LAW [7] When a question arises concerning the age of an accused and the jurisdiction of the court, there is a two step process involved: 1. “The accused simply bears an evidential burden, in the same way as he does with respect to the raising of various defences, such asself-defence or provocation, to show that there is sufficient evidence to raise an issue as to the existence or non-existence of thejurisdictional fact of age.” 2. “...where an issue is raised by the defence as to the lack of jurisdiction – giving age which, if it did not exist, would mean thatexclusive jurisdiction to try the accused was vested in another court, the Crown then has the legal burden of proving that the jurisdictionof the court to try the accused is present...” [8] That legal burden is proof beyond a reasonable doubt.

This two step process is set out by Green J. in R. v. K.(P.A.), (NL SC), 1992 CarswellNfld 125, 103 Nfld. & P.E.I.R. 343, 326 A.P.R. 343, a 1992 Newfoundland Supreme Courtdecision. It has been quoted and followed in a number of Canadian jurisdictions since then, including in the Manitoba Court of Appealdecision, R. v. Desjarlais, (MB CA), 1994 CarswellMan 236, 92 Man. R. (2d) 236, 61 W.A.C. 236. THE EVIDENCE [9] At Court on December 10, 2012, A.M. and his mother, D.M., testified.

They confirmed the contents of the affidavits they hadaffirmed to on December 5 and 2, 2012, respectively, and provided further oral evidence. [10] In addition, six exhibits were filed: 1. An Agreed Statement of Facts; 2. A single page containing photocopies of A.M.’s: a. Manitoba Driver’s Licence photo identification; b. Manitoba Health Registration card; and

c. Manitoba Immunization Certificate. 3. A Manitoba Public Insurance letter, dated November 29, 2012; 4. Page 1 of an Altona Police Service Adult Statement, given by A.M. to the police on May 27, 2011; 5. A blue coloured Child Health Card, from the Ministry of Health, Government of Southern Sudan, for a child “A.M.”, with a birth date noted as […], 1994; 6. A photocopy of A.M.’s Government of Canada Permanent Resident Card, dated March 15, 2005, in Toronto. [ 11 ] As well, counsel agreed to two further statements as agreed statements of fact: 1.

During all three videotaped statements, as outlined in the Agreed Statement of Facts, neither the officer, nor A.M., had in their hands any identification documentation that they refer to during the interview. 2. Ray and Linda Loewen met D.M. and her children in March, 2005 and assisted her in getting her children registered in various schools. D.M. informed them, around this time, that the ages on their Permanent Resident Cards were incorrect. The Loewens attended, with D.M., to Immigration Canada on two occasions.

As a result of what they were told by Immigration Canada, they were not successful in having the birth dates changed. A.M. [ 12 ] A.M. testified that he was born on […], 1994 in the Sudan. He said he had always known this and couldn’t recall who told him or how he came to accept this as his birth date. He did recall, however, being in a refugee camp in Uganda and spending time at a nearby boarding school. It seemed to him to be for a very long time; he has some unpleasant memories of the time spent there. He testified that the languages spoken at the school were Arabic, mostly, and some English.

During his family’s time in Africa, his mother would speak to him and his siblings in Arabic. [ 13 ] A.M. was able to recall some details about his family’s arrival in Canada. They came into Canada on a plane and flew to more than one city. At some point in time, at an airport, his photograph was taken and his mother received a Permanent Resident Card with his name on it. This card eventually was given to him by his mother; a photocopy of it is now Exhibit # 6. Based on the information on the card, A.M. and his family arrived in Canada in March, 2005.

He testified that when he arrived in Canada, he did not speak English and did not know how to write out his name. [ 14 ] A.M. testified that he was aware of the fact that his mother had tried to change his birth date, as well as his siblings’ birthdates, shortly after they came to Canada. When A.M. applied for and received his Manitoba Drivers License, he used his Canadian Permanent Resident Card, with the […], 1993 birth date, in order to get the license.

He thought he may have only obtained his driver’s license this past September, that is, in the fall of 2012, but upon further questioning, he believed it may have been in 2011. It was quite evident that A.M. was not certain of any dates or time periods. [ 15 ] A.M. testified that he had little recollection of what happened on April 16, 2010, when he was questioned by the Altona Police Service with respect to a Liquor Control Act offence. He said that he provided them with some identification which had his birth date listed as […], 1993.

He admitted that when interviewed by the police officer that day, he confirmed that his birth date was […], 1993. [ 16 ] When A.M. was arrested by the Altona Police Service on April 23, 2011, he showed them a “Card”, meaning some identification, and agreed with the police that his birth date was […], 1993. He testified that he really doesn’t remember most of this, but agreed that the following exchange, as noted in Exhibit #1, the Agreed Statement of Facts, took place: Sergeant Turnbull: “When were you born?” A.M.: “1993.” Sergeant Turnbull: “1993. What month, what year?

Or what month, what day?” A.M.: “I don’t know the month. I don’t celebrate my birthday.” Sergeant Turnbull: “Okay. You don’t celebrate it. On your driver’s license there it shows […]/[…]. Is that what you go by?” A.M.: “Yeah.” Sergeant Turnbull: “Okay. So […]. Perfect.” [ 17 ] Similarly, when A.M. was arrested by the Altona Police Service on May 27, 2011, he gave them his “Card” for identification, and went along with the birth date listed on it, namely […], 1993.

A.M. agreed, under cross examination, that on all of the occasions when he went along with the police using this birth date, it was a lie; he knew that he had a different birth date. [ 18 ] As a result of his new charges on May 27, 2011, A.M. was not immediately released from custody. Instead, he was held in the Winnipeg Remand Centre for a number of days. When he made contact with legal counsel, the issue of his birth date was raised and as a result, his lawyer was made aware of his belief that his birth date was not […], 1993. D.M.

[ 19 ] D.M., the mother of A.M., testified with the assistance of an Arabic translator at Court on December 10, 2012. Tavga Ahmed, an interpreter from the International Immigrant Centre, explained that as she is Kurdish and from Iraq, and D.M. is from Sudan, the Arabic language spoken is somewhat different. This became evident during D.M.’s testimony, as the interpreter struggled with explaining the questions being asked in a way that D.M. could understand.

It was not as simple as translating every question asked or every answer given. [ 20 ] D.M. testified that the contents of the affidavit she had affirmed on December 2, 2012 were accurate to the best of her knowledge. That affidavit and her testimony in Court can be summarized as follows: 1. Her son, A.M. was born on […], 1994, at their home just outside of Yei, Sudan. 2. The day after she gave birth to A.M., she, her husband and the baby attended to the hospital in Yei, Sudan. 3. Her husband was the one who provided the hospital with the information about the name of their son and when he was born. 4.

They were told to come back in a week or a month for the baby's immunization. 5. D.M. re-attended the hospital or clinic in Yei with A.M. some six weeks later, on May 19, 1994. She was alone with her baby and at that time he was given various vaccinations. D.M. has confirmed that the Child Health Card, now Exhibit # 5, was filled out by a doctor at that time. 6. This Child Health Card was not given to her at the time, but was sent to her in Canada within the past year or two, at her request.

After A.M. became involved with these court proceedings, she called her family in Sudan, and they obtained the card from the hospital in Yei and sent it to her. 7. She and her husband were given a "Birth Card" for each of their children after they were born, including A.M.. Her husband kept the documents and had them with him when he left for the civil war. He was killed in that war in 1999 or 2000, and D.M. never saw the Birth Cards again. 8. In the spring of 2000, D.M. fled Sudan with her children. While she was on the way to a refugee camp in Koboko, Uganda, she gave birth to her daughter, Z. one day in March.

Sometime later, with the assistance of the Red Cross, she relocated to a refugee camp at Kampula, Uganda. 9. During their stay at this refugee camp, A.M. received a sponsorship to attend an orphan’s school called the B[…] and Primary School. A.M. was learning English while at the school. After A.M.'s year at the school, D.M. was given a “Progressive Report” for “Year 2004” from the school. 10. D.M. testified that she was not certain exactly when she received this report, but she had this document with her when they left the refugee camp and came to Canada in 2005.

She did not show the document to anyone when applying for refugee status or when arriving in Canada. A photocopy of that report is attached as Exhibit B to her affidavit. 11. On cross-examination, D.M. admitted that on this report the line next to where it says "Age" are the numbers […] slash […] slash 1994 ([…]/[…]/1994) in handwriting that is significantly larger and darker than anything else written on that page. D.M. testified that this is the way the report was when she received it from the school. She herself did not write this on the report. 12.

While at this refugee camp, D.M. attended to the United Nations Association of Uganda in order to complete a refugee application for her family. She did not have any documentation with her and she applied with the assistance of an Arabic speaking interpreter. When she was interviewed and the forms were completed, she and all of her children, with the exception of Z., were assigned […] birth dates. The years assigned were also not accurate. Z. was still very young and D.M. could confirm the season and year that Z. was born, so she was given a […], 2000 birth date. 13.

D.M. testified that she was given a bag with the letters "O-I-M" on it and in the bag were the documents completed at the United Nations Association of Uganda. This bag and the papers in it were what she gave to the Canadian Immigration officials when she arrived in Canada. She and her children flew into Ottawa first and then came to Winnipeg. It was at the Winnipeg airport that she met with Canadian Immigration and handed them the bag with the papers. As well, it was at this time that she and her children, including A.M., received their Permanent Resident Cards. 14.

D.M. and the children lived in Winnipeg for one month before moving to Altona. The children were placed in grades at school according to the ages they were given. Within a month or two, D.M., who could not speak English, went with Ray and Linda Loewen of the Seeds Church, to Immigration Canada. They went in order to tell them that her children were not as old as their Permanent Resident Cards said they were, in order to have the children put in lower grades at school. They were told that Immigration Canada could not fix it because she did not have any birth certificates or birth cards. 15.

D.M. was asked if she was going from memory when she testified that A.M. was born in 1994. She then tried to explain that she also believed that her son A.M. was born in 1994 because another woman who had a child at the same time had told her it was in 1994. THE EXHIBITS [ 21 ] The exhibits include Exhibit #1, the Agreed Statement of Facts, and Exhibit #4, the first page of an Adult Statement given to the Altona Police Service on May 27, 2011, which clearly show that A.M. led the police to believe, on three separate occasions, that his date of birth was […], 1993.

Exhibits #2, #3 and #6 include documents from Manitoba Driver and Vehicle Licensing, Manitoba Health,

Manitoba Public Insurance and the Government of Canada, which all show that A.M. was born on […], 1993. [ 22 ] Exhibit #5 is a blue coloured Child Health Card, which states it is from the Ministry of Health, Government of Southern Sudan and has handwritten notations on it with several different dates noted on it. THE EVIDENCE [ 23 ] The evidence that is, or is not, before the Court pursuant to

section 658 of the Criminal Code , is as follows: 1. The accused person, A.M., has testified; this is admissible as evidence as to his birth date; 2. A parent, D.M., the mother of the accused person, A.M., has testified and her testimony is admissible as evidence in determining his age; 3. (

a) There are no birth or baptismal certificates of any sort before the court; (

b) There is no evidence by way of entries or records of an incorporated society, or testimony from an officer of theirs, that had care or control of A.M. around the time that he came to Canada or before these offences were alleged to have been committed; 4. This Court can act on any other information received that it considers reliable; 5. This Court may infer A.M.'s age based on his appearance. ANALYSIS OF THE EVIDENCE [ 24 ] A.M. testified that he has always known his birth date was […], 1994. However, the Court can place little weight on this evidence.

He testified that he knew this was his birth date because he was told it was; yet he did nothing to correct the […], 1993 birth date when applying for his Driver's License or when being interviewed by the police on a number of occasions. It may well be that he believed he was stuck with the date because it was on his identification and his mother had been unable to change it, however there is no evidence he ever said or did anything to correct it himself.

According to the evidence, the first time he ever said anything about the discrepancy was when he was being held in the Winnipeg Remand Centre as an adult accused. As well, he was completely uncertain as to when he had actually obtained his driver’s license, giving several different answers. It is of note, though, that given the earlier birth date he was given by Immigration Canada, it does not appear that he took advantage of this to get a driver's license at an earlier time, as it appears that he did not get a license until the beginning of 2011. [ 25 ] Can the Court rely on his appearance to infer his age?

When he testified in December, 2012, A.M. would have been 18 1/2 years of age if his birth date is […], 1994 or nearly 20 years of age if his birth date is […], 1993. The best the Court could assess is that he was between 18 and 21 years of age at the time he testified and so no inference as to his age can be made in the facts of this case. [ 26 ] D.M.'s evidence is more difficult to understand and assess because of the language and translation difficulties. Some of her evidence was confusing, and perhaps inconsistent.

What was evident to the Court in all of her efforts to explain things, however, was that she was trying to tell her story as best as possible. Unlike the mothers who testified in two recent Ontario cases, ( R. v. E. (S.H.), 2007 CarswellOnt 4438 , 2007 ONCJ 308 , 74 W.C.B. (2d) 406 and R. v. C. (J.) , 2010 CarswellOnt 4177 , 2010 ONSC 3330 ) where the Court did not find them to be credible witnesses, this was a mother who was trying to explain, as best as she could, what had actually happened to her and her children, including A.M.. It did not appear that she was fabricating evidence to try and help out her son.

There was corroboration that she tried to have her children's birth dates changed legally, soon after they had arrived in Canada. She sought out help from the Loewen’s and went with them to Immigration Canada. As this is an agreed statement of fact, it is “other information” as contemplated by subsection (4) that this Court can - and must - rely on. [ 27 ] It is also evident that D.M. is not completely certain of the birth dates of her children, including A.M.. Her explanation of a female friend having a child around the same time as when A.M. was born is not reassuring in trying to determine his birth date.

This may be an entirely normal way of telling time or dates in her culture in Sudan, but it does little to help the Court. [ 28 ] The Progressive Report from the school A.M. attended in Uganda is puzzling. Why did D.M. not show it to any officials at the United Nations or to Immigration Canada? And why was the birth date changed or added at a different time?

These are significant unanswered questions and as a result the Court cannot rely on this document at all. [ 29 ] The Child Health Card from the Ministry of Health, Government of Southern Sudan appears to be an original document, and in spite of questions about what has been written on it and when, and the manner in which it was obtained and sent to Canada, it does support the fact that a child of D.M.'s with a name sounding like "A.M." was born in or near Yei, Sudan, in the spring of 1994.

It appears to be the kind of document that a hospital or clinic would have used to record this information and the handwriting and dates on it appear to have been written quite some time ago. The Court, therefore, finds that this document is also “other information” that is reliable. [ 30 ] All of the other documentary evidence in this case is clear that A.M.'s birth date is […], 1993. However, all of these documents are the fruit of the papers that were in the bag which D.M. brought from the United Nations Association of Uganda and presented to Immigration Canada.

What is clear from the Manitoba Health Card that is attached as Exhibit C to her affidavit is that […] birth dates where simply assigned to all of her family, except for Z.. It is obvious that those dates cannot all be right. In fact, there is only a slight chance that A.M. was actually born on […], 1993. CONCLUSION [ 31 ] The Court has found that there is some evidence that A.M. was born sometime in the first few months of 1994, and may well have been born on

[…], 1994. As a result, the Crown has not satisfied the Court beyond a reasonable doubt that A.M. was 18 years of age, or older, at the time of the alleged offences. Therefore, this Court declines jurisdiction on these 15 adult charges. _________________________ HEINRICHS P.J.