2011 QCCQ 4381, 2011 QCCQ 4381

Publication ban: The Youth Criminal Justice Act (RSC 2002 c 1) prohibits the publication of the name of the young person, or any other information that would identify the young person as a young person dealt with under this Act. ( subsections 110(1) and 111(1) YCJA ). LSJPA – 1117 2011 QCCA 4381 CANADA PROVINCE OF QUEBEC DISTRICT OF ... JN 0300 COURT OF QUEBEC YOUTH DIVISION No.: 525-03-044588-093 DATE: March 16, 2011 ______________________________________________________________________ PRESIDING: THE HONOURABLE JACQUES A.

NADEAU, J.C.Q. ______________________________________________________________________ THE QUEEN Complainant v. X (born on ..., 1989) Young person ______________________________________________________________________ JUDGMENT ON VOIR DIRE ______________________________________________________________________ [ 1 ] 1. BACKGROUND [ 2 ] The Court has before it a "Motion to exclude evidence" based on

section 8 of the Canadian Charter of Rights and Freedoms (protection against unreasonable search and seizure). This Motion was served on the Crown and entered in the record of the Court on December 6, 2010. [ 3 ] At the outset, the Crown prosecutor submitted to the Court that, in light of the allegations in the Motion, voir dires on the following issues were necessary:

(1) The validity and admissibility of the consent given by the accused to the seizure of his computer on February 26, 2007.

(2) The subsequent use of the computer evidence obtained from the search warrants dated October 9, 2007, and April 25, 2008. [ 4 ] The parties agreed to hold the first voir dire and to wait for the Court's ruling on the validity and admissibility of the evidence of the consent given by the accused to the seizure of his computer before holding the second voir dire. [ 5 ] 2.

THE EVIDENCE [ 6 ] The Crown prosecutor acknowledges that, because the accused's computer was seized without judicial authorization, the Crown bears the burden of proof, which must be met on a balance of probabilities. 2.1 Crown Evidence 2.1.1 Testimony of Mr. René Goudreau [ 7 ] René Goudreau was a police officer for twenty-one (21) years and has been a detective sergeant for the City A Police Force (hereinafter, "...") for about ten years.

At the time of the incident in February of 2007, he was an investigator at the ... neighbourhood police station and was the first respondent when the events took place. [ 8 ] Around 1:00 p.m. on Monday, February 26, 2007, his colleague Caroline Bernier, a community liaison officer assigned to schools, met with him regarding a situation at School A.

[ 9 ] At the end of the previous week, a young person had threatened to make a bomb to plant in the school. A meeting with the young person and his parents had been scheduled for that afternoon at the school. [ 10 ] After meeting with the commanding officer at the neighbourhood police station and carrying out a few technical checks with the SWAT team, he and Officer Martin Savard went to the young person's residence at about 2:00 p.m. [ 11 ] Mr. Goudreau informed him that they were police officers and that they had questions for him regarding his suspension from school.

He also told the young person that he could contact his parents. The young person called his mother, who came home immediately. [ 12 ] Once the mother was present, the officers asked the suspect questions about the gloves he had worn at school. He stated that he had worn them because of warts that had been frozen off with liquid nitrogen. His refusal to remove his gloves had apparently motivated his suspension from school. As for the rumour that he wanted to plant a bomb at school, the suspect said that it was simply a bad joke. [ 13 ] The officers then asked if they could proceed with a

summary inspection to verify whether there were any chemical products or anything that might resemble a bomb on the premises. This visual inspection turned up nothing. [ 14 ] The officers then stated that they would go to the school to clarify the situation with the school authorities at the meeting scheduled for 3:15 p.m. [ 15 ] Mr. Goudreau then met with the vice-principal of the school, who told him that the objective of the meeting was to expel the student from school. Subsequently, at 4:45 p.m., he met with Ms. A., the school principal, in her office.

She shared her concerns with him about the young person and the information she had received from a teacher that the young person wanted to build a bomb and blow up the school. She also indicated that she feared a reprisal after his expulsion. [ 16 ] Mr. Goudreau stated that he had grounds to believe that threats had been made and that he had decided to arrest the young person because of the way the afternoon had played out and the facts reported by Ms.

A, whom he identified as the main complainant. [ 17 ] Having received her complaint, Detective Sergeant Goudreau then entered a room adjacent to the principal's office where the young person and his parents were, where he arrested the young person for making threats. He believes that Officer Savard was also present at the time. [ 18 ] He explained the grounds for arrest, gave him the caution regarding the right to silence, and informed him of his right to counsel. [ 19 ] The parties went to the police station around 5:00 or 5:15 p.m. According to the witness' memory, the young person was not in handcuffs.

Photos of their entry into the station and of the interview room where the young person and his mother were brought were filed en liasse as Exhibit VD-1. [ 20 ] After reporting in to the neighbourhood police station commanding officer and to his superior in the investigations, the lieutenant detective of the operational centre, it was agreed that Mr. Goudreau would contact legal counsel, Mtre Fabienne Bouchard, to verify the issue of the young person's detention.

This call was made at 5:25 p.m. [ 21 ] It was agreed that the young person should be released on a Promise setting out conditions and on a Promise to Appear within thirty (30) days (see the documents filed en liasse as Exhibit VD-3). The young person was released at 9:00 p.m. [ 22 ] Sergeant Detective Goudreau allowed the young person to contact his lawyer, Mtre Louis Belleau, loaning him his personal cell telephone to do so. The young person's mother was still present. [ 23 ] Mr.

Goudreau, wondering about some online MSN chat conversations about bomb-making and the school suspension, sought to determine how to gather the evidence. [ 24 ] He contacted Frank Secondi from the SPVM's Technical Crime Unit, who explained that he had to obtain the computer for an expert assessment either by consent or by means of a search warrant. [ 25 ] A written statement was taken from the young person in the presence of his mother by Detective Sergeant Goudreau and Officer Colin, after which the Detective Sergeant repeated the caution regarding the right to silence. Mr.

Goudreau declares that this statement contained no admission regarding a bomb or threats to the school, but simply that the young person had chatted on MSN. This statement was not adduced as evidence. [ 26 ] Since there was no admission about a bomb, Mr. Goudreau explained to the young person and his mother that he had to seize the computer. [ 27 ] He explained the two (2) manners of proceeding – by consent or by means of a search warrant – to the young person and his mother, pointing out that consent would be faster. [ 28 ] The Consent Form is filed as Exhibit VD-2. Mr.

Goudreau read the form to the young person's attorney, the young person, and his mother. The document was signed by the young person, his mother as witness, and by Mr. Goudreau. Mr. Goudreau admits that he told the young person and his mother that the computer would be returned within fifteen (15) days because they had signed the Consent Form. He included an initialled, handwritten note to this effect at the bottom of the Promise to Appear (see Exhibit VD-3). He had received this information from the Technical Crimes Unit. [ 29 ] The young person, his mother, and Mr.

Goudreau also signed the documents adduced en liasse as Exhibit VD-3, the young

person having initialled each of the conditions appearing on the Promise. Mr. Goudreau states that he read these documents aloud to the young person and his mother. [ 30 ] He then ordered police officers to accompany the young person and his mother to the family home in order to seize the computer. [ 31 ] The documents on the seizure and the chain of possession of the computer are filed as Exhibit VD-4. The following day, Mr. Goudreau ordered Officer Martin Savard to bring the computer to the Technical Crimes Unit.

The computer was returned to the young person on April 18, 2007. [ 32 ] The request for assistance from the Technical Crimes Unit, completed by Mr. Goudreau, was filed as Exhibit VD-5 and states the objective of the search, which was the [ translation ] "MSN conversation between the young person and a colleague allegedly discussing the threats", a [ translation ] "site or recipe talking about bombs", and a [ translation ] "threatening letter to the school". A few months later, Mr.

Goudreau was informed that the computer contained a few videos about bomb-making in a language other than French. [ 33 ] On September 20, 2007, Mr. Goudreau received a phone call informing him that child pornography had been found on the young person's computer. He informed Detective Sergeant Bianchi of this fact (see the Event Report filed as Exhibit VD-6). 2.1.2. Testimony of Sergeant Jose De Los Rios [ 34 ] Mr. De Los Rios has been a police officer for nineteen (19) years and was an investigator at the Technical Crimes Unit for four (4) years.

His curriculum vitae is filed as Exhibit VD-7. [ 35 ] He explained the procedure for an expert assessment once a computer has been seized. In his role as an analyst, he received two (2) hard drives and one CD from Officer Munizega on April 16, 2007. He verified that they were in good shape and made an image copy of the hard drives using a write blocker. He sent the image copy to a folder in the Unit's server. [ 36 ] He carried out the analysis on September 19, 2007, pursuant to the order confirmed in the Request for assistance filed as Exhibit VD-5. He began by checking the files with JPEG extensions (photos).

About a dozen photos of young children in sexually explicit positions appeared in a Gallery View that contained about twenty photos in all. [ 37 ] He immediately interrupted his analysis and informed Mr. Goudreau and his immediate supervisor. He could not continue his analysis, as it did not target child pornography. [ 38 ] On September 24, after having been informed by Mr. Goudreau that the child pornography would be the responsibility of the Child Sexual Exploitation Unit, Mr. De Los Rios resumed his analysis of the bombing case by checking the files with DOC, RTF and VIDEO (MPEG) extensions.

He found nine (9) videos on the computer's hard drive referring to experiments with bombs. He found nothing concerning the online chat. [ 39 ] Regarding the fact that his name does not appear on the Chain of possession document filed as Exhibit VD-4, he explains that he did not handle the computer as such. Officer Munizega's name appears because he is the one who carried out the preliminary expert assessment of the three (3) computer media (hard disks and CDs) and then gave them to Mr. De Los Rios, who gave them back to him later.

De Los Rios did not have access to the seized computers. [ 40 ] His analysis lasted a total of twenty (20) hours. 2.2 Defence evidence 2.2.1 Testimony of the young person [ 41 ] The young person had attended School A since his arrival in Canada in 2004, when he was fifteen years old. He states that he had not had any past behavioural problems at school, and the school administration had never contacted his parents regarding any such matter before the events of February of 2007.

He denies that his parents had been called several times in the preceding months by the school authorities. [ 42 ] He explains that he had seen a dermatologist, who had used liquid nitrogen to freeze the warts off his hands. He decided to wear gloves to school to hide the burns caused by the freezing. [ 43 ] When a classmate asked about them, he told her that he had burned his hands while using liquid nitrogen to blow up the school. She laughed.

The young person states that he preferred to distract her with a joke because he was ashamed of the way his hands looked. [ 44 ] In his next class, the chemistry teacher got angry about the situation and, when he refused to take off his gloves, made him leave the classroom. He then explained his reasons for wearing gloves to the vice-principal, who asked him to get a note from the school nurse to this effect. [ 45 ] When he brought the note to the vice-principal, the principal arrived and told him to take off his gloves or go home. The young person chose to go home.

He states that he returned to school the next day with white bandages on his hands, and everything went smoothly. [ 46 ] He states that the police officers went to his home one week later. [ 47 ] On Friday, February 23, during a physics class, he was called in by the vice-principal, who sent him home. He arrived home at noon.

[ 48 ] Later, he heard the doorbell ring. He opened the door, and two (2) police officers told him that they had questions for him. He let them in. [ 49 ] They told the young person that they were there because there were rumours at school that he wanted to make a bomb to blow up the school. They did not tell him that he had the right not to answer their questions. The young person answered that it was a joke, telling them about the warts that he had had frozen off and the gloves.

He said that he had told the same joke while “chatting” with another friend who asked why he had been suspended from school. [ 50 ] The young person was upset to see the police at his house because in his opinion it was nothing serious. [ 51 ] He confirms that the police officers carried out a visual inspection of the premises before leaving for the meeting at school.

He went there with his mother in the police car. [ 52 ] At school, while inside an office with his parents and the two (2) police officers, the vice-principal told him that he was being expelled for making threats to the school and that they were concerned about the safety of the institution. At the end of the meeting, while he was still completely shocked, the police officers arrested him for making threats against the school. He was not told that he could remain silent or consult an attorney. [ 53 ] His mother was with him at all times during what he describes as a nightmare.

He does not remember having been handcuffed. [ 54 ] After their arrival at the police station around 5:00 p.m., the young person and his mother waited in the interview room for about thirty minutes. [ 55 ] He was not told of his right to silence or of his right to consult counsel. He was asked to provide a written statement, but he was in no state to do so. Officer Colin asked for permission to write down the young person's answers to Mr. Goudreau's questions. [ 56 ] Subsequently, Officer Colin read the statement aloud and the young person signed it without thinking.

He says that at the time he was in no state to think reasonably. It should be noted that his statement was not adduced as evidence. [ 57 ] Regarding his consent to seize the computer, it was after the young person made comments about the MSN chat that Mr. Goudreau stated that he wished to seize it. [ 58 ] The young person did not want to give him his computer because he had a lot of school work to do and he used the machine to make appointments with his friends. In short, he claimed that it represented a significant part of his life. [ 59 ] Mr.

Goudreau insisted, however, and tried to persuade the young person to sign the Consent Form, telling him that the officers would need the computer for two (2) weeks and that they wanted to check the MSN logs to confirm the young person's statements about his chats with his friend Y. [ 60 ] At Mr. Goudreau's suggestion, the young person's mother called Mtre Belleau. Mr. Goudreau lent them his cell phone and left the room during the phone call. The young person's mother handed the telephone to her son.

After a long conversation, Mtre Belleau advised him not to sign the consent form if there were bad things on the computer and to sign it if there were not. [ 61 ] He agreed to sign because Mr. Goudreau told him that the police needed the computer for only two (2) weeks and because he wanted to get out of the place he and his mother had been in for the last three or four hours. [ 62 ] Mr. Goudreau told the young person and his mother that if Consent Form VD-2 was not signed, the police would still seize the computer but that it would take quite a bit longer, perhaps a few hours or even overnight.

The young person interpreted this as a threat to make him sign the consent. [ 63 ] The young person states that he did not read Consent Form VD-2, which he signed on February 27. Mr.

Goudreau did not tell him that his hard disk would be copied. [ 64 ] The note stating [ translation ] "The computer will be returned within 15 days" at the bottom of the Promise to Appear filed as Exhibit VD-3 was included at the young person's insistence because he hoped to get his computer back as quickly as possible. [ 65 ] In cross-examination, the young person recognized that he might have made a mistake about the date the police officers visited his family's home, as they were there on Monday, February 26 and not Friday, February 23. [ 66 ] He also stated that he and his mother were at the station from 5:00 p.m. to 9:00 p.m., and that the police officers were not in the room for long periods of time, including for thirty to forty minutes after their arrival.

The seizure of the computer at the family home took place around 9:35 p.m. (see the document filed as Exhibit VD-4). [ 67 ] He signed the Promise to Appear (VD-3) as well as the Promise setting out the conditions and initialled the conditions he undertook to comply with. He admits that the conditions were explained to him but that he did not read them. 2.2.2. Testimony of the mother, Ms. B [ 68 ] The young person is her only son and was born in [Country A].

Since the couple's arrival in Canada with the young person in April of 2004, they have lived in the same apartment as tenants. [ 69 ] The young person got good grades and never received any letters from the school for bad behaviour. The parents never received any letters and were never called in to any meetings for such matters, and the subject of the young person's misconduct was never brought up during parent-teacher meetings. Her son had told her that he had been sent to the detention room on a few occasions,

but not for any problem relating to aggression. [ 70 ] Ms. B testifies that her son told her about the glove-wearing incident at school and of his subsequent suspension. She was told of this suspension on Friday, February 23. The vice-principal refused to meet with the young person and his parents on that day, so a meeting was scheduled for Monday, February 26. [ 71 ] She states that she had made a plan that day to meet her son in the afternoon at A metro station.

When he failed to appear, she called him and he told her that police officers were at their home. [ 72 ] The mother returned home and was told about the rumour that her son wanted to blow up the school. By the time she arrived, her son had already given his version to the officers. [ 73 ] She confirmed that the officers carried out a cursory search of the apartment to verify whether it contained any bomb-making ingredients before she and her son left in the patrol car for the scheduled meeting at the school.

The mother states that she was angry at the time, believing it to be a bad joke on her son's part. [ 74 ] Ms. B was present at the meeting during which her son was informed that he was expelled from school for threatening to blow it up. The police officers then intervened to confirm the young person's arrest and the the fact that they had to go to the police station. [ 75 ] She does not remember whether her son was given a caution regarding his right to silence.

She is more certain that her son was not told that he could consult counsel. [ 76 ] She was permitted to accompany her son to the police station around 6:00 p.m. She claims that her son had not been told that he had the right to silence when Officer Colin took his statement. [ 77 ] Subsequently, when the officers were trying to seize the computer and explaining the various ways this could be done, she realized that they should consult an attorney. She called her husband and asked him for Mtre Belleau's contact information. Once she had this information in hand, she contacted Mtre Belleau with Mr.

Goudreau's telephone (because the battery of her own phone had run out) and explained the situation to him. Mtre Belleau asked if he could speak with the young person, and she handed him the phone. [ 78 ] Ms. B did not really read the Consent Form VD-2 that she signed and does not remember whether Mr. Goudreau read it out loud. [ 79 ] According to Ms. B, the police officers did not explain how they would obtain the computer if the consent form was not signed. Mr. Goudreau stated that the objective of seizing the computer was to check the bomb-making sites and MSN chat logs.

She states that she spoke with Mtre Belleau on more than one occasion. [ 80 ] She acknowledges that she signed the documents filed en liasse as Exhibit VD-3 (the Promise to Appear and the Promise setting out the conditions of release). The Promise to Appear was explained by the police officers and she does not remember whether Mr. Goudreau read the conditions of release out loud. [ 81 ] The computer had been purchased by herself and her husband.

She does not remember whether the young person was present when it was purchased, and although he worked with it frequently, he was required to share it. 2.2.3 Testimony of the father, Mr. C [ 82 ] Mr. C states that he is more involved with his son's school than the mother is. He states that he attended a meeting with his son and Mr. D, the vice-principal of the school, four (4) to six (6) weeks before the events in late February. This meeting took place after the young person's suspension for having snapped his fingers while answering in class. [ 83 ] He describes how, while leaving the meeting, Mr.

D snapped his fingers in the young person's face, asking him if he understood that he was not allowed do that. [ 84 ] After the meeting, the father confronted the vice-principal about his behaviour. The vice-principal answered that the young person should be careful and that he might not finish school. The father believes that Mr.

D had something against his son. [ 85 ] When the young person was arrested at school after the meeting on February 26, 2007, the father did not hear the police officers inform his son about his right to silence or to consult counsel. [ 86 ] The father states that he purchased the computer at a warehouse with his son one (1) or two (2) years earlier. His son added a hard drive after this purchase, but he cannot say when. [ 87 ] 3. THE ISSUE IN DISPUTE [ 88 ] Was the young person's consent to the seizure of his computer by means of the Consent Form filed as Exhibit VD-2 given freely and voluntarily? [ 89 ] 4.

RELEVANT STATUTORY PROVISIONS [ 90 ]

Section 8 of the Canadian Charter of Rights and Freedoms ("the Charter ") provides that everyone has the right to be secure against unreasonable search and seizure. [ 91 ] In addition,

section 7 of the Charter enshrines the accused's right to silence as a principle of fundamental justice, while subsection 10(

b) protects the accused's right to retain and instruct counsel without delay and to be informed of that right when arrested or

detained. [92] Moreover, in comparison with the Criminal Code, which applies to adults, the Youth Criminal Justice Act ("the YCJA") setsout additional procedural measures applicable to judicial proceedings (including the right to counsel, the notification of parents,extrajudicial sanctions, and so on), as well as distinct principles governing sentencing. [93] This is the legislative framework within which the Court must decide whether the consent given in this case was free andvoluntary. [94] 5. PRINCIPLES ESTABLISHED IN THE CASE LAW [95] In Ladouceur v.

The Queen, 500-10-000980-977 (20 November 2001), the Court of Appeal of Quebec was asked to decide,among other things, a motion to exclude certain pieces of evidence, including the accused's boots in connection with the molding of thefootprints near the scene of the crimes. [96] The following excerpts from the reasons of Chamberland J.A. provides some guidance regarding police powers: [translation] [28] The powers conferred on police officers for the useful performance of their duties, including their powers of investigation,flow from a number of different sources: the Criminal Code, which lists the powers conferred on peace officers and determines therules to be followed; the various statutes that create police forces (for example, the Police Act, RSQ c P-13, sections 37, 38, and 39); aswell as certain special provincial statutes (for example, the Highway Safety Code, RSQ, c C-24.2); and finally, the common law, whichconfers on police officers the powers ancillary to the exercise of their statutory duties, such as the possible continuation of theinvestigation, the power of arrest, and the power of search incidental to arrest. [29] The exercise of these powers by police officers must of course be in respect of the rights protected by the Canadian Charterof Rights and Freedoms. ... [32] In principle, police officers may not arrest a person without warrant or detain a person without reasonable grounds to believe thathe or she has committed an indictable offence or that, in the circumstances, the arrest is necessary to safeguard the public interest,including the need to establish the identity of the person, to secure or preserve evidence, or to prevent the continuation or repetition of theoffence (section 495 Cr C). (Emphasis added) [97] Concerning consent to seizure, the Crown attorney submits that any person may waive a constitutional right, citing thejudgment of the Court of Appeal for Ontario in R. v.

Wills, (ON CA), 70 CCC (3d) 529, in which Doherty J.A. ruledon the admissibility of the accused's breath test, which had been administered by the police officers following a road accident. [98] The following principles set out by Doherty J.A. are relevant to the analysis of consent: [47] While it is necessary to avoid an overly broad approach to consent, it is also necessary to recognize that valid consents reinforcethe principle of individual autonomy which underlies the rights set out in the Charter: see R. v. TItrpin (S.C.C.),(1989), 48 C.C.C. (3d) 8 at p. 23, [1989] 1 S.C.R. 1296, 69 C.R. (3d) 97.

Individuals are free to define their own privacy interestsand to yield those interests when so inclined. In recognizing that a valid consent must be an answer to any subsequent claim of as. 8 violation, our law recognizes that autonomy: see Young, "Not Waving but Drowning: A Look at Waiver and CollectiveConstitutional Rights in the Criminal Process" (1989), 53 Sask. L.R. 47 at pp. 51-2; Schnecicloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct.2041 (1973), per Marshall J. in dissent at p. 283. [48] When one consents to the police taking something that they otherwise have no right to take, one relinquishes one's right tobe left alone by the state and removes the reasonableness barrier imposed by s. 8 of the Charter.

The force of the consent givenmust be commensurate with the significant effect which it produces. … [51] The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another.Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of avalid and effective choice. …

[53] In my opinion, the requirements established by the Supreme Court of Canada for a valid waiver of a constitutional right are applicable to the determination of whether an effective consent was given to an alleged seizure by the police. The fairness principle which has defined the requirements of a valid waiver as they relate to the right to a trial within a reasonable time, or the right to counsel, have equal application to the right protected by s. 8 . In each instance the authorities seek an individual's permission to do something which, without that permission, they are not entitled to do.

In such cases, fairness demands that the individual make a voluntary and informed decision to permit the intrusion of the investigative process upon his or her constitutionally protected rights. » (Emphasis added) [ 99 ] According to Doherty J.A, the Crown bears the burden of establish the following, on a balance of probabilities: In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: (

i) there was a consent, express or implied; (ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and (vi) the giver of the consent was aware of the potential consequences of giving the consent. (Emphasis added) [ 100 ] In R. v. Wells , rendered by McMurtry C.J.A. of the Court of Appeal for Ontario on January 17, 2001 (C13744), the respondent was convicted of the murder of four (4) persons, committed on June 15, 1990, in Ontario.

When arrested in Calgary a week later, he provided hair and blood samples voluntarily. [ 101 ] McMurtry C.J.A.'s conclusion that there was no violation of a Charter right reads as follows: [43] It is abundantly clear that the appellant was co-operating with the police both during the interviews and the provision of the bodily samples. Furthermore, this co-operation was an informed, conscious and deliberate choice. The appellant was aware that he could refuse to co-operate at any time. At all material times, the appellant was given a reasonable opportunity to consult counsel.

The police were not obliged to importune the appellant to call a lawyer particularly when he wanted to wait until he got back to Ontario to see particular legal counsel. In the circumstances, the police were not required to defer their investigation of the appellant until they all returned to Ontario. [44] With respect to the bodily samples, it is clear that the appellant not only knew that he had the right not to do anything that he did not want to do, he also appreciated the potential consequences of providing such samples. He was fully aware of the jeopardy which he faced.

During his discussion with the police officers, he was told that various items had been found at the crime scenes. Particularly in light of his previous experience in other proceedings, there is no basis to suggest that he failed to appreciate the potential consequences of furnishing bodily samples. [45] It follows therefore that I can find no basis for finding that either the appellant’s s. 10(

b) or s. 8 Charter rights had been breached and this ground of the appeal must therefore fail.

(Emphasis added) [ 102 ] Let us now proceed with an analysis of the evidence in light of these principles. [ 103 ] 6. ANALYSIS OF THE EVIDENCE [ 104 ] The Court notes at the outset that the witnesses it heard gave their version of events nearly four (4) years after the facts and that certain inconsistencies and contradictions in the reported information are therefore inevitable. This is particularly the case as regards the sequence of events described by the young person. His testimony is somewhat confused in this respect.

Nevertheless, the Court is able to draw certain conclusions based on the testimony and documentary evidence as a whole. [ 105 ] The factual background leading up to the arrest causes no problem in this case, especially since counsel for the young person acknowledged at the hearing that he did not intend to impugn the lawfulness of his client's arrest, as this ground does not appear in the Motion to exclude evidence submitted to the Court. [ 106 ] The evidence shows that Detective Sergeant Goudreau was informed of the situation involving the threats by the young person in the early afternoon of February 26, 2007. [ 107 ] It should be recalled that, at the time, only a few months had passed since the tragic events at Dawson College in September of 2006. [ 108 ] Without questioning the young person's academic abilities, it appears from his father's testimony that, before the events of February 26, 2007 , at least one incident involving his behaviour had resulted in his punishment.

It is not the role of the Court to rule on the validity of that punishment or on the young person's expulsion from school for making threats on February 26, 2007. [ 109 ] It is sufficient to note that, contrary to what the young person and his mother allege in their testimony, in late February 2007, the relationship between the young person and the school administration was tense. [ 110 ] Although the young person insisted that he had been joking to deflect attention from the real reason he was wearing the gloves, he himself admits that he repeated the joke in an MSN chat with a classmate who asked him why he had been suspended. [ 111 ] In the circumstances, the Court finds that Mr.

Goudreau had reasonable grounds to arrest the young person following his meeting with the school principal, based on the comments that were reported to him. [ 112 ] Moreover, regarding the subsequent events, the Court is persuaded on a balance of probabilities that the consent given by the accused to the seizure of his computer was not vitiated. [ 113 ] In arriving at this conclusion, the Court bases itself in particular on the following facts: (

a) Following his arrest, the young person was not handcuffed by the police officers. (

b) The young person and his mother went with the officers to the neighbourhood police station, where they were asked to sit in an entirely suitable interview room (see the photographs filed en liasse as Exhibit VD-1), not in a cell. (

c) The young person and his mother remained in the room from 5:00 p.m. to 9:00 p.m. but were permitted to leave it temporarily, as the mother affirms she did so a few times. The police officers were absent from the room for long periods. (

d) Although the young person and the mother could not recall having been told of the young person's right to silence or of his right to counsel, the fact remains tha t before they signed the Consent Form VD-2, they had the opportunity to speak on the phone with an attorney, Mtre Belleau, on more than one occasion. Mr. Goudreau even gave them his own phone for this purpose, which they accepted. (

e) The Court cannot accept the young person's testimony denying that he even read the Consent Form. Rather, it believes that he signed it freely and voluntarily after having obtained advice from his counsel. It should also be noted that his mother signed the Form as a witness. (

f) Admittedly, Mr. Goudreau stated that the computer would be returned to the young person within fifteen (15) days, even adding a written note to this effect at the bottom of the Promise to Appear (VD-3). The fact that the computer was returned to the young person's father on April 18, 2007, does not necessarily vitiate the consent insofar as Mr. Goudreau was acting on the basis of information he had obtained from the Technical Crimes Unit of the SPVM. (

g) Similarly, although Consent Form VD-2 allows access to more than the information that Mr. Goudreau said he wished to obtain, the fact remains that he properly identified the following elements in the Request for Assistance he submitted to the Technical Crimes Unit (see VD-5): [ translation ] i. MSN conversation between X and Y, allegedly speaking of threats. ii. site or recipe for bombs iii. threatening letters to the school

(

h) The Court notes that the Promise to Appear (VD-3) was also signed by the young person and his mother, just like the Promise settingout the conditions for release (see the documents filed en liasse as Exhibit VD-3).

In this last document, the police officers even madecertain to have the young person initial each of the conditions. [114] The Court believes that the young person was upset by these events, which he claims resulted from a bad joke, but it does notbelieve that he was in such a state that he lost all his capacities of understanding during the interview at the neighbourhood police station. [115] Applying the test in Wills, supra, the Court finds that the Crown has succeeding in showing, on a balance of probabilities, that: i. express consent was given by the young person and his mother to the seizure of the computer; ii. they had the authorization to give such consent; iii. the consent given was free and voluntary, since the Court has not found any evidence of oppression, coercion, or external conductinfringing on his freedom to choose whether or not to allow the officers to pursue their steps to obtain consent; iv. the young person and the mother understood the objective sought by the officers when making the request; v. the young person and his mother were aware of their right to refuse to give their consent to the officers, and they complied with theirrequest after receiving advice from their counsel; vi. the young person and his mother were aware of the potential consequences of giving consent to the seizure of the computer. [116] Moreover, the Court notes that the presence of the young person's mother during the entire interview at the neighbourhoodpolice station and the consultations with Mtre Belleau comply with both the spirit and the letter of the additional procedural measures inthe YCJA to ensure the fair treatment of the young person and the protection of his rights. [117] The Court, having found that the young person's consent to the seizure of the computer was given freely and voluntarily, findsthat there has been no violation of his rights or freedoms.

Consequently, there is no need to determine whether the use of this evidence islikely to bring the administration of justice into disrepute within the meaning of subsection 24(2) of the Canadian Charter of Rights andFreedoms. [118] It is therefore not necessary to proceed with an analysis of the criteria set out by the Supreme Court of Canada in R. v.

Grant,2009 SCC 32 , [2009] 2 SCR 353, as counsel for the young person suggests. [119] FOR THESE REASONS, THE COURT: [120] DECLARES that the consent given to the seizure of the young person's computer on February 26, 2007, was valid and istherefore admissible in evidence; [121] DECLARES that the seizure of the computer was not unreasonable within the meaning of

section 8 of the Canadian Charter ofRights and Freedoms. CITY A, March 16, 2011 __________________________________ JACQUES A. NADEAU, J.C.Q. Mtre Marie-Claude Bourassa AQ6726Crown counsel Mtre Marin Guzun AG4599For the defendant Dates of hearing: January 27 and 28 and February 4, 2011