R. v. N.J.G., 2022 BCPC 202

Citation: R. v. N.J.G. 2022 BCPC 202 Date: 20220721 File No: 9428-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REGINA v. N.J.G. BAN ON PUBLICATION Pursuant to

Section 486.4(1) of the Criminal Code and

Section 110 of the Youth Criminal Justice Act RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. DOREY Counsel for the Crown: C. Yardley Counsel for the Accused: M. Lowe Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 24, 2022 Date of Judgment: July 21, 2022

Introduction [ 1 ] This is a ruling on the Crown’s voir dire application with respect to the admissibility of the accused’s statement to police during the police investigation into the charge of sexual assault. [ 2 ] On July 21, 2022, I gave my decision to the parties by MS Teams on a remand list day and indicated that my reasons for my decision would follow. These are my reasons.

Summary of the Evidence on the Voir Dire [ 3 ] N.J.G. (“the accused”), is a youth charged with one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (“ Criminal Code ”) . At the time of the alleged offence, the accused and the complainant, D.B., also a youth, were residents in custody at a youth mental health facility in Coquitlam, British Columbia (“the Facility”).

The Facility is a secure mental health treatment facility for youths. [ 4 ] The sexual assault is alleged to have occurred in the accused’s bedroom at the Facility during the morning of June 19, 2020. [ 5 ] During the course of the police investigation into this incident, the accused was interviewed by two members of the RCMP, Csts.

Sandhu and Jardine. [ 6 ] At the time of the statement was taken the police had reasonable and probable grounds to believe that the accused had committed the sexual assault of the complainant. [ 7 ] The accused was interviewed approximately one week after the incident at the Facility on June 24, 2020 by Csts. Sandhu and Jardine of the RCMP’s Coquitlam Detachment. The accused was 15 years of age at the time of the interview. [ 8 ] Cst. Sandhu took the lead on the investigation and Cst. Jardine provided a support role and monitored the interview. [ 9 ] This interview took place in a meeting room at the Facility.

Both police officers were dressed in plain clothes and were unarmed. Cst. Sandhu wore a jacket that displayed “Police” in bold letters. They introduced themselves as police officers when the accused entered the meeting room. [ 10 ] During the interview, the accused sat across the boardroom table from the two officers and was situated near an exit door, which he was informed was unlocked. [ 11 ] One of the counsellors, Michael Baaker, employed by the Facility, was present for the entirety of the interview to monitor the accused’s health and wellbeing.

He sat near the accused. [ 12 ] The interview was video and audio taped and the accused was informed of that fact by Cst. Sandhu before the interview began. [ 13 ] The interview began at 11:05 hours and ended approximately 41 minutes later at 11:46 hours. [ 14 ] Before the accused gave his statement, Cst. Sandhu asked him how he was doing, and if he had breakfast that morning. He responded by saying “good”, and that he had some coffee. Cst. Sandhu then asked if she could call him N. and he said he was “good with N.”. [ 15 ] Cst.

Sandhu informed the accused that he was a suspect in the investigation of a sexual assault on June 19, 2020, that he may be charged with in the future, and that she would explain the specifics. She told him that he was neither under arrest nor detained, that he was not obligated to speak to police, and that he did not have to answer any questions, or give a statement.

She also informed the accused he could leave the interview room at any time and that he did not need to seek permission to leave. [ 16 ] She then told him that if he did not understand “something” that he was to tell her right away to explain and not to guess. [ 17 ] Cst. Sandhu again informed the accused that there were no charges “yet” and that the police were “still trying to get to the bottom of this by talking” to the accused to get “his side of the story”. [ 18 ] The accused asked Cst. Sandhu if there was a way he could “skip” to the statement and Cst.

Sandhu replied by telling him that “this is legal stuff” that she had to review with him. [ 19 ] Cst. Sandhu took him through a 5-page document that would explain his legal rights. This document was the RCMP E- Division’s pre-printed form for taking youth statements titled “Requirements for Taking Statement of a Young Person” (“Statement Requirements form”), which Cst. Sandhu then reviewed with the accused. [ 20 ] In so doing, Cst.

Sandhu told the accused, inter alia, that: • he was under no obligation to make a statement; • any statement he made may be used as evidence in proceedings against him; • he had the right to consult counsel and a parent or any adult of his choosing; • any statement he made to her was required to be made in the presence of counsel and a parent or any adult of his choosing unless he desired otherwise.

[ 21 ] At various points as she went through this form, Cst. Sandhu asked the accused to repeat back his understanding of what Cst. Sandhu was explaining. [ 22 ] During this review, a staff member brought a drink with a straw into the meeting room for the accused. Cst. Sandhu asked him what he was drinking, and he replied that it was a strawberry milkshake, which he told her he liked. [ 23 ] After Cst. Sandhu completed this review, the accused elected to waive his consultation rights.

He was then asked and agreed to initial two boxes on p. 4 of the document under the heading “Waiver of Rights” to confirm his waiver. He also signed his name at the bottom of the page before Cst. Sandhu. Cst. Sandhu also signed the document as a “witness” to the accused’s signature and she noted the dates of their signatures at the bottom of the page. [ 24 ] Cst. Sandhu then told the accused that she wanted to make “sure” he understood what a sexual assault is and then provided a description of the offence. Cst. Jardine followed up Cst. Sandhu’s description of the offence with “a little bit more detail”. Cst.

Jardine asked the accused if he understood her explanation “a little bit” and he responded “yeah”. Cst. Sandhu then asked him if “you got that” and the accused answered “yeah”. [ 25 ] Cst. Sandhu also asked the accused to tell her “a little bit” about himself. He agreed and they engaged in a short discussion about his hobbies, interests, his likes, when he gets up, and how he passes his time at the Facility. [ 26 ] The accused was then asked in his own words to explain the difference between the truth and a lie and, in reply, he asked Cst. Sandhu to give him an example. Cst.

Sandhu gave him two examples to explain the distinction between the truth and a lie. The accused responded to each of those examples with an appropriate answer. [ 27 ] After this exchange, Cst. Sandhu asked the accused to describe what happened with the complainant on June 19, 2020. He then provided a narrative of the events about his activities that morning in a clear, coherent, and straightforward manner.

The Law with Respect to Youth Statements [ 28 ] As the accused was a youth at the time of his interview, s. 146 of the Youth Criminal Justice Act , S.C. 2002, c.1 , (" YCJA ") governs the admissibility of this statement. This provision contains enhanced procedural and evidentiary safeguards to protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators: R. v.

L.T.H. , 2008 SCC 49 , at para. 3 . [ 29 ] The Crown bears the burden of proving beyond a reasonable doubt that all statutory requirements in s. 146 have been satisfied: R. v. L.T.H. , at paras. 32 and 51 . [ 30 ] In order for the accused’s statement to be admissible, the Crown must establish beyond a reasonable doubt that:

a) the statement was voluntary ( s. 146(2) (

a) of the YCJA )

b) the other requirements of s. 146 of the YCJA have been met, including i. the informational obligations under s. 146(2) (

b) of the YCJA were met, and ii. the accused waived his right to consult with counsel and a parent (or another responsible adult) under s. 146(2) (

c) of the YCJA in accordance with s. 146(4) of the YCJA . (

a) Voluntariness [ 31 ] Section 146(2) (

a) of the YCJA codifies the common law confessions rule in the context of youth prosecutions. As with adults, the Crown must prove the voluntariness of any statement made by a young person to a person in authority beyond a reasonable doubt. [ 32 ] The test for determining the voluntariness of statements made to persons in authority is found in the SCC’s decision in R. v. Oickle , 2000 SCC 38 . This test is summarized in R. v. Tan, 2014 BCCA 9 , at para. 99 , affirming 2011 BCSC 335 , as follows: … [T]he test for determining voluntariness of statements made to persons in authority.

In Oickle , lacobucci J., for the majority, held that application of the rule requires a contextual approach that considers all relevant factors. Four factors to be considered are whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community: Oickle at paras. 47-67 ; Singh at para. 35. The use of police trickery is a distinct inquiry. (

b) The Informational Requirement [ 33 ]

Section 146 of the YCJA also has an informational requirement. The informational requirement mandated by s. 146 is explained in L.T.H. , at paras. 4 to 6, 21, 27, and 30 and is summarized as follows: [ 34 ] Statements made by young persons are inadmissible unless the specific rights conferred by s. 146 of the YCJA are clearly explained to the young person in language appropriate to his or her age and understanding: s. 146(2) (b).

The reading of a standardized form will not normally suffice in itself to establish compliance with the informational requirement. [ 35 ] Additionally, the interviewer must acquire some insight into the level of comprehension of the young person concerned since the explanation must be appropriate to the age and understanding of that young person. Thus, police officers must make a reasonable effort to become aware of significant factors such as learning disabilities and previous experience with the criminal justice system. The test is an objective one.

[ 36 ] The Crown's evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his rights. The mere probability of compliance is not enough; compliance must be established beyond a reasonable doubt. (

c) Waiver [ 37 ] Section 146(4) of the YCJA provides that young persons, subject to certain conditions, can waive their rights to consult with counsel and a parent (or responsible adult) before making a statement and to have counsel and a parent (or responsible adult) present when the statement is made. Such a waiver must be established by "clear and unequivocal evidence that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process”: R. v.

L.T.H. , at paras. 7, 41, and 42 . [ 38 ] Where compliance with the informational component is established beyond a reasonable doubt, the trial judge will be entitled, and is expected to infer, in the absence of evidence to the contrary, that the young person in fact understood his rights under s. 146 : R. v. L.T.H. , at para 8 . Position of the Parties [ 39 ] The Crown submits that the testimony of Cst.

Sandhu and the recorded statement when considered as a whole establishes beyond a reasonable doubt that all requirements of s. 146(2) and (4) were met in this case. [ 40 ] Defence counsel concedes that the statement the accused gave to police was voluntary. Thus, the first requirement under s. 146(2) is met. [ 41 ] However, the issue from the defence standpoint is whether Cst. Sandhu made reasonable efforts to ensure that the accused understood his legal rights. [ 42 ] Counsel for the accused submits that Cst.

Sandhu did not make a reasonable effort to gauge the accused’s level of understanding and comprehension before she reviewed the Statement Requirements form with him. Counsel further submits that because Cst. Sandhu did not do so, she had no assurance that the accused understood his legal rights before he waived them. Accordingly, the defence submits the Crown has not proven beyond a reasonable doubt that the informational requirements were met, and thus his waiver of his rights was invalid. [ 43 ] Accordingly, the accused submits his statement is inadmissible. Discussion [ 44 ] Cst.

Sandhu established good rapport with the accused from the very outset of the interview. She introduced herself and Cst. Jardine, exchanged initial pleasantries, then asked him what time he got up (which was an hour prior to the interview) and whether he had breakfast. [ 45 ] Throughout the interview Cst. Sandhu and Cst. Jardine spoke to the accused in a clear manner using plain language. The accused appeared calm and relaxed as evidenced by the tone of his voice and his body language. He was talkative, attentive and responsive to questions asked by Cst.

Sandhu, frequently responding with the words, “okay”, “yeah”, “alright” “cool”, and “okay cool”. [ 46 ] Cst. Sandhu took the accused through the “informational requirements” set out in s. 146 (b)(

i) to (ii) of the YCJA when reviewing the Statement Requirements form. She explained to the accused his legal rights in a slow, careful, and methodical manner as she reviewed this form. [ 47 ] Cst. Sandhu then took the accused through the waiver portion of the form and again repeated to him his legal rights. The accused waived his right to consult counsel and a parent (or a responsible adult). He then initialled and signed the waiver. [ 48 ] I have concluded from my review that Cst. Sandhu used age-appropriate language and phrasing to explain to the accused his legal rights.

She confirmed his understanding of those rights by frequently checking back with the accused that he understood what she was explaining to him and/or to repeat back what she told him in his own words. The accused’s responses, from the words and expressions he used, confirmed to me that he was following along with Cst. Sandhu’s questions and explanations and that he understood what she was saying to him. I am satisfied from my review of the audio-video recording and testimony that Cst.

Sandhu made reasonable efforts during this interview to get to know the accused through her questioning in order to gauge his level of understanding. Therefore, I have concluded that the Crown has proven beyond a reasonable doubt that the informational requirements of s. 146 of the YCJA were met in this case. [ 49 ] As there is no evidence to the contrary, I have drawn the inference from the whole of this evidence before me that the accused understood his legal rights as they were explained to him by Cst. Sandhu: R. v.

L.T.H. , at para. 8 . [ 50 ] Further, I find that the accused waived his rights to consult legal counsel and a parent before making a statement to the police. He signed a written statement indicating that he had been informed of his legal rights being waived, which was also captured on an audio-video recording. His waiver was clear and unequivocal. [ 51 ] Accordingly, I am satisfied beyond a reasonable doubt that the accused waived his consultation rights with full knowledge of the s. 146 rights he was giving up, and the effect the waiver will have on those rights in the process.

Conclusion [ 52 ] In conclusion, I find that the Crown has met its burden under s. 146 of the YCJA and has proven beyond a reasonable doubt that:

(

a) the accused gave his statement to police voluntarily; (

b) the accused was advised by Cst. Sandhu of the informational component of his s. 146 YCJA rights in language appropriate to his age and understanding; (

c) the accused waived his consultation rights with full knowledge of the s. 146 procedure was enacted to protect, and the effect the waiver will have on those rights in the process; and (

d) the waiver was video-recorded and the accused also signed a statement confirming he had been informed of the rights being waived. [ 53 ] Accordingly, the requirements of s. 146(2) and (4) of the YCJA were met and accused’s statement to police is admissible at trial. _____________________________ The Honourable Judge D.L. Dorey Provincial Court of British Columbia