R. v. M.(S.), 2011 ONCJ 79

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. M.(S.) , 2011 ONCJ 79 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — S.M. and D.B. Before Justice Borenstein Heard on January 4, 5, 6, 7, 13, 17, 19 and 21 Reasons for Judgment released on February 8, 2011 B. Jones ..................................................................................................................... for the Crown D. North ................................................................................................................. counsel for S.M.

J. Wilton ................................................................................................................ counsel for D.B. BORENSTEIN J.: [ 1 ] S.M. and D.B. are jointly charged with robbery with a firearm and assault causing bodily harm. They are both youths within the meaning of the Youth Criminal Justice Act . S.M. is 15 years old; D.B. is 16. Both gave confessions to the police approximately nine hours after their arrest. Both confessions were audio and video recorded by D.V.D. Both argue their confessions are inadmissible.

The Crown must provide beyond a reasonable doubt that the confessions were voluntary and that the police fully complied

with the requirements of

section 146 of the YCJA relating to the taking of statements from young people. [ 2 ] On February 8, 2010, the victim, Mr. Kandiah, was working alone in his convenience store on Markham Road. Just after 8:20 pm, five males entered his store from the back door and violently robbed him. The entire robbery was captured on the store’s security camera. All the males were wearing masks. The only issue at trial is identification. [ 3 ] One of the males was carrying a shotgun. Mr. Kandiah was behind the counter.

All five approached the counter and began stealing various items including coins and cash from the register, TTC tickets, lottery tickets, as well as packages of cigars and cigarettes. They also stole Mr. Kandiah’s car and store keys. The male with the shotgun pointed the shotgun directly at Mr. Kandiah and waved it at him in a very threatening fashion. The male then began striking Mr. Kandiah in the head and upper body with the barrel of the shotgun breaking various bones in Mr. Kandiah’s face. Another male began punching Mr. Kandiah. Mr. Kandiah thought that male was using brass knuckles. Mr.

Kandiah had not been resisting. The males then fled the store with the stolen items. [ 4 ] Mr. Kandiah activated an alarm which alerted the police to the robbery. He provided a very generic description of the men to the police basically describing five young black males wearing dark clothing. Many police officers attended the scene and quickly set up check points, or perimeters, at various locations within about a kilometre of the Markham Road store. Very few pedestrians were out on the street at the time.

A canine unit attended and tracked a scent from the parking lot of the convenience store through a nearby golf course to a shed located at 458 Scarborough Golf Club Road, where two people were hiding. The two males in the shed, S.M. and T.S., were arrested. [ 5 ] Within an hour of the robbery, five youths were arrested by the officers including both S.M. and D.B.. Some of the property taken in the robbery was found strewn between the site of the arrests and the store. Mr. Kandiah attended the station later that night and retrieved his keys.

He also identified some of the items found such as packages of cigarellos as the same type of property stolen from his store. [ 6 ] D.B. was arrested at 9:14 p.m. when he and another male emerged from a driveway just south of a perimeter that had been set up at Confederation Drive and Scarborough Golf Club Road. As D.B. and the other male emerged from a nearby driveway, they came upon officers who had set up a perimeter. When the two males saw the officers, they split up. D.B. walked toward the police. He was wearing a dark baseball hat, dark do-rag, grey hoodie and jacket, dark jeans and shoes.

He had burrs on his pants or shoes. He was sweating and breathing hard and the officers arrested him. A pat-down search revealed “Black Woods” cigars which were, in fact, similar to the cigars stolen in the robbery though the officers would not have known that at that time. Property stolen from the scene was found very close to where D.B. was arrested. [ 7 ] All five males were taken to the police station where they were held from the time of their arrest until the following morning. The officers knew they were dealing with young people.

Some of the five gave statements to the police, some did not. [ 8 ] Both S.M. and D.B. confessed to the police. S.M. confessed more than once and agreed to accompany the police from the police station back to the scene to try to locate the shotgun he said he discarded. Upon his return to the station, he agreed to provide a detailed statement that was recorded. D.B. confession was also recorded by D.V.D. [ 9 ] I heard from the victim of this robbery, as well as many of the officers who attended the scene and set up the perimeter searching for suspects.

I heard from the arresting officers, the dog handler as well as the booker in charge of the police station before whom the youths were paraded. I also heard from all of the detectives involved. In total, I heard from approximately 20 witnesses. S.M. testified on the voir dire in relation to his statement. D.B.’s mother testified on the voir dire as well. [ 10 ] Let me turn more closely to the evidence as it relates to the admissibility of each accused’s statement. [ 11 ] Beginning with S.M.. He was 14 years old at the time of this robbery and is now 15. By all accounts, he looks much older than that.

Nonetheless, the officers all knew they were dealing with a young person. [ 12 ] S.M. was found hiding in the shed at 458 Scarborough Golf Club Road at around 9:30 p.m. The police dog tracked a scent to that shed. It is conceded that S.M. had no connection to that address. The dog handler, Constable Stubbs, told the two males hiding in the shed not to move or he would release the dog. Other officers quickly attended. S.M. and T.S. were removed from the shed and arrested at 9:40 p.m. by various officers. S.M. had burrs on his clothing. There is a dispute as to how much force was used on S.M. when he was arrested.

While being handcuffed, P.C. Kluczeski told S.M. to stop resisting and delivered what he called a “distractionary” strike between S.M.’s shoulders. S.M. testified that he was not resisting and he was struck more than once by several officers while at the shed. According to S.M., Stubbs said he would release the dog which would “eat” the two males if they moved. S.M. was handcuffed and placed in the rear of P.C. Thompson’s cruiser. The arresting officer, P.C. Kluczeski read S.M. the standard, or adult, right to counsel and caution from the back of the officer’s memo book.

He asked S.M. if he understood his right to counsel and asked whether he wanted to call a lawyer. The only response noted by Constable Kluczeski to those two questions was “yes”. He assumed yes referred to both understanding his right to counsel and wanting to call counsel. S.M. was cautioned and, at approximately 9:45, was taken from the scene to 43 Division. While en route, Constable Thompson was advised that all five youths were to be taken to 33 Division as that was the division with youth facilities. [ 13 ] S.M. arrived at 33 Division and was booked into the station at 11:00 pm.

The booking was captured on camera. During the booking, the booker said “Do you understand you can call a lawyer, adult friend or relative to assist you. Do you understand that”. S.M. replied “yes I do” He was also told he could make reasonable use of the phone. S.M. was then strip searched and nothing of significance was found. At 11:17 p.m., he was placed alone in an interview room. The Crown concedes that neither the right to counsel given at roadside nor the comments by the booker just referred to comply with

section 146 of the YCJA . [ 14 ] The booker at 33 Division, Officer Doria, testified that he was responsible for prisoner management and safety at 33 Division. At 33 Division, there is one room with a dedicated audio visual recording system. That is the interview room. There are, however, two portable trolleys of recording equipment that officers can use if they choose to record interviews in other rooms at 33 Division.

[ 15 ] Detective Watts, the lead investigator, testified. He arrived at 33 Division at approximately 11:25 p.m. to investigate this robbery. He waited for the five youths to be booked into the station and lodged in separate interview rooms. He was debriefed about the arrests and particulars by the various officers involved. He viewed the photographs and recorded images taken from the victim’s security camera system. He was the officer who decides when the detainees will have access to the telephone given the state of the investigation.

He knew a shotgun had been used was still outstanding and its recovery was an understandable priority. [ 16 ] At 3:04 a.m., he called S.M.’s foster mother to tell her S.M. would be brought to Court in Scarborough the following morning. [ 17 ] Detective Watts believed that S.M. never fully responded to the P.C. Kluczeski’s question of whether he wanted to call a lawyer so Watts called duty counsel at 3:31 am and asked that they call back and speak to S.M..

At 3:50, duty counsel called back and spoke to S.M.. [ 18 ] Detective Watts opened the door to the room of each of the five youths and asked each if he needed food, water or whether they needed to use the washroom or make any phone calls. He did this for all five youths. [ 19 ] At 4:12 a.m., Detectives Watts and Clarke entered S.M.’s room and asked if he wanted food, water, to use the washroom or to make any phone calls. S.M. only wanted water which was provided.

According to Detective Watts, S.M. was quiet but alert and appeared to understand everything. [ 20 ] At 4:15 am, Detective Watts called in Detectives Harris and Mullen, two members of the Hold-Up squad, to assist in the investigation [ 21 ] Due to the large number of people who were arrested, they attended 33 Division and were briefed on the case. It was detectives Mullen and Harris who dealt primarily with S.M.. [ 22 ] At 4:48 a.m., Detectives Mullen and Harris went into interview Room C and spoke with S.M.. Their primary goal was to try to locate the outstanding gun.

They chose not to bring in any audio or visual recording equipment because, in their experience, people will not speak if you “stick a camera or microphone in their face”. The discussion began by the officers introducing themselves as members of the Hold-Up Squad and telling S.M. that he can talk to a lawyer or parent. S.M. confirmed that he had spoken to duty counsel. They told him he did not have to say anything unless he wanted to.

During that conversation, S.M. allegedly apologized for the robbery, admitted that he was the one with the shotgun which he described as a “pumpie”, discussed the plan including that another male was to pick up the shotgun from where he was to discard it. He agreed to accompany the officers from the station to try to locate the shotgun. S.M. testified that he never admitted to being the one with the shotgun and that he was threatened during that conversation. [ 23 ] According to the officers, the entire conversation that occurred in that room was being recorded by Harris in his notebook contemporaneously.

Mullen testified that he reviewed Harris’ notes when they left the interview room and found them to be accurate. Harris’ notes were made an exhibit on the voir dire . The notes include two references to S.M. pausing before answering. There were nine pages of notes comprising the entire exchange. The officers were in the room talking to S.M. for 31 minutes. They agreed that, if one were to read aloud the questions and answers recorded, it would take approximately five minutes to read. The officers testified that it took time to write the questions and S.M. paused, twice, according to the notes.

S.M. testified that there was a lot more said in that meeting including threats. The officers banged his head into the table and told him to show some respect. S.M. denies admitting that he had the gun. I do not believe S.M.’s evidence. In particular, I reject his evidence that he never admitted being the one with the gun primarily because, out of five accused, it seems unlikely that the officers would simply choose S.M. as the one to take from the station if they if he did not admit to being the one who discarded the gun.

While I reject his evidence, the fact remain that, even taking into account pauses, and writing out the questions and answers, there seems to have been time for a lot more to be said in those 31 minutes than what appears in the officers’ notes. Regardless of the dispute, the Crown concedes that the entire questioning in that 31 minute meeting did not comply with

section 146 of the YCJA and is inadmissible. [ 24 ] The two detectives then took S.M. from the police station and drove him to the scene. At the scene, they all got out and S.M. showed the officers the location he allegedly discarded the gun but it was not there. They returned him to the station an hour after they left. The officers testified that there was no discussion in the car. There was a half page of notes from this entire outing which took about an hour. S.M. testified that there was a lot more said, including threats. [ 25 ] Upon their return to the station, S.M. was again returned to his holding room.

The officers then entered his room at 6:24 a.m. and asked if he would be prepared to provide a recorded statement. He agreed. The officers left the room at 6:28 a.m. and prepared the recording equipment in the interview room. There are notes of the interaction that occurred in that four-minute encounter. The officers then escorted S.M. to the interview video room where he gave a detailed confession.

In that confession, he admits that he had the shotgun, that he assaulted the victim, that the robbery was planned and that they brought a change of clothes so that they could change their clothes when they fled. [ 26 ] In the recorded confession, the officers went through the Toronto Police Service standardized YCJA waiver form with S.M. who agreed that he understood his rights and was prepared to waive them. [ 27 ] The Crown seeks to tender only the recorded confession of S.M..

The defence argues, and the Crown concedes, that the earlier statements of S.M., both in the interview room and on the drive to the scene are inadmissible for failing to comply with

section 146 of the YCJA . The defence further argues that those earlier statements are inadmissible because they were the product of threats and intimidation. The defence further submits the earlier non-recorded statements should be excluded as a result of the failure to record those statements when recording was available. The only reason the Court is in a position of trying to determine which side is truthful with respect to what occurred in those earlier encounters is because of police decision to not record those earlier interactions, other than in their notebooks.

The defence submits that all of those factors result in the Crown being unable to prove beyond a reasonable doubt that the statements of S.M. were voluntary and taken in compliance with

section 146. [ 28 ] As noted, the Crown concedes that the earlier statements are inadmissible, for failing to comply with

section 146 .

However, the Crown submits that the recorded confession is admissible in that S.M. was explained, in unobjectionable terms, his rights under the YCJA and he agreed to provide that confession. S.M. takes no issue with the propriety of that form or the waiver as it appears on the D.V.D. He argues however that the recorded confession is just a continuation of the earlier inadmissible statements and is irredeemably tainted and therefore, inadmissible.

He also argues that the confession is inadmissible as it was the product of violence and threats. [ 29 ] In my view, the recorded confession was just a continuation of the confession that began in the interview room for 31 minutes at 4:48 a.m., and then continued on the drive around between 5:30 and 6:30. It is not a fresh start. Given the close proximity in time between those confessions, the same officers, the identical subject-matter being spoken about, it would be artificial to view the recorded statement as a fresh start, unrelated to the earlier confession.

Those statements are inadmissible and so is the recorded confession. The recorded confession was nothing more than a repetition or continuation of the earlier inadmissible statements and is likewise inadmissible. D.B. [ 30 ] Let me turn now to the admissibility of D.B.’s recorded confession given at 6:30 in the morning. He argues that his confession is inadmissible in that the Crown has failed to prove beyond a reasonable doubt that the police complied with

section 146 of the YCJA . Specifically, the police did not to provide D.B. with a reasonable opportunity to consult with his mother. He further argues that the four-minute interaction where D.B. agreed to provide a statement ought to have been recorded on tape. In addition, he submits that, when one views D.B.’s waiver of his

section 146 rights on the D.V.D., it does not appear that the officers explained them in a manner which, viewed objectively, communicated those rights in appropriate language that appeared and understandable to D.B.. It was done by rote, almost perfunctorily. He does not raise any Charter issue and, while not conceding voluntariness, has no submissions to make in that regard. [ 31 ] Turning to the relevant evidence. The evidence comes from the various police officers who dealt with D.B. that night. There evidence is not really in dispute.

The only defence evidence called on the voir dire does not add much to the issue before me. [ 32 ] D.B. was arrested at 9:14. After the pat down search, he was placed in the rear of Constable O’Halloran’s police cruiser. Constable O’Halloran read D.B. his rights to counsel and caution from the back of his memo book. Those rights are required by the Charter but they do not advise D.B. of the additional requirements of

section 146 . D.B. indicated that he wanted his mother to call a lawyer for him. They drove to 33 Division and arrived at 10:12 p.m. They waited in the sallyport until he was paraded before the officer in charge of the station at 11:19 p.m. There is no evidence of any conversation that occurred in the police cruiser beyond the rights and caution D.B.’s booking was captured on camera and the D.V.D. is an exhibit before the Court. [ 33 ] While being paraded, D.B. was told that he could use the phone to call a parent or lawyer or other adult and he indicated that he would like to call his mother.

He was then lodged alone in an interview room. [ 34 ] Just after midnight, Detective Clarke entered D.B.’s room and asked him if he knew why he was there and the charges he was facing. D.B. did and Clarke left the room telling him he would be back in a few minutes to explain everything. Clarke then left and continued the investigation. [ 35 ] At 2:14 a.m., Detectives Belanger and Clark entered D.B.’s interview room to see if D.B. still wished to speak with a lawyer and his mother. There is nothing in the evidence to indicate that that exchange was meant to advise D.B. of his rights pursuant to

section 146 . However it was not to Detective Belanger that D.B. ultimately gave a statement. In any event, D.B. indicated he wanted to speak to a lawyer and gave the officers names of two lawyers. He did not have their numbers but told the officer that his mother had their numbers. He gave the officer his mother’s number and told him he did not want to speak to his mother but wanted the officers to get the lawyer’s phone number so that a phone call to the lawyer could be made. [ 36 ] Detective Belanger left the room at 2:15 a.m. and called D.B.’s mother.

He advised her of the circumstances and obtained the lawyer’s phone number. At 2:24 a.m., he called the lawyer but received a recording with an after-hours phone number. He called that second number and left a message. He returned to D.B.’s room a minute later and told him he left a message for his lawyer and asked D.B. if he wanted to speak to duty counsel. D.B. declined and Belanger left the room. [ 37 ] At 4:05, Detective Watts entered D.B.’s room to ask if he wanted food, water, use of the washroom or to use the phone. D.B. was awake.

He wanted and received some water. [ 38 ] Detective Mullen was advised that D.B.’s lawyer had not called back. Shortly before 4:30 a.m., Mullen went into D.B.’s room. He asked D.B. is he wanted him to call duty counsel as the lawyer had not called back. D.B. asked if they tried calling his lawyer and Mullen replied that they had left several messages. D.B. replied “okay”. Mullen told him that, if his lawyer called back, he could speak to him as well. D.B. replied “okay”. Mullen called duty counsel who called back and spoke to D.B. in private.

At 4:30, Watts was advised by Detective Mullin that D.B. had spoken to duty counsel. [ 39 ] Prior to entering D.B.’s room, Detectives Watts and Clarke entered the rooms of three other youths arrested for this robbery to ask if they would provide statements. One of the three agreed to provide a statement – that was T.S.. They obtained a recorded statement from him. [ 40 ] At 6:24 a.m., Detective Watts and Clarke entered D.B.’s room. They were in the room for a total of four minutes. They did not bring in any recording equipment.

They wrote their notes upon exiting the room. [ 41 ] They testified that they introduced themselves to D.B., re-iterated the charges he was facing and confirmed that he spoke to duty counsel. They were not in possession of the Toronto Police Service YCJA waiver form but they explained to D.B. that he did not have to speak to the police at all, that he did not have to give a statement but that, if he did, he had to have a lawyer, parent, adult relative

or other adult present unless he did not want them there. D.B. replied that he knew his rights as he had spoken with a lawyer. They told him he was facing very serious charges. D.B. then asked if anyone else had given a statement. They told him T.S. had given a video statement. D.B. asked the officers what they “had” on him. They left the room and returned with five photographs taken from the security camera video.

D.B. then indicated, “All right, I will give you guys a statement too”. [ 42 ] The officers explained that they wanted to take the statement on video and D.B. had the right to have counsel, a parent or another adult present. D.B. replied that he would give the statement by himself. [ 43 ] That exchange, where D.B. agreed to provide a statement and to do so with no adult or counsel present, did not comply with

section 146 of the Act. It was not recorded on tape. The officer never advised D.B. that he had a right to consult with his mother, as distinct from consulting with counsel. It was conveyed that, if he gave a statement, he had the right to have a parent or other adult or lawyer present. [ 44 ] Detective Watts agreed that there is a distinction between a legal right and a legal requirement as it relates to the taking of statement. He testified that he initially told D.B. that, if he gave a statement, he had to have a lawyer or parent or adult there unless he did not want them.

Then, when D.B. agreed to provide a statement, he explained that he had a right to have a lawyer, or parent or adult present. He clarified that he explained to D.B. that it was his right to have those people present. [ 45 ] At 6:32 a.m., the officers escorted D.B. to the interview room where the interaction was recorded on a D.V.D. The statement began by the officers taking D.B. through the Toronto Police Service waiver form. They read his rights pursuant to

section 146 and had him explain back what each of his rights meant. That was the first time that D.B. was advised clearly that he had a right to consult a parent or other adult as distinct from counsel. It was also clearly explained that he did not have to give a statement and that, if he did, anyone that he consulted would have to be present during the statement unless he did not want them there.

When asked to explain that last right, D.B. stated: “Like, if I don’t want any, any adults here when I’m giving my statement, they don’t have to be” . [ 46 ] D.B. declined to consult with a parent or adult and agreed to provide a statement. However, by that time, he had already agreed to waive his rights, which were not explained properly, and to give a statement. [ 47 ] Detective Watts understood that there is a higher standard required of the police to ensure that young persons understand their rights.

In the officer’s opinion, D.B. understood that it was absolutely his choice whether or not to speak. [ 48 ] As far as D.B. actually understanding his rights, Detective Watts candidly conceded that he could not say what D.B. actually understood but that D.B. indicated that he wanted to give a statement and did not want a lawyer, parent or adult present.

He gave short but clear answers to all his questions. [ 49 ] The officer denied the suggestion that he promised D.B. that he would face reduced charges if he gave a statement or that he could only see a lawyer if he gave a statement and there is no credible evidence to suggest otherwise. [ 50 ] Let me turn to the legal issues raised on this voir dire . The Crown must prove beyond a reasonable doubt that D.B.’s statement was voluntary and that they complied with the requirements of

section 146 of the YCJA . [ 51 ]

Section 146 provides enhanced procedural protections for young people. The enhanced protections stem from the Act’s recognition that young people are less likely than adults to appreciate the consequences of giving a statement. Therefore,

section 146 provides that no statement of a young person to a person in authority is admissible unless the Crown proves certain pre-conditions beyond a reasonable doubt. First, the Crown must prove that the statement was given voluntarily. That requires an analysis of all the surrounding circumstances. If, there is a doubt about whether the statement was given voluntarily, the statement will not be admitted. No submissions were made in relation to voluntariness and nothing in the evidence causes me to have a doubt about the voluntariness of the statement.

The fact that the statement was given approximately nine hours after D.B.’s arrest has caused me some concern. What impact did that have on his decision to speak? However, any role it may have played would be simply speculative in this case. Nothing was made of it in evidence or submissions. The statement was given voluntarily. [ 52 ] In addition to proving voluntariness,

section 146 requires the Crown to prove beyond a reasonable doubt other preconditions before a statement can be admitted. They must prove that the person who took the statement, in this case, Detectives Watts and Clarke, clearly explained to D.B., in language appropriate to his age and understanding, that, he was under no obligation to make a statement and that any statement he makes may be used as evidence against him.

They must clearly explain that he has a right to consult counsel and a parent or other adult and that, if he decides to make a statement, his statement is required to be made in the presence of the person consulted unless he desires otherwise. If he wants to consult with counsel or a parent, he must be given a reasonable opportunity to do so. If he chooses to waive his rights under

section 146, the waiver must be recorded on audio or video tape or in writing signed by D.B..

Section 146 provides that, if there is a failure to comply with the requirements of

section 146, the statement may still be admitted if the failure was technical and, essentially, of no importance because the rights were fully explained. [ 53 ] A simple reading of the rights in a standardized waiver form will not be sufficient. There is a requirement that the rights be communicated in language that is appropriate and understandable to the young person. That requires that the police make some effort to gain an insight into D.B.’s ability to comprehend his rights so that they can assure themselves that he is capable of understanding them and what he may be giving up.

While the Crown does not have to prove that D.B. actually understood his rights, as his understanding will be determined on an objective basis, the record must reveal that his rights were explained in fashion that was understandable and appropriate to the young person. Having an accused explain back to the officer what his rights were is obviously helpful. [ 54 ] D.B. argues that the police did not to provide him with a reasonable opportunity to consult with his mother.

He argues that the four-minute interaction where he agreed to waive his right to have a lawyer or adult present and to provide a statement itself did not comply with

section 146 and it should have been recorded. Finally, he argues that recorded waiver was done in a pro forma , perfunctory manner where the decision to speak and waive his rights was already made in circumstances which violated

section 146 of the YCJA . [ 55 ] The Crown replies by pointing out that the law requires that the police take reasonable steps to ensure that a young person

understood his rights. In the absence of evidence to the contrary it should be inferred that they did understand their rights. While theCrown has to prove compliance with

section 146 beyond a reasonable doubt, the test is objective. D.B. explicitly told Belanger that hedid not want to speak to his mother. Primarily, the Crown relies on the waiver that was recorded prior to the taking of the statement. [56] In my view, while I have found the confessions to be voluntary, I am not satisfied that the Crown has not proved that thepolice complied with

section 146. In particular, I have a doubt about whether they appropriately explained to D.B. that he had a right toconsult with his mother, as distinct from counsel, and that, if he did, there was a legal requirement that she be present for any statementhe gave unless he waived that requirement. [57] My reasons are as follows. [58] First, no one explained D.B.’s rights to him in a manner that complied with

section 146 until Detective Watts and Clarkedid during the recorded interview. By that time, D.B. had already agreed to waive his rights and provide a statement following anexchange that occurred four minutes earlier and that did not comply with

section 146. The subsequent waiver recorded on video wastainted by the waiver that occurred four minutes earlier and was not sufficiently overcome by the events that followed. [59] At roadside, in response to the standard right to counsel, which did not advise D.B. of his rights pursuant to

section 146,D.B. indicated that he wanted his mother to call a lawyer for him. At the booking, although not expressly advising D.B. of all his rightscontained in

section 146, he was told he could call his mother and he indicated that he wanted to call her. There was no attempt tofacilitate that request for over two hours likely due to the state of the investigation. At 2:14 a.m., Detective Belanger entered D.B.’sroom. He did not advise D.B. of his rights under

section 146, but asked him if he still wanted to speak to his mother and a lawyer. D.B.then told Belanger that he did not want to speak to his mother but wanted his mother to provide his lawyer’s phone number. He spoke toduty counsel at 4:30 a.m. [60] Most importantly, at 6:28 a.m., during a four minute exchange with Officers Watts and Clarke, D.B. agreed to waive hisright to silence and provide a statement to the police without an adult present. There are several problems that occurred in the interaction.First, he was not told that he has a right to consult with his mother.

I doubt he would have wanted to consult with his mother but that isnot the issue. He was not advised of that right. Second, that waiver was not recorded as required by

section 146. Finally, there isambiguity about whether the officer explained that having a consulted adult present at a statement was a right that the accused couldhave if he wanted or a requirement that had to be complied with unless waived. [61] Our Court of Appeal has held that there is a significant difference between telling a young person he has a right to havesomeone present and telling them that the law requires them present unless waived. In the 2007 decision of R. v.

S.S., 2007 ONCA 481, [2007] O.J. 2552 (OCA), the issue was whether telling a person that he or she had a right to have a third party present isequivalent to telling them that any statement given was required to be made in that person’s presence. The Court of Appeal held thatthose were two different things and, that telling a young person that it is a requirement brings home the importance of the rights asreflected in the requirement to have the person present. It is not clear that that occurred in that exchange.

Yet, that was when D.B. agreedto waive his right to silence and to provide a statement. [62] Taking everything into account, this is a close call. However, in my view, waiting nine hours before correctly advising ayoung person of his rights pursuant to

section 146, obtaining his consent to speak to the police in an exchange that did not comply withsection 146 did appropriately convey his rights in a manner that would be, objectively speaking, understandable and complete. Then,only minutes later and once he has already agreed to waive those rights, going through the form and advising him, for the first time, ofhis right to consult with his mother, does not cure or sever the link that occurred minutes earlier. By the time he was in the interviewroom, he had already agreed to waive his rights and provide a statement.

I am not satisfied that the non-compliance that occurred at thetime he agreed to waive his rights and provide a statement was dispelled by the recorded exchange. [63] While the recorded waiver and statement could overcome the difficulties that had occurred, I am not satisfied that it did inthis case. By that time, he had already agreed to provide a statement and was acknowledging his rights and proceeding to do what he hadalready agreed to do. More needed to be said to ensure that the effects of the earlier failure to comply with

section 146 when the decisionto speak to counsel was made were dispelled. [64] Let me turn now to the Crown’s application to make substantive use of the recorded statement of T.S., one of theparticipants in this robbery. He was arrested the same night as the others. He was hiding in the shed with S.M.. He provided a statementto the police that night that was not under oath or preceded by any caution about the importance of telling the truth. The statement wasrecorded. In that statement, he implicated both himself and S.M. in this robbery. The statement is presumptively inadmissible.

In order tosucceed, the Crown must prove on the balance of probabilities that the out-of-court statement is both necessary and reliable. [65] T.S. was called by the Crown as a witness in this trial. He admitted his involvement in this robbery. He admitted hiding inthe shed after the robbery. He testified that he did not know who else was involved. He did not know any of their names or nicknames.He testified that he has known S.M. since they were both very young and they are as close as cousins. He called him “D”. He did not seehim at the robbery.

He saw him after school that day, prior to the robbery at a Burger King and in an area called Cougar Court. Hetestified that, after the robbery, he fled too and hid in the shed when he was arrested with “D”. We know from other evidence that it wasS.M. who was in the shed with T.S.. As for S.M. being in the shed, T.S. testified that he did not know why S.M. was there. S.M. enteredthe shed after T.S. did. S.M. did not say anything and he did not know why he was in the shed. [66] In T.S.’ statement to the police, however, he implicated himself and S.M. in the robbery.

He told the police that he waswith S.M. earlier that day and that S.M. committed the robbery as well. T.S. testified that he gave that statement under duress. DetectiveWatts threatened him and told him to lie on the tape. Watts told him to say that he had spoken to duty counsel when he had not. DetectiveWatts then testified and provided the name of the duty counsel who called the station and spoke with T.S.. I rejected T.S.’ evidenceearlier on the 9(2) application and incorporate my reasons herein.

His evidence that he did not speak with duty counsel and was told to lieabout it was forcefully and credibly contradicted by Detective Watts who provided the name of the lawyer who called the station andspoke with T.S.. I put no faith in T.S.’ evidence about the circumstances of the statement. He was plainly not interested in being truthful

with the Court: he did not want to implicate his friend S.M.. His evidence about being told to say he spoke to a lawyer, about notknowing how many people participated in this robbery, their names or even their nicknames, or the evidence that S.M. just walked intothe shed in mysterious circumstances is ludicrous and shows how disinterested T.S. is in being truthful. [67] There is no question the statement is necessary. At trial, he does not implicate the accused. To the police, he does, I findhis memory loss to be feigned. [68] As for reliability, the issue at this point is threshold reliability.

In the 2008 Supreme Court of Canada decision in R. v.Devine, 2008 SCC 36 , [2008] 2 S.C.R. 283 (SCC) , the Court reviewed the law with respect to admitting for substantivepurposes out-of-court statements of recanting witnesses. [69] The rationale underlying the general exclusionary rule of out of court statements is that the trier of fact cannot assess thereliability of the out-of-court statement. That is why the Court traditionally requires circumstantial guarantees of trustworthiness as aprecondition to admissibility.

That difficulty of not be able to assess the reliability of out of court statements can be substantiallyalleviated where the declarant is available to testify, particularly where an accurate record of the out of court statement is available. Inthat case, the focus of the admissibility inquiry is not whether the out of court statement is true, but whether the trier of fact will be in aposition to rationally evaluate its truthfulness. In other words, threshold reliability can usually met in one of two ways that are notmutually exclusive.

First, where there is no real concern about the statement’s reliability given the way the statement arose. That is notthis case. In cases where the declarant is available to be meaningfully cross-examined about the statement, the focus of the reliabilityinquiry at the admissibility stage is not whether the prior statement is true but whether the trier of fact will be in a position to rationallyevaluate its truth. The surrounding circumstances can assist in assessing whether the statement is reliable. [70] In this case, while there was no oath or caution, the statement was recorded.

The witness was available to offer anexplanation and be cross-examined. T.S. gave a recorded statement where he not only implicates himself, he implicates his friend S.M..He does not allege he was told to falsely implicate S.M.. He told the police that he was with S.M. before the robbery, during the robberyand he was found hiding in the shed with him after the robbery. In seeing whether there are external circumstances that may corroboratethat evidence, the fact that S.M. is in the shed with T.S. shortly after the robbery, in my view, is very corroborative.

All of these factorstogether put me in a position to be able to rationally evaluate the out-of-court statement and the in-court testimony and the statement willbe admitted for its truth. Released: February 8, 2011 Signed: “Justice Borenstein”