R. v. B.(A.), 2013 ONCJ 754

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Young Offenders Act and is subject to subsection 38(1) of the Act. T his subsection and subsection 38(2) of the Young Offenders Act , which deals with the consequences of failure to comply with subsection 38(1), read as follows: 38. Identity not to be published.—

(1) Subject to this section, no person shall publish by any means any report (

a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under

section 16 with respect thereto, or (

b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed. . . .

(2) Contravention. — Every one who contravenes subsection (1), . . . (

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. COURT FILE No.: Belleville Y130080 DATE: 2013·10·24 Citation: R. v. B.(A.) , 2013 ONCJ 754 ONTARIO COURT OF JUSTICE sitting as a youth court under the Young Offenders Act , R.S.C. 1985, c. Y-1; and the Youth Criminal Justice Act, S.C. 2002, c.1 BETWEEN: HER MAJESTY THE QUEEN — AND — A.B. a young person Before Justice E. Deluzio Heard on October 24, 2013 and December 13, 2013 Ruling on Voir Dire released on December 16, 2013 Mr. P. Layefsky ......................................................................................................... for the Crown Mr. D.

Isbester ...................................................................................... counsel for the accused A.B. Deluzio J.: [ 1 ] The accused, A.B. is a 26 year old married teacher and young father. He is charged with 3 counts of sexual assault against D.C., a younger male cousin, alleged to have occurred between September 22, 1999 and August 19, 2005, when A.B. was a young person.

[ 2 ] At issue in this blended voir dire is the admissibility of several statements made by A.B., to the arresting officers prior to and following his arrest on the charges of sexual assault before the court. Both arresting officers, T. Maracle and S. Maracle, and the complainant, testified. [ 3 ] A.B. argues that the Crown cannot establish voluntariness beyond a reasonable doubt. He also challenges the admissibility of the statements and argues that the evidence establishes, on a balance of probabilities, that A.B.’s rights, pursuant to Sections 7,8,9, and 10(

b) of the Charter were breached, and on a 24(2) analysis the statements should be excluded. [ 4 ] The issues raised by A.B. in his Charter application arise from the facts surrounding the arrest of A.B. during which the utterances by A.B. were allegedly made. The relevant facts are as follows: [ 5 ] On April 4, 2013, during 6 a.m. shift prep, Officers T. Maracle and S. Maracle were advised by two other officers, who are the investigating officers, that these officers had reasonable grounds to arrest A.B. for sexual assault, based on a statement provided to them during their night shift, by the complainant D. G.

Officers T. and S. Maracle were also advised that the charges were historical and happened while A.B. was a young person. [ 6 ] Officers T. and S. Maracle were directed to go to A.B.’s residence and arrest him before he left home for his teaching job at a private school on the Tyendinaga territory. [ 7 ] The officers arrived in uniform at A.B.’s home at about 7:30 a.m. and knocked at the door. A.B. answered the door in his pyjamas and was told by Officer T. Maracle that the police had a warrant for his arrest.

In fact there was no warrant. [ 8 ] A.B. asked the officers what this was about and they told him that his cousin, D.G. had given a statement to the police. A.B. asked the officers if he could go upstairs and get dressed. While A.B. was upstairs changing the officers stayed standing at the front door of his residence. After A.B. came back downstairs, and before he left his home with the officers, Officer T. Maracle says he made a statement, the gist of which was that “D.G. was doing the same thing to N.”. Although Officer S.

Maracle was also standing at the door he did not hear or recall this statement being made by A.B. Officer T. Maracle testified that she was not taking notes at the time and could not say this was “verbatim”. [ 9 ] Both officers testified that from the moment they arrived to arrest A.B. he was asking them a lot of questions about what was going to happen to him, what the arrest would mean for his career, how it would affect his family.

A.B.’s home is a unit in a row of townhouses and there were a lot of people walking by his residence on their way to school or work, while the police were standing at the front door. Both officers said they were concerned about making a scene and about A.B.’s privacy. Tyendinaga is a small community and both officers said they knew A.B. and his family. They said they just wanted to get A.B. away from the nosy neighbours and take him to the station.

They both testified they tried to answer A.B.’s questions, but they kept telling him not to say anything, that there were too many people walking by, that A.B. needed to talk to a lawyer, and that he would be able to contact a lawyer when he got to the station. [ 10 ] A.B. was not handcuffed or searched. He left his home with the officers at 7:37 a.m., entered the back seat of the police cruiser and was driven to the detachment, arriving at 7:44 a.m. [ 11 ] It was not until after A.B. was in the police vehicle en route to the station, that he was informed by Officer S.

Maracle that in fact the police did not have a warrant for his arrest. [ 12 ] A.B. arrived at the station with the officers and was escorted to the cell area, into a private room called the “hard interview room” at approximately 7:44 a.m. At 7:46 a.m. Officer T. Maracle read A.B. his formal right to counsel and caution. By this time A.B. had been detained and in police custody for sixteen minutes. [ 13 ] The officers say that after being read his right to counsel and caution A.B. continued talking, and asking questions and made several more utterances. Officer T.

Maracle says that after she read him his rights she asked A.B. if he wanted to speak to a lawyer and A.B. replied that he had information about D.G., about the same. She says that at 7:50 a.m. A.B. made another “utterance” that what happened was consensual. She says this was the “gist” of what A.B. said, but not verbatim because A.B. continued talking and asking questions. She said she talked to A.B. to be polite and because she has known him for most of his life. [ 14 ] Officer S. Maracle says he asked A.B. a second time if he wanted to speak with a lawyer or duty counsel and A.B. said “I guess I’d better”.

At 7:54 Officer T. Maracle left the room to place a call to duty counsel and S. Maracle stayed in the room and with A.B. Officer S. Maracle says that he was trying to calm A.B. down, telling him he would be released on conditions, when A.B. made another utterance at 7:58 a.m. saying “It was mutual and it happened years ago. D. has ruined my life”. Officer S. Maracle testified that he was taking notes while A.B. was talking but he no longer has his original scribed notes because after copying them into his police notebook he threw his original notes into the garbage.

He agreed under cross examination that he should not have destroyed his original notes, and that although this utterance appears in quotation marks in his police notebook it may not be exactly what A.B. said. [ 15 ] Although the “hard interview room” is equipped with audio/video recording equipment available at the push of a button, the equipment was not turned on. Both officers testified that A.B. was doing a lot of talking and asking questions, and much of what he said was not recorded in their notebooks. [ 16 ] A.B. spoke with duty counsel from 8:04 a.m. until 8:07 a.m.

After speaking with duty counsel A.B. stopped speaking to the officers and declined to give a statement. [ 17 ] The Crown concedes that A.B. was detained from the time he answered the door and that there was a breach of A.B.’s 10 (

b) rights. [ 18 ] Dealing first with the issue of whether the officers failed to comply with

Section 529 of the Criminal Code , it is clear that the officers went to A.B.’s home with the intention to arrest him for sexual assault. They testified that they already had reasonable

grounds to arrest him.

This is not a case where the officers were acting on their “implied licence” to approach and knock at the door of a private residence to investigate an offence. [ 19 ] The Crown argues, however, that because A.B. wasn’t actually arrested until after he stepped out of his home the police didn’t need a warrant, and that the real question for the court is whether the misleading of A.B. about the existence of a warrant renders the arrest unfair. [ 20 ] I agree that the misleading of A.B. about the warrant is significant to the factual context in which A.B.’s alleged utterances were made, but I disagree with the Crown’s view about where the arrest took place.

A.B. wasn’t even fully dressed when he opened his door to the police that morning. As soon as he opened the door the police told him they were they to arrest him for sexual assault. There is no evidence that A.B. stepped out of his home at that time. The requirements of R v Feeney and

Section 529 of the Criminal Code apply here and should have been complied with. [ 21 ] There is no evidence of exigent circumstances. The charges are historical, alleged to have occurred at least 7 years ago. The police should have had a warrant. Officer T. Maracle never explained why she told A.B. the police had a warrant for his arrest when they didn’t. Did she assume there was a warrant? S. Maracle testified that he knew, when they arrived at A.B.’s home, that the police did not have a warrant. So why didn’t he correct his partner on the spot?

And why didn’t he tell A.B., right then, that the police did not have a warrant and that A.B. had the choice of waiting until the police got a warrant, or accompanying the police voluntarily to the station? [ 22 ] The first incriminating utterance made by A.B., heard only by Officer T. Maracle, was made before A.B. was given his right to counsel and caution in violation of Sections 9 and 10(b). This statement is inadmissible. [ 23 ] The second and third utterances were allegedly made at the station, after A.B. had been given his right to counsel but before he spoke with duty counsel.

The officers recorded only some statements made by A.B.. We don’t know what else A.B. was saying or the context of the statements the officers did record. Their notes are not “verbatim”. Officer S. Maracle was scribing notes in the hard interview room but he destroyed his original notes and admits that what he has rewritten in his police note book is not verbatim. Officer T. Maracle isn’t in the hard interview room when one statement is made because she is placing a call to duty counsel. Recording equipment was readily available and not used.

The evidentiary record relating to the statements is inaccurate and incomplete. [ 24 ] In his submissions, Mr. Layefsky described the arrest of A.B. as a “friendly arrest”. The officers knew A.B. and they knew his family. They knew A.B. would be cooperative. They didn’t follow him upstairs when he went to get dressed. They didn’t handcuff him or place him in their vehicle. The officers say they deliberately delayed giving A.B. his right to counsel for his benefit, because they were trying to get him out of there, and avoid the questioning of his nosy neighbours.

I note however that this explanation doesn’t address why one of the officers could not read A.B. his rights en route to the station. [ 25 ] There was nothing “friendly” about this arrest. Sexual assault is a serious criminal offence and just the laying of a charge of sexual assault can and did in this case have significant implications for the liberty and lifestyle of the accused person. The arrest was deliberately timed to prevent A.B. from getting to his teaching job where he has contact with young children. Although the officers didn’t turn on the recording equipment when Mr.

Brant was in the “hard interview room”, S. Maracle was taking notes. This was not just a “friendly” conversation, it was an arrest and an investigation. A.B.’s initial release conditions, imposed by these officers, were onerous and severely restricted his liberty. He was prevented from going to work as a teacher, and even prevented him from being alone with his own infant child. [ 26 ] Once A.B. spoke with a lawyer he did stop talking to the police.

Had the police told him they didn’t have a warrant, and had the choice whether to accompany them to the station or not, it is certainly possible A.B. would have decided at least to make his way to the station on his own, and avoid the spectacle of being driven from his home in a police vehicle. He may have used that time to calm down, consult with his wife, or parents, or even to call a lawyer.

Had the police read A.B. his right to counsel and caution immediately upon arrest as they are required to do, A.B. may have contacted a lawyer or duty counsel before leaving his home with the officers, and he may have stayed silent. [ 27 ] Although the utterances the Crown seeks to adduce were made spontaneously by A.B. and were not in response to threats or inducements or even questioning by police, they were made by A.B. during an arrest in which the officers failed to comply with

section 529 , they mislead A.B. about the existence of a warrant, and violated 10(

b) by deliberately delaying their reading to A.B. of his formal right to counsel and caution. [ 28 ] I find that actions of the officers in contravention of s 529 of the Criminal Code , and sections 9 and 10(

b) of the Charter did affect A.B.’s behaviour. The officers’ folksy, casual approach to A.B.’s arrest and even their desire to try to make things easier for A.B. by getting him away from his nosy neighbours, answering his questions, trying to calm him down by reassuring him he would be released, all created an atmosphere in which A.B. felt he could ask the officers questions, and even confide in them. The utterances he allegedly made are inextricably linked to these breaches.

In my view, A.B. may have acted differently if his rights had not been violated. [ 29 ] The Crown has the onus of proving beyond a reasonable doubt that the utterances it seeks to tender are voluntary and I find that the Crown has not discharged its onus. But even if the voluntariness hurdle had been met by the Crown, A.B.’s application for exclusion of the statements succeeds. These statements are inadmissible as evidence against A.B.

The Charter infringing conduct of the police in this case, while not done in bad faith, was nevertheless deliberate and unreasonable, and resulted in an arrest that was prejudicial and unfair to A.B. The impact of the breaches on A.B.’s interests was significant. The police violated A.B.’s right to privacy in his home, and they violated his right to counsel. Taking into account society’s interest in the adjudication of a case on its merits, I order that any statements made by A.B. that the Crown seeks to tender as evidence against A.B. should be excluded.

Released: December 16, 2013 Signed: “Justice E. Deluzio”