R. v. A.M.J. Date:, 1999 BCCA 366

Citation: R. v. A.M.J. Date: 19990611 1999 BCCA 0366 Docket: CA025049 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: REGINA RESPONDENT AND: A.M.J. APPELLANT Before: The Honourable Mr. Justice Esson The Honourable Mr. Justice Goldie The Honourable Madam Justice Newbury Hugh M.G. Braker Counsel for the Appellant Robert A. Mulligan Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia 3 May 1999

Place and Date of Judgment Vancouver, British Columbia 11 June 1999 Written Reasons by: The Honourable Mr. Justice Goldie Concurred in by: The Honourable Mr. Justice Esson The Honourable Madam Justice Newbury Reasons for Judgment of the Honourable Mr. Justice Goldie : [ 1 ] This is an appeal by a young offender ("A.J.") from his conviction on the single count of breaking and entering a dwelling place and committing therein the indictable offence of theft.

The issue is whether the evidence upon which he was convicted was so tainted that it should have been excluded. [ 2 ] The offence was alleged to have been committed on or about 8 June 1998 and the dwelling house in question was owned or occupied by the complainant. [ 3 ] The circumstances involved two separate events. The first relates to the complainant's discovery of the theft of her VCR and what she and members of her family did to recover it.

The second relates to what happened after the complainant had recovered her property when she and members of her family compelled the appellant to accompany them to the police station. Upon their arrival the appellant was arrested by Constable Shepherd of the local RCMP detachment for violation of terms of his probation in respect of an offence unconnected with the present matter.

The next morning the appellant, who had spent the night in custody and had been interviewed early the next morning by Constable Shepherd, was re-arrested and charged with the present offence. [ 4 ] The appellant was born 25 June 1984 and was therefore within a month of his 14th birthday at the time of the offence. He was charged as a young person within the meaning of that phrase in the Young Offenders Act , R.S.C. 1985, c. Y-1 , as amended. The First event - the admission to the complainant [ 5 ] The complainant testified her house was unoccupied the morning of 8 June.

Her two younger children were at school and she herself had been absent from about 8:45 a.m. to about 12:05 p.m. When she returned, she discovered the basement door of her house had been kicked in and the door frame damaged. Upstairs, she noticed her VCR was missing from the living room. She suspected A.J. as she had put an end to a relationship between him and her younger daughter about a month before. From recordings on her telephone answering machine she believed he had been ascertaining whether the house was occupied that morning. [ 6 ] She reported the break-in to the local RCMP.

The call was taken by Constable Shepherd. To him the complainant said she had a hunch who did it but wasn't one hundred percent sure. Whether she reported the theft of the VCR is unclear. It does not appear she identified A.J. as a suspect and there is no suggestion she was requested to make a statement to the police beyond the bare fact of the break-in.

[ 7 ] The event caused a considerable stir in the complainant's family. From information given her by her older daughter she made inquiries which led her to believe A.J. had recently been seen in the vicinity of her house. [ 8 ] The complainant's mother and her husband (the complainant's stepfather) decided to take an active

part in the recovery of the VCR. It appears the mother, who did not testify, knew A.J. from his relationship with her granddaughter and distrusted him. The mother and the stepfather came in from the country. The complainant testified: QAnd after you made your phone calls what did you do then? AI went hunting around to see if I can find [A.J.] QDid you find him? AYes, I did, later on that evening. QWho did you go hunting around with? AMy mother and her husband, Mark. In another vehicle, the older daughter and her boyfriend joined in the search. They played little

part in what happened. [ 9 ] The complainant found A.J. with another youth. She pursued him in her vehicle. When the pursuit ended the complainant's vehicle was at the curbside and A.J. was on the sidewalk on his bicycle. The mother and stepfather each roughly seized and held an arm of A.J. Whether this was done to prevent further flight is unclear. When the complainant came onto the sidewalk she stood directly in front of A.J. and accused him of the break-in. He denied it until she told him she "had him on video". In fact she did not. According to her the assertion was enough to cause him to admit the theft.

But he denied knowledge of the whereabouts of the VCR. This was resolved by another youth. The complainant, with her mother, the stepfather and A.J., drove to the address given them. It was identified by A.J. as the house in question. She and the stepfather retrieved the VCR upon satisfying the occupant that the VCR he or his daughter had purchased earlier in the day from two young boys was hers. [ 10 ] During the complainant's interrogation of A.J. she testified her stepfather put a cigarette to A.J.'s cheek. She said she summarily stopped this.

In chief she testified this took place after A.J.'s admission to her of his guilt but in cross-examination she placed the two events close together, if not in reverse order. This exchange was, however, followed by her re-assertion that the admission was a consequence of her claim to have recorded A.J. on video. [ 11 ] It further appears the mother may have slapped A.J. after the sidewalk admission. The Second Event - the admission to Constable Shepherd [ 12 ] Upon arrival at the police station the complainant said to Constable Shepherd she wished to lay charges.

Her statement was taken after he had arrested A.J. for breach of probation. [ 13 ] Constable Shepherd testified A.J. was advised of his rights: QAll right. Can you tell us what you recall informing him at the time of his arrest outside of the detachment? QOutside of the detachment? QYes? AI informed him that he was under arrest actually for a breach of probation. I was also informed that he was at large and was arrest able (sic). QAll right. ASo I had reasonable grounds to believe that he was.

I informed him that he had the right to retain and instruct counsel without delay, in private, which meant he may call any lawyer he wishes. I informed him that if he could not afford a lawyer one may be provided from him free of charge through a legal aid duty counsel, and that a telephone number could be provided as soon as possible. I also informed him that he need not say anything to me but anything that he did say may be entered as evidence.

I will assume this testimony describes a warning which met the requirements of s. 10(

b) of the Canadian Charter of Rights and Freedoms . It appears from the constable's further testimony A.J. exercised his right to consult a lawyer. All this, however, was in the context of his arrest and detention for breach of probation. [ 14 ] The next morning, in circumstances I will next describe, A.J. was interrogated again, this time in respect to the offences in question here. [ 15 ] While the admissibility of the statements made by A.J. to the complainant and to the peace officer are both in issue, I propose examining that made to the latter first. Analysis 1.

The Statement made to Constable Shepherd [ 16 ] The formalities with respect to the arrest of A.J. for breach of his probation conditions having been completed the young person was placed in a juvenile cell. This was sometime around 9:00 p.m. The next morning, 9 June 1998, he was interviewed by Constable Shepherd about the offences alleged by the complainant. [ 17 ] The relevant events may be summarized as follows: 1. At about 5:00 a.m. Constable Shepherd, in uniform, removed A.J. from his cell to an interview room and informed him he was investigating the alleged offence.

He said to A.J. he had "... pertinent evidence stating that, in fact, he was guilty of what he was charged with." and that he "... wanted to hear his side." 2. For about 15 or 20 minutes A.J. refused to speak. Constable Shepherd testified he then "... told him to get a spine, in no uncertain terms, and stand up for what he did". 3. This elicited some responsive movement from A.J. which Constable Shepherd interpreted as signalling the former's readiness to speak, and he immediately "withdrew the Young Offender waiver from the desk and I went through it with him." 4.

The "Young Offender waiver" to which the constable referred was a form prepared by the RCMP to comply with the requirements of s. 56 of the Young Offenders Act . 5. The statement thereafter recorded in a question and answer form lasted for 26 minutes and contained inculpatory admissions. The information charging A.J. with breaking, entering and committing theft was sworn 9 June 1998. 6. As part of the evidence of Constable Shepherd at the trial the statement was admitted following a voir dire .

After commenting on some errors and omissions the trial judge said: So as far as the form is concerned I prefer the verbal evidence given by the police officer where he says he went through every part of the form, made sure that the young person read -- understood each part, and explained any parts that -- in his own words, and did not pay enough attention to filling out the form. I find in conclusion then that the statements were given free and voluntarily. And I find that his charter of rights in regards to this part of the trial, this voir dire, were not breached and that the evidence is admissible.

And with the consent of both counsel I order that the evidence of the police officer will be -- will form part of the trial. [ 18 ] The difficulty with this statement starts with the constable's initial assertion to A.J.: I informed him that I was investigating this and I had pertinent evidence stating that, in fact, he was guilty of what he was charged with. And I said I wanted to hear his side. The fact was that A.J. had not then been charged with the property offence.

The assertion by the constable might well convey to A.J. the erroneous understanding that the formalities he went through the previous evening when he was arrested on the probation breach applied as well to the indictable offence.

[ 19 ] A second difficulty emerges from the manner in which the form intended to meet the requirements of s. 56 of the Young Offenders Act was completed. It is in two parts: the heading of the first is "Explanation of Rights to a Young Person" and the second is "Exercise or Waiver of Rights". [ 20 ] The first

part is broken down into seven individually lettered statements to be made to the young person, each to be followed by the question, "Do you understand?" Beside each question the response is to be recorded: "□Yes □ No". In the case of A.J. the "yes" box is ticked in respect of each of the seven questions. [ 21 ] A.J. acknowledged by a signature the paragraphs in question had been explained to him and that he understood them as marked. [ 22 ] The second part of the form consists of five different questions. While the response is again indicated by a "yes or no" set of boxes the format reflects a change in the context of the interview. This is evident from the following which reproduces the

part in question as completed: EXERCISE OR WAIVER OF RIGHTS 1.Do you want to speak to a lawyer? □ Yes No 2.If you do not want to speak to a lawyer you are waiving, which means giving up, your right to speak to a lawyer at this time; do you understand ? □ Yes No 3.Do you want to speak to a parent, an adult relative, or any adult of your choice? □ Yes No 4.If you do not want to speak to a parent, or adult of your choice, you are waiving, which means giving up, your right to speak to any of them at this time; do you understand ? □ Yes No 5.Do you want to give a statement Yes □ No [ 23 ] Only in two instances is the question posed: "Do you understand?" The result is obvious.

The ticked "No" in response to questions 2 and 4, if truly responsive, literally destroyed the foundation for admissibility of the statement. [ 24 ] Following this set of questions is a note on the form directed to the peace officer: NOTE to Peace Officer , paragraph 6 below only applies if the young person has spoken to a lawyer and wants to give a statement 6. Do you want the lawyer you spoke to present when you give your statement? □ Yes □ No [ 25 ] Neither box was ticked.

The absence of any mark in respect of item 6 may indicate the constable considered the events of the evening before had no connection with the second interview. In cross-examination he could offer no explanation for this omission. That, however, is not the material point: it is the possibility of confusion in the young person's mind that is relevant.

[ 26 ] The final difficulty was created in the course of the interview. It will be recalled the complainant testified that A.J. admitted the break-in when she claimed to have him "on video". It is apparent this was on A.J.'s mind. In the middle of an exchange relating to the sale of the VCR, A.J. asked to see the video. I set out here the end of the preceding exchange, the question and the response: QOh you don't know her she, ya that's right she said she didn't know you either, um did, did Ronnie just go up to her and say did you want to buy the, the VCR? AYa and she bought it.

QYa okay was ah, did Ronnie go in the house with you? ANo he didn't even come with me at all. QWell did he even know you were there? AHe knew that but he didn't come in QOkay was he out on the street or something? ANo so if, if they got the video, video tape why don't you show it to me and see who else is on it? QBecause I can't do that for court. AThere should be somebody else on it. The response "Because I can't do that for court" may have suggested to A.J.that another discussion with his lawyer was pointless. [ 27 ] No authorities were given to the trial judge which were of direct assistance to him.

The principles applicable to circumstances where confusion may be created by successive interviews were examined at length in R. v. I.(L.R.) , 1993 CanLII 51 (SCC) , [1993] 4 S.C.R. 504 and applied in R. v. R.(D.) , 1994 CanLII 131 (SCC) , [1994] 1 S.C.R. 881 . In the latter the dissenting judgment of Labrosse J.A. in the Ontario Court of Appeal, reported at (1993), 1993 CanLII 8599 (ON CA) , 84 C.C.C. (3d) 126 was substantially adopted. [ 28 ] The facts in R. v. R. (D.) , supra , are relevant.

A police officer interviewed a suspect (to whom I will now refer as the appellant) after warning him in what was described as the standard caution given to adults. Some of the appellant's responses were inculpatory and he was thereupon arrested. The police officer then asked, for the first time, his age. Upon learning that he was 17, the police officer immediately advised the appellant of his rights under s. 56 of the Young Offenders Act ; read to him a primary caution; and went through the s. 56 waiver form and obtained his signature to it.

The appellant indicated he understood all that had been explained and told the police officer he did not want to call anyone. [ 29 ] The trial judge excluded anything said before the so-called s. 56 protocol had been administered and completed but admitted all said by the appellant thereafter. On appeal, the majority of the Court of Appeal concluded the trial judge was right.

At C.C.C. (3d) 130, Finlayson J.A. said: I cannot accept the proposition that the initial failure to follow the protocol set out in s. 56 of the [ Young Offenders] Act had the effect of immunizing this young person from further questioning. [28] The response of Labrosse J.A. is found at 142: Contrary to the view expressed by my brothers, I must respectfully disagree that the failure to provide a s. 56 caution prior to the first part of the statement had the effect of immunizing the appellant from further questioning.

In my view, in the circumstances of this case, the failure to provide the caution until after an admission was obtained in response to interrogation required that the officer take more care in ensuring that the young person made an informed choice with respect to the exercise or waiver of hs rights. The appellant, prior to being questioned, was cautioned that he did not have to say anything but that whatever he said could be repeated to a judge.

After making an admission, the appellant was arrested and "cautioned about saying anything further " (emphasis added) before he was advised of his rights to counsel and his rights as a young offender. He had already been told that whatever he said may be repeated to a court. He was never told that what he had already admitted could not be used as evidence against him. [29] Labrosse J.A. referred to the judgment of the Supreme Court of Canada in R. v. J.(J.T.) , 1990 CanLII 85 (SCC) , [1990] 2 S.C.R. 755 , in which Mr.

Justice Cory noted the susceptibility of young people to subtle threats arising from their surroundings and the presence

of persons in authority. Labrosse J.A. was not satisfied the appellant understood the significance of the rights given him when he received the s. 56 caution. He concluded by saying the waiver form was invalid in the absence of clear advice to the appellant that the first statement could not be used against him. [ 30 ] The appellant's appeal to the Supreme Court of Canada was successful. At S.C.R. 882, Mr. Justice Sopinka agreed with Labrosse J.A. in his characterization of the second part of the statement as a continuation of the first part.

He rejected the Crown's contention the second part was a "fresh start" in these words: In the circumstances of this case, in order to constitute a "fresh start", the effect of the first statement would have had to be dispelled by appropriate language. This was not done. [ 31 ] I do not doubt the constable in this case was acting in good faith. That, however, is not the test as the authorities to which I have referred make clear. The trial judge accepted his explanation for the manner in which the waiver form was completed.

This was in the context of an objection under s-s. (2) of s. 24 of the Charter originating in what was called a "citizen's arrest". With this, it is convenient to return to the first event. 2. The Statement made to the Complainant [ 32 ] I have described the circumstances leading up to A.J.'s admissions to the complainant. Founded on these Mr. Braker contended in the court below and here that there was a warrantless "citizen's arrest" and that the resulting admission must be excluded because A.J. was not warned of his rights.

He emphasized that to admit an inculpatory confession obtained in the circumstances present in this case would encourage vigilante behaviour and bring the administration of justice into disrepute. [ 33 ] If I understand Mr.

Braker's submission correctly, a person, other than a peace officer, effecting an arrest becomes an agent of the state and assumes the same responsibilities and duties imposed on a peace officer of informing the person arrested of his rights and of the consequences of making a statement. [ 34 ] If that is correct, it would seem to follow the young person would be entitled to claim the benefit of the so-called confessions rule applicable to an out of court statement made to a person in authority. See: R. v.

Hodgson (1998), 1998 CanLII 798 (SCC) , 127 C.C.C. (3d) 449 (S.C.C.) . [ 35 ] The implications of this are far-reaching. [ 36 ] I note at the outset that the word "citizen's" in the phrase "citizen's arrest" may be misleading. Parliament did not restrict the authority conferred by s-ss. (1) and (2) of s. 494 of the Code to citizens. The more inclusive word in the

section is "persons". [ 37 ] Be that as it may, there is an air of unreality in requiring a person who apprehends a wrongdoer in one of the situations described in s. 494 to give the wrongdoer a Charter warning - whether the person is a citizen of Canada or a visitor to this country. [ 38 ] Such a requirement would tend to reduce s. 494 to a dead letter by requiring the person on the street who responds to a criminal act to thereupon give a Charter warning.

Section 494 contains sufficient safeguards against vigilante justice. The circumstances in which it may be used are tightly defined and the direction in s-s. (3) is imperative. [ 39 ] The issue which should have been addressed was whether the admission made to the complainant at the roadside confrontation was given under duress, contrary to s- s. 56(5) of the Young Offenders Act :

(5) Statements given under duress are inadmissible - A youth court judge may rule inadmissible in any proceedings under this Act a statement given by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was given under duress imposed by any person who is not, in law, a person in authority.

[ 40 ] In my view the primacy of this

section in the case at bar is indicated by s-s. 56(1). Other relevant sections in that act are ss. 3 and 11. The underlying purpose of s. 56 , gleaned from the authorities reviewed in dissent in R. v. R. (D.) , supra , is to ensure that a young person is informed of his rights and the consequences of giving a statement in language and terms expressly tailored to achieve the policy objectives of the Young Offenders Act . [ 41 ] Mr. Mulligan on behalf of the Crown submits this Court may apply s-s. (5) of s. 56 to set aside the conviction and enter an acquittal. Mr.

Braker adopts this submission as an alternative to the position he took at trial. The submission assumes the complainant was a principal in an assault committed by the stepfather and the mother. In turn, this assumes the admission was made after the stepfather touched A.J.'s cheek with a cigarette. Such a finding has consequences which were not addressed at the trial, specifically, whether the conduct of the complainant, said to comprehend duress, includes that of the mother and the stepfather and if not, whether the admission was coerced or improperly obtained by the complainant.

These issues of fact were not subject to any findings by the trial judge. [ 42 ] I am of the view an acquittal based on the application of s-s. (5) of s. 56 as proposed would not be a satisfactory disposition of this appeal. Apart from the fact this was not a position taken by anyone in the Youth Court, the evidentiary basis for its application is inadequate having regard to consequences which may or may not flow from a trial focussed on s-s. (5) of s. 56 of the Young Offenders Act . In my opinion there should be a new trial.

Conclusion [ 43 ] The failure of the trial judge to take the question of duress into account, however inadvertent given the position of the Crown and the defence at trial, is an error in law. I would set aside the conviction and order a new trial. "The Honourable Mr. Justice Goldie" I AGREE: "The Honourable Mr. Justice Esson" I AGREE: "The Honourable Madam Justice Newbury"