R. v. P.(M.), 2012 ONCJ 842

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. COURT FILE No.: Kitchener 11Y268 DATE: 2012·July·19 Citation: R. v. P.(M.) , 2012 ONCJ 842 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 — M. P., a young person Before Justice G. F. Hearn Heard on April 23, April 25 and June 4, 2012 Ruling on Voir Dire released on July 19, 2012 L. Fritzley and C. Jennison.............................................................................. counsel for the Crown C. Parry ............................................................................................... counsel for the accused M.P. HEARN J.:

BACKGROUND: [1] M.P. has entered a plea of guilty to a charge of second-degree murder arising out of events occurring on the evening ofMarch 29, 2010 in an apartment situated in Kitchener. An agreed statement of facts has been filed during the course of this proceedingand the matter of disposition has been adjourned to enable a psychiatric report to be completed as ordered pursuant to s. 34 of the YouthCriminal Justice Act. [2] The statement of facts filed does not contain any reference to the contents of statements attributed to M.P. upon hisarrest on March 30, 2010.

There were in fact two statements made by the young person, one upon his arrest and during his transport tothe police detachment and a second statement thereafter upon his arrival at the detachment.

The first statement has been audio-recorded,the second statement videotaped. [3] The issue that has arisen in this matter is whether or not such statements, although not part of the facts agreed to by theyoung person for the purposes of the plea and the finding of guilt, are admissible for the purposes of sentencing and, specifically, for useby the psychiatrist preparing the s. 34 report and the court when dealing with sentencing. [4] A voir dire has been conducted, evidence was heard from Detective Rutherford who was the officer involved with bothstatements, submissions have been received both orally and in writing, and the matter was ultimately adjourned to today’s date forruling.

It is important to note that the defence takes no issue with respect to the voluntariness of either statement, nor are any Charterissues raised with respect to such statements, save and except as may be subsumed in the provisions of s. 146 of the Youth CriminalJustice Act. ISSUES TO BE DETERMINED: [5] There are effectively two issues to be determined in this matter.

The first issue the court must determine is whether ornot there is an obligation on the Crown to prove that both statements comply with the requirements of s. 146 of the Youth CriminalJustice Act for the statements to be admissible on sentencing either for use by the court or the psychiatrist conducting the assessmentpursuant to s. 34. [6] The second issue arises if there is a finding that s. 146 does apply. Then, if the Crown must prove compliance with theprovision, were the requirements with respect to the taking of such statements satisfied.

POSITION OF THE PARTIES: [7] The Crown submits that the requirements of s. 146 are not to be considered by the court at the sentencing phase of thisproceeding. As the Crown puts it, stated in another way, “It does not matter if either statement complies with the

section once the guiltof M.P. has been established”. [8] The Crown submits, in the alternative, should the court find that s. 146 is applicable at the stage of disposition thenthere still must be some flexibility with respect to the use of such statements at this stage. The Crown in that regard relies on thestatement by the court in Regina v. Campbell, (ON SC), [2003] O.J.

No. 4085, where it is stated at para. 29: “The touchstone for sentencing procedure is flexibility with diminished procedural impediments to the acquisition of the fullest possibleinformation regarding the offender to support its position.” [9] Defence submits that the requirements of s. 146 remain in place for statements to be admissible at the disposition stagefor use by this court and the psychiatrist conducting the assessment. Further, defence states that given the requirement to comply withthat

section there has been a failure by the Crown to establish to the degree required compliance with respect to both statements and suchstatements should therefore not be admissible for use during the sentencing stage of this proceeding.

Defence also submits to remove therequirement that s. 146 is applicable at the sentencing phase would constitute a violation of s. 7 of the Charter in that young personswould then be deprived of the benefit of protections afforded to adults at the same phase of a trial. [10] Both counsel have provided full submissions and books of authorities which have been reviewed for the purposes of thisruling.

DETERMINATION OF WHETHER OR NOT S. 146 IS APPLICABLE WITH REGARD TO STATEMENTS AT THIS STAGEOF THE PROCEEDING: [11] For the purpose of the determination of this issue it is instructive to set out the text of s. 146 in full. “146.

(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offencesapplies in respect of young persons. Marginal note: When statements are admissible

(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other personwho is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or otherperson has reasonable grounds for believing that the young person has committed an offence is admissible against the young personunless

(

a) the statement was voluntary; (

b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that (

i) the young person is under no obligation to make a statement, (ii) any statement made by the young person may be used as evidence in proceedings against him or her, (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph ( c ), and (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph ( c ), if any, unless the young person desires otherwise; (

c) the young person has, before the statement was made, been given a reasonable opportunity to consult (

i) with counsel, and (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and (

d) if the young person consults a person in accordance with paragraph ( c ), the young person has been given a reasonable opportunity to make the statement in the presence of that person. Marginal note: Exception in certain cases for oral statements

(3) The requirements set out in paragraphs (2)(

b) to (

d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements. Marginal note: Waiver of right to consult

(4) A young person may waive the rights under paragraph (2)(

c) or (

d) but any such waiver (

a) must be recorded on video tape or audio tape; or (

b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived. Marginal note: Waiver of right to consult

(5) When a waiver of rights under paragraph (2)(

c) or (

d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them. Marginal note: Admissibility of statements

(6) When there has been a technical irregularity in complying with paragraphs (2)(

b) to ( d ), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected. Marginal note: Statements made under duress are inadmissible

(7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority. Marginal note: Misrepresentation of age

(8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver, (

a) the young person held himself or herself to be eighteen years old or older; (

b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and (

c) in all other circumstances the statement or waiver would otherwise be admissible. Marginal note: Parent, etc., not a person in authority

(9) For the purpose of this section, a person consulted under paragraph (2)(

c) is, in the absence of evidence to the contrary, deemed not to be a person in authority.” [ 12 ] As noted by the various case law and texts, s. 146 is fundamentally concerned with enhanced procedural protection for

young persons in the context of the admissibility of statements. The importance of the need for such enhanced protection for youngpersons has been specifically emphasized by the Supreme Court of Canada in Regina v. L.T.H., 2008 SCC 49 , [2008] S.C.J. No.50, and Regina v. D.B., 2008 SCC 25 , [2008] S.C.J. No. 25 where in both cases the Supreme Court of Canada stated that proofbeyond a reasonable doubt was required with respect to the requirements for admitting statements of young persons to persons inauthority. Indeed, the principle of enhanced procedural protection is incorporated within the

section itself and indicates that suchprotection is necessary to ensure that young persons are fairly treated and their rights are protected in circumstances where a statement ismade to a person in authority on arrest or detention or where there are reasonable grounds to believe the youth has committed anoffence. (See s. 146(2) of the Youth Criminal Justice Act). [13] In paras. 2 and 3 of Regina v. L.T.H., supra, the Supreme Court indicated as follows: “Section 146 gives statutory expression to common law rules and constitutional rights that apply to adults and to young persons alike.

Itprovides, for example, that no statement by a young person to a person in authority will be admissible in evidence against that youngperson unless it is voluntary. And it reaffirms the right to counsel enshrined in s. 10 of the Canadian Charter of Rights and Freedoms. Parliament has recognized in this way that the right to counsel and the right to silence are intimately related. And that relationship isunderscored in s. 146 by the additional requirements that must be satisfied in order for statements made by young persons to beadmissible against them at their trials.

Parliament has in this way underscored the generally accepted proposition that procedural andevidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age andrelative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.” [14] In Regina v. D.B., supra, the Supreme Court was dealing with the onus provisions in the presumptive offence regime andfound that such provisions engage the liberty interests of a young person under s. 7 of the Charter.

After considerable analysis themajority of the court found that such regime violated the Charter and specifically the principle of fundamental justice. During thecourse of the judgment the court indicated that young people are entitled to a presumption of diminished moral blameworthiness orculpability flowing from the fact that because of their age they have heightened vulnerability, less maturity and a reduced capacity formoral judgment. The court said specifically that is why there is a separate legal and sentencing regime for young persons.

Both themajority and the dissent appreciated this special protection and noted that the different procedural protections were afforded to the youngperson before, during and after sentencing. [15] Specifically with respect to such enhanced procedural protection at the sentencing stage, the court noted in Regina v. D.B.,supra, at paras. 79 to 81 as follows: “[79] In R. v.

Gardiner, (SCC), [1982] 2 S.C.R. 368, a pre-Charter case, Dickson J. cogently explained the significanceof this burden on the Crown when he observed: It is well to recall in any discussion of sentencing procedures that the vast majority of offenders plead guilty. . . . The sentencing judgetherefore must get his facts after plea. Sentencing is, in respect of most offenders, the only significant decision the criminal justicesystem is called upon to make. . . .

In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trialjudge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt atsentencing. [B]ecause the sentencing process poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonablethat he be granted the protection of the reasonable doubt rule at this vital juncture of the process ([J.

A.] Olah [“Sentencing: The LastFrontier of the Criminal Law” (1980), 16 C.R. (3d) 97], at p. 121). (Emphasis in original; pp. 414-15.) [80] In R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, this Court, citing Gardiner, noted that it is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those factsbeyond reasonable doubt . . . . Although, of course, Gardiner was not a Charter case, the problem it confronted can readily be restated in terms of ss. 7 and 11(

d) of theCharter. While the presumption of innocence as specifically articulated in s. 11(

d) may not cover the question of the standard of proof ofcontested aggravating facts at sentencing, the broader substantive principle in s. 7 almost certainly would. [p. 686] [81] In the case of presumptive offences, it is the young person who must satisfy the court of the factors justifying a youth sentence,whereas it is normally the Crown who is required to satisfy the court of any factors justifying a more severe sentence. A maximum adultsentence in the case of presumptive offences is, by definition, more severe than the maximum permitted for a youth sentence.

A youthsentence for murder cannot exceed ten years; for second degree murder, seven; and for manslaughter, three. The maximum adultsentence for these offences is life in prison.” [16] In this case the Crown effectively relies on the following assertions: 1. That s. 146 does not apply to sentencing proceedings as it only is to be applicable where the issue to be determined is the guilt orinnocence of the young person; and, 2. That s. 146 is inapplicable as rules regarding the admissibility of evidence are to be relaxed during the sentencing stage.

[ 17 ] The case law provided by counsel is not specifically on point and counsel indicate that there does not appear to be any case law directly on point. That is, whether or not s. 146 applies in the context of dispositions. There is, however, a somewhat related decision in the Quebec Youth Court which is noted in the Annotated Youth Criminal Justice Act Service at page 3304. The case is Regina v. C.M. ,

(1988) J.E. 88-1239 (Ct. Qué. Yth. Div.), and although the court has not been able to obtain a full copy of the apparently reported decision the

summary indicates in that case the young person had made statements to the police that found their way into a pre- disposition report under the Young Offenders Act . Defence counsel argued that the statements made were made to a person in authority and should not have been included unless they were found to have been made voluntarily in accordance with the provisions of s. 56 of the legislation.

The court agreed and stated that although the rules prohibiting hearsay do not apply at sentencing, the rules surrounding the making of statements to persons in authority continue. [ 18 ] It is clear that the legislation enacted, as noted in the case law, was considered by Parliament to be right and necessary to afford young persons rights and procedural safeguards which they alone enjoy. The legislation itself refers to the necessity of ensuring that young persons are treated fairly and their rights are protected in the circumstances where statements are provided.

It is my finding that s. 146 is applicable not only to the determination of guilt or innocence but also remains in place with respect to the disposition stage of a trial. The disposition stage is a part of the trial process and there is no reason given the clear intention of the legislation to the procedural benefit afforded to the young person for that protection to effectively vanish during the sentencing phase of the trial process. [ 19 ] In coming to this conclusion I find there are a number of concerns with respect to the Crown’s position that the

section only applies to proceedings that will determine guilt or innocence and the secondary argument that rules regarding the admissibility of evidence are relaxed during sentencing. I note these concerns as follows: 1. The Crown relies on case law with respect to transfer cases under the Young Offenders Act and treats those as analogous to sentencing hearings under the Youth Criminal Justice Act .

In my view that is not appropriate as in the transfer cases provided by the Crown statements that did not comply with s. 56 of the Y.O.A. were admitted on the basis that the outcome of the transfer hearing did not determine guilt or innocence. Therefore, the Crown submits that s. 146 only applies where guilt or innocence is at issue which is not the case with sentencing hearings. However, a sentencing hearing is not similar to a transfer hearing. A transfer hearing was held to determine in what court the young person’s charges would be tried.

In significant contrast, a sentencing hearing determines the young person’s liberty. Certainly, the jeopardy of incarceration requires heightened not reduced vigilance by the court regarding young persons’ procedural protections and rights under s. 146. 2. If s. 146 was not intended to apply to sentencing hearings as the Crown argues here, one would have expected to find very explicit language to this effect similar to other provisions of the Y.C.J.A. which specifically deal with the exclusion from admissibility of certain statements.

For example, a statement made to a youth worker or a probation officer during the course of the preparation of a pre-sentence report is specifically excluded by reference to s. 40(10) of the legislation which states as follows: “

(10) No statement made by a young person in the course of the preparation of a pre-sentence report in respect of the young person is admissible in evidence against any young person in civil or criminal proceedings except those under

section 42 (youth sentences), 59 (review of non-custodial sentence) or 71 (hearing — adult sentences) or any of sections 94 to 96 (reviews and other proceedings related to custodial sentences).” Further, admissions made as a condition of qualifying for extra judicial measures are excluded by virtue of s. 9 of the Act. Further examples are s. 94(12) which effectively provides that procedures respecting pre-sentence reports including those set out in s. 40(10) apply with any modifications that circumstances require with respect to progress reports for the purpose of review under the legislation.

In addition, under s. 147 no statement made by a young person who is assessed in accordance with an order under s. 34 is admissible without the consent of the young person in any proceeding before a court, tribunal body or person with jurisdiction to compel the production of evidence. The fact of the matter is that there are provisions in the Youth Criminal Justice Act that use very explicit language to deal with situations of admissibility of statements of young persons in various circumstances.

There is nothing explicit in the language of s. 146 that limits its applicability only to the establishment of the guilt or innocence of a young person and thereby effectively limiting its operation to that part of the trial process. 3. Section 3(2) of the Youth Criminal Justice Act states as follows: “

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).” The principles set out in s. 3(1) clearly indicate that the criminal justice system for young persons must be separate from that of adults and emphasizes, among other things, in s. 3(1)(b)(iii): “iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected”. To place a narrow

interpretation on the section, as submitted by the Crown, and limit the application of s. 146 as suggested would fail to recognize the enhanced procedural protection afforded to young persons under

the Act. By interpreting s. 146 to apply not only to findings of guilt or innocence but also to sentencing hearings in my view is consistent with the statutory

interpretation approach prescribed by the statute, whereas the

interpretation suggested by the Crown is not. 4. The Crown submits that the phrase “against the young person” as set out in s. 146(2) implies applicability only where guilt or innocence is at stake. This submission is unreasonable and that unreasonableness is particularly evident in this proceeding where the accused initially faced a charge of first- degree murder and now has pled guilty to a count of second-degree murder.

It is also evident that it is difficult to understand that in determining whether a young person is to be incarcerated or, if incarcerated, the length and nature of that incarceration such proceeding can be anything other than characterized as a proceeding “against the young person”. 5. The Crown relies on case law dealing with dangerous offender matters relating to adults. In the court’s view these cases are not analogous since in dealing with such cases the court was not bound by legislation restricting the admissibility of confessions in issue.

In the instant case we are dealing with statements which are inadmissible by virtue of the statute and without any legislation regarding adult confessions similar to s. 146 the courts with respect to dangerous offender applications were free to relax the confession rules for the purpose of such hearings.

Section 146 of the Youth Criminal Justice Act effectively provides a restriction regarding the admissibility of young persons’ statements and that protection is not limited to accused young persons but applies to all young persons. Sentencing justices under the Youth Criminal Justice Act are bound by legislative restrictions regarding the admissibility of young persons’ statements. 6. The same argument applies to the Crown’s second submission that the admissibility of evidence is relaxed during the sentencing stage of any proceeding. Common law rules do not trump legislation.

The common law regarding sentencing that originated in cases such as Regina v. Gardiner, supra, permitting a flexible approach to evidentiary rules during sentencing does not apply where there is legislation such as s. 146 which deals specifically with the admissibility of certain kinds of evidence, i.e. statements made by young persons to persons in authority. [ 20 ] As a result, the court is satisfied that s. 146 of the Youth Criminal Justice Act applies to not only the phase of the trial process where guilt or innocence is determined but also to the sentencing phase.

The onus on the Crown to prove compliance with the requirements in s. 146 therefore continues during the sentencing stage of this proceeding. DETERMINATION OF WHETHER OR NOT THE IMPUGNED STATEMENTS SATISFY THE REQUIREMENTS OF S. 146: [ 21 ] Looking then at whether or not the Crown has established to the degree required that the provisions of s. 146 have been complied with, I think it is important to appreciate the actual context in which both statements were received. M.P. was 16 years of age at the time of his arrest on a charge of first-degree murder.

He had been at large since the events the preceding evening on March 29, 2010 and surrendered into police custody some time between during the afternoon on March 30, 2010. [ 22 ] He was arrested and transported to the detachment accompanied by Detective Rutherford on that date. An audio tape was activated to capture the conversation during the course of that transport. The officer described M.P. as presenting in various states of emotion during that transport. [ 23 ] Detective Rutherford was an experienced police officer of some 18 years who had been handling homicide cases for about three years as of that date.

Notwithstanding his experience this was only the second youth homicide he had been involved with and he was admittedly only notified that he would be investigating M.P. earlier that morning. He acknowledged that he had done some preparation including interviews with people of interest which was of assistance in providing him with information with respect to M.P. including his whereabouts. He knew then something of the background of M.P. but his assessment of M.P. was that he was a “16 year old boy on the run after having stabbed someone. My understanding was that he may be scared”.

The officer was candid in stating that he wished he had had further opportunity to investigate the matter prior to contact with M.P. [ 24 ] It was in this context that Detective Rutherford took control of M.P. after he had surrendered as he had indicated he would. M.P. was handcuffed, placed in a police van and the detective commenced a conversation with him on the way to the detachment. The officer audio-taped the initial conversation (Statement No. 1) and acknowledged that he misspoke the actual time and stated the time was four minutes after 5:00.

The officer acknowledged the misspeak and stated it was as a result of him being “probably quite nervous...my anxiety was up”. He also describes himself at some point as being “full of nerves”. [ 25 ] It was in this setting that Detective Rutherford and M.P. first came into contact. [ 26 ] Fully appreciating there is no issue as to voluntariness of any utterances made, I still believe it is important to note the circumstances of the initial meeting, although audio-taped not seen with the van, during transport.

The court has had an opportunity of viewing both Detective Rutherford and the young person during the course of the videotaped statement taken later at the detachment (Statement No. 2).

[27] In dealing with the statements, the Crown concedes there are imperfections with the taking of both statements. Inparticular, the Crown concedes the court may have concerns with respect to the requirements set out in s. 146(2)(d). The defencesubmits that there are also concerns with respect to s. 146(2)(c)(ii), the failure to hold off after M.P. had clearly indicated the desire tospeak with counsel and, specifically, addresses concerns under s. 146(2)(b)(iii) and (iv) and s. 146(2)(

c) and (d). STATEMENT NO. 1: [28] This issue involves a determination of the statement made over a span of some 30 minutes while the young person M.P.was being transported to the detachment in the company of Detective Rutherford and another officer.

This particular statement wasaudio-taped by Detective Rutherford while seated in the backseat of the van in close proximity to the young person who was handcuffedbeside him. [29] There are really two parts of this particular statement for consideration in the analysis and I propose to deal with themseparately as I am of the view they have different considerations. [30] Initially, there are two utterances the Crown seeks to rely on made by M.P. during the initial reading of the various rightsby Detective Rutherford which clearly do not comply with the requirements of s. 146 but which the Crown states are otherwiseadmissible as they are spontaneous utterances as contemplated by s. 146(3).

There are further utterances made following the completionof the reading of the various rights as perceived by Detective Rutherford and thereafter when M.P. had expressed a desire to speak withcounsel. [31] Dealing initially with the utterances made at the outset of the transport, again I think it is important to keep in mind thecontext within which that conversation was initiated. [32] During the initial stages of the interview in the van the following exchange took place: “Detective Rutherford: There’s a couple of things I have to read to ya. M.P.: I’m not gonna lie. Detective Rutherford: Yeah.

Matt, there’s a couple things I have to read to you, okay? In regards to uh the reason that you’ve beenarrested. Do you know why you’ve been arrested? M.P.: Cus I stabbed him in the kidney. Detective Rutherford: Okay uhm, I’m gonna issue you some uh Rights to Caution and Counsel here because you’re a young offender. How old are you right now? M.P.: Sixteen. Detective Rutherford: Sixteen. Okay. Uh Matthew, you’ve been arrested for the First Degree Murder and do you understand the reasonfor your arrest? M.P.: Hmm. Yeah.

I killed him.” [33] Clearly, at the point these utterances were made during the initial part of the interview the officer had not had areasonable opportunity to comply with the requirements of s. 146. The issue then is whether or not the statements could be considered tobe spontaneous and therefore admissible. [34] In Regina v.

W.(J.), (1996) (ON CA), 109 C.C.C. (3d) 506, the Ontario Court of Appeal dealt with themeaning to be attributed to the word “spontaneous” as it was contained in s. 56(3) of the Young Offenders Act and determined that itshould be as set out in the Shorter Oxford English Dictionary: “arising, proceeding, or acting entirely from natural impulse, without anyexternal stimulus or constraint”. The court there determined that the mere presence of the police would not necessarily preclude astatement from being spontaneous but the court must consider all of the circumstances at the time the statement is made.

In that case thecircumstances of the encounter between the police and the accused led to the conclusion that all the statements had been induced in partby external stimuli and therefore could not be said to be spontaneous. The court went on to state that one of the purposes of s. 56 was toafford protection to youths in recognition of their immature powers of judgment and any doubt as to the spontaneity of a statement shouldtherefore be resolved in favour of the young person. [35] In Regina v.

S.(C.L.), (2011) 2011 MBQB 22 , 92 W.C.B. (2d) 449, the Manitoba Court of Appeal provided ananalysis with respect to s. 146 in some detail. During that analysis the court dealt with the issue of spontaneous oral statements for thepurposes of s. 146(3) and relied on the analysis in the case of Regina v. W.(J.), supra. A review of a number of cases also indicates thatstatements that have been admitted as being spontaneous are those where the police are present but not engaged in any conversation at allwith the youth at the time a statement is made. (See Regina v.

L.-T.(K.), (2005) 2005 ONCJ 339 , 66 W.C.B. (2d) 585 (Ont. C.J.); Regina v. Wilson, (2001) 2001 BCCA 391 , 156 C.C.C. (3d) 74 (B.C.C.A); and Regina v. W.(P.D.), (2008) 2008 SKPC 54, 319 Sask. R. 242 (Prov. Ct.). [36] The facts in Regina v. S.(C.L.), supra, indicate that at the time the statement was made by the young person, the youngperson was in a police station and was being questioned as a witness to the murder. Upon receiving the statement where the youngperson effectively had stated that he “didn’t kill her.

I only hit her once”, the young person’s status changed from that of a witness to asuspect and the police made an arrest. As here, the statement had been made in response to being asked if the young person understoodafter the arrest. Despite the fact that the utterance was not directly responsive to the question “Do you understand?”, it was made in the

course of a series of questions and answers with the detective and was a repeat of a previous answer that the young person had provided. However, in all the circumstances the court found this was not a spontaneous utterance. [ 37 ] In this particular case it is a very similar situation. The two utterances made by the young person followed being questioned by Detective Rutherford whether or not he understood why he had been arrested. They are not directly responsive to that and clearly the officer was likely anticipating something with respect to the charge before the court but not the responses obtained.

However, the utterances made by M.P., although not directly responsive to the question as to whether or not he understood why he had been arrested or the reason for his arrest, were made as a result of an inquiry from the officer. The officer had engaged the young person early in the interview process, had told him that he “appreciated him turning himself in”, the young person is handcuffed, sitting beside an experienced police officer in a van and responds not only once but twice when asked not only once but twice by the officer if he understood the reason for his arrest.

Clearly, in all the circumstances here those utterances were not spontaneous but a product of direct questioning by the officer, not entirely from natural impulse, and with the external stimulus or constraint of being under arrest in a police van while handcuffed beside an officer and in transport to the detachment.

I find those particular utterances were not spontaneous, do not otherwise comply with s. 146 and are inadmissible against the young person. [ 38 ] The second set of concerns during the taking of Statement No.1 arise from the actions or inactions of the officer following the recitation of the right to counsel to M.P. After reading the printed rights the officer asked M.P. “Do you wish to call a lawyer now?”. The following exchange then took place: “M.P.: No, I don’t know his name. Detective Rutherford: Okay. M.P.: You’d have to call my mom to get his name. I have no idea what his name is.

Detective Rutherford: Okay, but do you wish to contact a lawyer at some point? M.P.: Yes. Detective Rutherford: Okay. Terrific. I can help you with that. You have the right to uh have a lawyer and your parent or an adult relative or another appropriate adult present here with you if you want to. Do you want someone here with you at this time? M.P.: Doesn’t matter to me.” [ 39 ] There was then a clear indication that the young person wished to call counsel very early in the interview.

Until the exercise of that right there was then an obligation on the officer to hold off further questioning of the young person pending that consultation occurring. This “holding off” is evident in trials every day in this courthouse and is or should be even more evident in cases such as this when a young person is charged with first-degree murder. The officer even acknowledges in cross-examination that he was aware of the duty to hold off. Yet, he continues to engage the young person in conversation. [ 40 ] M.P. at this point is under arrest and charged with first-degree murder.

He has acknowledged to the officer that he has had a headache, has had the same headache off and on for a two week period and he presents in varying emotional states to the officer. M.P. clearly indicated to the officer that he wished to speak with counsel. The officer continues to engage the young person in a follow- up to answers given by the young person with further inquiries. His technique is designed to gain the confidence of the young person and he even compliments him at one point on the “very gallant thing” he did when he turned himself in.

He questions him about the options the young person said he had had and the conversations with the individual where he had gone after the event. The officer asks M.P. if he was angry that night, why he was angry and who he was angry at.

The officer then follows up the conversation with further inquiries, all during a timeframe when he knew he should cease or hold off any questioning pending the young person consulting with counsel. [ 41 ] Also, although he purports to read the various rights set out in s. 146 to the young person, he is remiss in doing so completely and clearly, and acknowledges that in his cross-examination. Although he advised M.P. of his right to speak to a parent, guardian or other adult, he never asks the young person specifically if he wishes to consult with such person.

He tells him he has that right and the young person says he understands. He does indicate that such person might be present with him but he never asks him specifically if M.P. wishes to consult with that person. [ 42 ] The young person indicated to the officer after rights to counsel were provided and he had indicated his desire to speak with counsel that his mother would have the name of counsel. Even then the officer does not ask if the young person wishes to contact his mother to get that name and he is never specifically asked if he wished to call his mother.

This is so even when the officer asks generally if M.P. wishes to have anyone contacted to “let them know that you are here” and M.P. indicates “probably my mom”. Still, the officer did not ask M.P. if he wished to speak to his mother. The officer was quite candid in acknowledging that in his view M.P. had not waived speaking to his mother simply by his statement “probably my mom”. [ 43 ] It also appears, although the evidence is quite limited, that the mother was in fact contacted when at the police station as someone was able to obtain the name of the lawyer that M.P. ultimately spoke with.

Again, the evidence is unclear in that regard but what is clear is that if in fact the mother had been contacted for that purpose M.P. was not specifically asked if he wished to speak to his mother at that point and there is no evidence to indicate he had waived that opportunity. [ 44 ] Concerns arise as a result of: 1. Although M.P. was advised of his right to call and consult with a lawyer “and your parents or some other adult relative or some other adult if your parents or adult relatives are not available” and was asked if he understood, he was never specifically asked if he wished to exercise that right.

2. Although he was properly provided with his rights to counsel and indicated that he did in fact wish to speak to a lawyer, the officer continued questioning and making further inquiries of M.P. 3. Although the young person clearly indicated his mother would have the name of his lawyer and that he would “probably” wish his mother to be called to let her know that he was “there” and although it appears his mother was in fact contacted, M.P. was never given a reasonable opportunity to consult with his mother.

Further, during the course of the transport the officer seems to limit somewhat the contact with the mother for the purposes of simply having the mother know that the young person was “here”. Further, Detective Rutherford well into the interview during the transport revisits the right to counsel somewhat when he states “I don’t want you to reveal something before you talk to your lawyer”. He does not at any point revisit the issue of consulting with a parent.

It is of note that M.P. seems to be concerned about talking with his mother as he “rather her not know” certain things but he never specifically says he does not wish to speak to his mother, nor was he in fact asked. [ 45 ] Specifically, M.P. was not asked if he wished to speak to a parent, adult relative or in their absence another appropriate adult nor was he given a reasonable opportunity to consult with his mother, I find there has been non-compliance with s. 146(2)(c)(ii) and the balance of the statement made during transport will not be admissible in evidence.

STATEMENT NO. 2: [ 46 ] With respect to the taking of Statement No.2, as with Statement No.1 it is important to understand the context in which this statement was taken. The statement initiated following the transport to the detachment and after M.P. had had an opportunity to speak with his counsel. The statement takes place over a period of approximately five and a half hours, although there were periods during that time when other matters were being attended to.

However, a good portion of that time involves the young person having direct contact with Detective Rutherford. [ 47 ] Detective Rutherford on arrival at the detachment advises the young person that the police are attempting to contact his mother to get “lawyer information”.

At that point there is no reference to the young person speaking or consulting with his mother nor is he asked if he wished to do so notwithstanding there was to be contact with her by the police. [ 48 ] While the young person is waiting for that information to be obtained and presumably after the name of the lawyer had been provided, Detective Klingenberg enters the interview room to “hook up the phone” to allow the young person to speak to his counsel.

At that point the young person asks the officer if the officer minded if he made another call on the phone to which the officer responded “You’re allowed to call your...your...or speak to your lawyer”. Shortly after M.P. then indicates to the officer “Is it okay if I make a call, another call at all?”. Detective Klingenberg then asks the young person who he wishes to call and he indicated “Sarah Cochrane, she’s the roommate of the person who I killed”. The detective then stated, “Well, okay. Well, we typically don’t allow people to make other phone calls, we allow you just to phone your attorney”.

The young person responded by saying “That’s fine with me. I’m just saying. I’m just asking”.

The officer indicated at the time that the officer knew he wanted to but “I don’t think that’s going to happen but you know you can speak to your lawyer and uhm see what they can do, okay?”. [ 49 ] The evidence then establishes that within a short time before and after arrival at the police detachment there had been during the transport various rights given or not given appropriately to the young person, there had been questioning by the officer in transport when he had a duty to hold off such questioning and the misinformation or insufficient information that had been provided with such rights by the officer in transport were compounded somewhat by the further misinformation or incomplete information provided by Detective Klingenberg on arrival at the detachment.

Detective Rutherford himself acknowledged that the information provided by Detective Klingenberg was not correct and no steps were ever taken to correct such misinformation. Detective Rutherford did not know Detective Klingenberg had indicated that to M.P. but clearly indicated that that information was incorrect and that if he had been in the room he would have corrected the information provided by his colleague. [ 50 ] This is the state of affairs when M.P. is then provided with an opportunity to speak to his counsel which he does.

Upon completion of that call he is back in the interview room and the first contact he has upon return is when two other officers enter the room, began taking pictures of him and asked him to remove his clothing. They then provide him with a suit of sorts to wear which he puts on and has on for the balance of the interview with Detective Rutherford. Detective Rutherford at that point re-enters the interview room with food for himself and the young person, and begins the interview process again.

The officer also indicates to the young person that after they have their “food and stuff like that” he will continue the interview. [ 51 ] Detective Rutherford then indicates to the young person he understands he has had an opportunity to speak with counsel, which the young person confirms. The officer asks him if he received some “good advice” to which the young person responded “yeah”.

The officer asked if there were any questions the young person had and the young person indicated “no”. [ 52 ] Then, in a very general way while preparing their food the officer states to M.P. “Is there anything that you don’t understand about what I’ve read to you in regards to lawyers, criminal cautions, not speaking with me, do you understand all those sorts of things?”. The young person responds “I understand it all”.

The officer is obviously referring to the items that had been conveyed to the young person during transport, some of which statements were incomplete as noted previously with respect to Statement No.1.

Of note as well is that during the course of reiterating some of those rights very generally during the interview process at the detachment, no further reference is made to ability to consult with a parent or other appropriate adult, nor was there anything before the actual interview at the detachment initiated to indicate the young person had specifically been advised of his right to consult with such persons over and above issues with respect to “lawyers and criminal cautions”.

[53] Detective Rutherford however does question the young person as to whether or not there is “anybody that you’d like tohave present with you when we talk”.

It is obvious from the conversation that had taken place in the van as well as from what appears tobe a very focused attention to Sarah Cochrane during the course of the young person’s conversations with the officer generally, thatM.P.’s mind was very much on speaking with Sarah Cochrane. [54] Counsel argues that he should have been given an opportunity to speak to Sarah Cochrane as she was not a suspect, notbeing investigated as a possible suspect or a co-accused, nor was she anything other than a witness to the murder.

The officer indicatedclearly that he felt she was not an appropriate person because she had “some role in it”, he knew that she was there and throughinvestigation could have been a person of interest. [55] The appropriateness as set out in s. 146 seems to be an issue determined in the discretion of the police having contact withthe young person for the purposes of s. 146.

As the officer indicated to defence counsel, Sarah Cochrane was “still part of theinvestigation” and the officer’s determination that contact with Sarah Cochrane was not appropriate seems to the court to be reasonable inall the circumstances and would not represent a violation of s. 146(2)(c)(ii) as submitted by defence counsel. Further, I think it isimportant to note that the consultation with an “appropriate adult chosen by the young person” only arises where there is an absence of aparent or an adult relative.

It would seem then that the officer was overly generous in inquiring of M.P. whether or not there was“anybody that you would like to have present”. On a strict reading of s. 146 the determination of who might be an appropriate adultwould only arise if M.P.’s mother or another adult relative was “absent”.

That is not the case on the evidence here as M.P. was not evengiven an opportunity to consult with his mother, did not waive that opportunity, although it seems perfectly clear the mother wasavailable as she had apparently been contacted by the police to obtain the name of the lawyer. [56] Defence counsel, however, does raise a number of other arguments with respect to the statement taken at the detachmentwhich the court finds have merit. [57] M.P. exercised his right to contact counsel and spoke with counsel immediately after Detective Klingenberg had providedthe young person with incorrect information as noted previously.

Following the consultation with counsel Detective Rutherford comesback into the interview room and brings food, completes a detain sheet and attempts to carry on a very casual conversation with M.P.with respect to athletics and other unrelated matters in an obvious attempt to develop a rapport with the young person. It becomes clearthereafter when the detective obviously wishes to get into the events of the preceding day that the young person states he has nocomment and in fact shakes his head as noted on the video.

He is asked by the officer why he does not have a comment and he indicatesbecause “I don’t need one”. The officer persists and tries a different technique to get the young person to effectively open up but, again,the young person maintains his “no comment” stance. The officer continues and the young person again reiterates the fact that he doesnot wish to make a comment and he “doesn’t feel like answering”. The officer states as follows: “Detective Rutherford: Okay. Is there a reason that you won’t tell me what your responsibility is? M.P.: Because that’s for the lawyer.

Detective Rutherford: Okay uhm I don’t want you to divulge anything about your responsibility right now but what do you mean that’sfor the lawyer? Matt, I don’t understand that, can you just help me with that? M.P.: I don’t know.” [58] M.P. then goes on to talk about the fact that he “can’t really concentrate or nothing” and the officer seems not to bemaking the progress that he wished. It is then that he refers to information that he obtained during the course of the transport to attemptagain to engage M.P. in further discussions.

The officer in fact agreed during cross-examination that he purposely referred M.P. back towhat he had already “told him in the van” and his purpose in doing so was to “try and open up that door of discussion again”. He agreedwith counsel that implicit in that approach was the theory “so what’s the harm in talking about that again?”.

The officer agreed that thetechnique proved effective and rapport continued to be built between he and the young person and further discussions then took placeduring the balance of the statement. [59] The statements made within the van while in transport have been found by the court to be inadmissible for the reasonspreviously noted. It is clear that a significant contributing factor to the re-opening or at least the opening up of the young person duringthe course of the second statement was as a result of reference to information obtained during that statement.

As a result, defence arguesthat the second statement is tainted to that extent. Counsel relies on the principles stated in Regina v. McIntosh, [1999] O.J. No.4842, andRegina v. I.(L.)R. and T.(E.), (1993) (SCC), 4 S.C.R. 504 in support of that proposition. [60] The case law establishes that there really are no strict hard and fast rules that subsequent statements are necessarilyinadmissible simply because a previous statement is inadmissible. Courts however have clearly indicated it is a question of fact to bedetermined in each individual case to ascertain the degree of connection between the two statements.

Here, in this particular case, clearlyStatement No.2 is derived largely as a result, at least initially, of the officer drawing upon information that had already been provided bythe young person. Clearly, this was meant to effectively suggest to the young person, as noted by defence counsel, that there would beno harm in simply providing further information on items or information that had already been disclosed during the course of thetransport.

There is in that sense a very real connection between the information that was provided during that transport and the techniqueor statements made by Detective Rutherford to get the young person to open up after he was clearly reluctant to continue any discussionsfollowing his consultation with counsel. [61] Another factor to be considered when dealing with Statement No.2 and its connection with Statement No.1 is thatStatement No.2 effectively arises out of a new questioning session. In Regina v. J.(J.T.),

(1992) S.C.R. 755, the Supreme Court ofCanada held that the then requirements placed under the Young Offenders Act in s. 56(2) must be met at each new session ofquestioning. Here, there is a gap between the first and second statements. A concern the court has here is that the second statement is ina different forum and there is a significant gap between the completion of the transport and the re-initiation of the interview process byDetective Rutherford.

It seems to the court that Statement No.2 was an entirely new session of questioning and would require DetectiveRutherford to go through the various rights, cautions, etc. in a much more comprehensive and complete manner than simply referring to

“lawyers, criminal cautions, not speaking with me, do you understand all those sorts of things?”.

This is so, notwithstanding the young person states that he “understands it all”. [ 62 ] Further, after consultation with counsel, although Detective Rutherford did inquire of the young person whether he would like to have anyone present, he did not specifically refer to his counsel or a parent and of some importance is that he did not advise the young person that any statement that he was about to make was required to be made in the presence of counsel or any other person consulted unless the young person desired otherwise.

The Crown may argue there is a waiver of that by other references of the young person, as noted in the submissions of the Crown, but clearly to constitute an effective waiver the young person should be specifically informed in detail and with reference to the relevant sections themselves of the right that is being waived.

The waiver must be unequivocal and informed. [ 63 ] At no time did Detective Rutherford specifically ask the young person after consulting with counsel whether he wished to have that counsel present for the police interview other than a very general reference to whether he wanted to have “anyone present”.

Again, the young person appears to be focused on Sarah Cochrane throughout his transport and at the detachment and a reference to “anyone else” does not specifically address in my view the issue with respect to whether or not counsel is desired to be present. [ 64 ] With regard to counsel, Detective Rutherford was questioned by defence counsel and the following exchange took place: “Question: So now that he’s spoken to Mr. Garland you know of your specific duty to have Mr. Garland there in order to conduct an interview unless he specifically waives Mr. Garland’s presence?

Answer: I don’t think my understanding of that at that time was what it is now, Mr. Parry. Question: Oh, I appreciate that. I’m not suggesting you were being nefarious in your dealings. I should say now, upon reflection, do you know that to be the case? Answer: Yes. Question: Sorry. I didn’t mean to be – if you misunderstood me. Answer: You didn’t. I hope it didn’t come across that way.

Question: But clearly, had you had to do it over again and the Crown had asked you if there’s things you might do over again, that’s one thing, now that you’ve appreciated the situation perhaps more thoroughly, knowing that someone has spoken to counsel, you understand your obligation is to then seek a specific waiver of whether or not that counsel is going to be present. Answer: Yes. And I thought about that over the weekend, yesterday, and the thing that I would have done differently. I certainly would have asked those things as well as what time is Mr. Garland going to arrive. What would be his ETA.

Question: Yes. Answer: Yes. Question: Fair enough. Answer: I’m fallible. I recognize I made a mistake and I certainly have to fall on my sword if that happens but yes, it’s not something I did correctly.” [ 65 ] It also appears when dealing with the issue of consultation that the officer never addressed his mind to whether or not the young person had actually spoken to his mother at the detachment.

It is clear from the evidence that the officer was not with the young person at all times during the early parts of the attendance at the police station but without such information, particularly given the young person’s previous references to contact with his mother, it would have been appropriate and necessary for this officer to confirm that the young person had specifically not consulted an adult, and particularly his mother, before continuing the interview process. [ 66 ] As noted during the course of the evidence, dealing with the time when the young person was not in the presence of Detective Rutherford the following exchange with counsel took place: “Question: So do you know if that entire period of time is occupied by speaking to Mr.

Garland or is it occupied by anything else? Answer: I don’t have that information. Question: So just speaking then of what your subjective state of mind is at that point then, have you addressed your mind to whether or not during that break to consult counsel he may also have spoken to mom? Answer: No. I don’t think I did. Question: But you’ll agree with me that there’s still that previous comment that’s been left out there that he probably wants mom contacted. Answer: He does say that.

Yes.” [ 67 ] There have been violations, and admittedly so, of s. 146 during the course of the interview at the detachment as well as while in transport. There are also occasions when the young person appears to be aware in a very general sense of the rights afforded to him and, on occasion, seems to readily engage with the officer. However, as a result of the violations and with there being no middle ground, as suggested by the Crown, surrounding the principle of “flexibility”, as I have previously noted when dealing with s. 146,

failure to comply with the legislation results in the statement not being admissible. This is more than appropriate here when the court considers the totality of the evidence surrounding the contact between Detective Rutherford and the young person M.P. from the time he entered the van until the time the interview at the detachment was completed. [ 68 ] In

summary then, as a result both Statement No.1 and Statement No.2 are not deemed admissible for the purposes of the sentencing phase of this proceeding, nor for use by the psychiatrist in the preparation of the s. 34 report. Released: July 19, 2012 Signed: “Justice G. F. Hearn”