Her Majesty The Queen v. T.(B.) DECISION ON THE ADMISSIBILITY OF THE YOUNG PERSON’S STATEMENT TO POLICE v. A RE-ENACTMENT, 2012 NSPC 59

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA R. v. B.T., 2012 NSPC 59 Date: June 28, 2012 Docket: 2388561 - 2388565 Registry: Halifax BETWEEN: Her Majesty The Queen v. T.(B.) DECISION ON THE ADMISSIBILITY OF THE YOUNG PERSON’S STATEMENT TO POLICE AND A RE-ENACTMENT JUDGE: The Honourable Anne S.

Derrick HEARD: June 25 – 28, 2012 DECISION: June 28, 2012 CHARGES: sections 235, 344 , 355 (b), 342(1) (c), and 88(1) , of the Criminal Code COUNSEL: Ronald Lacey and Kimberly McOnie, for the Crown Luke Craggs, for T.(B.) Introduction [ 1 ] On November 19, 2011, Glen Oakley was found shot in the MacIntosh Run area of Spryfield. The next night, around 10:45 p.m., T.(B.), just 17 and a young person within the meaning of the Youth Criminal Justice Act (YCJA) , was arrested for that murder. While in police custody on November 21, 2011, under questioning, T.(B.) gave a statement.

After the conclusion of that statement on the afternoon of November 21, he led police investigators through a re-enactment of events that he had described in his statement. [ 2 ] The Crown is seeking to have T.(B.)’s statement to police and the re-enactment admitted into evidence at his trial on a charge of first degree murder. At the conclusion of the Crown’s case on the voir dire, Mr. Craggs made an application for a “directed verdict” that the statement and the re-enactment are inadmissible. In Mr. Craggs’ submission, the requirements of

section 146 of the YCJA were not satisfied before T.(B.)’s statement and the re-enactment were obtained. Specifically, Mr. Craggs submits that the subsections (b)(

i) and (ii) of section 146(2) of the YCJA were not complied with. He argues that the failure of the Crown to advance any evidence of compliance with these provisions entitles T.(B.) at this stage of the proceedings to a ruling on the admissibility of the statement and re- enactment. I will address the procedural and substantive issues raised by Mr. Craggs’ application once I have reviewed the facts relevant to this application. Facts [ 3 ] After being arrested and handcuffed, T.(B.) was read his Charter rights and the police caution.

The phone numbers for Legal Aid Duty counsel were recited to him and he was told they would be provided again at the police station. He was transported from Spryfield, where the arrest took place, to an interview cubicle at the Halifax Regional Police headquarters on Gottingen Street. [ 4 ] The interview room was equipped with video and audio monitoring. The video recording and transcript of police interactions with T.(B.) in the interview cubicle were introduced into evidence at this voir dire. [ 5 ] At 11:06 p.m., Det/Cst.

Withrow, one of the police investigators, went into the interview cubicle and introduced himself to T.(B.). Det/Cst. Withrow reviewed with T.(B.) the Statement of a Young Person Form ( Exhibit 7 ) used prior to taking a statement from a young person. This process started at 11:09 p.m. on November 20. Det/Cst. Withrow took care to review the provisions in plain language and stopped to ask T.(B.) to explain what was meant by what he was saying. [ 6 ] T.(B.) was informed again that he was under arrest for murder.

He was told this meant “Somebody got killed.” ( Exhibit 4, Transcript of Interview, page 3 ) He was advised that he had the right to call a lawyer. He indicated he wanted to exercise that right and subsequently spoke on the telephone and in person with duty counsel. [ 7 ] Prior to arranging the call to duty counsel, Det/Cst. Withrow, continuing with the “Statement of a Young Person” Form, advised T.

(B.) as follows: I’m going to read you your police warning. You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. ( Exhibit 4, page 5 ) [ 8 ] T.(B.) indicated that he did not understand what Det/Cst. Withrow had just told him: “I don’t know what that means”, he said. Det/Cst.

Withrow explained that it meant whatever T.(B.) told him or any police officer, “that may be used as evidence, okay, whatever you tell us.” T.(B.) confirmed that he understood. ( Exhibit 4, page 5 ) [ 9 ] After getting T.(B.)’s birth date and address, Det/Cst. Withrow then advised that he would arrange for him to speak to a lawyer. The next hour was taken up by Det/Cst. Withrow making the call, and escorting T.(B.) to another room to speak privately to the lawyer, and to the washroom. They were back in the interview cubicle by ten minutes past midnight. At that point, Det/Cst.

Withrow stepped out for just over thirty minutes, leaving T.(B.) on his own. [ 10 ] At 12:44 a.m., Det/Cst. Withrow returned to the interview cubicle. He brought T.(B.) a bottle of water. He re-introduced himself.

He immediately told T.(B.), “…I’m not here to take a statement from you about anything that happened.” What he was going to do he said was “…go through your young offender rights and caution again…It’s a little more in depth than what I read to you earlier…I’m not looking to get a statement from you about why you are here or anything like that.” ( Exhibit 4, page 8 ) [ 11 ] T.(B.) was told again by Det/Cst. Withrow that he was there for murder, “So somebody got killed. That’s why you’re here.” ( Exhibit 4, page 8 ) After obtaining various kinds of biographical information from T.(B.), Det/Cst.

Withrow reiterated that the police were investigating a murder. He said again to T.(B.) that meant, “Somebody got killed.” ( Exhibit 4, page 15 ) [ 12 ] Soon after this, Det/Cst. Withrow told T.(B.) about his right to silence and gave him the police caution again, in the following words: You do not have to make a statement. This means you do not have to say anything to me. But if you make a statement, anything that you say, write or do can be used against you as evidence in court or in other proceedings. ( Exhibit 4, page 18 ) [ 13 ] T.(B.) appears generally to have understood. When asked by Det/Cst.

Withrow to explain the meaning of what he had just been told, he said: “That if I don’t feel like I need to talk to you, I don’t need to talk to you.” ( Exhibit 4, page 18 ) [ 14 ] Det/Cst. Withrow responded with: “Right. Or do anything or say anything. Okay?” He went on to tell T.(B.): “Even if you have already talked to a police officer or someone else, you do not have to make a statement now. Do you understand?” T.(B.) answered in the affirmative. ( Exhibit 4, pages 18 and 19 ) [ 15 ] Det/Cst.

Withrow then reviewed again that T.(B.) did not have to make a statement because of a favour given or a promise made, telling him: “You should not give a statement because you hope for something in return.” ( Exhibit 4, page 19 ) T.(B.) was able to show he understood what this meant. There was also a discussion when Det/Cst. Withrow told T.(B.) that he should not make a statement because he felt threatened or afraid that he or someone else would get hurt. T.(B.) grasped this as well. [ 16 ] After this exchange, Det/Cst. Withrow told T.(B.) that he could ask him to stop at any time. T.(B.) indicated he understood.

Det/Cst. Withrow finished with the following explaination: “So if we’re talking trying to get a statement from you, you tell me to stop and we’ll stop, okay?” ( Exhibit 4, page 21 ) [ 17 ] Det/Cst. Withrow then proceeded to talk to T.(B.) about his right to consult with a lawyer in private without delay and a parent, an adult relative or another appropriate adult in private without delay. The purpose of these rights was explained to him. T.(B.) indicated he understood he was “allowed to have, like, my mom or dad or a lawyer while you talk to me.” ( Exhibit 4, page 23 and 24 ) Det/Cst.

Withrow added: “Or any other appropriate adult.” Det/Cst. Withrow went on to tell T.(B.): “Any statement which you make is required to be made in the presence of counsel, a lawyer, and your parent or an adult relative or another appropriate adult whom you choose unless you do not want any of those persons to be present.” T.(B.) indicated he understood, “Oh, all right” he said as Det/Cst.

Withrow started to re-read this item on the Form, which T.(B.) had asked him to do. ( Exhibit 4, page 24 ) [ 18 ] As a result of being advised of his right to consult with a parent, T.(B.) requested to speak with his mother on the phone and was taken out of the interview cubicle for this purpose once Det/Cst. Withrow concluded his review of the Statement Form. T.(B.) informed the investigator he did not want a lawyer or his parents present while he was questioned.

He was told by Det/Cst Withrow he could change his mind “and all questioning will stop” if he decided he wanted a lawyer present, or wanted to talk to a lawyer and decide if he wanted the lawyer present or wanted to have “the adult person” he had consulted present. ( Exhibit 4, pages 26 – 29 ) Det/Cst. Withrow reiterated this again after T.(B.) returned from speaking to his mother on the telephone. ( Exhibit 4, pages 31 – 33 ) [ 19 ] I have not described in complete detail the review by Det/Cst. Withrow of the Statement Form, focusing instead on the more relevant aspects for this application.

At the end of Det/Cst. Withrow’s review, T.(B.) was asked if he “wished to make a statement now?” He said no and Det/Cst. Withrow told him: “So like I said, we’re not here to take a statement from you right now.” ( Exhibit 4, page 33 ) [ 20 ] At about 1:42 a.m., and after a visit by an IDENT member, T.(B.) was left alone with a blanket and told by Det/Cst. Withrow to try and get some rest. It appears from the video he did, notwithstanding the brightly lit room and the discomfort of trying to sleep sitting in a chair. [ 21 ] The next morning at 11:25 a.m. Sgt.

Dwayne Kelly of the R.C.M.P. entered the room and introduced himself to T.(B.). Sgt. Kelly had been brought in to conduct the interview of T.(B.). Upon his arrival at the police station he had spent three to three and a half hours gathering information about T.(B.) and getting briefed on the investigation in preparation for the interview. He collected various evidentiary aids to use during the questioning. [ 22 ] After introducing himself, Sgt. Kelly set about clarifying a few things right away. He confirmed that T.(B.) had seen a lawyer and

was satisfied with “what the lawyer told [him].” ( Exhibit 4, page 39 ) T.(B.) said he had talked to both his parents too. Sgt. Kelly wanted to know if T.(B.) wanted his mum or dad present “while I talk to you…” T.(B.) did not. He said: “I’ll talk to you first.” ( Exhibit 4, page 40 ) Sgt. Kelly assured him it was “fine” if he wanted his mum “here while I’m talking to you…” T.(B.) told Sgt. Kelly “I’ll just talk to you by myself.” When asked to explain, he said he “might just start crying and I don’t want her to see me like that.” ( Exhibit 4, page 41 ) [ 23 ] Sgt.

Kelly also inquired whether T.(B.) had been asked “last night”, if he wanted to have his mum with him. T.(B.) said he was asked this and had said no. T.(B.) also confirmed that he had been asked about having a lawyer with him. He said “no, thanks” when asked by Sgt. Kelly if he wanted his lawyer with him “while you talk to me.” ( Exhibit 4, page 42 ) [ 24 ] This was the conclusion of any discussion about rights. Sgt. Kelly testified that he was satisfied Det/Cst. Withrow had carefully gone over T.(B.)’s rights and that furthermore, T.(B.) had spoken to a lawyer. Sgt.

Kelly’s evidence was that he made the assumption that T.(B.)’s rights would be clear to him and that the lawyer would have “made him aware of his rights in more stark terms than I ever could.” [ 25 ] Before zeroing in on the events he wanted to ask T.(B.) about, Sgt. Kelly spent approximately 10 minutes making small talk. He explained in his evidence that this was intended to build a rapport. In his testimony, Sgt.

Kelly described why establishing a rapport was necessary: “The role I’m in is to get someone to disclose the biggest secret of their entire life to a complete stranger…there’s a process to doing that that is building a relationship.” [ 26 ] Sgt. Kelly’s statement-taking process concluded around 4:30 p.m. on November 21 and was followed by the re-enactment. That was finished at 5:09 p.m.

The Issues [ 27 ] Section 146(2) of the YCJA governs the admissibility of statements made by young persons to the police “on the arrest or detention of the young person…” Such statements are not admissible unless certain requirements are met. Section 146(2)(

a) requires that the statement must be voluntary. In addition to certain other requirements I will not be reviewing here, the statement will not be admissible unless 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… [ 28 ] Those aspects of section 146(2)(

b) of the YCJA relating to the right to consult with counsel and a parent or other person (s. 146(2) (b)(iii)) and the requirement, unless waived, of the statement to be made in the presence of counsel and any other person with whom the young person has consulted (s. 146(2)(b)(iv)), are not the subject of Mr. Cragg’s application for a

summary determination of admissibility. [ 29 ] Certain facts are not disputed in this case. Sgt. Kelly, the person to whom T.(B.) made his statement, did not explain to him that he was under no obligation to make a statement or that any statement he made might be used as evidence against him. In the early morning hours of November 21, 2011, Det/Cst. Withrow provided T.(B.) with his right to silence and the YCJA caution during his review with T. (B.) of the Statement Form. Sgt. Kelly made no mention of them when he talked with T.(B.). [ 30 ] In dealing with Mr. Cragg’s application, I must answer two questions: (1) can the issue being raised by the Defence be dealt with on a

summary basis, in advance of T.(B.) being required to elect whether he testifies at the voir dire; and (2) is Sgt. Kelly’s omission of the right to silence and YCJA caution fatal to the admissibility of T.(B.)’s statement? A corollary to these questions is whether these omissions are also fatal to the admissibility of the re-enactment. Det/Cst. Blencow, who assisted in the re-enactment testified that he provided no rights or YCJA caution to T.(B.). He was aware Det/Cst. Withrow had done so and had watched Sgt.

Kelly address certain rights issues at the start of his interrogation of T.(B.). [ 31 ] On the issue of the re-enactment, the Crown and Defence agree that their submissions on the Sgt. Kelly interview apply equally to the re-enactment. Both Crown and Defence regard the re-enactment as a continuation of the interview and therefore, if the interview survives the challenge being mounted by the Defence, so does the re-enactment, or if the interview is fatally flawed, so is the re- enactment.

The Defence Application [ 32 ] No one has been quite sure what to call the procedure being engaged here, which is understandable as the application is an uncommon one, judging from the paucity of case law. The Crown provided me with R. v.

Gartland, 1981 CarswellOnt 1845 , a decision of the Ontario Provincial Court where the Defence moved for “a non-suit or directed verdict” on the voir dire. (paragraph 26) The Court held that in the conduct of “a trial within a trial”, an accused person must be afforded “every essential procedural step and safeguard available to him on his trial on the merits of the substantive offence, in so far as it can be applicable…” ( paragraph 29 ) The right of an accused to move, at the conclusion of the Crown’s case, before being put to his/her election whether or not to call evidence, for a ruling from the Court that there is no case to meet is an enshrined right in criminal law.

In Gartland , the Court held that an accused can similarly seek a ruling in a voir dire at the close of the Crown’s case before being required to elect whether to put any evidence forward in relation to the admissibility of the statement. ( paragraph 31 ) [ 33 ] Gartland concerned the issue of voluntariness of a statement but I do not see that as having any significance. I can see no reason why Gartland does not constitute good law. The Crown bears the burden of establishing that a statement is admissible.

If the Defence seeks to have that issue determined summarily on the basis that no evidence has been led to support a critical pillar of admissibility, I find that this procedural option is available. The fact that it is a young person’s rights that are implicated amplifies the Court’s role in

providing procedural safeguards: no accused person, particularly a young person, should be denied the opportunity to have the Courtdetermine whether there is a basis for the Crown’s application to continue. The continuation of the Crown’s application to have thestatement in this case admitted will require T.(B.) to decide whether to give evidence. He should not have to make that decision until anissue concerning the fundamental requirements of section 146(2)(

b) has been determined. I am amply satisfied that the Defence isentitled to ask me to decide whether the Crown’s application to admit T.(B.)’s statement should be “non-suited”. Positions of Crown and Defence on the Application [34] I previously stated the Defence position. Simply put, it is that the requirements of section 146(2)(

b) are unequivocal and must bestrictly complied with, and where there is no evidence that they were, the statement obtained is inadmissible. [35] The Crown has made the following submissions in response: (1) the statement taken by Sgt. Kelly should be seen as a continuationof the statement-taking that Det/Cst. Withrow started just after midnight on November 21;

(2) Det/Cst. Withrow complied with all theprovisions under section 146(2)(

b) and that satisfies the legal preconditions for obtaining an admissible statement; (3) section 146(2)(b)should not be interpreted so strictly as to require Sgt. Kelly to have reviewed with T.(B.) what Det/Cst. Withrow had explained. Det/Cst.Withrow’s review of the Statement Form with T.(B.) satisfied the requirements for obtaining an admissible statement from him; and (4)T.(B.) was afforded the necessary legal protections and clearly understood his rights, including his right to remain silent and the fact thatanything he did say might be used as evidence against him.

Statement-Taking and the YCJA [36] The Alberta Court of Appeal recently discussed in R. v. W.C.K., [2012] A.J. No. 620 the special nature of the protections affordedyoung persons under the YCJA in the context of statement-taking: 13 Obtaining statements from a young accused engages three different levels of legal protection: (1) the common law voluntaryconfessions rule, (2) the constitutional right to silence and the right to counsel under

section 10 (

a) and (

b) of the Charter, and (3) thespecific provisions of the YCJA. The Supreme Court of Canada and appellate courts across Canada have repeatedly held that the purposeof these layers of protection is to provide enhanced procedural and evidentiary safeguards to young persons accused of a criminaloffence: (R v I(LR) and T(E), (SCC), [1993] 4 SCR 504, 86 CCC (3d) 289 (SCC) [ET ] at 298-303; R v J(JT), (SCC), [1990] 2 SCR 755 at paras 18-21; R v M(MA) (1986), (BC CA), 32 CCC (3d) 566 (BCCA) at paras17, 26; R v Westhaver (1986), (MB CA), 27 CCC (3d) 481 (Man CA); also see YCJA,

section 3). [37] The nature and extent of the procedural and evidentiary safeguards to which young persons are entitled has been emphasized by theSupreme Court of Canada in R. v. L.T.H., 2008 SCC 49 , [2008] S.C.J.

No. 50 where it was held that Parliament has …underscored the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protectyoung persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion,pressure and influence in the hands of police interrogators. (paragraph 3) [38] The legislated protections in the YCJA are not of recent incarnation. They existed in very similar form in the Young Offenders Act,which preceded the YCJA.

Like the YCJA, the Young Offenders Act provided that a young person’s statement to police was notadmissible if the right to silence and the caution were not explained by “the person to whom the statement was given...” (section 56(2),YOA) The language in the older statute is almost identical to the YCJA section 146(2)(

b) requirements and admissibility was anchored tothe same principles. [39] The Supreme Court of Canada in R. v. J.(J.T.), [1990] S.C.J. No. 88, a YOA case, was satisfied that Parliament had, by enactingspecial procedures to govern the taking of statements from young persons, properly recognized “the problems and difficulties that besetyoung people when confronted with authority.” (paragraph 18) The Court held: …It may seem unnecessary and frustrating to the police and society that a worldly wise, smug 17-year-old with apparent anti-socialtendencies should receive the benefit of this section. Yet it must be remembered that the

section is to protect all young people of 17 yearsor less. A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado andbraggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or theconsequences of oral statements made to persons in authority; certainly they would not appreciate the nature of their rights to the sameextent as would most adults. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presenceof persons in authority.

A young person may be more inclined to make a statement, even though it is false, in order to please anauthoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament toenact this code of procedure. [40] In J.(J.T.), the Court found that portions of the section 56(2)(

b) provisions of the YOA had been fulfilled by police. (It is to beremembered, as I have already said, that these provisions were very similar to the provisions of section 146(2)(

b) of the YCJA.) Of thefour relevant requirements, two had been satisfied – the right to silence and the caution that any statement given might be used asevidence. Two other requirements relating to the right to consult counsel or an adult relative before a statement was made and therequirement for counsel and/or an adult to be present while the statement was taken (unless J.T.J. had not wanted that) were not compliedwith. The Court found there had not been “substantial compliance” with the legislated statement-taking requirements.

The Court held:“Two of the most important requirements were not met.” (paragraph 33) [41] The police questioned J.T.J. at three intervals while he was in their custody in relation to the brutal murder of a little girl. Each timehe was asked if he wanted an adult in attendance or to obtain the services of a lawyer he had replied affirmatively. He was not advisedeach time questioning started up again of his rights in this regard. The Court found this to be fatal to the admissibility of his threeinculpatory statements: …A mistake was made.

The police were aware of the requirements of s. 56 yet saw fit to ignore them. No matter how worldly wise J.T.J.may have been, by the time of his second statement he must have been a tired 17-year-old after spending nearly seven hours in police

custody. He was entitled to be advised of his rights…(paragraph 31) [42] The Court did not treat the questioning of J.T.J. as one continuous interrogation. The statements he gave at 11:05 p.m., 1:55 a.m.and 3:45 a.m. were described as three statements obtained through “continued questioning”, with each “session of questioning” re-animating J.T.J.’s rights under section 56(2) of the YOA. [43] The Supreme Court of Canada has held that all the factors listed in section 146(2) have been determined by Parliament to beappropriate preconditions to the admissibility of a statement by a young person. (R. v.

L.T.H., 2008 SCC 49 , [2008] S.C.J. No.50, paragraph 34) These protections acknowledge “the reduced capacity of young people to understand their rights and their increaseddisposition to answer questions put to them by persons in authority.” (L.T.H., paragraph 33) The Crown’s evidentiary burden withrespect to the admissibility issue for a young person’s statement “will be discharged by clear and convincing evidence that the person towhom the statement was made took reasonable steps to ensure that the young person understood his or her rights under

section 146YCJA.” (L.T.H., paragraph 6) [44] I disagree with the Crown’s view that the statutory language of section 146(2)(

b) of the YCJA does not establish bright lines withrespect to the statement-taking process for a young person. An explicit principle of the YCJA is the enhancement of proceduralprotections for young persons to ensure fair treatment and the protection of their rights. (section 3(1)(b)(iii)) Only clear, unambiguouslanguage can serve these objectives. A loose, permissive

interpretation of rights language in the YCJA is inconsistent with the principlesthe YCJA seeks to serve and the Supreme Court of Canada jurisprudence that has applied the legislation. [45] Section 146(2)(

b) mandates that “the person to whom the statement was made, before the statement was made” was to have“clearly explained to the young person” that they were under no obligation to give a statement and that any statement they did makemight be used as evidence against them. The statement taken from T.(B.) and the re-enactment that was part of that statement-takingprocess were not obtained in compliance with these unambiguous requirements. [46] I find that the review by Det/Cst. Withrow of the Statement of a Young Person Form was not the start of the statement that wassubsequently taken by Sgt. Kelly.

I reject this characterization by the Crown. Det/Cst. Withrow repeated several times that he was notthere to take a statement from T.(B.). He wrapped up his role at 1:42 a.m. Sgt. Kelly, armed with information, evidentiary aids, and hisrapport-building skills, was the statement-taker. That was his role and he undertook it approximately 10 hours after Det/Cst. Withrowhad concluded his. [47] In any event, the statutory language could not be clearer: the person to whom the statement is to be made is the person who mustcomply with the section 146(2)(

b) requirements. The fact that Det/Cst. Withrow may have done so does not save the statement that Sgt.Kelly obtained. [48] I am satisfied that the decision on the part of Sgt. Kelly not to review with T.(B.) the statutorily-mandated provisions of section146(2)(b)(

i) and (ii) of the YCJA is fatal to the admissibility of the statement and the re-enactment. I am satisfied that this issue can bedecided on the

summary basis the Defence is seeking. What T.(B.) may have understood about his rights after Det/Cst. Withrow’sreview or any evidence that he had a good understanding of them at that point is not relevant to my analysis on this application. Wherethere is no evidence that subsections (b)(

i) and (ii) of section 146(2) were complied with there is nothing more to be said on the issue ofadmissibility. The full extent of the requirements for admissibility has not been met, pure and simple. If “doubt in regard of eitherprecondition – the preconditions under section 146(2)(

a) voluntariness or section 146(2)(b) – provides a sufficient basis for excluding thestatement” (L.T.H., paragraph 38), then undisputed lack of compliance is amply sufficient to exclude. [49] As noted in L.T.H., “Parliament has considered it right and necessary to afford young persons rights and procedural safeguardswhich they alone enjoy.” (paragraph 46) The Supreme Court recognized why such safeguards are in place: …The provisions of the YCJA should be read harmoniously. In accordance with the presumption of coherence, s. 146 must be interpretedin light of the YCJA's declaration of principles (s. 3).

Those principles emphasize fairness and proportionality consistent with youngpersons' higher levels of dependency and lower levels of maturity and the related need for greater procedural protections.

Section 146, inits entirety, is aimed at fulfilling one of the objectives of the legislation -- to offer enhanced protection to young persons and ensure theyare treated fairly…(paragraph 47) [50] The evidence I have heard indicates that the police officers who dealt with T.(B.) were keenly aware of his rights and theprotections to which he was entitled. Det/Cst. Withrow showed himself to be the conscientious police officer that Sgt. Kelly, in histestimony, indicated him to be. Sgt. Kelly impressed me as a highly professional and skilled investigator who took a thoughtful and fair-handed approach to T.(B.).

I have no reason to think that Sgt. Kelly is anything other than a capable, dedicated police officer. He acted ingood faith; he simply made an error, one that has significant implications for the admissibility of the statement that was obtained.

Theerror was that he undertook to obtain a statement from T.(B.), and subsequently, secured evidence in the form of T.(B.)’s re-enactment,without having explained to T.(B.), as the law requires, that he had no obligation to make a statement and that any statement he did makemight be used in evidence in proceedings against him. [51] I have noted that T.(B.) was given his rights under section 146(2)(b)(

i) and (ii) approximately 10 hours before he started speakingto Sgt. Kelly. The police investigators obviously took the precaution of not starting the interrogation of a 17 year old late at night. Thequestioning was left until the next morning after T.(B.) had been given the opportunity to get whatever rest he could. The eminentlyqualified Sgt. Kelly was assigned the task of getting T.(B.) to talk. It is apparent from his evidence that he believed the section 146(2)(b)requirements had been satisfied by Det/Cst. Withrow’s careful Statement Form review the night before. However, the statutoryrequirements in section 146(2)(b)(

i) and (ii) ensure, for obvious reasons, that the person taking the statement has made it plain to theyoung person that they do not have to give a statement and that if they do, it can be used to their detriment. The contemporaneous recitalof the right to silence and the caution ensure that the young person is not confused, has not forgotten, and does not misconstrue what hisor her entitlements are. At the point when a police officer is set to go to work on getting the young person to talk, the young person willunderstand clearly that they do not have to do so and that if they do, there may be significant legal consequences. [52] The provisions of section 146(2)(b)(

i) and (ii) are specific and unambiguous and ensure that the person taking the statement has

left the young persons in no doubt about their right not to talk and, if they do, the consequences of doing so. Sgt. Kelly, the person takingT.(B.)’s statement, erroneously thought the obligations set by the law had been satisfied and did not do this. [53] The language in the provisions is absolutely clear. It does not allow for an alternative approach and no credible suggestion can bemade that a failure to comply constitutes the kind of “technical irregularity” sheltered under section 146(6). [54] This is not a case where a police officer failed to advert to a young person’s rights or chose to disregard them.

There is nosuggestion that rights were overlooked because T.(B.) was thought to be sophisticated about the criminal justice system. Indeed, theinvestigators knew he had no experience with police interrogations. (And even if T.(B.) had been a YCJA veteran, the requirements ofsection 146(2)(

b) are no less applicable. (R. v. L.T.H., 2008 SCC 49 , [2008] S.C.J. No. 50, paragraph 29) This is a case wherepolice investigators were simply wrong about what the YCJA requires. Det/Cst. Withrow’s careful review of the Statement Form was notenough. [55] The conclusion I have reached in this case is reflected in decisions from the Provincial Courts of Alberta (R. v. M.B.W., [2006] A.J.No. 598, paragraphs 29 - 31) and Manitoba (R. v. D.A.B., [2003] M.J. No. 75).

In D.A.B., decided in relation to section 56(2) of the YOA,which I discussed earlier in these reasons, a second statement from the young person that was videotaped was ruled inadmissible becausethe legislated provisions, complied with for the first, written, statement, were not reviewed afresh. [56] My finding that the videotaped statement obtained by Sgt. Kelly from T.(B.) is inadmissible extends to the re-enactment. I find there-enactment is also inadmissible for the essentially the same reasons.

Either the re-enactment was a continuation of the cubiclestatement in which event it was part of a statement I have found to be inadmissible, or, if it could be regarded as a second statement, theevidence discloses that no steps to achieve section 146(2)(

b) compliance were undertaken by either Sgt. Kelly or Det/Cst. Blencow whowas also present. [57] On the basis of lack of compliance with section 146(2)(b)(

i) and (ii) of the YCJA, T.(B.)’s videotaped statement of November 21,2011 to Sgt. Kelly, and the re-enactment, are inadmissible at his trial.