WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO:
(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.
(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.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(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 OF APPEAL FOR ONTARIO
MacPherson, MacFarland and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
D.T.
Appellant
Philip B. Cornish, for the appellant
Alison Wheeler, for the respondent
Heard: March 1, 2013
On appeal from the conviction entered by Justice R. G. E. Hunter of the Ontario Court of Justice on October 29, 2010.
A. Introduction
1The police took a 16-year-old boy, the appellant, to a police station to investigate his involvement in the theft of two motor vehicles. At the station, the police advised the appellant of his rights and he agreed to make a statement. In his statement, which was videotaped, the appellant admitted his role in the theft of the vehicles. He also implicated himself in the commission of two other serious criminal offences.
2The appellant was convicted of break and enter, possession of marijuana for the purpose of trafficking, and theft under $5000. He was sentenced to 18 months probation.
3The appellant appeals his convictions. The focus of his appeal is the admission of the statement he made at the police station. Was the caution given to the appellant by the police about his rights sufficient? And, if the caution was initially sufficient, was a further caution required when the appellant started to speak about additional offences that were not the subject of the original police investigation?
B. facts
(1) The parties and events
4In the early morning hours of November 13, 2009, the police pulled over a Plymouth Breeze that was without tail lights. The car stopped in an A&W restaurant parking lot in Goderich. There were three young men in this vehicle. A Ford Taurus pulled in along with the Plymouth. The appellant was the driver and sole occupant of the Ford.
5Constable Stephan Beasley spoke to the drivers of both cars. He ran a check through the Ministry of Transportation and determined that the Plymouth had been stolen in Exeter. In a conversation with Constable Beasley, the appellant at first said that the Ford was his mother’s car; however, soon after, he admitted that he had stolen the car.
6The four young men were arrested and charged with possession of stolen property. Constable Beasley arrested the appellant and read him the standard Charter right to counsel caution and young person’s warning. He then placed the appellant in the rear of the police cruiser of Constable Megan Carnochan, who had arrived as back-up.
7Constable Carnochan drove the appellant and another of the young men, S.O., to the police station. At the station, Constable Carnochan, the appellant and S.O. waited in the patrol car for 42 minutes while the other two young men were being processed inside.
8Once inside the police station, Constable Carnochan prepared to take a videotaped statement from the appellant. She advised him of his right to counsel, his right to consult a parent or other adult, his right to say nothing, and his right to have a parent present when making a statement. The appellant confirmed that he understood all of this, that he did not want his mother, who had arrived at the police station, present during the interview, and that he wanted to make a statement.
9At the start of the interview that followed, Constable Carnochan advised the appellant that he was charged with possession of stolen property under $5000. Most of the interview then focussed on the two stolen cars. The appellant admitted his role in stealing both cars.
10Near the end of the interview, Constable Carnochan started to ask questions about the contents of the stolen cars. As these questions progressed, the appellant admitted that he had broken into a private home, stolen marijuana from a freezer in the home, and intended to sell the marijuana.
11Ultimately, the appellant faced four charges, some relating to the two stolen cars and others relating to the break and enter at a private home and the theft of marijuana from that home.
(2) The trial
12At the trial, the appellant brought an application to exclude his statement on several grounds, including:
The Defendant was not given a reasonable opportunity to exercise his right to retain and instruct counsel, and to have a parent present, without delay, in privacy, without interruption.
The Defendant was not fully and properly informed and in a timely fashion of all of his rights with respect to retaining and instructing counsel, in order to afford him a full understanding of his rights.
The Defendant was required to provide information or evidence to incriminate himself prior to being able to exercise his opportunity to consult counsel.
13A voir dire was held, with testimony from several witnesses, including the appellant and Constable Carnochan. The trial judge ruled that the appellant’s statement was admissible. He said:
I find it a fact beyond a reasonable doubt on the evidence before me that the accused’s rights were complied with in each and every fashion. I am satisfied beyond a reasonable doubt that the accused clearly understood his rights to counsel, as is set out in the transcript of the taped interview. He was given a number of opportunities to contact counsel, but declined. And it is clear from the transcript that he fully understood his rights and was able to explain or express in his own words what his right to counsel was. I find as a fact that the accused fully understood that he could have his mother or another adult present, but declined. In reviewing the transcript of the interview, I find as a fact that there is nothing to suggest that the accused was confused or did not understand his right to counsel or to have a parent or an adult present. He was given several opportunities and declined. I find as a fact on the evidence and watching the accused testify, that he had a full operating mind, he was cognizant of his surroundings, his rights, including the right to remain silent, but he chose to give a statement to the officer. As I indicated earlier, Officer Carnochan is depicted on the video, was patient with him, and gave him every opportunity to have a parent or lawyer present.
14The trial continued, and the trial judge convicted the appellant of break and enter, possession of marijuana for the purpose of trafficking, and theft under $5000.
15The appellant appeals his convictions.
C. Issues
16The appellant raises three issues:
(1) Did the trial judge err in admitting the appellant’s statement following the voir dire?
(2) Was the appellant’s s. 10(b) Charter right violated by his increased jeopardy during his statement?
(3) Did the trial judge provide sufficient reasons for judgment?
D. Analysis
(1) Admission of the appellant’s statement
17The appellant contends that Constable Carnochan did not comply with s. 146 of the Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”), which provides:
(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 person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless
(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.
(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.
18Section 146 of the YCJA sets out a series of requirements for admissibility of a statement by a young person. These requirements incorporate common law voluntariness and Charter s. 10(b) protections, in addition to special protections for young persons, such as the rights to have counsel present, to consult a parent, and to have a parent present when making a statement. These are, in the words of Fish J. in R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, at para. 1, “a complimentary set of enhanced procedural safeguards... which governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences.” Compliance with these safeguards must be established on the standard of proof beyond a reasonable doubt: see L.T.H., at para. 32; and R. v. M.D., 2012 ONCA 841, at paras. 47-52.
19In my view, Constable Carnochan comprehensively and scrupulously complied with the requirements of both s. 10(b) of the Charter and ss. 146(2) and (4) of the YCJA. She advised the appellant of his right to counsel, his right to consult with his mother, his right to say nothing, and his right to have his mother present during the interview when making a statement. Because the appellant’s mother was present in the police station, Constable Carnochan took special care to ensure that the appellant understood her availability for consultation and support if the appellant so desired.
20Constable Carnochan also complied with the requirement that police officers both provide proper advice to young people about their rights and make reasonable efforts to ensure that the young person in fact understood those rights: see L.T.H., at paras. 21-22. After providing information about the various rights, Constable Carnochan consistently asked simple follow-up questions that required the appellant to respond in a way that demonstrated whether he understood his rights and his options.
21In summary, having viewed the videotaped interview and reviewed the transcript, my conclusion is that Constable Carnochan demonstrated model compliance with her obligations under s. 10(b) of the Charter and ss. 146(2) and (4) of the YCJA. In light of this process, the trial judge did not err by admitting the appellant’s statement.
(2) Increased jeopardy during statement
22The original charge against the appellant was possession of stolen property under $5000. This was the only charge recorded on the Statement of a Young Person form filled in by Constable Carnochan and signed by the appellant. At the start of the interview, Constable Carnochan said, “so right now ... you’re charged with possession of stolen property under five thousand (5000) dollars.”
23For some time, the interview proceeded entirely on the path of questions and answers about the two stolen motor vehicles. However, near the end the interview veered onto new terrain. Constable Carnochan started to ask questions about the contents of the cars. She mentioned several iPods. The appellant said that one belonged to him and “the black iPod was stolen from a house.”
24The interview continued:
CARNOCHAN from a house
D.T. yes
CARNOCHAN who stole the iPod
D.T. me and [A.]
CARNOCHAN what can you tell me about that
D.T. okay well um I told [A.] that I knew a guy that uh grew marijuana I assume you found the marijuana in the car and um I said we could take it and we could sell it and we could make some money and he said yeah so I went to pick him up he had a back pack and he had some gloves
CARNOCHAN when did this happen
D.T. this happened today
CARNOCHAN okay
D.T. and then we went to the house um we knocked to see if anyone was home nobody was there and then we went through the back and the back door was open and then I knew where the marijuana was at first (1st) because he said it was in a freezer and the freezer was downstairs and when we went to open the freezer we noticed that there was a part in the house that was covered in bed sheets so we opened the bed sheets and there was a lamp with a couple plants growing and
CARNOCHAN where was this house
D.T. Vanastra
25The interview continued for several more minutes, and the appellant provided additional details about the break and enter at a private dwelling, the theft of a substantial quantity of marijuana from the dwelling, and the appellant’s intention to sell the marijuana.
26The appellant contends that when the interview shifted from the stolen vehicles to the new terrain of break and enter at a private dwelling and theft of marijuana, the appellant’s jeopardy increased, both quantitatively (more potential criminal charges) and qualitatively (more serious charges). Accordingly, says the appellant, Constable Carnochan was required to re-advise him of his rights.
27The trial judge did not discuss this issue in his ruling. That is almost certainly because defence counsel made but a single glancing reference to the “limited original scope of jeopardy”, with no accompanying legal argument in his extensive submissions on the voir dire. Crown counsel said nothing about this issue. Nevertheless, there was, and is, a full evidentiary record for this issue, and appellate Crown counsel properly acknowledges that this court should address it: see R. v. Lewis (2007), 2007 ONCA 349, 86 O.R. (3d) 46 (C.A.), at paras. 18-28.
28The leading case on the duty of police to re-advise detainees of their rights during an interview/statement scenario is this court’s decision in R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767. In that case, the court held that the police must reiterate the right to counsel if they want to ask questions that go beyond an exploratory stage in connection with a related but significantly more serious offence, or a different and unrelated offence. This obligation to re-advise applies even where, as here, the detainee brings up the other offences: Sawatsky, at p. 778.
29In my view, the spirit underlying, and the essential content of, the police duty to re-advise detainees of their s. 10(b) rights during an interview/statement are set out by Doherty J.A. in Sawatsky, at p. 778:
Considering the purpose underlying s. 10(b) and its fundamental importance in maintaining the fairness of the criminal investigatory process, I think it is appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights. The police should be encouraged to readvise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. The administration of criminal justice is better served by a restatement of the detainee’s s. 10(b) rights which is a little early than one which is too late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee’s right to counsel and connect that right to the new allegations.
30To this I would simply add that in the YCJA context dealing with the intersection of young people and the criminal justice system, the “enhanced procedural safeguards” (L.T.H., at para. 1) of s. 146(2) strongly support a similar analytical framework.
31In my view, in the passage from the interview set out above, the appellant’s jeopardy changed noticeably. He started to talk about crimes that were both different and potentially more serious than that with which he had already been charged. In short order, he introduced, at a minimum, the following crimes: break and enter of a private dwelling, theft of an iPod and marijuana, possession of marijuana, and possession for the purpose of trafficking. Once all of this information was on the table, as it was after only three responses in the above passage, Constable Carncochan had a duty to recognize that, in the language of Sawatsky, there was a real potential for the focus of the criminal investigation “to shift and broaden”.
32In fact, this is precisely what happened. After the passage set out above, Constable Carnochan continued to ask questions about the details of the break and enter into the private dwelling, the theft of the marijuana, and the reason for the theft, namely, “selling it”. In these circumstances, the questions went well beyond being exploratory; they were patently investigatory. They should not have been asked without the police officer stopping, carefully re-advising the appellant of his various rights pursuant to s. 10 of the Charter and s. 146(2) of the YCJA, ensuring once again that the appellant understood those rights, and, if the appellant still wanted to make a statement about these new and more serious offences, ensuring that he properly waived his rights pursuant to s. 146(4) of the YCJA. Unfortunately, none of this happened.
33The Crown makes an alternative submission, namely, that the failure to re-caution the appellant did not matter because it was obvious from near the start of the interview (“I’m telling the hundred percent truth”) to the end (“one hundred percent the truth yeah”) that the appellant intended to admit to all of his recent criminal activity.
34I am not prepared to make that leap, given both the appellant’s age (16) and the clear link at the outset of the interview between his waiver of his rights and the charge he faced, which related to only the stolen cars. As Doherty J.A. said in Sawatsky, at p. 778, “[t]he police should be encouraged to readvise detainees of the right to counsel when the focus of an investigation begins to shift or broaden.”
35In light of this analysis, the appropriate remedy is to exclude the portions of the appellant’s statement directed toward the break and enter and the marijuana.
(3) Sufficiency of reasons
36The appellant contends that the trial judge failed to advert to the analytical framework in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, canvass material evidence, and deliver reasons that were meaningful or comprehensive.
37There is no merit in this submission. The trial judge’s reasons responded to the main issues before him, canvassed the appropriate evidence, and are easily sufficient to allow for meaningful appellate review.
E. disposition
38I would allow the appeal in part. The convictions for break and enter (count 3) and possession of marijuana for the purpose of trafficking (count 4) should be set aside and a new trial ordered. The conviction for theft under $5000 (count 6) should be affirmed.1
39The appellant received a global sentence for the offences of 18 months probation. The appellant does not appeal his sentence; accordingly, the disposition above does not affect the sentence.
Released: April 18, 2013 (“J.C.M.”)
“J.C. MacPherson J.A.”
“I agree. J. MacFarland J.A.”
“I agree. S.E. Pepall J.A.”
The court received further submissions on this issue from counsel following the hearing, which I have considered. Both counsel discussed several issues, including the powers of a trial judge and this court to address an apparent inconsistency between a result articulated in reasons for judgment and a different endorsement on the information.
In the end, I am inclined to agree with this observation and suggestion from the Crown’s supplementary factum:
Some of these questions turn out to be surprisingly complicated, and the Crown questions whether this is the appropriate case to resolve them. There seems to be a lack of appellate decisions that speak clearly to this situation, and the problem in this case arises in relation to quite minor charges in the prosecution of a young person.
In the particular circumstances of this case, the Crown would be content if this Court’s judgment and order simply stated that the appeal is allowed and a new trial ordered on counts 3 and 4....
I am also sympathetic to the appellant’s submission:
In the case at bar, the apparent error in the recording of the verdict, that is by dropping one conviction for theft, was not identified until March 1, 2013 during the appeal hearing. The appellant by this time has long (and uneventfully) served his 18 month probationary sentence and fulfilled his hours of service.
Accordingly, without venturing onto the terrain of the remedial powers of a trial judge or this court in respect of an error made in a judge-alone trial in endorsing the information, I would affirm that the appellant in this case remains convicted of only one count of theft under $5000.
Footnotes
- During the appeal hearing, for the first time, an issue arose about whether the appellant had been convicted of one or two charges of theft under $5000. The trial judge’s reasons are clear: he found the appellant guilty of theft of a Ford Taurus (count 1) and theft of a Plymouth Breeze (count 6). However, when the trial judge endorsed the information, he marked “not guilty” and “dismissed” for count 1. Similarly, the probation order signed by the trial judge records one conviction for theft, not two.