WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

Section 110(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.

Section 110(2): Subsection (1) does not apply:

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Section 110(3): A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Section 111(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.

Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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

Date: 2018-06-15

Docket: C52122

Judges: Laskin and Pepall JJ.A. and Gans J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

N.B. Appellant

Counsel:

• Anthony Moustacalis, for the appellant
• Michael Bernstein and Frank Au, for the respondent

Heard: November 27, 2017

On appeal from the conviction entered on February 20, 2009 and the disposition imposed on January 6, 2010 by Justice Alfred J. Stong of the Superior Court of Justice, sitting with a jury.

Pepall J.A.:

A. Introduction

[1] The appellant, N.B., appeals from his conviction for first degree murder of his 14 year old cousin, B.B., a grade nine high school student from Barrie, Ontario. At the time of the offence, the appellant was 16 years old. He was tried before a judge and jury. He was sentenced as an adult to life imprisonment without eligibility for parole for ten years. He has been in custody since March 2006.

[2] The appellant submits that his conviction should be set aside and a new trial ordered because his statements to the police were admitted into evidence in breach of s. 146(2) of the Youth Criminal Justice Act, S.C. 2002, c.1 (the "YCJA"). The effect of that subsection meant that no statement made by the appellant to police officers on his arrest or detention was admissible against him in the absence of an explanation: (i) that he was under no obligation to make a statement; (ii) that the statement could be used as evidence against him; and (iii) that he had the right to consult counsel and a parent prior to making any statement, and to have counsel and a parent present during his statements. The appellant submits that none of that occurred. He also alleges that his right to counsel under s. 10(b) of the Charter was breached.

[3] As the YCJA breach is fatal to the Crown's case, there is no need to address the numerous other grounds of appeal raised by the appellant. For the following reasons, I would allow the appellant's appeal.

B. The Facts

[4] March 9, 2006, was a snow day. More importantly, it was the day of B.B.'s murder. He had been stabbed to death. What follows are the facts leading up to his murder and the events that led to the appellant's arrest and conviction for first degree murder.

(a) Relationship between B.B. and the appellant

[5] The B.s were a close-knit family consisting of five adult siblings, four of whom lived close to one another. They got along well and saw each other regularly. The one exception was S.B., the appellant's father. He and the appellant spent less time with the extended B. family and saw family members only sporadically over the years. That contact became even less frequent when an incident took place in late 2015, when the appellant was 15 years old.

[6] The events leading up to the incident began in August 2005, when the appellant ran into his two uncles, Colin and Terry. Colin was B.B.'s father, and Terry was B.B.'s and the appellant's uncle. The appellant confided in Colin and Terry that he was having a hard time at home living with his mother and her boyfriend. His uncle Terry offered to have the appellant move in with him on the condition that he abide by the house rules and attend school. The appellant agreed, and in September 2005, Terry enrolled the appellant in the local high school.

[7] B.B. had a close relationship with his uncle Terry and visited him often. As a result, during the time the appellant lived with Terry, he and B.B. spent time together. The appellant and B.B. also spent time with their cousin, Kijlah, with whom B.B. in particular was quite close.

[8] Terry subsequently discovered that the appellant was not attending school regularly and in November, he, Colin, the appellant, and the appellant's mother, had a discussion, which culminated in a heated exchange between Terry and the appellant. The appellant ultimately packed his things and left. After this incident, B.B.'s father Colin told B.B. he was no longer to associate with the appellant. B.B.'s mother testified that B.B. was a little angry when told this and stated that his parents were being "over protective". She recalled one time when the appellant called to speak with B.B. and her son tried to hide this from her.

[9] Later in the fall of 2005, Colin learned that the appellant and B.B. continued to communicate online through MSN Messenger. He called the appellant and told him to stay away from B.B. The appellant became upset and responded: "You can't make me stay away from [B.B.]." He then said: "Go fuck yourself" and "the [B] family will die". Colin testified that, despite his direction to B.B. to cease any association with the appellant, he was not certain that the boys stopped communicating with one another. At trial, there was no evidence given of any animosity between the appellant and B.B.

[10] Later, the appellant emailed his uncle Terry to advise that he did not have to worry about him anymore as he was moving to Vancouver to live with his brother. He then moved out west. However, on February 18, 2006, he returned to Barrie.

(b) Evening of March 9, 2006

[11] Turning then to March 9, 2006: the appellant had gone to work that day, as he was no longer enrolled in school. After work, he went to the apartment of his friend, Leonard, where he would be spending the night. Once there, he changed out of his work clothes. He then went to the bank with another friend, Casey, to cash a work cheque. Casey testified that on the way, he showed her a gold-coloured knife with holes in it. After the bank, the two returned to Leonard's place, arriving around 6:30 p.m. The appellant stayed at Leonard's for about 30 minutes, took two ecstasy pills and then went to the nearby apartment of a third friend, Matt, where he used the computer for about a half hour. At 7:30 p.m., the appellant left the apartment, because Matt had to go to the store.

[12] Meanwhile, B.B. was spending the evening with his cousin, Kijlah. The two were at the townhouse of a family friend, Karen, where Kijlah lived. B.B. and Kijlah were logged into MSN Messenger, and saw the appellant come online. Kijlah testified that B.B. messaged the appellant, and they corresponded back and forth for about ten to fifteen minutes. Karen's townhouse and the apartment building containing Leonard's and Matt's respective apartments were minutes from one another; the appellant asked B.B. to meet him at a park close to these residences, and to bring some money. They met and then returned to Leonard's place just before the start of an 8:00 p.m. movie. They stayed only a few minutes. The appellant introduced B.B. as his cousin to the people who were at Leonard's house, including Leonard, Leonard's mom and her boyfriend, Brian, and two of Leonard's and the appellant's mutual friends. There was no evidence from those present of any animosity between the appellant and B.B. A few minutes later, the appellant and B.B. returned to the home of Karen and Kijlah.

[13] Kijlah testified that the appellant and B.B. stayed with her at Karen's place for about half an hour. The three sat and talked with each other, and the appellant offered Kijlah and B.B. some ecstasy, before leaving an ecstasy pill out on a desk. The appellant also showed Kijlah and B.B a knife. The appellant and B.B. then left for a convenience store, Mac's Milk.

[14] Kijlah testified that, seconds later, B.B. returned saying he had forgotten something. Kijlah asked B.B. if he had taken the ecstasy pill with him and he responded by patting the front pocket of his pants. B.B. left again shortly after with the appellant. Kailey, a friend of Kijlah's who was on the phone with her that evening, confirmed that, between 8:30 and 9:00 p.m., she overheard B.B. getting ready to go to the store. She later heard someone return saying he had forgotten his pocket knife. Unlike Kijlah, she testified that she assumed the person who returned was the appellant, not B.B., because Kijlah said: "Oh, [N.B.]'s back."

[15] At 8:45 p.m., the appellant was seen on video surveillance at Mac's Milk purchasing two sodas and a pack of gum using his debit card. B.B. was not seen.

[16] Soon after, the appellant arrived back at Leonard's apartment. He was alone and wet. He went to the bathroom and changed out of his jeans and t-shirt and put them into his knapsack or a plastic bag. He then went to Karen's townhouse. According to Karen, who by that point had arrived home, the appellant was surprised B.B. was not there yet and he seemed to be a bit fidgety. He told Kijlah, who was also still there, that after he and B.B. had gone to the store, they went their separate ways: he had returned to Leonard's and had assumed that B.B. had gone back to Karen's. He said he was going to get his jacket and then go to look for B.B.

[17] A few minutes later, the appellant showed up at Leonard's place in a panic. He said B.B. was in trouble and asked Leonard and the others to help him look for B.B. He told the group that someone or his cousin had told him that a few guys had dragged B.B. into the bush. The appellant, Leonard, and the two other friends who had been present at Leonard's apartment made their way to Lackie's Bush, which was only about two minutes away. They found B.B. down the hill by the creek, and ran down to his body.

(c) B.B.'s death

[18] The appellant was the first to run down to B.B. He knelt down beside B.B., checked his neck for a pulse, and placed his hand on the side of B.B.'s chest. He then shouted that B.B. was dead and hugged his body. His friends described him as visibly upset, very emotional, distraught, hysterical, crying, and "freaking out". He was seen moving about the area punching trees and rolling in the snow. He appeared to be in shock and disbelief.

[19] Leonard called 911 at 9:14 p.m.

(d) Police at scene

[20] The first officer at the scene was Constable Schaus, followed by Constable Nevill and Sergeant Schultz. Later, other police officers were in attendance: Constable Higgins and Sergeant Berriault.

[21] When police and paramedics arrived, the appellant was heard shouting: "You guys have got to help him. That's my fucking cousin." Constable Nevill testified that as he was making his way to the bottom of the hill, he heard the appellant yelling and screaming and that the appellant intentionally put his shoulder into Constable Nevill's side as he passed and said: "He's dead faggot."

[22] At 9:26 p.m., Constable Higgins spoke to the appellant and asked him whether he had anything to do with the stabbing. The appellant responded that B.B. was his cousin and that he did not know what happened; he and B.B. were together 45 minutes earlier, when they had gone to the store; B.B. had left and the appellant had later returned to look for him. Constable Higgins observed that the appellant's pupils appeared to be extremely large so he asked him whether he had used any drugs that evening. The appellant replied that he had not. Constable Higgins asked him to wait inside a police cruiser because he wanted to make sure someone interviewed him. Constable Higgins returned a few minutes later and released the appellant from the cruiser but directed him to stay in the area because someone would speak with him.

[23] The appellant walked over to his friends, who were speaking with Constable Nevill. Constable Nevill testified that the appellant became a "constant chatter" in his ear. He spoke briefly with the appellant, took down his personal information, and told him to "back off" until he had finished speaking with the others.

[24] There were varying accounts of what happened next. Constable Nevill testified that the appellant reacted by shoving him from behind knocking him slightly off balance. Constable Nevill was 6'1" tall and weighed 220 pounds; the appellant was approximately 5'1" and weighed 137 pounds.

[25] Constable Nevill tried to restrain the appellant so he could arrest the appellant for obstructing police. He said that when he tried to take control of the appellant, the appellant resisted and, as he was flailing his arms around, Constable Nevill delivered a strike with a closed hand to the left side of the appellant's face. According to Constable Nevill, this did not deter the appellant and so Constable Nevill administered a "brachial stun", an open handed strike to the appellant's neck intended to cause a momentary loss of balance, followed by two additional closed hand punches to his face. The appellant was taken to the ground. With the assistance of a nearby police officer, Sergeant Berriault, the appellant was handcuffed and placed in one of the police cruisers, which was locked so the appellant could not leave.

[26] Sergeant Berriault only became involved when he noticed that Constable Nevill was holding the appellant in a headlock position, but he did not see any assault.

[27] In contrast, the appellant's friends observed the assault but none of them indicated that the appellant had struck Constable Nevill first. The appellant later told police that it was Constable Nevill who started the altercation; Constable Nevill assaulted the appellant when he asked for an update on his cousin.

[28] After the arrest, Constable Nevill made only cursory notes in his memo book about the altercation, and then spoke with his superior, Sergeant Schultz, telling him that a young person had struck him and he had arrested him. According to Constable Nevill, Sergeant Schultz told him that the appellant "should potentially" not be charged with obstructing police but just with breach of the peace. He did not direct Constable Nevill to vary the charge. Constable Nevill did not mention to Sergeant Shultz that he had been in a physical altercation with the appellant. Subsequently, having heard of the striking from other officers, Sergeant Schultz directed Constable Nevill to add detail to his notes on what had happened.

(e) Placement in police cruiser subsequent to arrest

[29] A few minutes after the appellant was placed in the locked cruiser, Sergeant Berriault noticed that an adult was attempting to speak to the appellant: Brian, an adult whom the appellant knew. Brian was the boyfriend of Leonard's mother. Sergeant Berriault told Brian to step away. Sergeant Berriault then spoke to the appellant. According to Sergeant Berriault, the appellant was upset, told him he was the injured person's cousin, and repeatedly asked the name and badge number of the officer who had arrested him because he felt he had been unfairly treated. Sergeant Berriault assured the appellant that he would get that information and told him that if he calmed down the handcuffs would be removed. Not knowing that the appellant had been placed under arrest by Constable Nevill, Sergeant Berriault then removed the handcuffs.

[30] After Sergeant Berriault left, Sergeant Schultz – who at this point knew the appellant had been placed under arrest by Constable Nevill for obstruct police – attended the locked cruiser to converse with the appellant. The appellant asked Sergeant Berriault whether he could go and speak with Brian. Sergeant Schultz told him that it was not a very good idea, that he should relax, and that he would be given a cup of coffee at the station. Sergeant Schultz asked the appellant who went into the bush with B.B. The appellant told him he did not know; after he and B.B. had gone to the convenience store, B.B. and the appellant split up, and he did not know where B.B. went after that.

(f) Appellant taken to police station

[31] At 9:48 p.m., Sergeant Schultz directed another officer at the scene, Constable Schaus, to drive the appellant to the police station for questioning. The former contacted Detective Holden and Inspector Neelin, who were at the police station. Sergeant Shultz advised them that the appellant was in custody for bumping into Constable Nevill, but that he did not expect there to be a charge, and not to worry about "lodging him". Detective Holden responded that instead, he would just "throw [the appellant] in the interview room". Sergeant Shultz agreed.

[32] Sergeant Schultz then contacted Staff Sergeant Emms. He told her the appellant had been placed under arrest by Constable Nevill for obstructing a police officer. He said that the appellant was in custody, but did not think a charge would be laid as the appellant was "an emotional kid who is out of control". He told Staff Sergeant Emms that the appellant was being brought in as a witness, and directed that he be kept away from any phones and be put in an interview room to be interviewed "tout suite".

[33] For his part, Constable Schaus radioed the station and advised that he was on his way with a male in custody. He heard the appellant whimper and ask him whether his cousin was going to be okay. Constable Schaus responded that he did not know, to which the appellant responded: "Those guys are going to have to pay." The appellant appeared very emotional and distraught to Constable Schaus.

[34] Neither Sergeant Shultz nor Constable Schaus advised the appellant that he did not need to go to the police station for questioning if he did not want to. Nor did either officer clarify that he would not be charged for obstruct police once he arrived at the station.

(g) Appellant placed in interview room

[35] Constable Schaus and the appellant arrived at the station at 9:59 p.m. Once there, Constable Schaus led the appellant to an interview room, where the two were met by Staff Sergeant Emms. The latter testified that she understood that the appellant was brought into the station as a witness and was no longer in custody. She directed Constable Schaus to look through the pockets of the appellant's coat. She asked the appellant whether he had any injuries to which he responded no, and she advised that someone would be in shortly to speak with him. She then left the appellant in the interview room. The interview room was locked when the police were not with the appellant and unlocked when they were.

[36] It is important to note what Staff Sergeant Emms did not do. She did not tell the appellant why he was brought to the police station. She did not tell him that he did not have to be there or that he was no longer in custody. She did not tell him that he did not have to speak with the police or provide a statement. And she did not tell him that he could leave at any time.

(h) Preliminary interview of the appellant by Detective Constables Brooks and Parcells

[37] The appellant's interview was conducted by Detective Constables Brooks and Parcells. The two had been told by Detective Holden that there had been a homicide and to interview the appellant.

[38] At no time prior to the interview did Detective Constables Brooks or Parcells tell the appellant that: he did not have to make a statement to the police as a witness; he was free to leave at any time; he could consult with a parent, adult, or counsel, and have any of these people present for the interview. He was not sworn or cautioned.

[39] At 10:06 p.m., Detective Constables Brooks and Parcells entered the interview room to conduct a preliminary interview of the appellant. The appellant asked about his cousin's status and was told: "It'll be a while anyway buddy." Although Detective Constable Parcells knew B.B. was dead; he wanted the appellant to remain calm. The Detective Constables told the appellant that they were going to go through everything that happened that evening so that they could figure out what went on and to see what they could do to help the appellant, saying:

PARCELLS: Okay what we're gonna do, we're gonna uh — we're gonna take a statement from ya, try to figure out what went on, see what we can do to help you, okay?

N.B.: I don't know anything that happened really, I left him.

PARCELLS: Okay, no that's cool, but we're just gonna go through everything what happened tonight.

N.B.: Okay.

PARCELLS: It's gonna be on audio and video and the reason we're asking you these questions now, we don't want your address and name gettin' out, okay?

N.B.: Okay.

[40] After this exchange, the Detective Constables began leaving the interview room, prompting the appellant to inquire: "You're not gonna read me my rights or nothin?" The Detective Constables then clarified, for the first time to the appellant since he had been placed under arrest by Officer Nevill, that he was not in fact under arrest. Detective Constable Brooks told him that he had been arrested for breach of the peace. Although the appellant tried to explain the details of the altercation with Constable Nevill, the Detective Constables did not ask him about it. Instead, they explained that the police at the scene were trying to help B.B. and that "at the time the police don't know what your involvement [was]. For all they kn[e]w, you could be the guy that did it". Detective Constable Parcells went on to tell the appellant that, once no one had "any further questions" for him, the police would drive him home. He added that the appellant did not need his rights read to him because he was not going to be charged and did not need a lawyer.

[41] The specific exchange went as follows:

N.B.: You're not gonna read me my rights or nothin'?

BROOKS: No...

BROOKS: No...

PARCELLS: You're not — you're not...

BROOKS: No, you're not under arrest.

N.B.: Oh okay.

BROOKS: You — you - you're - what ended up happening is you were arrested for breach of the peace

N.B.: After I got punched in the nose.

BROOKS: By?

N.B.: By one of the officers.

BROOKS: Oh okay. Well uh...

N.B.: He was uh — this is how it goes. We were talkin' about it and asked him if he was dead and he goes oh are you the one flappin' your gums that he's already dead and I said well he had a knife mark through his earring cuz he had a big hole right here in his ear.

BROOKS: mm... hm...

N.B.: …cuz we went down there and he grabbed a hold of me and he goes if you don't wanna be under arrest shut up right now, right and I grabbed a hold of him and he just clocks me.

BROOKS: Okay.

N.B.: And then two of the other guys came over and grabbed me and threw me up against the ambulance and then it drove away.

BROOKS: Here here's the deal though, okay.

N.B.: And I never got (unintelligible) ...

BROOKS: Well okay, okay. All — you know what? There was a lotta stuff happening at that time. You got police officers there they're trying ta help your cousin, okay. No one knows what's goin on and ya know, you're — you're irate, you're upset and that's understandable.

PARCELLS: And that's understandable.

N.B.: But I shouldn't be goin' (unintelligible) (talking over each other)

BROOKS: No, no, but — but — but at the time the police don't know what your involvement is. For all they know, you could be the guy that did it, right? So what they ended up doin' is yeah, you're arrested for breach of peace. Forget about all that. You're not being charged with anything tonight, okay? When we're done this statement we're …

PARCELLS: We're gonna drive you home.

BROOKS: Yeah. Unless anyone has any further questions for ya then uh we're probably gonna drive you home after that.

PARCELLS: What breach of the peace is it's just a way of settlin' somebody down, get him calmed down and everything's cool and then it goes away. Okay?

N.B.: Sounds good.

PARCELLS: Sound fair. So you're not under arrest. You're not facin' any charges and you don't need your rights read to ya.

N.B.: Okay.

PARCELLS: Okay.

N.B.: Sounds good.

PARCELLS: And you don't need a lawyer. We're just here shootin' the shit. That's all. We're tryin' ta help you okay.

N.B.: Well like I said I …

PARCELLS: Well like you say it may be bullshit now but it may be real cool later, okay?

N.B.: Yeah.

(i) Substantive interview of the appellant by Detective Constables Brooks and Parcells

[42] The Detective Constables then left the room briefly, returning at 10:12 p.m. to begin the substantive interview. They told the appellant to tell them everything that had happened that day.

[43] At first, the appellant told the Detective Constables that he and B.B. had walked over to the convenience store, where the appellant had used his debit card to purchase a pop and some gum. Then, the two walked to a complex in between Leonard's and Karen's respective residences. There, the appellant put his baseball cap on B.B.'s head, gave him a hug, and said "See ya later". The two split up, with the appellant going to Leonard's home. B.B. did not say where he was going. The appellant clarified that he only began looking for his cousin when he went to visit Karen, where he found out from Karen that B.B. had not returned yet. At that point, the appellant said he went back to Leonard's home to enlist his friends to help him find B.B. He denied any involvement in his cousin's death and said they had always gotten along.

[44] The appellant also initially told the Detective Constables that, at no point in the night, did he and B.B. go to Lackie's Bush together. But when the Detective Constables falsely told the appellant that there were video surveillance cameras outside a recreation centre near Lackie's Bush, the appellant changed his story. He said that he and B.B. had walked through Lackey's Bush to smoke a joint and that, while there, two guys unknown to the appellant asked B.B. if he had a cigarette. B.B. responded that he did not, and one of the guys pulled out a knife. The appellant told the officers that he saw one of the guys holding a sandy coloured knife that was dark in the middle. The appellant left and told B.B. to follow him but B.B. did not listen. The appellant stopped at the recreation centre, where he used the washroom and washed his hands. He then ran to Leonard's home and told his friends there that two guys had dragged his cousin to Lackie's Bush and asked them to go back with him to help B.B. He explained to the Detective Constables that he had not mentioned this earlier in the interview because he could not justify why he was going back to Lackie's Bush so late at night, but admitted that he had "changed my story".

[45] The main parts of this exchange went as follows:

BROOKS: … I have ta ask ya. In any way, shape or form, were you involved in this tonight?

N.B.: I wasn't.

BROOKS: Okay. There is uh - just so you know okay - the Allandale Rec Centre...

N.B.: Hm.. .mm.

BROOKS: ... fortunately for us has an excellent video system and uh they have a video system of the uh the main parking area because obviously ya know cars get broken into all the time. Is there any way on that video we're gonna see you walking with [B.B.] to Lackies Bush at any time during the night?

N.B.: Maybe. We walked through an then we came back out an then we came back out. No, that wasn't tonight no.

BROOKS: Think about it though because we're-we're in the process of pulling the tapes now an we-we half ta verify ya know your whereabouts an stuff like that.

N.B.: Hm. . mm.

BROOKS: Is there anyway tonight that on video it'll show you an [B.B.] walking towards the area of Lackies Bush together — at any time of the night tonight?

N.B.: Hm. ..mm.

BROOKS: Okay.

N.B.: We went there to smoke a joint.

BROOKS: Okay. What happened when you were there when you were smokin the joint?

N.B.: It was...

BROOKS: [N.B.], okay. You're here now, right?

N.B.: Hm.. mm.

BROOKS: We need ta hear what happened tonight?

PARCELLS: [N.B.], we're not judgin ya an we don't care if you were smoking dope okay.

N.B.: Hm. ..mm.

PARCELLS: That was gonna be my next question. I can tell by your eyes you've been — you've been doin a lot okay but we don't give a fuck about the dope okay. We care about your cousin who's your family an you should care about him. Okay so everything — don't leave anything out, okay. Be straight up with us.

BROOKS: .. Did something happen between you an your cousin tonight?

N.B.: Oh no, nothin. That was — we've always gotten along. That's one thing I've always liked. That's why I still talk to him an stuff.

BROOKS: We're not judgin you for anything...

N.B.: I know that.

BROOKS: .. like I said okay. If you guys were down there an something happened while you were there an you're scared, we understand that, okay? But you have ta be straight with us. You have ta tell us what's goin on.

N.B.: This is the road right there, There was one path into Lackies an there's the other path into Lackies an that's where they meet up an then there's uh — this path continues all the way along here like that an there's a little creek here an this is all land over here an there's urn a bunch a shit piled just to make a little half-ass bridge here — an we walked down there an we were standing just right here an then uh two of 'em - we didn't know who the hell they were — came probably — well that's the other path right — so they came from over here — an I started walkin an [B.B.] stood there an then they came up an asked him if he had a cigarette an he said no an then fuckin' one a them pulled outta knife an I fuckin' bucked it back to Leonard's an I grabbed Leonard and uh by the time we got back, he was over here an they were gone. I don't know who they were. I-I couldn't tell ya.

BROOKS: Okay. Why didn't you — why wouldn't you tell us that from the start?

N.B.: I...

BROOKS: [N.B.]. Look I - I want ya to listen - listen to us okay. If you know what was goin on tonight okay — we're not sayin — we're not sayin you're - you're the guy that - that stabbed your cousin okay. We're not sayin that. But we know that you know more than what you're tellin us okay an we...

N.B.: I couldn't justify why me an him were goin back there so late at night so.

BROOKS: Here's the thing buddy. You're goin to smoke a joint okay. That is the absolute least of anyone's concern right now okay. Our concern is in regards to [B.B.] okay. You either tell us who these two guys were?

N.B.: I - I swear to God sir, I have no idea.

BROOKS: Okay he pulls...

N.B.: Like I said, I don't live here.

BROOKS: Why - tell me why these two guys are approaching [B.B.] an you're walking away?

N.B.: Because I — I'm not like that. I don't — he's tiny.

BROOKS: [N.B.].

N.B.: I don't feel safe with him. I don't feel safe around here and being back in the dark bush that late at night.

BROOKS: Or tell [B.B.] to come with you?

N.B.: I did tell him to come with me.

BROOKS: What did he say?

N.B.: He didn't listen.

BROOKS: Why wouldn't he listen to ya?

N.B.: I have no idea. He took a few steps anyway.

PARCELLS: Do you think he knows these guys?

N.B.: Quite possibly. I didn't.

PARCELLS: Did they - did they talk? Did you hear them talkin at all?

N.B.: Yeah, he - one - the one guy asked him if [B.B.] had a smoke an [B.B.] said no an then this guy — cuz there was two of 'em that came this way an this way cuz there's another path that leads out the exit at the back.

PARCELLS: Yeah.

N.B.: And. uh one a them - I was walkin – I was about here - an [B.B.] had just crossed the bridge so he was about here — an they come over an this one guy asked him if he had a smoke an [B.B.] said no an then this one ran up on him an I seen him pull out the knife from his side.

BROOKS: What did the knife look like?

N.B.: It was uh kind of sandy coloured like right here an then it was a darker colour right here in the middle and it was like another sandy colour right there.

BROOKS: An you ss — an you were able to identify the knife that well being ten to fifteen feet away?

N.B.: Yeah.

BROOKS: In the pitch black?

N.B.: It wasn't pitch black.

BROOKS: No. Let-let's go back to the Allandale video uh. Tell us what we're gonna see on the video?

N.B.: Me going down there with him.

BROOKS: Okay what time are we gonna see you going down there with him? Approximate?

N.B.: Approximate? See I don't even know what time it is now so I'd say.

BROOKS: We started the interview at ten after ten.

N.B.: Um best guess would be nine maybe.

BROOKS: Okay so we're gonna see originally you an [B.B.] walking down there around nine?

N.B.: Right.

BROOKS: So let's say for hypothetical circumstance, let's say the camera video says 9:00 o'clock right on the nose...

N.B.: Hm. . mm.

BROOKS: … okay. What are we gonna see when we see you again? Are we gonna see you with [B.B.]?

N.B.: No.

BROOKS: What are we gonna see you doin?

N.B.: Me going out of Lackies...

BROOKS: How...

N.B.: … an walking back...

BROOKS: What's your manner?

N.B.: Pardon?

BROOKS: How - are you - are you walkin? Are ya takin your time? Do walk over to Allandale Rec Centre? Do ya hang out somewhere?

N.B.: It's kind of a — I guess a fast pace but don't draw attention to yourself run.

BROOKS: So a fast walk?

BROOKS: Did you go inside the rec centre?

N.B.: Yes.

BROOKS: An what did you do while you were inside there?

N.B.: I went to the washroom an then I came back out an I walked back out the front door.

BROOKS: Okay, you just finished telling us that you're — that two guys just pulled a knife on your cousin...

N.B.: Hm. .mm.

BROOKS: .. an then you walk across an go to the washroom?

N.B.: Right.

PARCELLS: Did you tell anybody that...

N.B.: I didn't know.

PARCELLS: . . .your cousin's in trouble down there?

N.B.: Yeah, I went an told Leonard.

PARCELLS: Okay, but where's Leonard?

N.B.: Up at his place.

PARCELLS: Okay.

N.B.: It's just - it's just right here.

PARCELLS: Yeah it's just around the corner but you took time out to go have a piss in the rec?

N.B.: Hm...mm. I had to.

PARCELLS: Well.., okay I-I-I'm thinking if-if.if somebody pulls a shank on my cousin, a guy I really like an haven't seen in a while an yeah I'm scared an I get the fuck outta there, I'm gonna be runnin B line goin for help — not stoppin for a piss an then goin to Leonard's. Cuz you know what I'm sayin.

BROOKS: An what about this story about Karen? Is she coming to look for him as well?

N.B.: Hm...mm. That was true,

BROOKS: Well, did you go to Karen's house?

N.B.: Yeah.

BROOKS: So you went to Leonard's house?

N.B.: No, no. This was before.

BROOKS: Before what?

N.B.: Before we even went down there.

PARCELLS: Yeah but...

N.B.: See cuz I...

BROOKS: . (unintelligible) (talking over each other)

N.B.: ...changed my story right so.

[46] By 10:55 p.m., the appellant's status had changed in Detective Constable Parcells' mind: he had become a person of interest or a suspect. Detective Constable Parcells took a break and went to speak with Sergeant Holden, returning a couple of times to tell the appellant that the officers were still talking.

[47] The appellant sat alone in the interview room for nearly three hours. During this time, he was monitored. When he stood up and walked around the room, a voice directed him to sit back down in the chair. He was also observed speaking to himself saying: "Them bastards. I'll fuckin kill you both. Fuckin wanna stab my cousin you fuckin silly ass faggots. Bunch of fuckin dick heads."

(j) Arrested for first degree murder

[48] At 1:59 a.m., Detective Constable Parcells and another police officer, Sergeant Winn, entered the interview room and arrested the appellant for first-degree murder. He reacted by using various expletives. He was cautioned and he immediately asked if he could speak with his mother and a lawyer. He subsequently spoke with duty counsel. At 4:09 a.m., the officers interviewed the appellant again, this time in the presence of his mother. His step-father asked to be present but the police initially refused his request. The appellant reiterated that he did not stab his cousin.

[49] While the officers explained the situation to his mother, the appellant stated that he did not know that making a statement was voluntary and no one had told him he did not have to be there. The officers responded by indicating that his inconsistent statements had led them to consider him a suspect and ultimately led to his arrest.

C. The Trial

[50] The trial proceeded before a judge and jury.

(a) Forensic evidence

[51] At trial, the Crown introduced into evidence certain forensic evidence. It consisted of three things.

[52] First, the police found a copper flick knife at the recreation centre. No fingerprints were found on the knife. DNA from at least two individuals was found on the inside of the knife but it could not be linked to anyone. Blood was found at the recreation centre in various places: on the sink counter, on the side of the garbage can, and on the interior door handle of the bathroom. The appellant could not be excluded as the source of this blood. The major profile of the blood found on B.B.'s fingernails included unidentified DNA that did not match the appellant.

[53] Second, blood was detected on the appellant's winter coat, pants, and T-shirt that he was wearing at the time of his arrest as well, as on a blue shirt and blue jeans found in a backpack seized by the police from Leonard's residence. B.B. could not be excluded as the source of the male DNA profile on the winter coat and blue jeans. B.B.'s black toque was found 5.23 meters and the appellant's baseball cap 3.85 meters away from B.B.'s body.

[54] Third, the appellant had a cut on his neck and his face and some redness and small cuts on his hands near his knuckles. He told Detective Constables Parcells and Brooks that he did not know how or when he was cut.

(b) Appellant's statements and utterances

[55] At trial, the Crown also sought to introduce the appellant's statements to the police and his utterances. The admissibility of the appellant's statements to the police and utterances were challenged by the defence and the judge accordingly conducted a voir dire.

(c) The voir dire

[56] Before the trial judge, the Crown conceded that the appellant's rights under ss. 25(2) and 146 of the YCJA, as well as those under s. 10(b) of the Charter, were breached at the scene of the crime as he was not advised of his rights prior to his arrest for obstruction of police. However, the Crown argued that this breach did not taint his subsequent statements to Detective Constables Parcells and Brooks.

[57] The appellant sought to exclude statements he made to Constable Schaus at about 9:48, to Staff Sergeant Emms at about 9:59, and to Detective Constables Brooks and Parcells starting at 10:05 and 10:12, as well as the words and gestures made while alone in the interview room.

[58] The trial judge admitted all of the evidence sought to be excluded.

[59] In his ruling, the trial judge reviewed the facts and noted that the appellant had never been arrested or charged before and had no criminal record. The appellant testified, but the trial judge considered that he had embellished his evidence and that his testimony was unreliable, stating:

One cannot rely upon his testimony when he claims he was intimidated, afraid, and influenced to make a statement to the police ... It is clear he is an individual, although of tender age, who is in control of the situation, manipulative, and determined to get his point across. He is not reluctant in any respect. On the contrary, [N.B.] is in control and demonstrates a degree of confidence that causes him to inquire about his rights to counsel. He is not an uninformed witness.

[60] The trial judge stated that it was agreed by counsel that at no time did any police officers tell the appellant that he was no longer under arrest for obstruction of police, that he was free to leave, or that he did not have to make a statement. Moreover, the police never gave him the opportunity to consult with counsel even though he inquired of Detective Constables Parcells and Brooks whether they were going to read him his rights. However, despite this agreement, the trial judge found:

I am satisfied that if [N.B.] had entertained any reasonable belief as a result of the actions of the police that he was under arrest for anything as he sat in the police station that such belief was specifically addressed and adequately disposed of by the explanation of the officers Brooks and Parcells and their assurances to him that he was not under arrest based on the information in their possession at the time. The police officers assured Mr. [N.B.] that he is not under arrest, that he is not facing any charges, and that he does not need his rights read to him because of that, and that after they are finished interviewing him they are going to give him a lift home.

[61] The trial judge turned his mind to the voluntariness of the statements, stating that he was required to look at the surrounding circumstances and consider whether there were threats or promises, whether an atmosphere of oppression existed, whether police trickery was used, and whether the operating mind doctrine was applicable. He found no threats or promises or trickery and concluded that the appellant's consumption of ecstasy had not impaired his operating mind. He was satisfied that the Crown had met its onus of proving voluntariness beyond a reasonable doubt.

[62] He then turned to his consideration of s. 10(b) of the Charter and s. 146 of the YCJA. He concluded that, to Detective Constables Parcells and Brooks, the appellant was merely a witness. He was neither induced nor threatened to give an interview to the police, nor did he regard himself to be under arrest or compelled to give a statement. The trial judge found that the evidence of the appellant on what transpired at the scene was unhelpful, whereas he accepted the evidence of the officers at the scene. He concluded that the appellant was neither detained nor arrested for first degree murder prior to 1:59 a.m. on March 10, 2006.

[63] Furthermore, none of the police officers had reasonable grounds to consider the appellant to be a suspect at the time the statements were made. Although the appellant had been arrested at the scene, before he was transferred to the police station, the police had made the decision that he was not under arrest and that he was only being viewed as a witness. As he was not under arrest, his rights under s. 10(b) of the Charter and s. 146 of the YCJA were not engaged.

[64] In considering whether the appellant had been detained prior to his arrest for first degree murder, the trial judge noted that the police are not required to caution and advise each person they interview of their rights and he identified the factors to determine detention described in R. v. Moran (1987) and in R. v. Azzam, 2008 ONCA 467.

[65] The trial judge held that the appellant bore the responsibility of establishing on a balance of probabilities that he was psychologically detained. He stated that:

The compulsion to comply cannot be inferred simply because of a request by police, nor should it be presumed unless the Crown can show evidence of informed consent.

[66] In assessing the appellant's reasonable belief that he was detained, the trial judge reasoned that low intelligence, emotional disturbance, youth, and lack of sophistication were not evident. Furthermore, he held that where a young person had been detained but the detention does not relate to the crime for which the information is elicited, the provisions of the YCJA did not apply. In addition, he held that s. 146 did not apply where there were no reasonable grounds to believe the young person had committed the offence.

[67] Although the appellant may have been detained as an accused by Officer Nevill with respect to the offence of obstruction of police, the trial judge found that this detention ended shortly afterwards. He was not detained nor arrested as a person accused of homicide. The trial judge reasoned that, "[w]hile in the strictest sense [N.B.] was detained in interview room three he was certainly not detained as a suspect or a person of interest in the homicide." Given credibility concerns, there was insufficient evidence upon which to make a finding that the appellant reliably believed he was detained. He was in control of himself and sought to control his interaction with the police.

[68] The trial judge concluded that the appellant had failed to meet "his onus on the balance of probabilities on this breach of Charter rights motion." Although Detective Constable Parcells had admitted that the appellant's status had changed to a person of interest by 10:55 p.m., the trial judge concluded that, prior to being charged at 1:35 a.m., there had been no basis to view the appellant as a suspect. As a result, although the appellant was detained in a technical sense as a witness, none of his statements were made as a result of a breach of his Charter or YCJA rights. The trial judge accordingly admitted into evidence all of the appellant's statements to the police.

[69] The statements were admitted in both audio and transcript form, and considered by the jury at trial. Crown counsel highlighted the statements in both her opening and closing addresses to the jury. The trial judge also reviewed the statements in his jury charge as evidence for the jury to consider. He noted that the Crown invited the jury to rely on the statements as evidence of:

• The appellant's intent to kill, as the appellant initially tried to "get the police to accept" one version of the story "so he could avoid detection";

• That the appellant continued his "charade", and only changed his story after being confronted with possible video surveillance from the recreation centre;

• That the appellant was in control and sought to manipulate the police at the scene and the police station; and

• The appellant's fabrication of a story to hide his plan to kill B.B., showing that his actions were planned and deliberate.

[70] After considering the statements, the testimony of the various witnesses, and the physical evidence, the jury ultimately concluded that the appellant was guilty of first degree murder.

D. Fresh Evidence

[71] On March 24, 2011, Constable Nevill was charged with assault causing bodily harm of an individual unrelated to the appellant and the events in issue, as well as with fabricating evidence and obstructing the course of justice. On June 21, 2013, he was convicted of all counts. The convictions were based on an altercation between Constable Nevill and the unrelated individual. The trial judge concluded that Constable Nevill's "entire brief" was a "fabrication", that he used excessive force on the individual, and that there was no evidence of the individual's purported provocative actions. The exculpatory language and conduct used by Constable Nevill in that case were similar to that used in the case under appeal.

[72] The appellant seeks leave to admit this fresh evidence. He argues that the trial judge relied on Constable Nevill's evidence given at the preliminary inquiry to make credibility findings against the appellant. Therefore, Constable Nevill's evidence contributed to the trial judge's admission of the appellant's statements to police and his ultimate conviction.

E. Analysis

[73] This appeal turns first on whether the appellant was entitled to the protection of s. 146 of the YCJA when the police took his statements. In my view, he was. I must then consider whether the statements were improperly admitted into evidence. I am of the opinion that they were. I reach these conclusions for the following reasons.

[74] The trial judge made two fatal errors, both legal in nature.

[75] First, he erred in law by holding that the appellant failed to meet his burden of showing that he was psychologically detained on a balance of probabilities. This was an error because the burden to show that the appellant was detained should never have shifted to the appellant; it should have remained with the Crown throughout. Having shifted the burden, the trial judge then improperly concluded that the appellant had not been detained and therefore was not entitled to the protections provided for in s. 146 YCJA.

[76] Second, the trial judge made a further legal error in concluding that the protections under s. 146(2) of the YCJA did not apply to the appellant because he was "neither detained nor arrested on the offence set out in the indictment". That is, the appellant's detention and arrest were unrelated to the offense he was ultimately charged with, first degree murder. On this basis, the trial judge erred in concluding that s. 146 did not apply to the statements made by the appellant.

[77] I will commence my analysis with a discussion of the objectives of the YCJA and s. 146(2) of that statute. I will then address the standard of proof applicable to detention for the purposes of s. 146(2) of the YCJA, followed by an assessment of whether the appellant was detained by police and a discussion of whether s. 146(2) requires an arrest or detention to relate to the offence for which charges are ultimately laid. I will then consider s. 146(6), to determine whether any statements taken in breach of s. 146(2) should nonetheless be admitted. Lastly, I will address the rights protected by s. 146(2) of the YCJA in comparison with those protected by s. 10(b) of the Charter.

(1) Discussion of the objectives of the YCJA generally and s. 146 specifically

(a) The objectives and principles of the YCJA

[78] The YCJA applies to all young persons, who are defined by that statue as people 12 years or older but less than 18 years of age. The main purpose of the YCJA is to "lay down special rules for young persons": R. v. L.(S.J.), 2009 SCC 14, at para. 6.

[79] As set out in s. 3(2) of the YCJA and emphasized by the Supreme Court in R. v. J.(J.T.), the provisions of the YCJA are to be liberally construed so as to ensure that young persons are dealt with in accordance with the principles reflected in that statute. The principles that inform the statute recognize that young persons are not adults and their rights require special attention.

[80] Subsection 3(2)(b)(iii) provides that the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize enhanced procedural protection to ensure that young persons are treated fairly and that their rights are protected. Subparagraph 3(1)(d)(i) provides that special considerations apply in respect of proceedings against young persons:

[Y]oung persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms.

[81] Section 3(1)(a) provides that the youth criminal justice system is intended to protect the public.

(b) Section 146 regarding the admissibility of statements

[82] The Supreme Court addressed the predecessor to s. 146 of the YCJA, s. 56 of the Young Offenders Act, R.S.C. 1985, c. Y-1, in R. v. J.(J.T.), a case involving the bludgeoning to death of a 3 year old girl following a sexual assault. At paragraph 82, Cory J. explained the rationale and objectives underpinning the provision:

[T]he requirements of s. 56 must be complied with whether the authorities are dealing with the nervous and naïve or the street smart and worldly wise.

A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado and braggadoccio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority; certainly they would not appreciate the nature of their rights to the same extent as would most adults. Teenagers may also be more susceptible to subtle threats arising from their surroundings in the presence of persons in authority. A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedures.

[83] In addition, at para. 43 of R. v. D.(M.), 2012 ONCA 841, Watt J.A. observed that:

Section 146(1) affirms that the law relating to the admissibility of statements made by persons accused of committing offences applies to young persons in similar circumstances, but is subject to the provisions of s. 146.

[84] Subsection 146(2) sets out certain criteria that must be complied with by police or other persons in authority before any oral or written statement statements made by a young person to police will be admitted in a proceeding against that young person. The provision describes the requirements for admissibility of a statement and the protections afforded to a young person, stating:

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. [Emphasis added.]

[85] Section 146(2) of the YCJA sets out the contours of the law relating to admissibility of statements as it applies to young persons. There are three preconditions to the application of the section: arrest, detention, or reasonable grounds for believing the young person has committed an offence. The section then describes the requirements for admissibility of a statement – which place both informational and implementational duties on police officers – and the protections afforded to a young person.

[86] Like common law admissibility rules, "s. 146(2) is exclusionary by nature, but inclusionary by exception": R. v. D.(M.), at para. 44. Section 146 statements are presumptively inadmissible. The Crown must satisfy the cumulative requirements of s. 146(2) beyond a reasonable doubt for the statement to be admissible: R. v. L.T.H., 2008 SCC 49, at para. 32-34. Therefore, s. 146 is unlike ss. 10(b) and 24(2) of the Charter, which are rules of exclusion that presume a statement is admissible and require proof of the mandated conditions to exclude the statement, where the burden of proof is on the accused: R. v. L.T.H., at para. 44.

[87] The leading case on s. 146(2) is R. v. L.T.H. There, Fish J. held that no statement by a young person to a person in authority will be admissible in evidence against that young person unless:

(i) the statement was voluntary;

(ii) the person who took it "clearly explained to the young person, in language appropriate to his or her age and understanding" the young person's right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview); and

(iii) the young person was given a reasonable opportunity to exercise those rights.

(c) Preconditions to the application of s. 146(2)

[88] As I mentioned, the protections of s. 146(2) are triggered only if one of three preconditions are met. What then are these preconditions? The opening language of s. 146(2) sets out that its protections are applicable: (i) on the young person's arrest; (ii) the young person's detention; or (iii) in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence.

[89] Nothing in my reasons should be read as suggesting that the provisions found in s. 146(2) are triggered in any encounter between a young person and the police. Rather, they are applicable if a young person has been arrested or detained, or where there are reasonable grounds for believing the young person has committed an offence. As Code J. observed at para. 7 of R. v. J.(P.), 2015 ONSC 6057:

Section 146 does not purport to regulate all police interactions with witnesses, persons of interest, or suspects who become involved in a criminal investigation and who happen to be under the age of 18. The section only applies where one of three possible triggering events has occurred.

See also: R. v. S.(C.L.), 2011 MBQB 22, at paras. 89-92.

[90] Put differently, police are entitled to interview youth witnesses and to rely on their statements as admissible in court proceedings even where the informational and implementational duties under s. 146(2) have not been carried out, so long as none of the preconditions to s. 146(2) has been triggered. This approach is consistent with the objectives of the YCJA. The goal of protecting the public by allowing police to pursue the investigation of crime is preserved and at the same time, young persons are afforded the protections provided by the Act.

(i) The informational and implementational components of s. 146(2)

[91] A statement taken by police from a young person in circumstances where s. 146(2) is triggered will be presumptively inadmissible unless the informational component under s. 146(2)(b) is satisfied. This informational component requires that police provide the young person with a clear explanation of his or her rights. Justice Fish explained at para. 6 of L.T.H.:

[T]he Crown's evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under s. 146 YCJA. A mere probability of compliance is incompatible with the object and scheme of s. 146, read as a whole. Compliance must be established beyond a reasonable doubt.

[92] The test for determining whether there has been compliance with the informational component of s. 146(2)(b) is objective:

It does not require the Crown to prove that a young person in fact understood the rights and options explained to that young person pursuant to s. 146(2)(b). That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular youth being questioned: L.T.H., at para. 21.

[93] The informational requirements set out in s. 146(2)(b) are "aimed at preventing false confessions by young people inclined to make a statement in order to end the pressure of interrogation or to please an authority figure": para. 38, citing J.(J.T.), at pp. 766-67 and at "ensuring that any statement given manifests the exercise of free will": para. 38, citing R. v. I.(L.R.) and T.(E.), at p. 528.

[94] Subsections 146(2)(c) and 146(2)(d) prescribe implementational components that must also be satisfied before a statement made by a young person to police will be admissible in a proceeding against that young person: L.T.H., at para. 18. In addition to informing the young person of the matters provided for in s. 146(2)(b), police must give the young person "a reasonable opportunity" to consult with i) counsel and ii) a parent or other adult. If the young person elects to consult with counsel or a parent or adult, he or she must also be given "a reasonable opportunity" to make his or her statements in the presence of those people.

(2) The standard of proof applicable to determining whether the preconditions for the applicability of s. 146(2) have been met

[95] In L.T.H., Fish J. dealt extensively with the standard of proof applicable to demonstrating compliance with s. 146(2). Significantly, at para. 32, he considered whether different burdens of proof should apply to different parts of the provision, and explained that the standard of proof of beyond a reasonable doubt "should be applied throughout". Although this standard was not expressly incorporated into the section, Fish J. held that:

• Parliament has determined that "[a]ll of the factors listed in s. 146(2) [are] appropriate preconditions to the admissibility of a statement by a young person and all must be proved beyond a reasonable doubt": para. 34.

• By codifying the requirement of voluntariness in s. 146(2)(a), Parliament should be taken to have incorporated the associated burden of proof beyond a reasonable doubt: para. 36.

• The reasonable doubt standard also applies to compliance with s. 146(2)(b). This is because it is recognized that, in a eliciting a confession, there must be "respect for an individual's freedom of will" that includes "the right of the detained person to make a meaningful choice whether or not to speak to state authorities": paras. 37 and 38.

• With respect to the standard of proof for the requirement for any waiver made by a young person of his or her s. 146(2) rights under s. 146(4), reasonable doubt is likewise appropriate. This standard best harmonizes with the elements necessary to establish a valid waiver. A clear and unequivocal waiver is "essential, but not sufficient: it must be accompanied by a proper understanding of the purpose the right was meant to serve and an appreciation of the consequences of declining its protection": para. 39.

[96] Reasonable doubt on compliance with s. 146(2) may therefore arise in evaluating the voluntariness of the statement, the adequacy of the statutorily mandated informational or implementational components, or the adequacy of any waiver under s. 146(4). Furthermore, reasonable doubt in regard to these elements "provides a sufficient basis for excluding the statement": L.T.H., at para. 38.

[97] Justice Fish did not explicitly consider whether proof beyond a reasonable doubt was also required in support of the preconditions to the applicability of s. 146(2) (arrest, detention, or reasonable grounds to believe). That said, as mentioned, he did state on numerous occasions throughout the decision that the standard of beyond a reasonable doubt applied to the entirety of s. 146(2). In S.(C.L.), at para. 197, Beard J. observed:

Fish J.'s comments [regarding the standard of proof of beyond a reasonable doubt] were not limited to the informational components of s. 146(2); he emphasized on several occasions that they applied to the entire section, which would include the preconditions. The preconditions are as important to carrying out the purposes of the legislation as are the informational components because, if the preconditions are not met, then the youth does not receive the benefit of the informational components, which defeats the protection purposes of the legislation and is not consistent with the requirement in s. 3(2) that the statue be construed liberally. [Emphasis added.]

See also: R. v. J.(P.), at paras. 5 and 12.

[98] In any event, based on the reasoning in L.T.H., in my view, the onus to prove that the youth was not "arrested or detained", or that the peace officer did not "have reasonable grounds for believing that the young person has committed an offence" should lie with the Crown on a standard of beyond a reasonable doubt. This is for three reasons.

[99] First, as Fish J. explained at para. 46, requiring a standard of beyond a reasonable doubt for all of the elements of s. 146(2) is appropriate because:

Parliament has considered it right and necessary to afford young persons rights and procedural safeguards which they alone enjoy. Young persons should not lightly be found to have relinquished this enhanced level of protection they were found by Parliament to require.

This rationale is equally applicable to the preconditions found in s. 146(2).

[100] Second, uniformity in interpreting the standard of proof required for the elements of s. 146(2) is desirable. Again, to quote Fish J. at para. 47:

Adopting a single standard of proof for compliance with each component of s. 146 offers significant advantages over a fragmented approach. It is consistent, moreover, with the relevant principles of statutory interpretation – in particular, the presumption that legislation is internally consistent and coherent. As R. Sullivan explains, the provisions of a statute are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal. The provisions of the YCJA should be read harmoniously. In accordance with the presumption of coherence, s. 146 must be interpreted in light of the YCJA's declaration of principles (s. 3). Those principles emphasize fairness and proportionality consistent with young persons' higher levels of dependency and lower levels of maturity and the related need for greater procedural protections. Section 146, in its entirety, is aimed at fulfilling one of the objectives of the legislation – to offer enhanced protection to young persons and ensure they are treated fairly. In practical terms, adopting a single standard ensures that the trial judge's mind is properly directed to this task.

[101] Third, s. 146 provides for an admissibility regime. As Fish J. noted at para. 44, the concern is not "with the exclusion of otherwise admissible evidence", but rather with "the admissibility, at the Crown's behest, of incriminating evidence which Parliament has subjected to mandatory conditions set out in s. 146 of the YCJA". Because statements made by a young person are presumptively inadmissible under s. 146(2), the burden to establish admissibility on all elements should always rest with the Crown.

[102] In conclusion, the Crown always bears the burden, on a standard of proof beyond a reasonable doubt, of showing compliance with all elements of s. 146(2) including the preconditions to the provision's applicability.

(a) The trial judge's misapplication of the burden of proof

[103] The trial judge's discussion of burden of proof was confusing – at times he seemed to place the onus on the Crown, and at other times on the appellant. I have concluded that the trial judge held that the appellant failed to meet his burden that he was psychologically detained on a balance of probabilities.

[104] At p. 2 of his ruling, the trial judge first noted that the burden of proof with respect to proving the voluntariness of the statements lay with the Crown and the standard was beyond a reasonable doubt. He then stated that the burden of proof of compliance with s. 146 of the YCJA lay with the Crown, also to be proved beyond a reasonable doubt. The onus of proof of a breach of s. 10(b) of the Charter lay with the appellant, on a balance of probabilities. So far, so good.

[105] Then, at p. 20 of his ruling, the trial judge stated:

After his arrest at the scene for obstruct police and his transport to the police station for the conduct of an interview until 1:59 a.m. on March 10, 2006, [N.B.] was in effect detained. Until 1:59 a.m. on March 10, 2006, at which time [N.B.] was arrested for first degree murder, no officer advised him of his rights under s. 25(2) of the YCJA or of any of his Charter rights or had the requirements of s. 146 of the YCJA been implemented.

[106] The trial judge considered voluntariness, and found the appellant's statements and utterances to be voluntary.

[107] Next, he concluded that the appellant had been neither detained nor arrested for the offense he was charged with – first degree murder – prior to 1:59 a.m. on March 10, 2006. At p. 35, the trial judge accepted the evidence offered by way of agreed facts and viva voce evidence of Detective Constables Brooks and Parcells that neither they nor any other police officer had reasonable grounds to consider the appellant a suspect at the time the statements were made. He was satisfied that before the appellant was transferred from the scene to the police station, "the decision was made that he was not under arrest and the removal of the handcuffs by Sergeant [Berriault] was corroborative of that fact, but that [N.B.] was clearly being viewed and treated as a witness only": p. 36.

[108] Having dealt with the issues of reasonable grounds and arrest, he then turned to whether the appellant had been detained prior to his arrest. He stated at p. 39:

In this case, [the appellant] bears the responsibility of establishing on a balance of probabilities that he was psychologically detained.

[109] As mentioned, this was an error. As I have explained, the burden to show that he was detained never shifted from the Crown to the appellant. Reading his reasons as a whole, it appears that the trial judge was aware that, if any of the three preconditions to s. 146(2) were met, the burden was on the Crown to establish implementation of the protections beyond a reasonable doubt. However, he failed to appreciate that the burden was also on the Crown to prove the absence of the preconditions beyond a reasonable doubt.

(3) Determining whether a detention has occurred for the purposes of s. 146(2) of the YCJA

[110] Even if the trial judge erred by shifting the onus regarding s. 146(2) protections from the Crown to the appellant, the Crown argues that any such error is of no significance because there was no physical or psychological detention. I will focus my analysis on the issue of psychological detention, because this was the focus of the inquiry into whether the appellant was detained.

[111] I disagree with the Crown's submissions on this issue. I will first deal with the appropriate test for assessing whether there has been a psychological detention for the purposes of s. 146(2). I will then discuss how this test has been applied in the caselaw on s. 146(2). Finally, I will apply the test to the facts at hand.

(a) The test applicable to determining whether a psychological detention has occurred under s. 146(2)

[112] In R. v. Todorovic, 2014 ONCA 153, this court confirmed that the test from R. v. Grant, 2009 SCC 32 for psychological detention under ss. 9 and 10 of the Charter applies to s. 146(2) of the YCJA. In Grant, the Supreme Court summarized the law on detection:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint.

2. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

3. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider the following factors:

   a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focused investigation.

   b) The nature of the police conduct, including: the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

   c) The particular characteristics or circumstances of the individual where relevant, including: age; physical stature; minority status; and level of sophistication.

[113] Grant remains the leading authority on assessing psychological detention: see R. v. Le, 2018 ONCA 56, at paras. 59 and 63; R. v. Nicholas, 2017 ONCA 646, at paras. 39-40; R. v. Guenter, 2016 ONCA 572, at para. 37; and R. v. Wong, 2015 ONCA 657, at paras. 39-43.

[114] In carrying out an analysis under Grant, it is important to remember that the test attempts to capture "at what moment an interaction between the police and a member of the public is converted into a detention of that individual, thereby triggering the rights subsidiary to detention": Grant, at para. 153. The police may exert a range of control over someone when questioning him or her in the course of investigating an offence or determining whether one has been committed, from voluntary compliance by the person with no control by the officer through detention to full arrest and complete control. This concept was described by Gonthier J. in R. v. Schmautz, at p. 574:

The concept of detention has evolved since the Charter came into force and it is not always easy to determine in given circumstances whether and when it legally occurs. From the mere investigation to which a person wilfully collaborates to the custodial arrest of that person, there is a wide spectrum encompassing the varying degrees of legal jeopardies in which the state can put individuals; in some cases, the precise moment when detention arises is by no means easy to ascertain.

[115] In Grant, McLachlin C.J.C. and Charron J. also dealt with the spectrum of possibilities engaged by police contact, where they stated at para. 38:

In the context of investigating an accident or crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it. However, police investigative powers are not without limits. The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual's choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as earlier stated, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(b) rights.

[116] The central question is "whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand": Grant, at para. 43. The test for psychological detention must be determined objectively, having regard to all the circumstances of the particular situation. The focus is "on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops": Grant, at para. 32. The objective nature of the inquiry "recognizes that the police must be able to know when a detention occurs, in order to allow them to fulfill their attendant obligations under the Charter and afford the individual its added protections": Grant, at para. 32.

[117] The views of the arresting officers may be significant in determining whether a psychological detention has occurred. However, those subjective intentions are not determinative: Grant at para. 32. Similarly, while the test is objective, the individual's specific circumstances must be taken into account, as will his or her personal circumstances, including age, physical stature, and minority status, and level of sophistication. The individual's perception at the time may also be relevant.

[118] In determining whether there has been a psychological detention in the YCJA context, the factors described in R. v. Moran may be applied. Indeed, the trial judge did mention this decision but never addressed the enumerated factors in a cohesive or meaningful manner. The factors listed in Moran are not exhaustive. They include:

1. The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home;

2. Whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;

3. Whether the accused left at the conclusion of the interview or whether he or she was arrested;

4. The stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;

5. Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;

6. The nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt;

7. The subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained.

[119] The Manitoba Court of Appeal also undertook an extensive examination of the law regarding detention in R. v. H.(C.R.), 2003 MBCA 38, in relation to ss. 8, 9 and 10 of the Charter. To summarize, Steel J.A. wrote:

• Police officers may enter into conversations with individuals and ask questions on the street, in the back of police cars, or in police stations: para. 16.

• Conversation with a police officer does not necessarily result in a detention. The use of the word "detention" necessarily connotes some form of compulsory restraint. There must be a deprivation of liberty: para. 18.

• The basis of psychological detention, absent a legal requirement to comply, remains that of a demand by the police officer coupled with a reasonable belief that there is no option but to comply with that demand: para. 22.

• The police are entitled to question anyone in the course of investigating an offence or determining whether an offence has been committed, but they have no power to compel answers. Police questioning, even at a police station, does not necessarily result in a detention where the accused attended voluntarily as a result of a request and there was no evidence that he or she felt deprived of his liberty: para. 23.

• A review of the cases shows that there is no easy test or single determining factor that will lead to the conclusion that a psychological detention took place. The criteria that the courts have referred to over the years include the following:

  • whether there was a demand or direction for information as opposed to a request;

  • the language and tone of voice used;

  • the place of contact;

  • the personal circumstances of the accused, such as age, intelligence and level of sophistication; and

  • whether the accused had a subjective belief that he was detained and whether that belief was reasonable: paras. 27-28.

[120] This decision in R. v. H.(C.R.) was adopted by this court in R. v. B.(L.), 2007 ONCA 596, at para. 47, where Moldaver J.A. (as he then was) noted that, for assessing the issue of detention, "[t]he correct principles of law are found in the Manitoba Court of Appeal's decision in R. v. H.(C.R.)".

[121] C.R.H. and Moran pre-date Grant, which was decided in 2009. Nonetheless, the specific factors identified in these earlier cases are useful in carrying out an analysis under the approach in Grant, and the principles underpinning them are shared by Grant and therefore remain applicable. They have also been used in the YCJA context: see R. v. J.(P.).

(b) Application of the test from Grant to s. 146(2) in the jurisprudence

[122] The question then becomes, how have the Grant factors been applied to s. 146(2) in the jurisprudence? The Crown submits that the subject appeal is akin to this court's decision in Todorovic, which dealt with the issue of detention for the purposes of s. 146(2).

[123] In Todorovic, the young person freely came to the police station after her mother told the police that she and her daughter would assist in any way they could to help in the investigation of the murder of a 14 year old girl. Although the interview room door was closed when the young person was interviewed, she and her mother were told that it was not locked, that the young person was not under arrest, and that nobody could force her to make a statement. She was expressly asked: "Do you understand your right to choose whether or not to make a statement?" The young person confirmed that she did understand that she had the right to choose whether to make a statement. When the young person made an incriminating statement, the interview was terminated.

[124] The young person was left alone in an interview room for several hours, until the investigating officers returned to the room to explain to the appellant her rights under s. 146 of the YCJA. By this time, the young person had spoken to duty counsel, and said that she wanted her mother to be present. When the young person's mother returned to the police station, the officers resumed the questioning. They again explained the youth's s. 146 rights to her, and she waived her right to have a lawyer present.

[125] Justice Rosenberg noted at para. 15 that, since the young person had no legal obligation to comply with the request from a police officer to attend at the station, the issue is whether the circumstances amounted to psychological detention. In finding that there was no psychological detention, the trial judge had noted that:

There is no evidence to contradict the position of the police officers involved that if [the young person] and her mother had declined to attend at the station that would have been the end of the matter at that point.

[126] Justice Rosenberg held that this finding, along with the other trial judge's findings, supported the view that there was no demand or detention amounting to psychological detention. These other findings included:

• The appellant and her mother freely attended at the station;

• The appellant's mother's reaction to the request from the police officer was to assist the police in whatever way she and the appellant could;

• The appellant's mother's testimony at trial that she felt she had no choice but to attend at the station was at odds with her actions and statements at the time and during the interview.

[127] Additionally, Rosenberg J.A. held at para. 17 that the trial judge had not erred in finding that there was no detention, despite the interview room door being closed because:

The door was closed, but the appellant and her mother were told that the door was not locked. While they were not told explicitly that they could leave at any time, they were told that nobody could force the appellant to make a statement and that she was not under arrest. The appellant agreed that she understood she had the right to choose whether or not to make a statement. It was not necessary for the officers to expressly tell the appellant that she could leave at any time. The only reason she was there was to make a statement. If she chose not to make a statement there was no reason for her to remain.

[128] As I will explain the facts in Todorovic are quite different from those in this appeal, and a different result should ensue.

(c) Application of the test from Grant to this case

[129] The application of the law to the facts in conducting the inquiry of whether a reasonable person would conclude that he or she was "not free to leave and to comply with the police direction or demand" is a question of law that is reviewable for correctness: Grant, at para. 43. Deference is owed to a trial judge's findings of fact.

[130] Having misplaced the burden of proof with respect to detention, the trial judge's detention analysis was flawed and conducted through the wrong lens. A proper detention analysis would cause a reasonable person in the appellant's circumstances to conclude that, by reason of state conduct, he or she had no choice but to comply with the police's demand for an interview. Consider the following factors:

• At the scene, Constable Higgins spoke with the appellant, and asked him whether he had anything to do with the stabbing. The appellant told Higgins that [B.B.] was his cousin and that he did not know what happened. Constable Higgins suspected the appellant took drugs, as his pupils were enlarged. Constable Higgins asked the appellant to wait in the cruiser, but then he released him, directing him to stay in the area so someone could interview him.

• The appellant then walked over to his friends, who were speaking to Constable Nevill. Constable Nevill then either assaulted the appellant or responded to the appellant shoving him from behind. In trying to arrest the appellant, Constable Nevill struck his face, delivered a "brachial stun" – an open-handed strike to the appellant's neck – and two more punches to his face. The appellant was then handcuffed by Constable Nevill and Sergeant Berriault (who had seen Constable Nevill put the appellant in a headlock) and placed him back in a locked police cruiser.

• A few minutes after the appellant was placed in the cruiser, Sergeant Berriault noticed that an adult, Brian, was attempting to speak to the appellant. Sergeant Berriault told Brian to step away.

• Sergeant Berriault told the appellant's he would remove his handcuffs if the appellant calmed down; eventually Sergeant Berriault removed the handcuffs.

• Constable Schultz then spoke to the appellant. The appellant asked if he could go speak with Brian. Constable Schultz told him that it was "not a very good idea", that he should relax and that he would be given a cup of coffee at the station. Constable Schultz asked the appellant who went into the Bush with B.B.

• Constable Schultz directed Constable Schaus to drive the appellant to the station for questioning. Constable Schultz contacted Detective Holden and Inspector Neelin at the station, advising them that the appellant was in custody and coming in for an interview.

• Constable Schultz then contacted Staff Sergeant Emms. The communication between Constable Schultz and Staff Sergeant Emms suggests that the appellant was considered "in custody" and had to be "kept away from phones" and "interviewed too suite". Constable Schultz's call to Detective Holden indicated the appellant was "in custody" and that "he's told a couple of different stories so I think he knows more than he initially said so" and to "throw him in an interview room" when he arrived at the station.

• When Constable Schaus arrived at the station, he noted that the appellant was crying, and led him to an interview room where he was met by Staff Sergeant Emms. Staff Sergeant Emms did not tell the appellant why he was brought to the station, that he did not have to provide a statement, and that he could leave at any time. Instead she directed Constable Schaus to look through the appellant's pockets and asked him whether he had any injuries. She then told the appellant someone would be in shortly to speak with him.

• The interview room was locked when police where not inside it, but was unlocked when they were. The door was closed when they were present, but unlike in Todorovic, they did not inform the appellant that it was unlocked.

• It was only when he was interviewed by Detective Constables Parcells and Brooks that the appellant was told that he was no longer under arrest. Therefore, up until he was in the interview room with Parcells and Brooks, he had no idea that he was not under arrest.

• When the appellant asked if the police were going to read him his rights at the station, Detective Constables Parcells and Brooks indicated that they would drive the appellant home but only "once we're done with statement … [u]nless anyone has any further questions for ya". They then said: "[y]ou're not facin' any charges and you don't need your rights read to ya … And you don't need a lawyer. We're just here shootin' the shit. That's all."

• The appellant was brought to the station around 9:50. He became a suspect in the mind of Detective Constable Parcells at 10:55 p.m. but was not arrested for first degree murder until 1:59. Parts of his interview were used by the police as grounds for his arrest.

• The appellant sat alone in the interview room for nearly three hours and was monitored. When he stood up and walked around the room, a voice directed him to sit back down in the chair.

• Despite asking to consult a lawyer, during his interview, the appellant was explicitly told that he did not need a lawyer.

• The nature of the questions including the deliberately false statements of the police to the appellant that the recreation centre had video surveillance.

[131] These facts show that the circumstances under which the appellant made his statements to police are distinguishable from Todorovic. This is not a case where the appellant voluntarily attended the station after being invited there to help with an investigation. He was brought into the station for questioning in a locked police cruiser, after being denied the chance to speak with an adult he knew, and after being arrested following an altercation with a police officer. He was only told he was not under arrest once Detective Constables Parcells and Brooks began interviewing him, after he had been placed in the interview room.

[132] Unlike Todorovic, the appellant was not invited by police to attend the station, he was simply taken there. He did not "freely attend" the station, as the young person and her mother did in Todorovic. And unlike Todorovic, at no point did the police communicate that the interview was voluntary and that the appellant was not obliged to give a statement. Nor did they suggest he have a parent or counsel present, let alone invite a parent to attend the interview as occurred in Todorovic, even though they did suggest a parent be present to some of the other youth witnesses they interviewed that evening.

[133] In addition to relying on Todorovic, the Crown also argues that there was no detention, because the officers testified that they were treating the appellant as a witness: in their minds, when the appellant entered the police station, he was neither under arrest nor detention. Therefore, any reasonable person in the appellant's shoes would have concluded they were at the station merely as a witness. I disagree with this submission.

[134] The views of police officers are but one factor in conducting the Grant analysis. Moreover, the actual words and conduct of police, as revealed by the transcripts of that evening, are more telling and support a conclusion that a reasonable person in the appellant's circumstances would have felt no choice but to comply with their orders to go to the police station and answer their questions. This is particularly so given that the antecedent police conduct had included a "brachial stun" and an arrest. The trial judge's adverse credibility and reliability findings against the appellant's version of events describing his interaction with Constable Nevill do not detract from this conclusion.

[135] Nor would I give effect to the Crown's submission that the appellant was not psychologically detained because his initial arrest for obstruct police dissipated almost immediately from the viewpoint of the police officers. The problem with this position is that any such "dissipation of arrest" was not communicated to the appellant until he was already in the interview room at the police station. From the viewpoint of a reasonable person in his circumstances – the viewpoint one must consider when assessing psychological detention – the police decision not to press charges against the appellant for obstruct police was immaterial.

[136] Finally, the Crown points out that the appellant, despite his youth, was not a "frightened youth who felt psychologically compelled to speak with the police". In making this point, the Crown relies on the trial judge's findings that the appellant was "in control of the situation, manipulative, and determined to get his point across … demonstrat[ing] a degree of confidence that cause[d] him to inquire about his rights to counsel".

[137] Even if one accepts the trial judge's position on the issue of whether the appellant felt psychologically detained, his findings with respect to this issue are unreasonable. The trial judge ignored Cory J.'s admonition in R. v. J.(J.T.) that no matter the display of bravado and braggadocio, it is unlikely that a young person will appreciate the consequences of statements made to the police. The trial judge also overlooked the nature of the questioning including the fabrication by the police of the presence of a video camera at the recreation centre – a falsehood that reflected a concern with the appellant's guilt rather than his observations as a witness. Furthermore, the trial judge completely overlooked the context in which the appellant was brought in for questioning at the police station, and the appellant's own knowledge: up until he was in the interview room with Detective Constables Parcells and Brooks, he had no idea that he was not under arrest. And once he was in that interview room, there was no clear way to leave: he was physically locked in, or in the presence of the police officers, and was not allowed to leave.

[138] The appellant was detained and he was entitled to, but denied, the protections afforded by s. 146(2) of the YCJA. As such, his statements to the police and his utterances while locked alone in the interview room were improperly admitted into evidence.

(4) Whether a s. 146(2) arrest or detention must relate to the ultimate charge

[139] This brings me to a consideration of the trial judge's other error. At p. 44, the trial judge stated that "while in the strictest sense [the appellant] was detained in interview room number three, he was certainly not detained as a suspect or as a person of interest in the homicide". Furthermore, at p. 35, he said that the appellant "was neither detained nor arrested on the offence set out in the indictment." In essence, the trial judge held that the language "related to an offence" under s. 146(2) of the YCJA related only to the offence about which the young person is being questioned.

[140] The Crown relies on the trial judge's conclusions on this issue to argue that s. 146(2) protections cannot apply to the appellant, because any psychological detention he experienced related to the offence of obstruct police, and does not preclude admitting statements relating to the offence of first degree murder.

[141] There is little jurisprudence on the issue of whether an arrest or detention must relate to the ultimate charge to trigger the protections of s. 146(2).

[142] In concluding that the appellant's arrest and detention had to relate to the subsequent charge of first degree murder before s. 146(2) protections would be engaged, the trial judge relied on R. v. D.T.(D.) Specifically, he relied on Germain J.'s statement at para. 49 that it would be inappropriate to extend the protections of s. 146 to a point in time where the police had no basis for suspicion. Additionally, it would be "insulting" to "apply the full effect of s. 146 to an apparently innocent victim and witness": para. 49.

[143] R. v. D.T.(D.) is a decision of the Alberta Queen's Bench and is not binding on this court. Furthermore, the holding in that decision is inconsistent with the plain language of s. 146(2), which I reproduce for ease of reference:

No oral or written statement made by a young person … to a peace officer … 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.

[144] That language shows that the "an offence" qualifier applies to circumstances were the police believe a young person has committed "an offence". However, the preceding portion indicates that s. 146(2) protections apply automatically when police "arrest or detain a young person", regardless of the grounds. On this reading, the trial judge's holding that s. 146(2) does not protect a youth who has been detained and not read his rights related to one offence, but then gives incriminating statements related to another offence, is an error in law. As soon as the appellant was detained, he should have been afforded his rights. That police continued to detain and question him regarding a different offence does not make statements that the appellant made during that detention admissible.

[145] The Crown further relies on R. v. S.(C.L.) to support its position that the trial judge's conclusion on this issue was correct. However, the Crown misconstrues the holding in S.(C.L.).

[146] When one examines Beard J.'s reasons in S.(C.L.), it becomes clear that, consistent with the plain language of s. 146(2), she read the "an offence" portion of the provision as modifying only the "reasonable grounds" precondition for the applicability of s. 146(2), not the "arrest" or "detention" preconditions, which stand on their own: see paras. 124-148 and 153-177. Therefore, Beard J.'s conclusion in S.(C.L.) that "an offence" is limited to the offence that the police are investigating applies only to the "reasonable grounds" precondition for applicability. That case does not hold that a youth cannot rely on s. 146(2) if they have been arrested or detained for a different offence than the offence that is the subject of the statement the Crown seeks to admit.

[147] Moreover, the Crown's position is inconsistent with the principle that the YCJA be construed liberally. Accepting the Crown's position would lead to a significant watering down of the protections of s. 146(2). Artificial demarcations should not overtake consideration of the totality of the circumstances in which the young person finds him or herself.

[148] Consider the facts of the appellant's case. While the appellant's initial arrest dealt with a different offense, his psychological detention, starting with his altercation with Constable Nevill and leading up to his questioning at the station, was all part of one transaction. This entire transaction culminated in his interview, where he was asked questions that exclusively related to the offence set out in his indictment – B.B.'s murder. On the facts of this case, the moment when the appellant's detention relating to the obstruct police charge stopped and that relating to the offense of first degree murder began is amorphous. Furthermore, segregation runs the risk of losing sight of the specific context leading up to the statement made to police. It is this context that informs whether a reasonable young person would have felt compelled to speak to police.

(5) Whether exclusion of the statements warranted under s. 146(6)

[149] The Crown, in the alternative, asks that, if a breach of s. 10(b) of the Charter is found, the appellant's statements be admitted under s. 24(2) of the Charter. Given that I have concluded that the statements were obtained in contravention of s. 146(2) of the YCJA, I have not gone on to address s. 10(b) breach and there is no need to consider s. 24(2) of the Charter.

[150] The Crown did not seek any relief under s. 146(6) of the YCJA, however, given its position on s. 10(b), it is appropriate to consider whether that subsection of the YCJA can be invoked to admit the appellant's statements to police. Subsection 146(6) is a saving provision that allows for statements obtained in contravention of s. 146(2) to be admitted in a proceeding against a youth accused in certain circumstances. Subsection 146(6) of the YCJA is therefore analogous to s. 24(2) of the Charter. Indeed, the Legislative Summary of the Bill that introduced s. 146(6), Bill C-7, suggests that Parliament modelled s. 146(6) after s. 24(2): see Canada, Parliament, Bill C-7: The Youth Criminal Justice Act, by David Goetz, Legislative Summary LS-385-E (revised May 16, 2001).

[151] However, s. 146(6) is much more restricted in scope than s. 24, as is clear from the text of each respective provision. Subsection 24(2) of the Charter provides that:

Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [Emphasis added.]

[152] In contrast, s. 146(6) of the YCJA provides that:

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. [Emphasis added.]

[153] There are two key differences between s. 146(6) and s. 24(2).

[154] First, under s. 24(2), the effects of admission of the evidence on the administration of justice as a whole are considered: see Grant, at paras. 67-71. In contrast, under s. 146(2), the question is whether admission would bring into disrepute the principle that young persons are entitled to enhanced procedural protections to ensure fair treatment and protection of rights.

[154] Second, reliance on s. 146(6) is constrained to circumstances where the violation of s. 146(2) amounted to a "technical irregularity". Where the violation is more serious, s. 146(6) is unavailable. In contrast, there is no such limitation in s. 24(2). Rather, the seriousness of the Charter violation, which may range from "fleeting and technical to profoundly intrusive", is but one consideration under the three-part R. v. Grant test for the admissibility of evidence under s. 24(2): see Grant, at para. 76.

[156] Therefore, judicial discretion to rely on s. 146(6) to admit a statement obtained in contravention of 146(2) is significantly confined, reflecting the need to vigorously guard against the diminishment of the protections provided by s. 146(2) and the need for fair treatment for young persons.

[157] Here, the breaches of the appellant's s. 146(2) right cannot be described as technical irregularities. The breaches were committed by multiple police officers who interacted with the appellant. The breaches were also serious in nature and compounded one another. Despite the appellant's request to speak with Brian, the adult at the scene who he knew, or to be read his rights or consult a lawyer at the police station, he was not advised of any of the matters in s. 146(2)(b). He was also not given the opportunity to consult any of the people named in s. 146(2)(c) or to make statements in their presence in accordance with s. 146(2)(d).

[158] Admitting the statements and utterances in the circumstances that they were obtained would run afoul of the principles of fair treatment and rights protection afforded to young people under the YCJA. Therefore, the Crown cannot avail itself of s. 146(6) to have the appellant's statements admitted.

(6) Contrasting s. 146(2) of the YCJA and s. 10(b) of the Charter

[159] Although the appellant also relies on a breach of his right to counsel under s. 10(b) of the Charter to show that the trial judge erred in admitting his statements to police, I have focused my analysis on s. 146(2). As the appellant was entitled to rely on the protections under s. 146(2), and as the special protections afforded to young persons under this provision are broader than those afforded under s. 10(b) of the Charter, recourse to s. 10(b) is unnecessary.

[160] Subsection 146(2) possess three key features that render its protections more robust than those of s. 10(b).

[161] First, the protections offered by s. 146(2) are more comprehensive: police are required to inform a young person of his or her right to consult with a lawyer and parent or other adult prior to making any statements. A young person is also entitled to have a lawyer and a parent or other adult present when the police take any statements from the young person. Any waiver of these rights must be audio and videotaped or written and signed by the youth: see YCJA, s. 146(4). In contrast, the right to counsel protected by s. 10(b) must be specifically invoked by a detained individual, and there is no right to have counsel present during a police interview: see R. v. Sinclair, 2010 SCC 35, at paras. 27 and 42.

[162] Second, s. 146(2) contains stringent requirements for the admissibility of statements. As I discussed, unlike s. 10(b), s. 146(2) renders statements made by a young person to police presumptively inadmissible. The burden of proof to show why a statement is admissible is borne by the Crown; a young accused need not argue why a statement is inadmissible. Furthermore, the standard is one of beyond a reasonable doubt, not a balance of probabilities.

[163] Third, s. 146(6), the provision that provides a judge with discretion to admit a statement obtained in contravention of s. 146(2), applies on much narrower grounds than s. 24(2).

[164] Accordingly, where a young offender claims both a breach of s. 146(2) and of s. 10(b), it makes sense to begin with an analysis of s. 146(2). To this end, I agree with the comments of Beard J. at para. 209 of R. v. S.(C.L.), where she stated:

Requiring that the Crown prove that the youth was not arrested or detained under s. 146(2) at the time of the statement will likely have the practical effect of removing the need for a youth to make an application to exclude his or her statement under s. 10(b) of the Charter in most, if not all, circumstances, as it is difficult to imagine a situation where the statement would be ruled admissible under s. 146 and yet excluded under s. 10(b). While this results in the law being applied differently to young persons than to adults, it is in keeping with the objective of the Y.C.J.A. to offer enhanced procedural and evidentiary protection to young persons to ensure that they are treated fairly. This is not the only such extension, as the requirements that the right to counsel be provided to a youth where the person in authority has reasonable grounds for believing that the youth has committed an offence and that all rights be explained in language that the youth can understand also extend s. 10(b) rights for youth in ways that are not available to an adult.

(7) Fresh evidence application

[165] As mentioned earlier, the appellant seeks to introduce fresh evidence on appeal that addresses the altercation between him and Constable Nevill the night of B.B.'s murder. The evidence demonstrates that Constable Nevill used excessive force on another individual he arrested, and that he also falsely claimed that the individual provoked him to do so. The appellant argues that, because the trial judge relied on Constable Nevill's evidence to make credibility findings against the appellant during the voir dire, the evidence should be admitted, as the evidence influenced the trial judge's decision to admit the appellant's statements to police and his ultimate conviction.

[166] Given my conclusion that the trial judge erred in admitting the appellant's statements to police, it is unnecessary to consider the appellant's fresh evidence application.

F. Conclusion

[167] This was a very serious case. A young male tragically lost his young life and another has spent numerous years in prison. This decision cannot alter either of these realities. The most it can do is emphasize the need to respect the principles of fair treatment and rights protection found in a statute designed by Parliament to address the intersection of young persons with the criminal justice system.

G. Disposition

[168] For these reasons, I would allow the appeal, set aside the conviction, and order a new trial.

Released: June 15, 2018

S.E. Pepall J.A.

I agree John Laskin J.A.

I agree Arthur Gans J.