WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
CITATION: R. v. S.S., 2007 ONCA 481
DATE: 20070628
DOCKET: C44486
COURT OF APPEAL FOR ONTARIO
BLAIR, LANG and MACFARLAND JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
S.S.
Respondent
Michelle Campbell for the appellant
Michael W. Lacy for the respondent
Heard: March 7, 2007
On appeal from the acquittal entered by Justice Yvon Renaud of the Ontario Court of Justice on October 28, 2005.
LANG J.A.:
[1] This appeal, which concerns the admissibility of a young person’s statement to the police, arises in the context of a Crown appeal from the acquittal of the seventeen-year-old respondent on charges of robbery and use of a disguise in the commission of an indictable offence.
[2] The grounds of appeal engage a discussion of s. 146(2)(b)(iv) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA) regarding the required explanation to be given to a young person making a statement to the police.[^1] It also engages s. 146(6) of the YCJA regarding the discretion given to a youth justice court judge to admit a young person’s statement despite a “technical irregularity” in compliance with s. 146(2)(b).
[3] In this case, the police informed the respondent that he had the “right” to have a lawyer, or other specified adult with whom he consulted, present when he gave his statement. However, the trial judge found that this information did not conform with s. 146(2)(b)(iv), which requires the police to tell the young person that any statement must be taken in the presence of any lawyer or adult with whom the young person has consulted[^2], unless the young person desires otherwise. The primary question on the appeal is whether telling the young person about his or her right to have a third party present is equivalent to explaining to the young person, as required by s. 146(2)(b)(iv), that any statement given to the police is required to be made in the presence of a consulted third party, unless the young person desires otherwise. If it is not equivalent, a secondary question arises regarding whether the statement may nonetheless be admitted into evidence pursuant to s. 146(6).
[4] For the reasons that follow, since in my view there is an important difference between a right and a requirement, I would dismiss the appeal.
Background
[5] Based on an anonymous tip, Sergeant Smyth (Smyth), the officer in charge of the investigation, contacted the respondent about his possible involvement in a convenience store robbery in Sudbury. Since no other evidence linked the respondent to the crime, Smyth knew he did not have reasonable and probable grounds to arrest the respondent.
[6] Smyth went to the address where the respondent lived with his uncle, and asked the uncle to have the respondent contact Smyth. When the respondent telephoned Smyth that evening, Smyth told the respondent that he had been named as a suspect in the robbery. The respondent agreed to an interview at the police station the next day. During this telephone call, Smyth neither asked nor suggested to the respondent that his uncle, or any other adult, could accompany him to the police station.
[7] The following afternoon, Smyth picked the respondent up at his home. Smyth did not speak with the respondent’s uncle nor ask the respondent whether he wanted his uncle to accompany him to the police station.
[8] Once at the police station, Smyth began the interview, which was videotaped, by reviewing with the respondent the Greater Sudbury Police Service Statement of a Young Person form (the Form). In the course of this review, Smyth told the respondent that he was investigating a robbery and that the respondent was not under arrest. Following the information set out in the Form, Smyth advised the respondent that he was under no obligation to make a statement and that any statement could be used in evidence in proceedings against him. He told him about his right to consult a lawyer, the availability of Legal Aid, and about his right to consult with an adult. Smyth asked the respondent to explain these rights to him in his own words, which the respondent did, indicating his understanding that he could speak to a lawyer or call an adult if he wished.
[9] Regarding the issue in this appeal, Smyth had the following exchange with the respondent:
Q. Do you want to speak with or consult a lawyer?
A: Don’t think I need to.
Q. Do you want to have a lawyer here with you?
A: Nope.
Q: If your parent or parents are not available do you want to speak with an adult relative?
A: No.
Q. If an adult relative is not available do you want to speak with or consult another adult?
A: No.
Q. Do you want to have a parent…an adult relative or another appropriate adult here with you?
A: No
Q: Okay…S.S. this is called the Waiver of Rights. I’ll read this to ya and then I’ll explain it to ya okay.
It says I’ve been given the opportunity to obtain immediate free advice from a Legal Aid Lawyer and the opportunity to speak with or consult a lawyer and or my parents or in the absence of a parent an adult relative or in the absence of a parent an adult relative or in the absence of a parent or adult relative any other appropriate adult. I have been informed that I have the right to have any of these people with whom I have consulted present when making a statement. These rights have been explained to me and I understand them.
A:
Q: So you understand that?
A: Yep.
Q: Okay.
….You…you don’t choose to…you don’t want to talk with them and you don’t want to have them here with you…
A: No.
[Emphasis added.]
[10] Accordingly, the respondent was told he had the right to have a parent, adult relative, or other appropriate adult “here with you”. In addition, when Smyth read the waiver to the respondent, he told him that he had the right to have “any of these [consulted] people” present when he made a statement. The respondent acknowledged receipt of this information by signing a form of waiver. After obtaining the respondent’s signature, Smyth told the respondent to let Smyth know if he changed his mind about waiving his rights.
[11] At no time, did Smyth explain to the respondent that any statement he made was required to be made in the presence of any consulted third party. Smyth proceeded to interview the respondent about the robbery applying a skilled interviewing technique during which he expressed empathy for the respondent’s unfortunate personal circumstances, including the recent death of his grandmother who had been the respondent’s sole caregiver. Smyth expressed an interest in various aspects of the respondent’s personal life. He told the respondent a lengthy story about Smyth’s younger brother confessing to an isolated incident of car theft so that his involvement would not “eat away” at him. When the respondent made no admission, Smyth implied that the police had DNA and videotaped evidence implicating the respondent and that he had no doubt about the respondent’s involvement. Smyth appealed to the respondent whom he described as a “decent guy” to admit to an offence that was “out of character” and that was not intended to hurt anyone. At the end of the hour-long interview, the respondent provided a statement. He was charged and arrested.
Legislative provisions
[12] Subsection 146(1) provides that the law regarding the admissibility of statements applies to the admissibility of a statement of a young person accused of committing an offence, subject to the additional protections set out in the balance of the section.
[13] These protections, which are virtually identical to the predecessor s. 56 of the Young Offenders Act, R.S.C. 1985, c. Y-1 (YOA), are enumerated in s. 146(2):
(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless
(a) the statement was voluntary;
(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that
(i) the young person is under no obligation to make a statement,
(ii) any statement made by the young person may be used as evidence in proceedings against him or her,
(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult
(i) with counsel, and
(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and
(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
[Emphasis added.]
[14] Subsection 146(6), which was new in the YCJA, provides for the discretionary admission in certain circumstances of a statement taken in breach of s. 146(2)(b)(iv):
(6) When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected. [Emphasis added.]
Ruling on the voir dire
[15] The trial judge found that s. 146(2)(b)(iv) had been breached. The Form did not accurately include the information required by s. 146(2)(b)(iv) and the police officer did not otherwise give the information to the respondent.
[16] It was not sufficient, the trial judge ruled, to tell the respondent that he had the right to have a consulted third party present; the police officer was also required to clearly explain to the respondent that any statement made by him was required to be made in the presence of any consulted third party, unless he desired otherwise.
[17] The trial judge concluded that the respondent, who had no prior experience with the police, may have more fully understood his rights and consulted a third party, or declined to give a statement, if he had been given the required information.
[18] The trial judge then considered whether the s. 146(2)(b)(iv) breach was more than a technical irregularity under s. 146(6). Although he appears to have implicitly decided that it was, he decided, in any event, that the admission of the statement would bring the principle of enhanced procedural protection for young persons into disrepute. Accordingly, he held the statement to be inadmissible.
Position of the appellant
[19] The Crown acknowledges that the police omitted to tell the respondent about the requirement that any statement must be made in the presence of a consulted third party and that the Form was deficient in this regard. However, the Crown takes the position that there is no difference in substance between a “right” to have a consulted third party present and the “requirement” that such a person be present.
[20] Even if there is a difference between a young person’s right and a requirement on the police, the Crown argues that the critical information intended by s. 146(2)(b)(iv) was conveyed to the respondent, and understood by him, so that the police substantially complied with that provision. Further, the Crown argues, even if there were a violation of s. 146(2)(b)(iv), the trial judge erred in failing to admit the statement under the curative provision of s. 146(6). The Crown also submits that – in the absence of any evidence from the respondent - the trial judge erred by presuming that the respondent would not have made the statement if he had been given the required information but rather that the respondent would have exercised his right to consult and would have insisted on the presence of a consulted third party.
Position of the respondent
[21] In contrast, the respondent argues that there is a significant difference between being told about a right to have a consulted third party present and being told that the young person’s statement is required to be made in the presence of a consulted third party. The respondent also argues that the trial judge’s decision regarding s. 146(6) is entitled to deference.
Issues
[22] The appellant raises two issues: first, whether the police complied with s. 146(2)(b)(iv) and, second, whether the trial judge erred in failing to apply the curative proviso of s. 146(6).
Analysis
Context and purpose
[23] Both issues raise questions of statutory interpretation. Thus, it is important to consider the context and purpose of the legislation and the provisions at issue.
[24] In terms of context, there are three areas of law that govern the admissibility of statements made by young persons to persons in authority: the common law rules of voluntariness; the relevant provisions of the Charter; and the statutory safeguards provided by the YCJA. Section 2 of the YCJA defines a young person as a person who is twelve years old or older, but less than eighteen. The rights set out in the YCJA apply equally to all such persons, whether they are seventeen or whether they are twelve, whether they are individually mature or immature for their age, and whether they are experienced or inexperienced with the criminal justice system.
[25] Those safeguards reflect the statute’s purpose, which is set out in the following extracts from the YCJA preamble:
WHEREAS members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood;
WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms;
[26] These extracts recognize that young persons are evolving towards, but have not reached maturity and, until they do so, need adult guidance. For this reason, Parliament gave young persons “special guarantees of their rights and freedoms”, in recognition of their need for different processes or procedures to ensure their fair treatment.
[27] Consistent with the purposes set out in the preamble, s. 3(2) of the YCJA mandates that “[t]his Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).” Subsection 3(1) includes the following principles:
(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(d) special considerations apply in respect of proceedings against young persons and, in particular,
(i) young 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,
(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.
[Emphasis added.]
[28] In the context of s. 56(2) of the YOA, the predecessor to s. 146 of the YCJA, the Supreme Court of Canada explained the reasons for additional protections, based on the susceptibilities of young persons to be influenced by persons in authority, in R. v. J. (J.T.), 1990 85 (SCC), [1990] 2 S.C.R. 755 [J.T.J.]at paras. 18 - 21:
By its enactment of s. 56, Parliament has recognized the problems and difficulties that beset young people when confronted with authority. It may seem unnecessary and frustrating to the police and society that a worldly wise, smug 17-year-old with apparent anti-social tendencies should receive the benefit of this section. Yet it must be remembered that the section is to protect all young people of 17 years or less. A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado and braggadocio 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 and 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 procedure.
It is also not without significance that prior to the passage of the Young Offenders Act courts had recognized that the confessions of young people should not be treated in the same manner as those of adults. For example, in Re A, 1975 246 (AB SCTD), [1975] 5 W.W.R. 425, the Alberta Supreme Court suggested a number of safeguards before an admission of a young person would be deemed to be admissible, including the requirement that an adult relative accompany a young person to the place of interrogation and that a caution be given in words that the young person would understand. The courts have thus extended certain protections to young persons when dealing with the police and the Act has simply expanded upon and codified that practice.
It is just and appropriate that young people be provided with additional safeguards before their statements should be admitted. Section 56(2) to (6) inclusive specify the additional protection which must be provided to all young people under the age of eighteen.
[29] Three years later, in R. v. I.(L.R.) and T.(E.), 1993 51 (SCC), [1993] 4 S.C.R. 504, the Supreme Court of Canada reiterated the rationale for the s. 56 YOA protections at para. 23: “young persons generally have a lesser understanding of their legal rights than do adults and are less likely to assert and exercise fully those rights when confronted with an authority figure.”
[30] Thus, s. 146(2)(b)(iv) is an enhanced procedural protection that Parliament deemed important, among other purposes, to provide reasonable protection for a young person confronted by police officers seeking a statement. As the Supreme Court of Canada has explained, this protection is important because, no matter how well-intentioned the officer, young persons are susceptible to feeling intimidated by the police, whom they consider to be persons of significant authority and power. In addition, young persons may lack the maturity to consider the consequences of unburdening themselves of their misdeeds, particularly when encouraged to do so by an apparently understanding (or, alternatively, formidable) police officer.
[31] With this context, it is apparent that s. 146(2)(b)(iv) must be interpreted liberally to ensure a young person is treated fairly and to ensure that only voluntary statements elicited in compliance with the Act are admitted into evidence.
Sub-paragraph 146(2)(b)(iv) – right or requirement
[32] When considered in this context, and mindful of the parliamentary purpose of the enhanced procedural protections, in my view, the failure to tell the respondent about the requirement on the police was a breach of s. 146(2)(b)(iv). That breach denied the young person important information that would have enabled him to decide whether to consult a third party.
[33] I reach this conclusion because, on a plain reading of the legislation, there is an important distinction drawn between a “right” of a young person on the one hand and a “requirement” put on the police on the other. That this distinction was intentional is apparent from a consideration of the structure of s. 146(2)(b). While s. 146(2)(b)(iii) refers to a young person’s “right” to consult counsel, in contrast, s. 146(2)(b)(iv) expressly places an obligation on the police. Thus, it is clear that Parliament deliberately distinguished between information about a young person’s right and about an obligation on the police.
[34] The distinction is consistent with the purpose of protecting young people in light of their lack of maturity and their susceptibility to yield to authority. If a young person is informed that, if they consult a third party, that person must be present during the taking of a statement, the young person will be alerted by that information to the significance of any statement he or she may provide and, importantly, will be in a better position to make an informed decision about whether to consult a lawyer or an adult. In other words, information that any statement must be made in the presence of any consulted third party is critical so that the young person can make an informed decision about whether to consult a lawyer or an adult in the first place. Thus, in my view, the “requirement” provides important information that is essential to the enhanced procedural protection provided by s. 146(2).
[35] Further, s. 146(2)(b) required Smyth to “clearly” explain the information set out in that subsection. It cannot be a “clear” explanation if the police fail to tell the young person that counsel and any other consulted third party must be present during the taking of any statement. As I have said, only after the police obligations have been “clearly explained” to the young person, and he or she has been given all the required information, can the young person provide an informed answer to the question of whether he or she “desires otherwise”.
[36] The importance of providing the young person with the tools necessary to make an informed decision is particularly important because the YCJA does not require any notice to parents (or parental equivalents or substitutes) when the police want to interview a young person. No notice is required until the young person is arrested and detained in custody or until a summons or appearance notice is issued. The absence of parental notification when a young person is taken for questioning underscores the importance of ensuring that the young person is fully informed of his or her procedural protections before he or she makes a decision.
[37] This interpretation of s. 146(2)(b)(iv) is consistent with the objectives and principles of the YCJA. In addition, it does not place an undue burden on the police. It is not difficult to tell the young person about the requirements of the section. It is apparent that a uniform form that correctly addresses all of the procedural protections would facilitate uniform compliance with s. 146(2) and, more importantly, would ensure that a young person had his or her rights, and the obligations of the police, clearly explained.
[38] In this case, in one respect, the Form complied with the procedure recommended in R. v. D.J.M., [1991] O.J. No. 1965 (O.C.J. - Prov. Div.), because it first provided the young person with an overview of all his or her rights before breaking those rights down into their component parts. However, the Form in this case failed to include the requirement at issue.
[39] While the appellant argues that s. 146(2)(b)(iv) information about a right (or an entitlement) is equivalent to information about the requirement, none of the authorities cited in support of this proposition analyze the provision at issue or discuss the requirement on the police.
[40] Although in a somewhat different factual context, this court already held that the police must advise a young person of the requirement that any statement be made in the presence of a consulted third party present. In R. v. A.(W.), [1989] O.J. No. 2170 (C.A.), where the young person had consulted a lawyer, the police did not tell him about the requirement. The form in that case only informed the young person that he “may” have his lawyer present during the interview and, later, that he had the “opportunity” to have his lawyer present, which was his “right”.
[41] In writing for this court, Houlden J.A. explained, “the printed form or a sufficient oral explanation had to make it clear to him that the person consulted must be present when he made his statement to the police unless he otherwise desired”. [Emphasis added.] Since this requirement had not been met, the court held that the trial judge correctly excluded the young person’s statements.
[42] Although in that case, the young person had exercised his right to counsel, the statutory requirement on the police is the same whether or not the young person chose to consult a third party. Accordingly, the absence of a prior consultation cannot dictate a different result. In any event, as the trial judge noted, one cannot determine whether the respondent in this case may have exercised a right to consult counsel or another third party if he had known that any statement had to be taken in the presence of that consulted third party.
[43] I am not persuaded to a different result by R. v. A.M., [1998] M.J. No. 525 (C.A.). In that case, the young person was told and understood that she was entitled to have a consulted third party present when she gave her statement, but not that there was a requirement that such a person be present, unless the young person desires otherwise. Although the court in A.M. considered this explanation to be “deficient” and “not completely accurate”, it held the young person’s statement was admissible because, even if she had been told of the requirement, she would still have provided her statement. However, not only is the factual matrix in A.M. different, more importantly, that court did not discuss the requirement to have a consulted third party present as a component of the total information a young person must have before deciding whether he or she will consult a third party in the first place. In the absence of such a discussion on the very point raised in this appeal, I do not find A.M. to be helpful on this issue.
[44] Finally, R. v. B.S.M., [1995] M.J. No. 85 (C.A.) explained that “what constitutes a sufficient explanation under [s. 146(2)(b)(iv)] is fact specific. I agree. While a uniformly clear explanation is to be both preferred and required, it may be that a different emphasis is necessary in one case than another. The trial judge’s finding in this case that there was not a clear explanation of the requirement is entitled to deference.
[45] For these reasons, in my view, it was open to the trial judge to find a breach of the respondent young person’s rights under the YCJA. I would not give effect to this ground of appeal.
Subsection 146(6) – technical irregularity
[46] Since the respondent was deprived of a substantial informational component of s. 146(2)(b)(iv), the breach cannot be considered a “technical irregularity” of the kind to invoke a consideration of s. 146(6). Accordingly, it is not necessary for me to weigh whether the admission of the statement would bring the principle of enhanced procedural protection for young persons into disrepute.
Result
[47] In the result, I would dismiss the appeal.
RELEASED: JUN 28 2007
RAB “S.E. Lang J.A.”
“I agree R.A. Blair J.A.”
“I agree J. MacFarland J.A.”
[^1]: Section 146(2) concerns statements not only made to police, but also statements made to a person “who is, in law, a person in authority”. For ease of reference only, I refer simply to the police.
[^2]: Subsection 146(2)(b)(iv) codifies a young person’s right to consult with counsel and to consult with a parent, or an adult relative or any other adult, and to have the consulted third party present while the young person gives a statement to the police. For ease of reference, I refer to these adults in these reasons collectively as a third party or as a consulted third party.