WARNING

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Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records)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

(a) guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Brampton 11-516Y

Date: June 11, 2012

Ontario Court of Justice Central West Region

Parties

Between:

Her Majesty the Queen

— and —

V.T. and D.T.

Judicial Officer and Counsel

Before: Justice Richard H.K. Schwarzl

Heard on: December 6, 2011 and March 21, 2012

Reasons for Ruling released on: June 11, 2012

Counsel:

• Mr. Craig Power for the Crown
• Mr. Paul Scotland for the Accused V.T.
• Mr. Brian Irvine for the Accused D.T.

Ruling Re Admissibility of Statement of D.T.

SCHWARZL, J:

1.0: Introduction

[1] Near the end of March 2011 V.T. and D.T. were charged by the Peel Regional Police with robbing a fellow student of his cell phone in the washroom of their high school. V.T. and D.T. were both suspended from school for two weeks due to the complaint. The school's vice-principal, Ms. Julie Tidman, invited both V.T. and D.T. to meet with her to discuss their educational needs during and after the suspension. V.T. declined Ms. Tidman's invitation but D.T. accepted and arranged a meeting that was held on April 1, 2011.

[2] At the meeting with Ms. Tidman, D.T. was accompanied by his mother. D.T. told the vice-principal that he was present in the washroom at the time the complainant claimed he was robbed but he denied playing any role in it. D.T. told Ms. Tidman that he and V.T. were in the washroom for the sole purpose of rolling a marijuana joint.

[3] The defence admits that the statement D.T. made to Ms. Tidman was given voluntarily. The issues for me to decide are whether Ms. Tidman was a "person in authority" and if so, whether s. 146(2) of the Youth Criminal Justice Act (Y.C.J.A.) applies.

2.0: Issues

2.1: Was Ms. Tidman a "person in authority"?

[4] In the case at bar the Crown agreed with the defence that Ms. Tidman was a "person in authority". Despite the agreement of both counsel, I cannot find that Ms. Tidman was a "person in authority" for the purposes of the statements made to her by D.T. on April 1, 2011.

[5] A "person in authority" includes those individuals considered agents of the state who are in a position to coerce or induce someone into making a statement against interest. "Persons in authority" are typically, but not always, peace officers. Sometimes social workers, teachers and even parents can be "persons in authority." A statement to someone who is not a "person in authority" is an admission, not a confession. An admission is not subject to proof of voluntariness or to proof of compliance with the Y.C.J.A. where the declarant is a youth.

[6] The evaluation of whether the recipient of a statement is a "person in authority" necessitates a consideration of the circumstances in which the statement was made. Whether or not the recipient is a "person in authority" is a question of fact and is to be determined according to the viewpoint of the accused. In R. v. S.G.T., 2010 SCC 20, the Supreme Court of Canada stated that:

To be considered a "person in authority", the accused must believe that the recipient of the statement can control or influence the proceedings against him or her, and that belief must be reasonable. Because the evidence necessary to establish whether or not an individual is a "person in authority" rests primarily with the accused, there lies an evidential burden on the accused. While the Crown bears the burden of proving the voluntariness of a confession beyond a reasonable doubt, the accused must provide an evidential basis for claiming that the receiver of a statement is a "person in authority." When the receiver of the statement is not a typical or obvious "person in authority", it usually falls on the accused, in keeping with the evidential burden, to raise the issue and request a voir dire.

[7] In R. v. B.(A.), 50 C.R. (3d) 247, the Ontario Court of Appeal held that as a general rule a "person in authority" is someone engaged in the arrest, detention, examination, or prosecution of the accused. Without more, mere status as parent, guardian, teacher, or principal, is not enough. In R. v. Carter, [2011] O.J. No. 6299 (S.C.J.) at ¶ 8, Pomerance, J stated that:

The "person in authority" test has both a subjective and objective component. There must be evidence to indicate that the accused subjectively perceived the receiver of the statement to be in a position to influence or control the prosecution. That belief must, in turn, be objectively reasonable. Where there is evidence to indicate that the accused reasonably believed that he or she was speaking to a "person in authority", the evidential onus is made out, whether or not the individual was actually a person in authority. It is the accused's subjective belief and the reasonableness of that belief that drives the inquiry.

[8] As a teacher, Ms. Tidman contributed to D.T.'s education. As a vice-principal she was responsible to provide him support, advice, guidance, and discipline. Seen subjectively from D.T.'s point of view, Ms. Tidman would correctly be viewed as an authority figure. However, in the circumstances of this case, D.T. could not have reasonably viewed Ms. Tidman as a legal "person in authority" when he met with her.

[9] When D.T. spoke with Ms. Tidman, it was some time after charges had been laid by the police. Ms. Tidman was not conducting any kind of investigation or examination to assist the police. The meeting was arranged by means of a request, not as a command. It was made clear to D.T. that Ms. Tidman wanted to know his side of the story for educational purposes only. She was trying to create a plan of education for D.T. Ms. Tidman was not acting as an agent for the police. No police officer was invited to, nor was present at, the meeting even though an officer is assigned to the school. Ms. Tidman had no intention of producing the statement to the police and only did so when she was subjected to a subpoena: R. v. J.W., [2003] O.J. No. 1954 (Y.C.) at ¶ 26.

[10] There was no evidence that Ms. Tidman had any control over the police investigation or that she had any influence over the police decision to charge D.T. criminally. There was no air of reality, nor was there any evidence, that D.T. perceived that Ms. Tidman had any measure of control over the police in this matter: R. v. C.S., [2006] N.B.J. No. 176 (N.B. Y.C.).

[11] There was no intimidation, no oppression, nor any duress when D.T. met Ms. Tidman. D.T.'s mother was by his side throughout the meeting. The meeting as described by Ms. Tidman was friendly, open, and mutually candid. The atmosphere of the meeting D.T. freely participated in was both professional and cordial. The meeting did not in any way resemble a police-sponsored or police-styled interrogation.

[12] For these reasons I find that Ms. Tidman was not a "person in authority" when D.T. made his statement to her on April 1, 2011. Furthermore, no voir dire was required on this issue. As the Supreme Court in S.G.T. observed at ¶ 24–26:

In order to demonstrate the need for a voir dire, the evidence must show that the receiver of the statement was closely associated with the authorities prior to obtaining the statement, and that there was as well a close connection in time between the contact with the authorities and its receipt. The evidence must suggest that the receiver was acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team. Only in these circumstances will the trial judge be obliged to hold a voir dire of his or her own motion on the "person in authority" issue, subject to waiver of the voir dire by counsel for the accused.

[13] It is clear that Ms. Tidman was not in any way acting in connection with the police investigation. She asked D.T. what happened solely for reasons associated with her duties as an educator and as a scholastic administrator. The circumstances of this case do not warrant a voir dire on the issue of whether or not D.T. viewed Ms. Tidman as a "person in authority".

[14] I find that the utterances made by D.T. to Ms. Tidman on April 1, 2011 are admissible as an admission to a teacher and did not constitute a confession to a "person in authority". Given that the utterances were an admission to a person who was not a "person in authority" the Crown was not required to prove either voluntariness or compliance with the Y.C.J.A.

2.2: Assuming Ms. Tidman was a "person in authority" did the provisions of s. 146(2) of the Y.C.J.A. apply in this case?

[15] Assuming that I am wrong and that Ms. Tidman was a "person in authority", the statement would be inadmissible according to s. 146(2) of the Y.C.J.A. if I were to find that it was taken in circumstances in which Ms. Tidman had reasonable grounds to believe that D.T. had committed an offence.

[16] The term "reasonable grounds to believe that an offence has been committed" has a specific, legal meaning. Reasonable grounds requires the "person in authority" to believe both subjectively and objectively that a criminal offence has been committed: R. v. Storrey, 53 C.C.C. (3d) 316.

[17] Ms. Tidman was never asked, nor did she volunteer, whether she held any belief that D.T. had committed an offence. All she said was that after receiving the complaint she forwarded the matter to the police who later told her that D.T. had been charged with robbery. There is no evidence that she was ever informed of the police reasons for laying the charge. Ms. Tidman was explicit in her testimony that she let the police do their business and that she did not ask them why they charged D.T. She was equally clear that the police did not ask her about what steps she would take. At no time did the worlds of education and law enforcement mingle, coordinate, or unify, let alone intersect.

[18] Knowledge that the police have arrested and charged someone with an offence may be a basis upon which a rational person could subjectively believe an offence had been committed because most people likely understand that the police need to have a good reason to lay a charge. However, Ms. Tidman was not privy to the details of the police investigation. Even if I were to find that she subjectively believed D.T. committed a robbery, there is no evidence that her belief was based on an objectively discernible constellation of factors. To the contrary, the evidence is that Ms. Tidman deliberately avoided discussing the investigation with the police.

[19] Therefore, even assuming that Ms. Tidman was a "person in authority", there is no reason to find that Ms. Tidman had reasonable grounds to believe that D.T. had committed an offence when she spoke to him on April 1, 2011, thereby removing any obligation to comply with s. 146(2) of the Y.C.J.A.

3.0: Conclusion

[20] I find that the statement made by D.T. to his vice-principal, Ms. Julie Tidman, on April 1, 2011 was an admission and not a confession to a "person in authority." If I am wrong and Ms. Tidman was a "person in authority" she did not have to comply with section 146(2) of the Y.C.J.A. because she did not have reasonable grounds to believe that D.T. had committed an offence. D.T.'s admission to Ms. Tidman shall be received as evidence.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice