WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(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.
111. Identity of victim or witness not to be published. — (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.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(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 File and Parties
Court File: 10/Y11182
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
B.R.
Before: Justice Barry M. Tobin
Heard on: March 22 and 28, 2011
Ruling on a Voir Dire
Counsel:
- David Foulds for the Crown
- Frank Miller for the Young Person
TOBIN J.:
[1] Introduction
[1] On this Voir Dire a ruling is sought on the admissibility of the video recorded statement made by the accused young person when he was interviewed by police.
[2] Crown Counsel does not seek to have the statement admitted for the purpose of it being part of the Crown's case rather, he wants to be able to use it during cross-examination should the young person testify.
[3] On this Voir Dire I considered the evidence of Officer Vella, the police officer who interviewed the young person. I also reviewed the video recording of the interview, the associated transcript, the Young Person Statement Form which was marked as Exhibit "C" on the Voir Dire and the evidence of a second police officer who had contact with the young person.
[4] The issues to be decided on this Voir Dire are; (1) whether the process required under s.146 of the Youth Criminal Justice Act ("YCJA") was followed and (2) whether the statement was voluntarily given.
1. Section 146 of the YCJA: Legal Considerations
[5] Section 146 of the YCJA sets out enhanced procedural protections for young people. The importance of these protections was dealt with by the Supreme Court of Canada in R. v. L.T.H., 2008 SCC 49.
[6] At paragraphs 1, 3 and 4 of the decision the Court stated:
"Young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate. Parliament has for that reason provided them by statute with a complementary set of enhanced procedural safeguards in s. 146 of the YCJA which governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences.
Parliament has in this way underscored the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.
Accordingly, s. 146 provides that statements made by young persons are inadmissible against them unless the persons who took them "clearly explained to the young person, in language appropriate to his or her age and understanding ", the specific rights conferred by s. 146. This condition of admissibility has been referred to as the "informational requirement" of s. 146."
[7] Section 146 is designed to address the power imbalance that occurs when a young person is a suspect in a criminal investigation. For many young people, the process of being brought to a police interrogation room is in itself an intimidating experience. Dealing with the informational requirements of s.146 is not a matter of simply reading warnings from a form and having the young person nod or speak the word "yes" or "no."
[8] The young person must have his or her rights explained in language that is appropriate to his or her age and understanding.
[9] Referring again to R. v. L.T.H., the Crown will have discharged its evidentiary burden in this case by clear and convincing evidence that Officer Vella took reasonable steps to ensure that the young person understood his rights under s. 146. Compliance must be established beyond a reasonable doubt.
[10] As well, in this case the young person waived his right, while making the statement, to have counsel and an adult present with him.
[11] With respect to this waiver the Crown must establish beyond a reasonable doubt that the waiver was given by clear and unequivocal evidence that the young person was waiving these procedural safeguards and did so with full knowledge the rights this procedure was enacted to protect and the effect the waiver would have on those rights in the process.
1.1 Application to This Case
[12] The young person faces charges of sexual assault, sexual interference, sexual invitation and forcible confinement. These charges arise out of events that occurred on March 2, 2010. Some time that evening, Officer Vella contacted the young person's residence by telephone and spoke to someone who identified herself as his grandmother. They arranged that the young person would attend at the police station. The young person entered the police station at 10:43 p.m. that evening with his grandfather.
[13] Officer Vella had no prior dealings with the young person before meeting him at the police station that night. She had no prior knowledge of his capacity to understand.
[14] Upon his arrival the young person was advised that he was being placed under arrest to which he responded "oh ok." He was then placed in handcuffs. He was told what charges caused him to be placed under arrest. At that time he was cautioned and read his rights, including to counsel, by Officer Vella. She read to him slowly from a card. He said he understood what was read to him.
[15] Prior to the young person attending the police station Officer Vella did have some information about him. She knew he was 17 years of age and was wakened from a sleep by his grandparents just before going to the police station. She had undertaken computer searches concerning the young person. She undertook an MTO inquiry concerning a license plate connected to a vehicle. The license plate was connected with the young person. She also learned that he had no criminal record, no outstanding charges and no registered firearms. She concluded that he had no experience in the criminal justice system.
[16] Upon his arrival at the police station, Officer Vella had a conversation with the young person and testified that she formed an impression of his intellect and sophistication based upon the following:
he communicated with her at a level she would have expected from any 17 year old, and
he spoke English and seemed able to understand what she was telling him - that he was under arrest, which lawyer he wanted and decided to speak with duty counsel. He did not ask for anything to be explained to him about the arrest or obtaining a lawyer.
[17] Officer Vella testified that "just from that [she] came to the conclusion I guess that he was able to understand all of that."
[18] Officer Vella did not speak with the young person's grandfather who had accompanied him to the police station. She did not make inquiries of the grandmother regarding the young person's ability to understand or his intellect when she spoke with her on the telephone when requesting that he come to the police station.
[19] She did not have information regarding his level of education.
[20] From my review of the video recorded statement and corresponding transcript, Officer Vella took the young person through the standardized form. She read each question, statement or warning on the form and recorded the young person's responses. These responses for the most part were "yes" or "no".
[21] The officer did not engage the young person by asking in plain language whether he did understand what was going on nor did she depart from the written script in any meaningful way.
[22] In the Manitoba Court Appeal decision R. v. M. which was referred to in R. v. L.T.H., the Court stated … "Parliament has expressly stated that young people require more than the offering of information. They require not just explanations, but clear explanations that they are able to understand".
[23] As one Judge put it, it seems that there is a need to hit that spot between condescending and comprehensible: see R. v. M.(A.J.), 2012 CarswellNS 115 (N.S.P.C.) at para. 5.
[24] There were some flags that should have alerted Officer Vella that she needed to make further inquiry into the young person's level of comprehension.
[25] When arrested he was told of the charges and asked if he understood them. He said "yes", yet 45 minutes later when told that he was being charged with sexual interference he said "what's that all mean". Officer Vella responded "I'll explain in a second okay". I accept the young person's counsel's submission that this should have been a flag for Officer Vella because here you have a young person capable of saying he understood something when in fact he did not.
[26] Officer Vella asked the young person to read the waiver of rights out loud. He responded "I'm not that good with reading." This should have alerted the officer to the fact that the literacy skills this 17 year old may be wanting.
[27] When the interview began, Officer Vella stated: "I'm just going to read this to you and then I am going to ask you some questions ok, we are being recorded right now and audio video." The young person's response was "because the lawyer lady said not to answer any well statement, why she said not to?"
[28] Officer Vella continued on with completing the form. This should have alerted Officer Vella that the young person's language skills were weak. She made no further inquiry. Also, Officer Vella knew that the young person had just spoken with Duty Counsel. When he said "why she say not to" this should have alerted the officer to (a) the concern that the young person may not have understood what he was told by Duty Counsel or (b) consider why there was a conflict between what the lawyer said and what she was telling him.
[29] Officer Vella's method in reviewing the form was deliberate. She did cover all of the statutory prerequisites. However, she did not attempt to confirm what it was the young person understood. She accepted his responses without inquiring further. In the circumstances of this case, further inquiry was required.
[30] I find that the officer did not take sufficient steps to gauge whether the young person was able to understand his rights under s. 146(2)(b). I find that she did not take adequate steps to acquire the insight necessary to determine the young person's level of comprehension.
[31] I am not satisfied beyond a reasonable doubt that the informational requirements of s. 146 (2) were met nor that the waiver of his right to have counsel and an adult present was a fully informed waiver.
2. Voluntariness
[32] I will address the arguments made by the young person's counsel regarding the voluntariness of the statement.
[33] Counsel for the young person submitted that the statement was not voluntarily given in circumstances where the young person was woken from sleep to attend the police station, kept there from 10:43 p.m. until 1:10 a.m. without sustenance, nourishment or rest and was misled by Officer Vella as to the substance of one of the offences charged. The young person's demeanour changed towards the end of the interview. He was very tired. He was encouraged to continue speaking after saying that maybe he should not.
[34] Based on the totality of these factors it was argued that the atmosphere under which the young person made the statement was one of oppression.
[35] I find that the statements were not given in an oppressive circumstance. There was no trickery, threats or promises made. There was no evidence that the young person was affected by the lack of sleep. I accept Crown counsel's observation that Officer Vella was stern but not intimidating. The young person did have the opportunity to consult with duty counsel. The young person was not there for an inordinate amount of time. The interview took place 45 minutes after the young person arrived at the police station and the statement itself was given over the course of one hour. He was released shortly after that.
[36] In all these circumstances that the statement was not given in oppressive circumstances as submitted.
3. Conclusion
[37] As all of the statutory prerequisites for admissibility of the statement were not complied with beyond a reasonable doubt, I find that the statement is not admissible and may not be used for the purpose proposed by Crown Counsel.
Released: June 15, 2012
Barry M. Tobin
Justice