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 Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. 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 Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 No.: Toronto Y121760-01-02

DATE: 2012·January·04

Citation: R. v. T.(N.), 2012 ONCJ 64

ONTARIO COURT OF JUSTICE

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

N. T. & P.L. young persons

Before Justice P. J. Jones

Reasons for Judgment released on January 4, 2012

Ms. Kim Walker ..................................................................................................... for the Crown

Mr. Ugo Cara .................................................................................. counsel for the accused N.T.

Ms. Laura Liscio ........................................................................... counsel for the accused P. L.

JONES, P. J., J.:

INTRODUCTION

[1] This is a ruling on the admissibility of two statements made to the police by the defendant N.T. who is a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c.1.(the Act.) It is the contention of the Crown that the statements are admissible as "spontaneous utterances" within the meaning of section 146(3) of the Act.

[2] N.T and his co-accused P.L. are charged with a number of offences, including robbery, assault bodily harm, and threatening serious bodily harm. P.L. is also charged with one count of fail to comply with a recognizance.

[3] These charges arise from an incident which occurred at the Mary McCormick Park, in the City of Toronto, on January 30, 2011 at about 4:00 p.m. The complainant has testified that he was attacked by two males, previously unknown to him, who attempted to rob him, and in the process, punched and choked him and forced him to the ground after which they continued to punch and kicked him on his head and body. As a result of this attack, the complainant required medical intervention to close the wound on his head. He identified one of his attackers as N.T.

[4] The Crown seeks to adduce two statements made by N.T. to Officer Andree into evidence as spontaneous utterances within the meaning of section 146(3) of the Act. There are special circumstances in which oral utterances may be admitted notwithstanding the absence of special protections accorded young persons under the Act. For a statement to be admissible, a person in authority must comply with the mandatory provisions of the Act under ss. 146 (2) (b) to (d) unless the young person makes an oral utterance spontaneously to the person in authority before that person has had a reasonable opportunity to comply with those requirements. Section 146(1)-(6) provides as follows:

146(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.

(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.

(3) the requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver

(a) must be recorded on video tape or audio tape; or

(b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

(5) When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.

(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.

[5] The matter proceeded as a blended trial and voir dire. N.T. did not testify on the voir dire. Police Constable Andree testified that he arrested N.T. and that he was the only officer who had any contact with N.T. prior to his allegedly inculpatory statements about his involvement in the matter before the court.

[6] Officer Andree testified that he was on traffic enforcement when he was called to the rear of an apartment building at 103 West Lodge Ave. in the City of Toronto to respond to a "robbery call". When he arrived at 5:18 p.m. he saw N.T. at the scene, and at 5:20 p.m. he placed him under arrest as he believed N.T. matched the description of one of the assailants in the "robbery report". He testified that he then advised the youth he was under arrest for robbery and he handcuffed the youth and holding his arm, he escorted him to the squad car and placed him in the back seat.

[7] He gave evidence that he read his rights to counsel as they appeared in the back of his notebook. He agreed that the rights he read to the youth were the same rights that he would have read to an adult under arrest. He advised N.T. about his "right to retain and instruct counsel without delay" and that he "had the right to telephone any lawyer he wished". As well, he told the youth that he had the right to free advice from a Legal Aid lawyer and told him about the Legal Aid Plan and the Legal Aid 1-800 number. He stated that he asked N.T. if he understood, and according to the officer, N.T. shrugged, and said that he "had never been arrested before". He noted that N.T. was polite and co-operative.

[8] At this point Officer Andree did not formally caution the youth or advise that that anything he might say could be used against him in Court, nor did he ask the youth if there was anything he wished to say. Additionally, he did not advise N.T. about the enhanced procedural rights he was entitled to as a young person under the Act.

[9] It is clear from the officer's responses under cross examination, that he was not entirely familiar with the Youth Criminal justice Act. He testified that he would give the same "rights to counsel" to a youth as he would to an adult, and when asked about any additional rights that a young person might have, he testified that he was aware that "because of his age, his parents would be called". There was little doubt that the officer was unaware of the special requirements of the Act in respect to the admissibility of statements.

[10] P.C. Andree testified that he "ran a C.P.I.C. check" on the youth and as a result of the questions he asked, and his observations of the youth, he must have become aware of the fact that N.T. was about 13 years of age and a young person under the Act.

[11] Officer Andree testified that he left the youth handcuffed in his car and went to assist the other officers on scene with the investigation. At 5:42 p.m. he returned to the car and drove to the station, arriving at 5:53 p.m. While in the car, he stated that he spoke to the young man and explained the charge in simple language and told the youth that his parents would be contacted; as to the exact words said, he was unclear as he did not have any notes as to the particulars of this conversation.

[12] He advised the Court that when he took the youth out of the car, he was not able to enter the station immediately as there were a number of other persons ahead of them waiting to be paraded before the Staff Sergeant in charge. While waiting their turn to proceed, he stated that N.T. made the following comments: "I didn't take anything from him. He started talking shit, and I grabbed him by the head." Officer Andree indicated that he was surprised that the youth had made this comment, and at that point he cautioned the youth and told him that what he said "can and will be used against him". He noted that the youth then said: "Pedro and I hit him."

[13] The officer stated he neither threatened nor offered inducements to the youth prior to his making the statements. He testified that in retrospect he felt he "should have cautioned the youth at the time he gave him his rights to counsel".

[14] The Crown seeks to have both statements admitted─ the first as a spontaneous statement within the meaning of section 146(3) of the Act, and the second on the basis that it was properly cautioned under the Act. It was her position that in these circumstances the police did not have a reasonable opportunity to comply fully with the requirements set out in section 146(2) before the youth made his incriminating comments.

THE ISSUES

[15] In order for the statements to be admitted into evidence as spontaneous utterances, the onus is on the Crown to establish, beyond a reasonable doubt:

1. The statements were voluntary,

2. That the statements were spontaneous,

3. That they were made before the police had a reasonable opportunity to comply with the requirements set out in section 146(2).

WERE THE STATEMENTS VOLUNTARY?

[16] On the evidence adduced, I am satisfied beyond a reasonable doubt that the statements were made and that they were made voluntarily. The officer testified that he offered no threats or inducements to the youth prior to the making of the statements. He testified that the youth was polite and co-operative and seemed to understand what was being said. I accept that N.T. did understand the officer. The arrest was managed in a routine and straightforward manner and I find there was no threats or inducements employed to obtain the statements. While the defendant bears no burden of proof in a criminal matter, it is noteworthy that there was no evidence called by the young person on the issue of voluntariness. One may reasonably conclude then that the statements were voluntary and would satisfy the test for voluntariness in R.v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 in that there was no evidence of threats or promises, no police oppression, the youth was aware of what he was doing when he made the statements, and there was no police trickery employed so as to induce the youth to make the statements.

WHERE THE STATEMENTS SPONTANEOUS?

[17] I accept the officer's testimony that N.T. made the comments referred to above without prompting and that he was surprised that he made the comments. In the absence of any evidence to the contrary, I am satisfied that the comments were made "spontaneously", in that they were not prompted by suggestions or questions. I have considered the circumstances in which the statements were made: I accept that the atmosphere in the car was cordial and that the youth was not unduly upset by the arresting officer's actions or any other officer's actions at the time he made the statements. In this case, the statements did not result from any external stimulus or constraint but resulted from a natural impulse by the youth to explain what took place. The fact that the person to whom the statements were made was a person in authority is not sufficient to negate the "spontaneous" nature of the comments in this case. In determining this issue I have applied the reasoning employed in R. v. W.(J) (1996), 1996 1938 (ON CA), 109 C.C.C. (3d) 506 (Ont. C.A.) to the facts of this case. Carthy, J. concluded that (at paragraphs 7 and 8):

The Shorter Oxford English Dictionary, 3rd ed. (1973), offers as its first meaning of "spontaneous" the following: "Arising, proceeding, or acting entirely from natural impulse, without any external stimulus or constraints."

This seems very apt in the context of the YOA. An external stimulus need not be a question or directive from a person in authority. The mere presence of that authority in certain circumstances could be considered a stimulus giving rise to an unnatural response or reaction. On the other hand, the mere presence of a person in authority cannot, in and of itself, be considered as defeating spontaneity.

DID THE POLICE HAVE A REASONABLE OPPORTUNITY TO COMPLY WITH REQUIREMENTS OF SECTION 146(2) BEFPORE THE YOUTH MADE HIS UTTERANCE?

[18] N.T. had been exclusively in police custody and control for 36 minutes before he made the utterances the Crown seeks to have admitted as spontaneous utterances within the meaning section 146(3) of the Act. I note that N.T. was arrested at 5:20 p. m. and made the statements in the parking lot at the station about 5:56 p.m. I accept the officer's testimony that he placed the youth in the car at approximately 5:20 p.m. and left the car for about 20 minutes to assist the other officers in their investigation of the other young people arrested or detained at the scene and only returned to the car to drive the youth to the station at 5:42 p.m. arriving at the station at 5:53 p.m. at which time he had to wait to parade the youth before the Sergeant in charge due to a backlog of prisoners waiting to be processed.

[19] The officer testified that he read the youth the rights to counsel contained in the back of his notebook ─ that were the rights to counsel designed to be read to an adult. He read no caution to the young man, nor did he read any secondary caution, even one designed for adults. These are the circumstances in which I am to consider whether there was a reasonable opportunity to comply with s. 146(2) of the Act.

[20] The Crown urges me to admit both statements because the officer did not have sufficient time to comply with the requirements set out in section 146 (2) prior to the spontaneous utterances. Should I conclude that the officer had a sufficient and reasonable opportunity to at least caution the youth prior to his first statement, she argues that a proper caution was provided prior to the second statement and therefore that utterance should be determined to be admissible.

[21] Regrettably, it is not unusual to be faced with a situation in which the arresting officer is unaware of the enhanced informational requirements that the Parliament has seen fit to accord to young people. N.T. was 13 years of age at the time he was arrested for the first time. The officer was alerted to this fact when the young man told him as much after he was read the "rights to counsel" at the back of his memo book. The officer then did a C.P.I.C. search on his on-board cruiser computer that would have required the youth's birth date and he was made aware that the youth had no prior contact with the police. Officer Andree testified that he left the vehicle for about 20 minutes to assist in the investigation and that it was only at the time he returned to the vehicle and was driving to the station that he mentioned to N.T. that his parents would be contacted due to his age. The first time the youth received any type of caution about the use that might be made of any oral statement was after he made his first utterance following which the officer tried to rectify the situation by providing N.T. with an adult caution before the youth made his second statement.

[22] P.C. Andree not only failed to provide the appropriate caution to the young man about the making of statements during the 36 minutes preceding the first inculpatory statement, he compounded the problem by providing further misinformation to the youth by delivering an adult caution.

[23] When the officer decided to caution the youth, even though this was a significant period of time after his arrest, it was still a very good opportunity to begin to provide the youth with the details of the enhanced informational requirements afforded to young people under the Act. One might have thought that a well-informed police officer would have advised N.T. that before making a statement he had the right to consult counsel and a parent or other appropriate adult person (so long as he or she is not charged with the same offence) and that any statement he makes is required to be made in the presence of counsel and any other person consulted in accordance with the Act unless he desire otherwise. Instead, only a standard adult caution is recited that advises that he is "not required to say anything but if he does it can and will be used against him". In addition he is told his parents will be contacted. However well-meaning the officer may have been, the fact is that he did not know the provisions of the Act and succeeded in misinforming the youth of his rights.

[24] Reference may be made to R. v. K.L.T. 2005 ONCJ 339, [2005] O.J. No. 3154, a case in which Justice MacLean admitted a spontaneous utterance of a young person in similar circumstances. Although the statement was made in the police car on the way to the station, the officer in K.L.T. had made an effort to comply with the informational requirements of the Act and had provided the youth with what were described as:

"the 'young offender's rights' to K.L.T. from the pre-printed words in the officer's notebook (Exhibit DA and DB). K.L.T. made certain responses, including a desire to speak to a lawyer and his foster mother." Para. 14.

[25] In deciding to admit the statement as spontaneous utterance, Maclean, J. noted at paragraph 85 that:

By the time K.L.T. made these remarks in the cruiser he had been read his rights. L.L.T. had already been advised in clear language that he didn't need to make any statements unless he wanted to. He had made requests to speak to a lawyer and his foster mother. The officers had not had a reasonable opportunity to comply with those requests or the other requirements of section 146.

[26] She concluded that any deficiency in the pre-printed rights read to the young person did not affect admissibility in that case, mainly because the youth appeared to understand his rights notwithstanding the awkward, sometimes inaccurate version of the rights set out in the pre-printed form.

[27] In the instant case however, I find that the protracted delay in providing the informational component of his rights followed by a serious misstatement of his rights adversely impacts the question of admissibility. I have concluded that the first statement is inadmissible because this 13 year old youth was arrested but not treated as a young person in a timely fashion. The period of time between his arrest and his spontaneous utterance was quite adequate to allow for an abbreviated recitation of his rights under s. 146(2)(b) to (d). Thirty-six minutes easily provided a reasonable opportunity to advise the youth of these rights. As well, I find the second statement inadmissible for the same reasons as the first statement was inadmissible; in addition I find it is inadmissible as a result of misinformation offered in the form of an "adult caution". Following the first utterance, the officer had an opportunity to caution the youth, and it seems obvious that if he had the opportunity to provide an "adult caution", he had the opportunity to offer the youth a reasonably accurate statement of his rights under the Act.

[28] I use the term "misinformation" in describing the adult caution in relation to a youth advisedly. Young people have enhanced informational and procedural rights because of their vulnerability in the presence of persons in authority due to their age, life experience and level of maturity. These values are enshrined in s. 146 of the Youth Criminal Justice Act. To give effect to these important protections afforded young persons, youth who are arrested or detained by persons in authority should be advised of their rights at the earliest reasonable opportunity. If an officer can carry a printed form in a notebook containing the precise wording of the information to be provided to an arrested or detained adult, including rights to counsel, caution and secondary caution, that officer could also carry, in a pre-printed format, a statement of a youth s. 146 rights which would also be available for communication to the youth at the time of arrest or detention. At a minimum, following his arrest, N.T. should have been told in simple, age appropriate language the following:

• that he did not have to say anything to the police, but if he does say anything, it might be used as evidence against him;

• that before making any statement, he will be given the opportunity to consult a lawyer, and a parent or other appropriate adult;

• and, most importantly, that if he wishes to tell the police anything about the case, his statement is required to be made in the presence of counsel and any other person he consults unless he decides not to have that person present.

[29] Failure by the police to provide at least these basic elements of the s. 146 rights, when they have a reasonable opportunity to do so, will likely undermine the admissibility of all "spontaneous utterances", due to lack of compliance with the "opportunity test" in s. 146(3) of the Act and a Court's reasonable doubt about whether the young person would have made the statement if he or she had been apprised of the procedural safeguards available to him under the Act.

[30] The link between the right to counsel and the right to silence was underlined in R. v. H.(L.T.) 2008 SCC 49, 234 C.C.C. (3d) 301 (S.C.C.) by Mr. Justice Fish, writing for the majority (at Para. 3):

Parliament has recognized in this way that the right to counsel and the right to silence are intimately related. And that relationship is underscored in s.146 by the additional requirements that must be satisfied in order for statements made by young persons to be admissible against them at trial. 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 make 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 …..

[31] Adherence to the text in a standardized notebook form outlining young person's rights in the same manner referred to in R. v. K.L.T. , supra, would go a long way towards rectifying the all too common situation in which police officers lack sufficient training in the special informational requirements set out in section 146 of the Act.

CONCLUSION

[32] In conclusion, I have determined that Officer Andree had ample time to have provided adequate, accurate information to N.T. about the enhanced procedural safeguards afforded to him under section 146 of the Act. I find that he failed to make use of the reasonable opportunity he had − to provide the informational component of the youth's rights because he was unaware of those provisions of the Act. This was not a lack of "reasonable opportunity"; it was a lack of awareness. Consequently, the first statement does not pass the "reasonable opportunity" test in s. 146(3) of the Act and has not been proven beyond a reasonable doubt to be admissible. As to the second utterance, in fact, the officer's well-meaning efforts actually provided misinformation to N.T. about his rights under the Act. I cannot be satisfied that if N.T. had been given the proper information after the first utterance − he would have ever made the second statement. Having reached this conclusion, I have determined that the second otherwise spontaneous, voluntary utterance made by N.T. does not satisfy the requirements of the Act beyond a reasonable doubt and is accordingly, inadmissible as well.

Released: January 4, 2012

Signed: Justice P. J. Jones