WARNING

The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended

Court File No.: Region of Durham

Between:

Her Majesty the Queen Crown/Respondent

— AND —

S.M. (a Young Person) Defence/Applicant

Reasons for Excluding S.M.'s Statements to His Father

Before: Justice Susan C. MacLean

Reasons for Ruling delivered on: September 24, 2015

Ms. Paula Thompson ..................................................................... for the Crown/Respondent

Mr. Jason Rabinovitch ..................................................................... for the Accused/Applicant

MacLean S.C., J.:

[1] The Issue

[1] The issue on this Ruling is as follows: should the statements made by S.M. to his father, M.F., be admitted into evidence? At the time of these conversations, unbeknownst to his son, M.F. was acting as an agent of the state. Earlier in this trial the parties were advised that a decision had been made that the statements are inadmissible. These are the Reasons for that decision.

Overview of the Case

[2] On August 28, 2013, a four-year-old boy, T.V., died as a result of complications of severe multiple blunt impact trauma injuries to his buttocks, upper thighs, and lower back, the result of being spanked/beaten with a belt dozens of times. He also suffered serious injuries to his head which contributed to his death. The expert evidence from the pathologist, Dr. Pollanen, was that the injuries were inflicted within hours to up to a couple of days prior to T.V.'s death.

[3] At the time of T.V.'s death, S.M. was 15 years old. T.V. was the son of S.M.'s half-sister S.F., so S.M. was a young uncle. S.M. had been looking after 4-year-old T.V. and his two siblings (a 2-year-old girl and a 6-month-old boy) for several days while their mother was out of the country in Jamaica and their father was working. S.M.'s own mother, T.B., had left him in charge of these three children as well as his 10-year-old brother, D.P., while she was at work and away from the home for up to 15 hours a day during the week. At the time of this trial T.B. had been facing charges of Failing to Provide Necessities of Life in relation to T.V.'s death, however those charges have since been withdrawn by the Crown. T.V. and his siblings had been staying in T.B.'s home for a little over one week by the time that T.V. died on August 28, 2013. The key issue at this trial was the identity of the person or persons responsible for the injuries that led to T.V.'s death. Given Dr. Pollanen's evidence about the timing of those injuries, the only suspects with access to T.V. during the relevant time frame were S.M., his brother D.P. and his mother T.B. (when she was not away from the home at work).

[4] On July 3, 2015, part way through a lengthy trial, S.M. was found guilty of Manslaughter in the death of T.V.

[5] S.M. had not made any inculpatory statements to the police with respect to who had injured T.V. when he was interviewed by them on August 28, 29 and 30, 2013. The Crown's case against S.M. had been circumstantial, until, on July 3, 2015, his brother, D.P., testified that he had been present and witnessed S.M. hitting/spanking T.V. with a belt many times. Prior that that testimony, D.P. had maintained that he did not know what had happened to T.V., and the police did not have this evidence during their investigation. Following this change in D.P.'s evidence the Parties agreed that no further evidence would be called in the trial, an Agreed Statement of Facts was filed as Exhibit 17, and the Court was invited to find S.M. guilty of Manslaughter as charged.

[6] A sentencing hearing is scheduled for September 24 and 25, 2015. A section 34 Assessment has been conducted to assist in the sentencing. For the purposes of this Ruling, I specifically disregard any information contained in that Report about S.M. and his personal circumstances and vulnerabilities, as it was not part of the evidence placed before me on the Voir Dire.

[7] The family constellation in this case is complicated enough that the Crown assisted the court by preparing Exhibit 5 which is a chart detailing how the family members are related to one another. In order to protect S.M.'s identity all names have been edited in this Ruling, since naming any of them could identify S.M. The following explains how the members of this family are related/connected to one another. S.M. is the young person now convicted of Manslaughter in the death of his nephew T.V. He was 15 years old at the relevant time and 17-years-old by the time of trial. In the summer of 2013 S.M. lived with his mother, T.B., and his 10-year-old half-brother D.P. (same mother, different fathers). T.B. also has a daughter, T.M. who is S.M.'s older sister (same mother, different fathers from both S.M. and D.P.). T.M. was not living in the house when T.V. died. The family moved from Toronto to a house in Bowmanville in July 2013. T.B. is married to S.B., but he was not living in the house with them at the time because he was working in western Canada. Several years earlier T.B. had been in a relationship with S.M.'s father M.F. M.F. has a criminal record and had been in and out of custody. M.F. had very little involvement with S.M. as he grew up and could easily be described as an absent father. M.F. had earlier been in a relationship with another woman (not T.B.) and they had their daughter, S.F., who is S.M.'s older half-sister (same father, different mothers). S.F. is the mother of the little boy (T.V.) who died. S.F. and her husband had three children (the father and all children have the same initials T.V. so the deceased's siblings are described below only by their age and gender and the father simply as T.V.'s father). The three children were the 4-year-old boy who died (who is referred to a T.V. throughout this Ruling) as well as his 2-year-old sister and 6-month-old brother (their ages at the time T.V. died). S.M. had babysat for his nephews and niece on many occasions in the past to assist his sister S.F. S.M.'s mother, T.B., is not related to S.F. except by way of extended family. In late August 2013 S.F. had to travel to Jamaica, so she asked her brother and his mother T.B. if they could look after her children while she was away because her husband was working. T.B. and S.M. agreed to do this. S.M. was left in charge of these three children and his brother D.P. while his mother went out to work in Toronto during the weekdays. T.B.'s mother, J.B., is S.M.'s maternal grandmother. C.M. [now C.R.] is S.M.'s maternal aunt, being T.B.'s sister and J.B.'s daughter. C.M.'s husband is A.R.

The Positions of the Parties

[8] The Crown tendered statements that S.M. made to his father, M.F., a police agent over a period of time. In particular, the Crown sought a ruling admitting the statements made by S.M. to his father, M.F., on March, 11th, 2014. It is the position of the Crown that these statements were voluntary and were taken in compliance with the Applicant's Charter and Youth Criminal Justice Act (Y.C.J.A.) rights. It is submitted that there was nothing done to infringe S.M.'s rights in the context of an out-of-custody youth where a police agent is utilized.

[9] The Defence argues that these statements are inadmissible on the basis that they undermine S.M.'s, Y.C.J.A. and Charter protected rights and that their admission would "shock the community" in a fashion similar to that described by the Supreme Court of Canada in relation to the "Mr. Big" statements caselaw. S.M. was a suspect at the time, and the police were aware that he had Counsel and that he did not wish to make a statement to the police. It is argued that the use of S.M.'s father to elicit evidence from him "amounted to impermissible elicitation" aimed at subverting his desire to remain silent that was in violation of his right to remain silent pursuant to s. 7 of the Charter. The Defence also argues that special rules should be in place for the use of police agents with respect to out-of-custody youths that should be different from the rules for adults in similar situations.

The Y.C.J.A. Law with Respect to Statements Made by Young Persons

[10] S.M. is now and was at the time of the alleged making of all of the impugned statements in this case, a young person within the meaning of the Y.C.J.A. For the purposes of this case, it is very important to examine this legislation to determine the important role that parents are expected to play in relation to their sons and daughters when they are being dealt with through the criminal process.

[11] The Preamble to the Y.C.J.A. includes the following principles:

WHEREAS communities, families, parents and others concerned with the development of young persons should, through multi-disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes;

[Emphasis added]

[12] The Declaration of Principle in the Y.C.J.A. includes the following:

3. (1) The following principles apply in this Act:

(b) 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 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.

(2) This 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).

[Emphasis added]

[13] Section 146 of the Y.C.J.A. provides:

Y.C.J.A., S.C. 2002, c. 1

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

(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.

(7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.

(8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver,

(a) the young person held himself or herself to be eighteen years old or older;

(b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and

(c) in all other circumstances the statement or waiver would otherwise be admissible.

(9) For the purpose of this section, a person consulted under paragraph (2)(c) is, in the absence of evidence to the contrary, deemed not to be a person in authority.

[Emphasis added]

[14] These provisions make clear that the role of a parent in assisting young persons both at the time of a police investigation and throughout the criminal process is very significant. With respect to statements made to the police, a young person has the right to consult a parent and have a parent present before making any statements. This right is an added protection for young persons. Apart from the right to consult a lawyer, adults have no similar protections to consult with anyone else. One might expect a parent to advise a young person as to whether he or she should provide a statement to the police or remain silent. Where a lawyer has been retained, one would expect that a parent might advise the young person to follow the advice received from Counsel. The use of S.M.'s father as a police agent who attempted to undermine the right to silence and the advice received from Counsel is very significant in light of the role that a parent would normally play in relation to police statements. This will be discussed further below in this Ruling.

[15] The Crown argues that pursuant to s. 146(2) of the Youth Criminal Justice Act, the trigger for the rights that the Defence asserts were violated here is the arrest or detention or the reasonable grounds of a peace officer (or person in authority) to believe that the young person has committed an offence. The Defence argues that because S.M. is a young person, an expanded view of those rights has to be considered.

The Law with Respect to Statements Made to an Agent of the State

[16] In addition to the Y.C.J.A. provisions, the Court must consider the traditional voluntariness rules. The Supreme Court of Canada thoroughly reviewed the test for determining whether a statement to a person in authority is voluntary in R. v. Oickle, 2000 SCC 38. A statement made by an accused to a person in authority may be said to be voluntary if it was the product of an operating mind, made without fear of prejudice or hope of advantage (that is, no improper threat, promise or inducement), and made in a non-oppressive atmosphere. The consideration of any police trickery is to be a discreet line of inquiry. Importantly, all of the circumstances surrounding the giving of the statement are to be considered since it is a contextual analysis. See R. v. Oickle, supra, at paras. 33, 107. The common law confessions rule has two historical underpinnings, both of which remain valid: (1) Concerns about the reliability of evidence, "where a statement is prompted by a threat or inducement held out by a person in authority, it can no longer be presumed to be true."; and (2) Concerns of fairness in the criminal process, "in particular, the principle against self-incrimination." See R. v. Hodgson, S.C.J. No. 66 at para. 17-18

[17] The Defence concedes that M.F. was not a person in authority in law and that S.M. was not in detention when M.F. and S.M. had the conversations in issue. This is significant because statements made to ordinary citizens who are not persons in authority are presumptively admissible and do not require a voir dire into their voluntariness. The Court accepts that M.F. did not meet the legal definition of a person in authority based on the following cases:

• R. v. Grandinetti, 2005 SCC 5, [2005] S.C.J. No. 3 at paras. 40-45
• R. v. Hodgson, [1998] S.C.J. No. 66 at paras. 25; 31–36; 39; 46-48
• R. v. Wells [1998] S.C.J. No. 67 at para. 14
• R. v. Carter, [2011] O.J. No. 6299 S.C.J. at paras. 6-18; 24
• R. v. Berger, 27 C.C.C. (2d) 357 (B.C.C.A) at pages 385-6

[18] The Crown concedes in her Factum as follows, however:

76. The only exception to the above application of the voir dire requirement is if the coercive power of the state is somehow engaged in the manner in which the statement is obtained as when the receiver of the statement is a police agent or closely associated to the authorities responsible for the investigation and prosecution of the offence:

When a statement is received by a conventional state actor - such as a police officer or a prison guard - his or her status as a person in authority will usually be quite obvious. When the receiver of a statement is a private citizen, that person will not be treated as a person in authority unless there is evidence of a real or a reasonably perceived connection between that person and the prosecution. The defence will bear the evidential onus of making that person's status a live issue. If that evidential burden is discharged, it will fall to the prosecution to prove beyond a reasonable doubt that the receiver is not a person in authority or, if this burden cannot be discharged, that the statement was made voluntarily.

[R. v. Carter, supra at para.7]

77. In circumstances where the coercive of the power of the state was brought to bear when the statement was obtained, an inquiry into the circumstances surrounding the taking of the statement is justified. Cases of the accused speaking to a "police agent" or "agent of the state" are one possible situation in which a voir dire into manner in which the statement was obtained may be justified despite the fact that the accused is unaware of the relationship between the police and their agent.

[19] The Crown and Defence agree that M.F. was, however, an agent of the state at the time of the March 11, 2014 statements. The Court agrees with this conclusion based on the law as set out in:

• R. v. Broyles, [1991] S.C.J. No. 95 at para. 24
• R. v. M.R.M., [1998] S.C.J. No. 83 at para.56

[20] The Supreme Court of Canada has carefully considered the issue of the Right to Silence in the cases of Broyles, supra, and R. v. Hebert, [1990] S.C.J. No. 64. The Crown's Factum fairly summarizes the law in this area as follows:

Hebert and Broyles Considerations - Detention, Agents and The Right to Silence

78. It must be remembered that "the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence."

[R. v. Broyles, supra at para. 22]

79. In a case where the statements at issue are made to an informer, "it may be arguable whether or not the coercive power of the state was brought to bear on the suspect in obtaining the statement from him or her."

[R. v. Broyles, supra at para. 23]

80. Here, there is no question that M.F. was an agent of the state. It is acknowledged that he had formally entered into an agent agreement with the police. Despite this, it is respectfully submitted that a careful consideration of the relevant tests to be applied to these circumstances and the rationale behind those legal tests is important to a fulsome understanding of the issues to be determined on this Application.

81. As set out above, the test with respect to whether an individual is an agent of the state for purposes of a consideration of the s.7 Charter right against self-incrimination is as articulated by the Supreme Court of Canada in R. v. Broyles at paragraph 24:

In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s. 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?

82. Prior to Broyles the Supreme Court had considered the s. 7 right against self-incrimination in R. v. Hebert, [1990] S.C.J. No. 64 and found that s. 7 of the Charter encompasses a right to silence which includes the right to choose whether or not to make a statement to the authorities. In Hebert, Madam Justice McLachlin described the right to silence at paragraph 80 as follows:

The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose -- the freedom to speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other. This right of choice comprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives and their consequences, and that the actions of the authorities have not unfairly frustrated his or her decision on the question of whether to make a statement to the authorities.

83. In Broyles, supra (at paragraph 17) the Supreme Court defined the issue to be determined as "did the authorities obtain evidence of the appellant's conversation with [the police agent] in a manner that violated the appellant's right to silence, including his right to choose whether or not to speak to the authorities?"

84. But it is respectfully submitted that in both Hebert and Broyles, the basic starting point triggering Charter scrutiny of the accused's s.7 right to silence was the coercive power of the state that arose in relation to the accused's detention. In Hebert, Justice McLachlin speaks to the relationship between the detention and the s. 7 right to silence as follows:

The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel and be permitted to consult counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice.

The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice. To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordance with the purpose of the Charter . . .

. . . courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.

[R. v. Hebert, supra, at paras. 64-65 and 69]

R. v. Osmar, 2007 ONCA 50, [2007] O.J. No. 244 at para. 42-47

R. v. Unger, [1993] M.J. No. 363 (Man. C.A.) at para. 72-78

85. In the approach advocated by Madam Justice McLachlin in Hebert, she explicitly addresses that the approach that she has developed to s.7 does not confer an absolute right to silence capable of being discharged only by a waiver. She rejects the notion of an absolute right to silence on the following basis, namely because:

On [such an] approach, all statements made by a person in detention which were not knowingly made to a police officer would be excluded because, absent knowledge that the suspect is speaking to a police officer, the Crown cannot establish waiver. This would include statements made to undercover agents (regardless of whether the officer is merely passive or has elicited the statement) as well as conversations with fellow prisoners overheard by the police and statements overheard through mechanical listening devices on the wall. There is nothing in the rules underpinning the s. 7 right to silence or other provisions of the Charter that suggests that the scope of the right to silence should be extended this far. By contrast, the approach I advocate retains the objective approach to confessions which has always prevailed in our law and would permit the rule to be subject to the following limits.

[R. v. Hebert, supra at para.72]

86. The Respondent forcefully reminds the court that, in considering the arguments advanced by the Applicant, it is important to remember the following further and very clear direction from Justice McLachlin with respect to the scope of the right to silence:

First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.

Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected.

Third, the right to silence predicated on the suspect's right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cell mates. The violation of the suspect's rights occurs only when the Crown acts to subvert the suspect's constitutional right to choose not to make a statement to the authorities. This would be the case regardless of whether the agent used to subvert the accused's right was a cell mate, acting at the time as a police informant, or an undercover police officer.

Fourth, a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent. When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.

[R. v. Hebert, supra, at paras. 73-76]

87. In Broyles, the Supreme Court of Canada summarized the Hebert analysis of the relationship between the s.7 right to silence and the accused's detention as follows:

It is clear . . . that the right to silence is triggered when the accused is subjected to the coercive powers of the state through his or her detention. The question of what right to silence, if any, remains after a detainee is released is a question not raised by the facts of this case.

[R. v. Broyles, supra, at para. 19]

88. Thus, in an analysis which again only considered the s.7 right to silence to be engaged by the coercive power of the statement once triggered by the accused's detention, Broyles held that:

The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? Only if the answer to both questions is in the affirmative will there be a violation of the right to silence in s. 7.

[R. v. Broyles, supra at para. 21]

89. In circumstances where an accused person is detained, the determination of whether a statement has been elicited requires a consideration of all the circumstances of the exchange between the accused and the state agent and a determination of whether there a causal link between the conduct of the state agent and the making of the statement by the accused? The focus of the elicitation inquiry is on whether the exchange between the accused and the state agent was the functional equivalent of an interrogation and on whether the agent exploited any special features of the agent's relationship with the accused to extract the statement or to manipulate the accused into making it. If those things are found to have occurred, then the statement has been elicited in violation of the accused's s. 7 right to silence.

[R. v. Broyles, supra, at para. 27 – 34]

[21] Based on this law, it is clear that the rules which apply to the conduct of police agents where the adult accused person is neither detained nor in custody is quite different from those situations where the person is detained. The Crown submits that since S.M. was not detained when he spoke with the police agent, M.F., on March 11th, 2014, that different considerations apply than those articulated in Herbert and Broyles. The Crown argues that the same rules should apply to young persons as exist for adults. The Defence argues that the rules which exist for out-of-custody/detention adults do not provide sufficient protections for youths.

[22] This important issue does not appear to have been resolved by the appellate courts yet, i.e. what rules should apply when the police are engaged in the investigation of a young person through the use of a police agent, when the young person is not in detention? Neither Crown nor Defence Counsel could find any caselaw to assist the Court with this scenario. The Defence asks the Court to make new law by setting out special rules for this situation, arguing that because of the s. 146 specially protected rights for young persons under the Y.C.J.A., that where there are reasonable grounds to believe that an offence has been committed and when dealing with a young person who is not detained or in custody, that the police must follow the same rules as would apply for an in-custody/detained adult. In other words, that the police agent must act as a "potted plant" and not ask eliciting questions. The Defence argues that because M.F. went far beyond that role, that the statements obtained by him from S.M. should be excluded from evidence.

[23] In her written submissions, Crown Counsel argues that the law with respect to the Right to Silence for an out of custody accused, whether adult or young person, is currently as follows:

The Right to Silence for the "Out of Custody" Accused

91. Put succinctly, generally speaking, in situations where an accused is not detained, the right to silence is not engaged even when he or she speaks to an undercover police officer or a state agent. Moreover, the confessions rule -- which requires the Crown to prove an accused's statement to a person in authority is "voluntary" -- is inoperative because the accused does not know that the receiver of his statement is a police officer or police agent when he confesses.

R. v. Hart, 2014 SCC 52, [2014] S.C.J. No. 52 at para.63 – 64

[R. v. Osmar at para.53]

[R. v. Grandinetti, supra at paras. 40- 41 and 45-46]

R. v. Unger, [1993] M.J. No. 363 (Man. C.A.) at para. 64 and 71-78

92. The right to silence is not engaged in circumstances where the accused is not detained, because the accused is not subjected to the coercive power of the state. In fact, it is respectfully submitted that the rolled up concepts of agency, person in authority, elicitation, and right to silence advanced within the Applicant's materials have been specifically rejected by the courts.

93. The Applicant's materials assert (on page three immediately above paragraph number 8 on the pre-printed "Form 1") that:

"The use of M.F. as a police agent to elicit a statement from the Applicant was in direct violation of his right to remain silent. M.F., as the father of the Applicant, was a person of authority in his own right, was acting on behalf of and at the direction of the police and was the only parent to that the Applicant was legally allowed to speak to and get advice from. The police saw the Applicant as the primary suspect in the death of T.V. and were aware that the Applicant did not wish to provide any information to the police. The manner in which the police used the Applicant's father in order to elicit incriminating evidence from him amounted to an impermissible elicitation aimed at subverting the Applicant's desire to remain silent during the course of the investigation in a manner contrary to section 7 of the Charter."

94. Again, the Respondent respectfully submits that the Applicant confuses and conflates the legal principles which should govern the issues to be determined on this Application. In support of the submission that the Ontario Court of Appeal has specifically considered and rejected the type of argument advanced by the Applicant, the Respondent points to the following passage of R. v. Osmar, supra at para. 43:

It may be that the right to silence recognized in Hebert could be extended to a case where the accused, although not in detention, was nevertheless under the control of the state in circumstances functionally equivalent to detention and equally needing protection from the greater power of the state. But that is not this case. This appellant was not under the control of the state nor was the context such as to require that he be protected from the greater power of the state. The appellant's assertion that elicitation and trickery are sufficient to require Charter scrutiny is not supportable by the authorities or by a reasoned extension of the principles in those cases.

95. Moreover, the issue of detention (or lack thereof) as being of fundamental importance is further highlighted when the Ontario Court of Appeal goes on to consider the effect of the Supreme Court of Canada decision R. v. McIntyre, [1994] 2 S.C.R. No. 480, [1994] S.C.J. No. 52, later within the Osmar judgment at paragraph 44. The Supreme Court of Canada's reasons in McIntyre were described as brief and quoted as follows:

The appellant argues that his statements made to undercover police officers after he had been released but while he was still the subject of a murder charge are inadmissible under ss. 7 and 24(2) of the Canadian Charter of Rights and Freedoms. We share the view of the majority that the accused was not detained within the meaning of Hebert and Broyles, [1991] 3 S.C.R. 595. Furthermore, the tricks used by the police were not likely to shock the community or cause the accused's statements not to be free and voluntary. The appeal is dismissed.

96. Important for the Ontario Court of Appeal in Osmar was that the issue of extending the Hebert doctrine to cases not involving detention was clearly before the court in McIntyre. The significance of this point was summed up by Justice Rosenberg on behalf of our Court of Appeal as follows: "I do not think it open to this court to reject the detention requirement for this aspect of the right to silence under s. 7. I would not give effect to the appellant's Charter argument."

[R. v. Osmar, supra, at paras. 43-47]

97. It is worthy of note that the British Columbia Court of Appeal explicitly adopted the reasons in Osmar when it held that "the right to silence during an undercover operation applies only during detention."

R. v. Earhart, [2011] B.C.J. 2286 (B.C.C.A.) at paras. 77 -78

[R. v. Singh, supra, at para. 32]

98. Simply put, the importance of the fact that the Applicant was out of custody when the interactions with the agent took place cannot be overstated.

[24] The Court agrees with the Crown's submissions that the fact that S.M. was out of custody/detention when he spoke to his father is a very important consideration, and that I should look to the existing appellate authorities with respect to adults for guidance as to how to determine the issues before me with respect to a young person. I remind myself of my role as a trial judge. It is my view that the facts of the case before me, do not require that I create a new set of rules for young persons, as the issues can be decided with reference to the abuse of process law and residual power to exclude evidence, as set out by the Supreme Court of Canada in R. v. Hart, 2014 SCC 52, [2014] S.C.J. No. 52 and described below.

The Law Since the Supreme Court of Canada's Decision in Hart – Residual Power to Exclude and Abuse of Process

[25] In R. v. Hart the Supreme Court of Canada recognized a new common law rule of evidence with respect to assessing the admissibility of confessions made by accused persons during Mr. Big operations. A very important distinction to be made between the Mr. Big cases and the case before me, however, is that in S.M.'s case, there is no risk of the prejudice that accompanies criminal propensity evidence. There is nothing in the statements made by S.M. to his father that could be considered bad character evidence such as exists where an accused in a Mr. Big operation engages in criminal activities in a criminal organization. So the Supreme Court's analysis of probative value versus prejudicial effect has little bearing on the case before me. The analysis here is limited to an examination of the abuse of process aspects of Hart. This law is relevant by analogy to the facts of this case, and the underlying principles that guide the Supreme Court's decision are of great assistance here.

[26] The Defence argues that if one applies the principles in Hart, that the circumstances in this case would "shock the community", amounting to an abuse of process which should result in the exclusion of the statements made by S.M. to his father. The Crown argues that the conduct here does not rise to that level such as to amount to an abuse of process.

[27] In Hart the Supreme Court of Canada created a two-pronged approach to the legal analysis required. It is set out by Justice Moldaver on behalf of the majority at paragraphs 84 to 89 as follows:

Summary of a Proposed Solution

84. In this section, I propose a solution that, in my view, strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime. This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct.

85. The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The rule operates as follows. Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession's probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused's confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.

86. Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, I propose to provide some guidance on how to determine if a Mr. Big operation crosses the line from skillful police work to an abuse of process.

87. The purposes of this two-pronged approach are to protect an accused's right to a fair trial under the Charter, and to preserve the integrity of the justice system. Those are the ends that must ultimately be achieved. This approach strives to reach them by ensuring that only those confessions that are more probative than prejudicial, and which do not result from abuse, are admitted into evidence.

88. However, it must be remembered that trial judges always retain a discretion to exclude evidence where its admission would compromise trial fairness (see R. v. Harrer, [1995] 3 S.C.R. 562). This is because "the general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules" (ibid., at para. 23). It is impossible to predict every factual scenario that could present itself. As such, I do not foreclose the possibility that, in an exceptional case, trial fairness may require that a Mr. Big confession be excluded even where the specific rules I have proposed would see the confession admitted.

89. In practice, this two-pronged approach will necessitate that a voir dire be held to determine the admissibility of Mr. Big confessions. The Crown will bear the burden of establishing that, on balance, the probative value of the confession outweighs its prejudicial effect, and it will be for the defence to establish an abuse of process. Trial judges may prefer to begin their analysis by assessing whether there has been an abuse of process. A finding of abuse makes weighing the probative value and prejudicial effect of the evidence unnecessary.

[Emphasis added]

[28] In paragraph 113 Justice Moldaver further addresses the issue of abuse of process, which doctrine is described as "intended to guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system…the doctrine provides trial judges with a wide discretion to issue a remedy – including the exclusion of evidence or a stay of proceedings -- where doing so is necessary to preserve the integrity of the justice system or the fairness of the trial".

[29] Justice Moldaver indicates that while physical violence or threats of violence are examples of coercive police tactics that would almost certainly amount to an abuse of process (see paras. 115-116), Mr. Big operations can be coercive in other ways as well. "Operations that prey on an accused's vulnerabilities -- like mental health problems, substance addictions, or youthfulness -- are also highly problematic". (para. 117). [Emphasis added]

117 … Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this Court has said on many occasions, misconduct that offends the community's sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement.

118 While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much guidance that can be provided. Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context.

[Emphasis added]

[30] At paragraph 123 Justice Moldaver writes that the two-pronged approach is "also consistent with the demands of the principle against self-incrimination", which has two purposes: "protecting against abusive state conduct, and guarding against unreliable confessions".

[31] In separate concurring Reasons, Justice Karakatsanis describes the dangers of Mr. Big Confessions at paragraphs 171 to 175:

171 Confessions to state agents raise special concerns for the criminal justice system. Over the centuries, our common law tradition has responded to these dangers. The jurisprudence recognizes that individuals sometimes make false confessions that can result in miscarriages of justice, affirms that respect for human dignity and free choice means that individuals should not be coerced by the state to provide self-incriminating evidence, and discourages the state from conducting criminal investigations in a way that offends our sense of fair play or compromises the integrity of the administration of justice. Recognizing that particular vigilance is required to protect against miscarriages of justice caused by unreliable confessions, the law has developed specialized rules that respect both fairness to the individual and the societal interest in investigating crime and seeking the truth at trial.

172 Mr. Big operations have procured confessions when traditional investigative techniques have failed. Indeed, that is their sole purpose. These operations, often costly and complex, create elaborate false realities for their targets in which they are valued and rewarded. Threats and inducements are tailored to exploit suspects' vulnerabilities, and confessing becomes necessary for their new lives to continue. The very structure of Mr. Big operations creates circumstances that (1) compromise the suspects' autonomy, (2) undermine the reliability of confessions, and (3) raise concerns about abusive state conduct. In addition, Mr. Big operations create prejudicial evidence of criminal propensity which has the potential to compromise accused persons' ability to make full answer and defence, undermining the fairness of the trial.

173 Despite these dangers, the Mr. Big technique has not been extensively reviewed by this Court. In R. v. McIntyre, [1994] 2 S.C.R. 480, the Court upheld the admissibility of the Mr. Big statements obtained in that case in a brief oral judgment, finding that "the tricks used by the police were not likely to shock the community" (p. 481). But McIntyre was very different from this case: the operation lasted for only 10 days; the police officers posing as criminals immediately revealed the illegal nature of their activities; and the "job" offer they made to McIntyre at the outset required him to prove he was capable of killing (see R. v. McIntyre, [1993] 135 N.B.R. (2d) 266 (CA)).

174 Existing safeguards that govern confessions made to the state are rooted in traditional investigative techniques and fail to properly regulate Mr. Big operations. The confessions rule does not apply in a Mr. Big operation because the suspect is not aware that he is speaking to a person in authority (R. v. Hodgson, [1998] 2 S.C.R. 449, at paras. 24-29; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27), nor does the right to silence, which arises only upon a suspect's detention (R. v. Hebert, [1990] 2 S.C.R. 151, at p. 184; McIntyre). Thus, Mr. Big confessions fall into the gaps between the traditional rules.

175 The Court cannot countenance this void. The existing rules assist in identifying the interests affected and dangers generated by Mr. Big operations and in structuring a principled and responsive legal framework. The confessions rule guards against unreliable confessions and regulates state conduct to protect basic fairness in the criminal process (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 68-69). The right to silence focuses on autonomy, choice and fairness by protecting detained persons' "right to choose whether to speak to the authorities or to remain silent" (Hebert, at p. 180). More broadly, the principle against self-incrimination from which these protections stem is based upon respect for an individual's autonomy and human dignity, which give that individual the right to choose whether to incriminate herself. The principle serves "at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state" (R. v. White, [1999] 2 S.C.R. 417, at para. 43; see also R. v. Jones, [1994] 2 S.C.R. 229, at p. 250).

[Emphasis added]

[32] With respect to the right against self-incrimination, Justice Karakatsanis writes that, "A fair trial cannot be based on evidence obtained through fundamentally unfair state tactics." (See paragraph 183).

[33] In defining "coercion" Justice Karakatsanis describes at paragraphs 192 to 194:

192 A confession is coerced when the accused is deprived of a free choice whether to admit, deny, or refuse to answer (Black's Law Dictionary (6th ed. 1990), at p. 258). In the context of a Mr. Big operation, a confession is coerced when the suspect is deprived of any reasonable alternative to confessing. While there will almost always be some degree of coercion in a Mr. Big operation, the issue at this stage is the extent of that constraint. Coercion is not a binary. This means that even if the suspect had some alternative to confessing, the degree to which his free choice was compromised must be examined.

193 While threats of violence are manifestly coercive, the principle of autonomy abhors coercion in all its forms. In Rothman v. The Queen, [1981] 1 S.C.R. 640, and Oickle, this Court held that particularly manipulative trickery -- for example, a police officer pretending to be a chaplain or a legal aid lawyer to obtain a confession -- would shock the community. A Mr. Big operation is built upon layers of deception. The target is exposed not only to a false confidante, but false friends, a false job, and a false life.

194 In determining the degree of coercion, the court should consider the magnitude and duration of the operation; any explicit or implied threats used; any financial, social, or emotional inducements applied; and the characteristics of the suspect, including any mental, physical, social, or economic disadvantages.

[Emphasis added]

[34] With respect to abuse of power and police misconduct, Justice Karakatsanis writes at paragraphs 209 to 212:

209 The state must conduct its law enforcement operations in a manner that is consonant with the community's underlying sense of fair play and decency. It cannot manipulate suspects' lives without limit, turning their day-to-day existence into a piece of theatre in which they are unwitting participants. Such an approach does violence to the dignity of suspects and is incompatible with the proper administration of justice.

210 I agree with my colleague that the abuse of process doctrine recognized under s. 7 remains independently available to provide a remedy for state misconduct in the Mr. Big context. However, the high threshold for its application means that conduct may tend to undermine the integrity of the administration of justice, yet fail to warrant a remedy under this doctrine. The need to restrain state misconduct is one of the rationales for the principle against self-incrimination (as well as the confessions rule and the right to silence). Therefore, police conduct in Mr. Big operations must be considered, even when it does not rise to the level of abuse of process.

211 State conduct throughout a Mr. Big operation must be scrutinized to determine whether the police unfairly, unnecessarily or disproportionately manipulated the suspect. This inquiry will also consider other objectionable police tactics such as involving the suspect in dangerous conduct or exposing him to physical or psychological harm.

212 A certain degree of trickery is, of course, inherent to many effective and appropriate police tactics. But the more disreputable the police tactics become, and the less they comport with the responsibility to conduct a fair prosecution which respects the dignity of the suspect, the more likely it is that s. 7 has been violated.

213 The entrapment doctrine -- a specific variant of abuse of process -- assists with this analysis. While it is not directly applicable outside the entrapment context, it nonetheless identifies useful factors to consider in examining the conduct of the state. R. v. Mack, [1988] 2 S.C.R. 903 establishes that, unless the authorities have a reasonable suspicion that a suspect is already engaged in criminal activity, or act pursuant to a bona fide inquiry, they cannot provide the suspect with an opportunity to commit an offence. Even when that threshold for suspicion is met, the authorities cannot go beyond providing an opportunity to commit an offence by crossing over into inducing commission of the offence (Mack, p. 964). Lamer J. provided a useful non-exhaustive list of factors to consider in determining whether that line has been crossed. In the Mr. Big context, these kinds of factors can assist in deciding whether the inducements, threats, and manipulation used constitute abusive state conduct. Adapting the factors from Mack, at p. 966, the following considerations are relevant to Mr. Big operations:

1. the type of crime being investigated and the availability of other techniques for the police detection of its commission;

2. the strength of the evidence causing the police to target the suspect;

3. the types and strength of inducements used by the police, including deceit, fraud, trickery or reward;

4. the duration of the operation and the number of interactions between the police and the suspect;

5. whether the police conduct involved an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;

6. whether the police appear to have exploited a particular vulnerability of the suspect such as mental, social, or economic vulnerabilities or substance addiction;

7. the degree of harm to the suspect that the police caused or risked;

8. the existence and severity of any threats, implied or express, made to the suspect by the police or their agents, including threats made to third parties where those threats carry an indirect threat to the accused;

9. whether an average person, with both strengths and weaknesses, in the position of the suspect would be induced to falsely confess;

10. the persistence and number of attempts made by the police before the suspect agreed to confess.

214 My intention is not to create a formalistic checklist or to overcomplicate the analysis. These factors are simply examples which may help the court to determine whether the conduct of the police in obtaining a confession has contravened our society's basic expectations of fair play or undermined the reputation of the justice system. More abusive state conduct makes it more likely that the confession was obtained in a manner incompatible with the principle against self-incrimination.

[Emphasis added]

[35] Justice Karakatsanis indicates in paragraph 233 that "psychological manipulation by state agents harms not only the suspect but the integrity of the justice system" and in paragraph 237 comes to the following conclusions regarding Mr. Hart's case:

237 I am greatly troubled by the extreme lengths to which the police went to pursue the respondent, exploiting his weaknesses in this protracted and deeply manipulative operation. The abuse of process doctrine always remains independently available to provide a remedy where the conduct of the state rises to such a level that it risks undermining the integrity of the judicial process (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 73; R. v. Babos, 2014 SCC 16, at para. 31). In my view, as will be clear from my discussion of the state conduct in this case, that threshold is met. To condone the actions of the police would "leave the impression that the justice system condones conduct that offends society's sense of fair play and decency" (Babos, at para. 35). However, given the outcome of this appeal, it is not necessary to discuss this issue further.

[Emphasis added]

[36] With respect to the appropriate remedy and s. 24(2) of the Charter, Justice Karakatsanis writes at paragraphs 240 to 242:

240 Under s. 24(2), the court must determine whether, in all the circumstances, admitting evidence obtained in breach of the Charter would bring the administration of justice into disrepute.

241 In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, McLachlin C.J. and Charron J. noted that statements by the accused engage the cornerstone principle against self-incrimination (at para. 89) and concluded that, while not an absolute rule, "as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute" (para. 91).

242 Statements obtained in violation of the principle against self-incrimination will almost always be excluded under s. 24(2). In order to find a s. 7 violation, the court will have already determined that the reliability of the statement is outweighed by abusive or coercive police conduct. If the statement was obtained in a manner that violated s. 7 due to reliability concerns, its admission would risk a miscarriage of justice and it must be excluded. Similarly, if the statement is reliable but was rendered unconstitutional because of concerns about coercion or state conduct, its admission would also bring the administration of justice into disrepute. This case is no exception; both the risk of a miscarriage of justice and the abusive police conduct call for exclusion.

[37] The Crown strenuously argues that the facts of this case do not amount to an abuse of process that should lead to the exclusion of S.M.'s statements to his father. In written submissions the Crown argues as follows:

Residual Power to Exclude and Abuse of Process

99. The Respondent has taken great pains in the passages set out above to demonstrate that the arguments articulated by the accused do not apply to the facts of this case.

100. The Respondent strenuously submits that the statements made to M.F. that are at issue in this application are properly admissible into evidence at the Applicant's trial.

101. The Respondent does concede that, in recent years, there has been a recognition that trial fairness and concerns regarding the proper administration of justice have emerged within the caselaw to permit the exclusion of accused person's statements obtained in circumstances that justify the exercise of the court's residual discretion to exclude evidence where the probative value of that evidence is substantially outweighed by its prejudicial effect. Statements have also been excluded where the conduct surrounding the taking of the statement has been found to amount to an abuse of process.

[Emphasis added]

102. An example of this trend is found in R. v. Grandinetti, supra where the following passages appear in the Supreme Court of Canada's decision at paragraphs 35 and 36:

The underlying rationale of the "person in authority" analysis is to avoid the unfairness and unreliability of admitting statements made when the accused believes himself or herself to be under pressure from the uniquely coercive power of the state. . . . There is no doubt, as the Court observed in Hodgson, at para. 26, that statements can sometimes be made in such coercive circumstances that their reliability is jeopardized even if they were not made to a person in authority. The admissibility of such statements is filtered through exclusionary doctrines like abuse of process at common law and under the Canadian Charter of Rights and Freedoms, to prevent the admission of statements that undermine the integrity of the judicial process. The "abuse of process" argument was, in fact, made by Mr. Grandinetti at trial, but was rejected both at trial and on appeal, and was not argued before us.

See also R. v. Hodgson, supra at para. 48

103. The Supreme Court of Canada has recently recognized the existence of a gap in the law that with respect to "Mr. Big" operations:

At present, however, these operations are conducted in a legal vacuum. The legal protections afforded to accused persons, which are often intended at least in part to place limits on the conduct of the police in their investigation and interrogation of accused people, have no application to Mr. Big operations. The confessions rule, for example, is intended not only to guard against the risk of unreliable confessions, but also to prevent abusive state conduct (see R. v. Hodgson, [1998] 2 S.C.R. 449, at para. 20). Yet its protection does not apply because the accused does not know the person he is speaking to is a person in authority. Other protections -- like the right to counsel under s. 10(b) of the Charter -- are rendered inapplicable because the accused is not "detained" by the police while the operation is ongoing. And the doctrine of abuse of process -- intended to protect against abusive state conduct -- appears to be somewhat of a paper tiger. To date, it has never operated to exclude a Mr. Big confession, nor has it ever led to the stay of charges arising from one of these operations.

[Emphasis added]

[R. v. Hart, supra at para.79]

104. It was held that the lack of an effective mechanism for monitoring the conduct of the undercover officers who engage in "Mr. Big" operations is problematic. The law must enable trial judges to respond effectively to police misconduct in this context.

[Emphasis added]

[R. v. Hart, supra at. para 80]

105. Although, the Supreme Court of Canada in Hart specifically addresses the issues under consideration in that case in the context of a "Mr. Big" Operation, it is respectfully submitted that some of the considerations applied to address the concerns that the operations may become abusive and produce unreliable confessions provide a compelling rationale for rejecting the arguments advanced by the Applicant here.

106. Justice Moldaver writing for the majority of the Supreme Court develops a two pronged approach to the issue. The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions arising in the course of an accused's interactions with police during a Mr. Big operation. This rule addresses the concern for the potentially unreliable confessions that may arise as a result of abusive state conduct by assessing the confession's probative value on the basis of its reliability. The second prong is a more robust conceptualization of the doctrine of abuse of process which allows the court to deal with the problem of police misconduct.

[Emphasis added]

[R. v. Hart, supra paras. 84-86]

107. According to Justice Moldaver, the purposes of this two-pronged approach are to protect an accused's right to a fair trial under the Charter, and to preserve the integrity of the justice system. He also emphasizes that it must be remembered that trial judges always retain a discretion to exclude evidence where its admission would compromise trial fairness.

[Emphasis added]

[R. v. Hart, supra paras. 87 - 88]

108. Under the first prong of the approach, when giving consideration to the reliability of the confession it is suggested that the entire circumstances surrounding the confession be examined with regard to the length of the operation, the number of interactions between the police and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself and the personality of the accused including his age, sophistication, and mental health. It is suggested that it is important to be especially mindful of the age and mental health of the accused as confessions in the circumstances of a "Mr. Big" operation may be more likely in the if the accused is a young person or if he suffers from a mental illness or disability.

[Emphasis added]

[R. v. Hart, supra at paras. 102 and 103]

109. Upon considering all of these factors, the trial judge is directed to look to whether the reliability of the confession is called in to doubt. It is further suggested that the judge look to the confession itself for markers of reliability. Finally, it is emphasized that confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability.

[R. v. Hart, supra at para. 104-105]

110. It is respectfully submitted that the assertions of violations of the Applicant's rights advanced within his materials do not withstand careful scrutiny when measured against the existing legal doctrines governing the admissibility of accused statements to agents of the state when the accused is out of custody.

111. Moreover, when the Applicant's statements to M.F. are examined against both the classic "voluntariness" standard and the "reliability of confessions standard" as recently articulated by Justice Moldaver in Hart, it is respectfully submitted that the clear and inescapable conclusion to be drawn from the content of the exchange and the surrounding circumstances is that the Applicant, despite his age, had a sophisticated understanding of his right to remain silent and of the possible consequences that might flow if he chose to speak to his father. He demonstrated a clear awareness that his father might become a witness and, if so, that the statements he made could be used against him during a trial.

112. In addition, there is nothing about the nature of this relationship between father and son (which can best be described as distant, tenuous, and devoid of the common features of familial closeness and authority of parent over child that are often hallmarks of the father-son paradigm) that suggests that there was some exploitation or manipulation of the bond between the Applicant and agent which would call the reliability of what was said into question.

113. The second prong of the Hart approach advocated by Justice Moldaver in the "Mr. Big" context is the expansion of the doctrine of abuse of process to address instances of police misconduct. Under the heading abuse of process, the following direction is provided:

The first step toward restoring the doctrine as an effective guard against police misconduct in this context is to remind trial judges that these operations can become abusive, and that they must carefully scrutinize how the police conduct them.

It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.

Physical violence or threats of violence provide examples of coercive police tactics. A confession derived from physical violence or threats of violence against an accused will not be admissible -- no matter how reliable -- because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253).

Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused's vulnerabilities -- like mental health problems, substance addictions, or youthfulness -- are also highly problematic (see Mack, at p. 963). Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this Court has said on many occasions, misconduct that offends the community's sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement.

[R. v. Hart, supra at paras. 114 - 117]

114. It is important to be clear. The Respondent does not suggest that Hart is directly applicable to the facts and issues under consideration on this Application. The Respondent simply acknowledges the decision as a recent expansion of the legal protections previously afforded to accused persons in one specific scenario (the "Mr. Big" operation) in relation to their statements made to undercover agents of state.

115. To the degree that Hart can be said to apply by way of analogy to the facts of this case, it would be as a tool against which to measure the reliability of the statements obtained and the existence or absence of police misconduct. The Respondent submits that when the facts here are viewed through the lens of the Supreme Court's recent pronouncements in Hart, the decision provides yet another set of legal guidelines and principles which strongly support the Respondent's position with respect to the admissibility of the statements at issue in this case.

[38] Although many aspects of the Crown's capable submissions are very persuasive, when one examines all of the circumstances in this case, it leads to the conclusion that the statements made by S.M. to M.F. should not be admitted. After a more thorough review of the relevant evidence in this case, the Court will discuss why, when applying the Hart principles to the facts of this case, there exists an abuse of process requiring the exclusion of S.M.'s statements to his father.

The Evidence Relevant to the Ruling

[39] The evidence on this Voir Dire consisted of Exhibit 3 (an Agreed Statement of Facts on the Charter Motions), Exhibit 4.1 (the audio files of the S.M./M.F. intercepts), Exhibit 4.2 (a binder of Transcripts and other materials relating to the S.M./M.F. intercepts), Exhibit 5 (a Family Tree) and Exhibit 6 (a binder with the briefing notes regarding the M.F. statements). M.F. did not testify, as the Crown elected to rely on the contents of the conversations themselves, the admitted facts and whatever inferences could be drawn from them. Counsel identified the most relevant audio portions and agreed on those intercepts which the Court should listen to, which consisted of several hours of audiotapes relating to March 11, 2014. The key portions of those transcripts relating to the March 11, 2014 intercepts are reproduced in Appendix 1 to this Ruling. Rather than quote extensively from those statements within the Ruling, the Court has included lengthy portions of those transcripts to allow for a better understanding of the nature and extent of the conduct of M.F. during those conversations with his son. They will be summarized in this Ruling in relation to the issues raised.

[40] In the conversations with his father on March 11, 2014, S.M. never confesses to hurting T.V. or doing anything to cause his death. The Crown advised that the main purpose for which she tendered these statements was because when asked by M.F. on several occasions whether his brother D.P. could have hurt T.V., S.M. unequivocally says no. S.M. may not have realized that by discussing this issue with his father he was implicating himself by removing one of the other possible suspects as the source of T.V.'s injuries which led to his death. It is important to remember the purpose for which these statements were being tendered in assessing their probative value.

[41] S.M. elected to not testify on the Voir Dire concerning the admissibility of the statements that he had made to his father. This Court draws no adverse inference from this. The Court looks to the statements themselves as well as common sense in drawing any inferences about S.M.'s state of mind at the time they were made.

[42] The parties filed an Agreed Statement of Facts that is Exhibit 3 on the Voir Dires concerning the admissibility of statements made by S.M. to the police on August 29 and 30, 2013 and to his father on March 11, 2014 (a separate set of Agreed Facts was later filed on the trial as Exhibit 17). In a separate Ruling, the statements to the police on August 29 and 30, 2013 were excluded. While some of the admitted facts are more relevant to issues concerning the admissibility of those police statements, they are reproduced fully here as they provide important background information about the police investigation and other circumstances leading up to the statements made by S.M. to his father. Exhibit 3 (which has been edited to prevent S.M. from being identified reads as follows:

R. v. S.M. - Agreed Statement of Fact on Charter Motions

1. On the issue of voluntariness, it is conceded that at all material times S.M. possessed an operating mind.

2. On the issue of voluntariness, there is no suggestion that there is any evidence beyond that called during the course of the voir dire or that contained in the facts set out below, that could or would give rise to a finding that any threats, promises, or inducements were made by persons in authority in order to obtain the statements that the Crown seeks to tender.

3. Similarly, on the issue of voluntariness, there is no suggestion that there is any evidence, beyond that called during the course of the voir dire or that contained in the facts set out below, that could or would give rise to a finding that the statements the Crown seeks to tender are the result of an atmosphere of oppression.

4. On August 28th, 2013, at approximately 9:45 p.m. T.B. [S.M.'s mother] made a 911 call from her home at [address removed to protect the identity of S.M.] in Bowmanville, Ontario regarding four year old T.V. who was reportedly not breathing and was possibly vital signs absent. Police, fire, and ambulance responded to the call.

5. Sergeant Robert Redford was among the responders. When Sergeant Redford arrived at [address removed to protect the identity of S.M.] at 9:55 p.m., Constable Shane Collins, Constable Street, Constable Shaw, and Constable Andrews were already on scene as were fire and ambulance. Sergeant Redford observed Constable Collins to be speaking with an adult female (who was T.B.) and a teenage male (who was S.M.). Three children, a ten year old boy [S.M.'s brother D.P.], a toddler [T.V.'s 2-year-old sister], and a six month old baby [T.V.'s 6-month-old brother], were upstairs on the second floor of the residence. Sergeant Redford contacted Duty Inspector Kovack at 9:58 p.m. and advised him of the call. Sergeant Redford was advised by Inspector Kovack that he (Kovack) would notify the Identification and Homicide Bureaus as well as Detective Sergeant Hutchinson of 16 CIB. Sergeant Redford was notified by Detective Sergeant Hutchinson a few minutes later that detectives would be called in to assist with the investigation.

6. At 10:19 p.m. Constable Street and EMS personnel left the residence in the ambulance with T.V., CPR was still being conducted upon T.V. At this time, Sergeant Redford spoke with T.B. explaining the importance of maintaining the continuity of the scene and that it would assist police with the investigation of what happened to T.V. T.B. agreed to leave the residence with the children and, due to their ages, was given time to pack the necessary clothing for the children. Sergeant Redford detailed Constable Milton to remain with T.B. as she gathered the items required. At 10:35 p.m. the house was closed and no further entry was made that night. Constable Collins put up crime scene tape and maintained continuity.

7. At 10:55 p.m. Sergeant Redford spoke with Detective Leipsig of the Homicide Unit and provided an overview of the incident.

8. At 11:02 p.m. Constable Street contacted Sergeant Redford from the hospital to advise that T.V. had been pronounced dead.

9. Constable Anngelee Milton attended 9 Ireland Street in Bowmanville at 10:18 p.m. After T.V. was placed in the ambulance Sergeant Redford asked Constable Milton to accompany T.B. to the upstairs of the residence while T.B. gathered clothes for herself and the children in her care. As the police required that the occupants of the residence would have to vacate the home until the cause of death was determined, Constable Milton was tasked with transporting T.B. (DOB […] 1978), [T.V.'s 2-year-old sister] (DOB […] 2011), and [T.V.'s 6-month-old brother] (DOB […] 2013) to 17 Division in Oshawa so that detectives could speak to the family.

10. At 11:12 p.m. Constable Andrews transported S.M. and [S.M.'s brother D.P.] and Constable Milton transported T.B. [and the two youngest children] for statement purposes.

11. During Constable Milton's transport of T.B. [and the two youngest children] there was no conversation pertaining to four year old T.V. or his status. Upon arrival at 17 Division, Constable Milton sat with T.B. and the children until detectives spoke to T.B.

12. At 11:15 p.m. Sergeant Redford spoke with Detective Constable Thompson by telephone and provided her an update. Detective Constable Thompson advised Sergeant Redford that she and Detective Findlay would be attending 17 Division to speak with the family.

13. At 11:30 p.m. Constable Andrews arrived at 17 Division and took S.M. and [S.M.'s brother D.P.] into the 17 Division CIB Office to speak with detectives. There was no discussion of T.V.'s status or the events under investigation. Specifically, there was nothing said or done during the transport that could or would give rise to a finding that any of the statements at issue were involuntarily.

14. At 12:55 a.m. on August 29th, 2013 Sergeant Redford again spoke with Detective Constable Thompson who advised him that they (she and Detective Findlay) would not be attending the scene. Sergeant Redford told Detective Constable Thompson that he would be leaving scene control with Constable Shaw and at 1:00 a.m. Sergeant Redford cleared the scene.

15. At 12:56 a.m. on August 29th, 2013 Detective Constable Thompson commenced an interview with T.B. at 17 Division. The interview was audiotaped and videotaped. It was completed at 1:34 a.m.

16. At the completion of her interview with T.B. at 1:34 a.m. Detective Constable Thompson noted that Detective Findlay will interview both S.M. and [S.M.'s brother D.P.] and that Detective Leipsig was with the father of the deceased. She also noted that Constable Milton was with the sister of T.B. and the [two siblings of T.V.].

17. At 11:59 a.m. and 56 seconds on August 29th, 2013 the video and audio recording of S.M. commences with him sitting within the interview room where he is ultimately interviewed by Detective Findlay between 1 a.m. and 1:33 a.m.

18. At 12:01:18 a.m. an unidentified officer opens the door to the interview room but the officer does not step in and thus cannot clearly be seen. At this time, the exchange transcribed on the top half of page one of the transcript of the August 29th, 2013 video statement of S.M. takes place. At 12:01:29 a.m. the officer closes the door.

19. The next officer to enter is Detective Findlay at 12:36:31 a.m. until 12:36:48 a.m. during which time the exchange which is transcribed on the bottom half of page one and onto the top half of page two of the transcript of August 29th 2013 video statement of S.M. takes place.

20. At 12:30 a.m. on August 29th, 2013 Detective Leipsig met with T.V.'s father at the hospital (Lakeridge Health Bowmanville). T.V.'s father was accompanied by his brother D.V. and A.T. Detective Leipsig interviewed T.V.'s father and discussed a number of issues including the family's history, T.V.'s medical history, and the circumstances surrounding T.V. and his siblings being in the care of T.B.

21. While at the hospital Detective Leipsig spoke with Faisel Modhi of the Children's Aid Society. At 2:55 a.m. on August 29th, 2013, Detective Leipsig cleared the hospital en route to 17 Division and followed by [T.V.'s father] and D.V. and A.T. They arrived at 17 Division at 2:45 a.m. and attended the CIB office where [T.V.'s father] was met by family and friends. After consulting with CAS Worker Faisel Modhi, it was agreed that [T.V.'s father] could take [T.V.'s 2-year-old sister] and [T.V.'s 6-month-old brother] home with him.

22. On August 30th, 2013 S.M. was interviewed a second time. T.B. and [S.M.'s brother D.P.] were also interviewed by police at the same time. T.B. was interviewed on video by Detective Mike Horrocks between 10:16 p.m. and 10:24 p.m. During that interview she was advised that the investigation was no longer a Coroner's Investigation and was now a criminal investigation. T.B. consulted counsel and then advised that she wished her children removed from their interviews. Detective Horrocks advised Detective Dennis of T.B.'s wishes and her request was honoured, both S.M.'s and [S.M.'s brother D.P.]'s interviews were ended. T.B. had some conversation with a Children's Aid Society worker before T.B. and her children left the station.

23. On the issue of S.M.'s statements to the police agent, M.F. [S.M.'s father], the following facts are agreed:

24. On November 28th, 2013, M.F. signed a "One Party Consent" consenting to the interception of his communications.

25. On December 12th, 2013, a Part VI Authorization was granted in relation to M.F.'s consent.

26. On January 14th, 2014, M.F. met with S.M. on consent at S.M.'s school.

27. On January 16th, 2014, M.F. met with S.M. on consent at S.M.'s school.

28. On January 16th, 2014, M.F. was asked by police to become an agent and agreed.

29. On January 21st, 2014, M.F. entered the formal agreement process to become an agent of the police.

30. It is agreed that M.F. was thereafter a police agent.

31. On February 14th, 2014 and February 25th, 2014, M.F. met with S.M. The transcripts and briefing notes in relation to those meetings are being filed on consent for the truth of their contents on this application.

32. On March 11th, 2014, M.F. met with S.M. at a hotel. The transcripts, briefing notes of their conversation that date are being filed on consent for the truth of their contents on this application. Relevant portions of the audio of the March 11th, 2014 conversation will also be filed on consent for the truth of their contents on this application.

33. Prior to this investigation M.F. and S.M. had a distant relationship. They had never lived together. They saw one another very infrequently. M.F. did not provide financial support for S.M. nor was he in any way responsible S.M.'s maintenance, care, or discipline.

34. The Crown does not concede any evidence with respect to the state of mind of any individual related to these applications save and except where that evidence has been called viva voce before the court or is specifically addressed within these agreed facts.

[43] Exhibit 6 is the binder containing the D.R.P.S. briefing notes and transcripts regarding the events leading up to the March 11, 2014 M.F. intercepts. A summary of the key points obtained from a review of those notes is as follows.

[44] The first interview between M.F. and the D.R.P.S. detectives takes place on November 13, 2013. M.F. advises the police about what he has heard in relation to T.V.'s death and the police provide him with limited information relating to what had happened. M.F. indicates that S.M. has not "reached out" to his him since then, but M.F. has been trying to bump into his son at a mall.

[45] On November 27, 2013 there is a telephone call between M.F. and a detective. M.F. advises the police officer that he is worried that S.M. has been cut off from M.F.'s side of the family and that he had heard S.M. was no longer attending school. M.F. is concerned that his son is a "walking time bomb" and asks if S.M. has access to other children who might be at risk of getting hurt. S.M. did not attend T.V.'s funeral, so M.F. is worried that his son might be grieving and needing help and counselling. S.M. wants to know why S.M.'s mother has all the say in whether to bring their son to the police, and asks if he could go to a lawyer or judge to make this happen, since he disagrees with her decision. M.F. indicates that he has every intention to locate and speak to his son without his mother being present, to ensure S.M. is coping and to get some answers. The police advise M.F. that if S.M. admits being responsible for T.V.'s death that S.M. could be charged. M.F. indicates that he is well aware of that, but wants his son to get help, and that he needs to help his daughter find out what happened to her son, T.V.

[46] On November 30, 2013 M.F. meets with the police for the second time. M.F. advises the police that he will meet with S.M., speak to him as a father and tell him that it is not his fault for the situation that he was put in. As indicated in the agreed facts above, M.F. agrees to and signs a "One Party Consent" consenting to the interception of his communications with S.M. [although the Agreed Facts indicate that this took place on November 28th, the Briefing Notes say this occurred on November 30th]. On December 12th, 2013, a Part VI Authorization is granted in relation to M.F.'s consent.

[47] On January 13, 2014 the police have telephone contact with M.F. primarily to arrange for a meeting the next day. On January 14, 2014 the first contact between M.F. and his son, S.M. takes place following the Authorization being in place. There is no discussion about the investigation during this meeting.

[48] On January 15, 2014 there is telephone contact with M.F. to arrange for a meeting the next day. On January 16, 2014 the second meeting between M.F. and S.M. takes place and again there is no discussion concerning the investigation.

[49] On January 18, 2014 M.F. calls the police to thank them for a bus ticket and for listening the previous week. The investigation is not discussed.

[50] On January 20, 2015 there is another telephone call between an officer and M.F. concerning handling to be done by Covert Unit officers already known to M.F. There is no discussion of the investigation.

[51] On February 14, 2014 the police meet with M.F. before he is to meet with his son, to discuss a planned scenario to establish rapport building between father and son. M.F. signs a Scenario Instruction Sheet. The police pay for and provide M.F. with a pair of Air Jordan running shoes to give to S.M. as a birthday present. M.F. is given $100 for food, on the understanding that the change will be returned to the police. He is also given a rental vehicle. The plan for the meeting is to have M.F. try and persuade S.M. to go out for some food as a birthday dinner (the police paid the $30 for this). The police give M.F. clear instructions that he is not to initiate any conversation about the homicide investigation, and that any such discussions are to be initiated by the target, S.M. They advise him that he has some leeway to say something along the lines of, "I know you're going through some shit right now and you know I'm here for you", and leave it a bit open without discussing any details about it. Following the meeting between M.F. and S.M., M.F. is debriefed and confirms that there was rapport building. He advises that they went for food, walked around a mall, chatted about general things, etc. and M.F. bought S.M. some Jordan socks (the police paid the $20 for this). Amongst other things, M.F. had told S.M. that, "I'm here because I'm your dad and I care," and that he asked S.M. how he sleeps at night and that he would not judge him at the end of the day. After dropping S.M. off, M.F. receives a call indicating that the shoes are too small, and M.F. offers to exchange them for the correct size.

[52] On February 25, 2015 Det. Cst. Tara Connolly and Det. Cindi Bradley meet with M.F. to prepare him for another planned meeting with S.M. Again M.F. signs an Scenario Instruction Sheet. The purpose of this meeting is to continue to build rapport between father and son to see if S.M. will disclose any of the details of the death of T.V. The Air Jordan shoes are to be exchanged for a different size. M.F. is instructed to not initiate any discussions about the homicide, but if S.M. opens up the topic to engage in conversation naturally. M.F. is given $100 again, to pay for food and a rental vehicle. During the meeting there is no discussion about the homicide. They discuss a variety of general things, and go for food at McDonald's. Amongst other things, S.M. tells his father that he is getting a P3 (PlayStation 3) from his mother for his birthday later that week. At the end of the meeting when dropping S.M. off, M.F. tells his son that he loves him and gives him the replacement shoes.

[53] On March 11, 2014 Det. Cst. Connolly and Det. Bradley meet with M.F. again to prepare M.F. for the meeting with his son the same day. He signs another Scenario Instruction Sheet, which beings with the instructions, "The main objective of this scenario is to attempt to get S.M., your son, to open up and divulge what happened on the evening of the homicide. At no time are you to force S.M. to stay at the hotel or with you if he is adamant that he wants to leave." The instructions suggest using the arrest of S.M.'s mother, T.B., to engage in a conversation that might lead to information about T.V.'s death. The instructions also indicate that:

If the target initiates conversation directly or indirectly about the investigation or things he may be going through as of late (stress, dynamics at home, etc.) engage this conversation as you would naturally. Again, at no time may force be used in an attempt to get the target to open up and discuss the circumstances surrounding the homicide.

[54] The police meet M.F. in the hotel room at a Super 8 Motel in Toronto (paid for by the police) where he is to meet with S.M. later that day and "hang out" in private. The police give M.F. $150.00 for dinner, breakfast or anything needed during the day. In addition to having M.F. sign the form, the officers verbally advise M.F. that the main plan is to try and have S.M. open up and talk about what happened the day that T.V. died. They clearly instruct M.F. that he is not to force S.M. to stay with him in the room and that if S.M. wishes to leave that M.F. should let him go. They instruct M.F. that if S.M. initiates conversation about the investigation to let it flow naturally. Unlike their instructions for the earlier meetings, however, the police tell M.F. to bring up the topic and ask questions of S.M. about what happened the day that T.V. died. They advise M.F. to use the recent arrest of S.M.'s mother, T.B., to say to S.M. that he is worried about what might happen to his son. The police tell M.F. to be careful with his tone, so that S.M. does not feel threatened, intimidated or that he has to tell his father what happened. M.F. is instructed that if S.M. tries to ignore his father's questions, M.F. is to say, "come on, S.M., we need to talk about this," and that he is worried about S.M. and wants to help him.

[55] Later that day, M.F. picks up S.M. at a community centre and then takes him to McDonald's to eat. Following that they go to the hotel where they play video games for a couple of hours. S.M. keeps asking his father about getting the PlayStation3 (P3). M.F. tries to use this to get M.F. to open up by pointing out that S.M. is more worried about getting the gaming system than the fact that his mother was recently arrested in relation to T.V.'s death. The intercepts contained in Appendix 1 are the key portions of the conversations that take place between M.F. and S.M. over several hours in the hotel room on March 11, 2014. They will be described in the next section of this Ruling.

[56] In the evening M.F. and S.M. take M.F.'s mother/S.M.'s grandmother out with them for dinner to Swiss Chalet. After driving her home the two of them go to buy a donut and then drive back to the hotel where they play video games for a while. Around 11 p.m. M.F. drops S.M. off to go home.

[57] After the relevant conversations, on March 13, 2014, Det. Bradley and Det. Cst. Connolly meet with M.F. following the March 11th intercepts to debrief him. Det. Cst. Connolly indicates that the plan was that M.F. not confront S.M., but bring up what happened the day T.V. died. M.F. tells the police that "I told him I wasn't pressuring or forcing him" and that M.F. needed some kind of closure. Several times S.M. said he couldn't tell his father and explained why. M.F. advised that police that S.M. "didn't answer me so because he didn't answer me I had to keep goin' on because he does that sometimes. He won't say nothin' and he won't answer me so we'd just be sitting there for hours. So I have to keep talking…"

[58] The proper instructions given to M.F. by the police have been considered by the Court in determining whether an abuse of process occurred. It is clear that on March 11th M.F. acted in a fashion that went beyond what he was instructed to do. This does not, however, change the fact that as their agent, any misconduct by M.F. is attributed to the police in the analysis.

The March 11, 2014 Conversations between S.M. and his father, M.F.

[59] Several hours of selected portions of the audiotaped conversations that took place on March 11, 2014 between S.M. and M.F. were played during the Voir Dire. The transcripts of those conversations were filed as Exhibit 4.2. The most relevant portions have been included in Appendix 1 and have been edited to prevent S.M. from being identified. Emphasis has been added by the Court by bolding those words of concern which are most relevant to the issues to be determined on this Ruling.

[60] In a previous Ruling in relation to the police statements on August 29 and 30, 2013, this Court has determined that by August 30, 2013 the police had reasonable grounds to believe that S.M. had committed an offence in relation to T.V. They knew that S.M. was the person left in charge of T.V. on the day he died. The post mortem examination had revealed that T.V.'s death had been non-accidental, and caused in part by T.V. having his buttocks, upper thighs and lower back struck repeatedly with an object, likely a belt. The police had been told that these injuries had been caused within hours up to a few days before T.V.'s death. Although S.M.'s mother and brother were possible suspects given the range of time within which the injuries might have been caused, by March 11, 2014 the clear target of the police investigation was S.M. It is this Court's view that if the police had been questioning S.M. any time after August 29, 2013, that they would have been required to comply with the s. 146 requirements on the basis that they had reasonable grounds to believe that S.M. had assaulted T.V., leading to his death. The fact that there may have been other suspects does not change this analysis.

[61] So the Court must keep in mind, that but for using a police agent, the police would have had to afford S.M. all of the rights contained within s. 146 of the Y.C.J.A. In an unusual twist, it is also important to remember that by using M.F. as their agent, that the police had utilised the one parent who was available to S.M. to consult for advice about whether or not to speak to the police at all, while in fact, M.F. was recruited to manipulate his relationship with his son to try and get him to confess.

[62] While the Crown concedes that M.F. was acting as an agent of the state when he had his conversations with his son, S.M., the Defence submits that as S.M.'s father, M.F. was not "your run of the mill" police agent. It is argued that the use of S.M.'s father as a police agent would on its own "shock the community". This must be examined, however, in the context of what the community would expect the police to do when investigating the death of a 4-year-old boy. This Court completely accepts that the Durham Regional Police were acting with the best of intentions to try and find out what had happened to T.V. to cause his death when they asked M.F. to be their agent. The fact that they used S.M.'s father as their agent, however, and the manner in which M.F. ended up conducting himself, is problematic. M.F. was not a trained undercover police officer. The police always run the risk that an untrained agent will go beyond the bounds of acceptable conduct in trying to obtain evidence.

[63] As indicated earlier, M.F. had been an absent father to S.M. He had a criminal record and had been in and out of custody. M.F. was now appearing to try and re-establish a relationship with his son and rapport building was a key part of the investigative plan.

[64] Unlike the "Mr. Big" cases, M.F. was not pretending to be someone else. In those cases the police agents put on a false front, infiltrating criminal organizations, so that the suspect believes that the police agent is someone else. In this case, M.F. was clearly not pretending to be someone else to his son. He was, however, pretending to be a concerned parent, claiming to put his son's best interests first, when in fact he was attempting to gather evidence to assist the police in their investigation into the death of his grandson, T.V. While M.F. may have had some genuine concerns for S.M., M.F. was not simply there on behalf of the family to find out what had happened, because he could have done this without being involved with the police and being a participant in a One Party Consent intercept.

[65] This situation must also be examined taking into account the jeopardy that S.M. was facing regarding a homicide of a young child related to him. S.M. had already been interviewed by the police at the police station on August 29 and 30, 2013 shortly after T.V.'s death. In a separate Ruling, those statements have been excluded from evidence due to failure to comply with s. 146 of the Y.C.J.A. The interview ended abruptly on August 30, 2013 when S.M. was advised that his mother's lawyer had provided legal advice to stop the interviews for T.B. and her sons. Det. Dennis had given his business card to S.M. and let S.M. know how to reach the officer if he ever wished to speak with him. S.M. had never spoken to the police after that or asked to speak to the police about anything. The police were aware from the point of that interview that S.M. had a lawyer and was receiving legal advice. It is clear from the March 11, 2014 transcripts that S.M.'s lawyer had advised him that he did not have to make a statement to the police. The Defence argues that by using M.F. to act as their agent, they were "going through the back door to do what they couldn't do through the front door".

[66] As described in detail above, the police held briefing sessions with M.F. to teach him how to get S.M. to say something about the homicide. They taught him how to engage in rapport building and how to rebuild M.F.'s relationship with S.M. as his father and to get S.M. to trust him. The police instructed M.F. to use a certain tone, to not intimidate S.M. and to let the conversation unfold naturally. The police also told M.F. that he should not detain his son and to let S.M. go if he wanted to leave. The Defence agrees that the police gave M.F. the proper instructions, but argues that their use of M.F. as S.M.'s father, and the way that the conversations in fact unfolded, should result in their exclusion from evidence. The Defence submits that the rebuilding of a parent-child relationship and of a son's trust in his father to then turn around and use that relationship to gather evidence against him in a homicide investigation would shock the community because it is the use of the position of a father to undercut his own child. When listening to the March 11, 2014 conversations there are obvious attempts by M.F. to use emotional ploys to get his son to open up.

[67] Contrary to the instructions provided by the police in the briefing meeting, during the March 11, 2014 intercepts M.F. is relentless in his attempts to get S.M. to talk about T.V.'s death, in spite of repeated assertions by S.M. that he cannot and does not wish to talk about it. M.F. did not let the conversation flow naturally in many instances, but rather, forced the topic back around to the events of the day of T.V.'s death.

[68] In this case it is clear that the police were exploiting the parent/child relationship between M.F. and S.M. A child should normally be able to look to their parent to take care of them and to be able to trust them. In this case, where M.F. had been an absent parent for most of S.M.'s life, the police had M.F. attempt to re-establish a connection with S.M. in order to obtain information from him. The police assisted M.F. to "buy back" S.M.'s trust in his father. They gave M.F. money to buy things for S.M., such as Nike Air Jordan's (expensive running shoes), meals, a motel room to hang out in and play video games, etc. They also provided rental vehicles for M.F. to pick up S.M. and drive him around in. In the March 11, 2014 conversations M.F. also discusses getting S.M. a PlayStation3 (PS3) gaming system (which had been promised to him by S.M.'s mother for his birthday). In fact S.M. returns to the issue of the P3 several times during the conversations that day. All of these financial enticements to a 15 year-old boy were made much more significant given the limited means of the family as S.M.'s mother, T.B., struggled to make ends meet. Photographs filed in evidence show that the house that S.M. had moved to with his mother and brother was very sparsely furnished. At the time of the March 11, 2014 conversations, S.M.'s mother had just been charged on March 23, 2014 with Failure to Provide Necessaries of Life and was on a Judicial Interim Release with terms preventing her from having any contact with her son, S.M. So the timing of the March 11, 2014 M.F. intercepts appears to have been staged by the police to take place at a time when S.M. had no other parent to support him. In some respects, this attempt by the police to re-introduce M.F. into S.M.'s life to gather evidence makes the situation even worse than if they had used a parent who was already actively involved with their child. It was especially problematic that this occurred when S.M. was cut off from all access to the one parent with whom he in fact had a relationship.

[69] Whether or not the police instructed him to act this way, M.F. took it upon himself to repeatedly press S.M. to tell him about the details of what had happened to T.V. M.F. was trying to elicit a confession and used various tactics. His efforts over more than three hours on March 11, 2014, as seen in the transcripts in Appendix 1, can be described as nothing but pressing and persistent. This is compounded by the fact that it was done in the face of S.M. repeatedly asserting his Right to Silence by telling his father that he was not supposed to talk about it. S.M. would often say little in response to his father's probing or try to change the subject but M.F. would keep bringing it back into the conversation. S.M. tells his father on many occasions that he doesn't wish to speak about it because of what his lawyer had said, including that he might have to be a witness against his mother and have to do a polygraph test. When S.M. would explain that his wish to say nothing was on the advice of his lawyer, M.F. repeatedly undermined S.M.'s Right to Counsel by making disparaging remarks about the lawyer and his advice, culminating in M.F. calling the lawyer a "bloodclot Jew" who was barely alive (the lawyer referred to was not Mr. Rabinovitch, but rather, S.M.'s mother's lawyer, a senior member of the Bar). M.F. repeatedly attempted to undermine S.M.'s wishes to remain silent by making remarks which amount to, "What does your lawyer know? I'm your father, so listen to me instead." This is completely contrary to what one would expect most parents to do, which would be to advise their child to follow the advice of their lawyer. Just before the most offensive remarks about Defence Counsel, M.F. says to his son, "…if you're not letting me know certain things then I can't help you." M.F. repeatedly uses moral suasion to try to get S.M. to talk, by saying things that amount to "Your grandmother and I can't live without knowing what happened to T.V.; it's killing us not knowing." He also kept referring to T.V.'s mother (who was also S.M.'s sister) and the toll that T.V.'s death had taken on her. He laid a heavy burden on S.M. to "guilt" him into telling what he knew of T.V.'s death, by saying that by not doing so S.M. was hurting his family. He did this while lying to his son by telling him that he only had S.M.'s interests at heart. It is a betrayal of the trust between a father and son, for M.F. to have acted as a police agent, let alone to have attempted to manipulate his 15-year-old son by playing on his emotions as he did.

[70] The Crown argues that S.M.'s Right to Silence was not breached because he kept asserting his wish to remain silent, demonstrating that he clearly understood it. The Defence, however, argues that the Court must look at what the police were attempting, not just whether S.M. gave into the pressure. As the Defence Counsel put it during submissions, "a stronger-willed person does not have different rights from a weaker-willed person." The fact that for the most part S.M. did not succumb to the attempts to undermine his right to silence does not lessen the seriousness of M.F.'s attempts to do so.

Conclusions

[71] In spite of the request by the Defence to do so, this Court declines to create new law by setting out special rules that must be followed by the police when dealing with an out-of-detention young person where a police agent is being used. That is best left to a trial or appellate court in the appropriate case where the decision turns on that issue. The result in this case is based on the conclusion that the conduct of the police agent amounted to an abuse of process.

[72] Neither should this Ruling be interpreted as determining that where the police use the parent of a young person as a police agent that the statement would automatically be rendered inadmissible. The Court must look to all of the circumstances in each case in order to determine whether the use of the parent results in a Charter breach and/or an abuse of process.

[73] It is very important to remember that the rights afforded to young persons under the Youth Criminal Justice Act are to be liberally construed. By analogy to the existing law for adults, by using a police agent where a young person is out of detention, the police can effectively remove all of the safeguards and protections in place under s. 146 for youth statements. The Courts must therefore be vigilant in ensuring that the conduct of the police agent does not amount to an abuse of process. Where it does, the statements must be excluded.

[74] In this case, applying by analogy the principles set out by the Supreme Court of Canada in Hart, supra, the Court concludes that based on the constellation of factors present here, that the statements made by S.M. to his father M.F. are inadmissible. The factors that lead to this result include the following:

1. The police used S.M.'s father, M.F., as an agent of the police. While it is understandable that the police were anxious to determine how a very young child had died (which in itself is an important issue for the community), their decision to use a parent as their agent to accomplish this is significant given the usual relationship of trust that exists between parent and child.

2. Parents also have a special status under the Youth Criminal Justice Act, which presumes that they will provide their son or daughter with advice and help them make decisions which are in the best interest of their child. In this case M.F. did the opposite, asking numerous questions to obtain information that might be inculpatory against S.M. in order to assist the police.

3. The timing of the use of M.F. as a police agent is very significant given that S.M.'s mother, T.B., had been arrested just days before and was on a Judicial Interim Release Order preventing any communication between S.M. and his mother. So M.F. was the only parent available to S.M. who could assist him with his rights under the Youth Criminal Justice Act.

4. M.F. bought gifts and meals for S.M. paid for with money provided by the police. He also drove S.M. around in rented vehicles and spent hours in a hotel room also paid for by the police. This is significant because it was done to assist M.F. in building rapport with his son, and S.M. would have believed that his father was paying for all of this because he cared about S.M. and wanted a relationship with him. It was also in the context of S.M. coming from a family of limited means.

5. M.F. had been an absent father who had limited involvement with his son before this. M.F. tried to re-establish a relationship with his son in order to obtain information from him about T.V.'s death. He told his son how much he loved him and that he only wanted what was best for him. He played on S.M.'s emotions, manipulating him by telling him things such as that he couldn't live without knowing what happened to T.V. and that M.F.'s mother (S.M.'s grandmother) also needed to know, etc. M.F. tried to "guilt" S.M. into telling his father what he knew, using moral suasion by playing on the relationship between a father and son in an attempt to obtain inculpatory information for the police. I infer that after the fact, S.M. would have felt a terrible betrayal of that relationship, as fragile and tenuous as it was to begin with. The use of M.F.'s father to obtain information from S.M. may well have irreparably damaged any potential future relationship between them. This is relevant in considering what the community's sense of fair play and decency would expect.

6. In trying to get S.M. to talk about T.V.'s death, M.F. was relentless, pressing and persistent over many hours. This was done in the face of S.M.'s clear and repeated assertions that he did not wish to talk about it.

7. M.F. did not accept S.M.'s explanation that he had received legal advice that he should not talk about T.V.'s death. Instead he belittled those explanations given by S.M., telling him that his rights as S.M.'s father and T.V.'s grandfather to know what had happened to T.V. were more important than any advice which had been given by a lawyer. In doing so he repeatedly attempted to undermine S.M.'s right to silence and protections against self-incrimination, which S.M. was clearly trying to assert and did not waive.

8. In repeatedly telling S.M. to ignore his lawyer's advice to remain silent, M.F. was undermining that advice and demeaning his lawyer. M.F.'s conduct in this regard culminated in his extremely offensive reference to S.M.'s mother's lawyer as a "bloodclot Jew" whom he described as barely alive. This was said in an attempt to dissuade S.M. from following his lawyer's advice to remain silent to encourage S.M. to tell his father the details of T.V.'s death, possibly providing inculpatory information. All of this undermined S.M.'s rights to counsel as well as his rights to silence and the principle against self-incrimination.

9. The statements made by S.M. to his father have low probative value. S.M. never implicates himself in T.V.'s death, claiming only that he had heard T.V. accidentally fall. Although he does tell M.F. that his brother, D.P. didn't hurt T.V., which could circumstantially implicate S.M., caution must be had with respect to the reliability of any of the statements made by S.M. regarding T.V.'s death given all of the other circumstances described above. M.F. was so relentless in pressing for details of the day that T.V. died, that the court has concerns about the possibility that S.M. was simply trying to placate his father and just tell him something to appease him.

[75] The conduct of M.F., acting as an agent of the police, preyed on S.M.'s vulnerabilities, including his youthfulness. It involved emotional inducements as well as financial inducements in the form of gifts, food, etc. It amounted to particularly manipulative trickery of S.M. Since he was acting as an agent of the state, M.F.'s misconduct must be treated as police misconduct, even if the police never intended for him to act this way. This misconduct offends the community's sense of fair play and decency. The use of a parent in the circumstances of this case would shock the community amounting to an abuse of process warranting exclusion of the statements.

[76] To admit the statements made by S.M. to his father would compromise trial fairness and the integrity of the justice system. If it is necessary to engage in a section 24(2) analysis under the Charter, I would adopt the reasoning of Justice Karakatsanis in Hart, supra, at paragraphs 240 to 242 and exclude the evidence.

Result

[77] The statements made by S.M. to his father M.F. are inadmissible.

Released on: September 24, 2015

Signed: "Justice S. C. MacLean"

Appendix 1 – Partial Transcripts of Statements by S.M. to His Father, M.F.

Several hours of selected portions of the audiotaped conversations between S.M. and M.F. were played during the Voir Dire. The transcripts of those conversations were filed as Exhibit 4.2. They have been edited below to prevent S.M. from being identified. At times M.F. calls his son "B" and calls four-year-old T.V. "the man". A solid underscore line represents those passages which are inaudible. Emphasis has been added by the Court by bolding those words most relevant to the issues addressed on this Ruling.

[The full transcripts of the March 11, 2014 conversations are included in the original decision and have been preserved in their entirety in the source document. Due to length constraints, the complete transcripts are available in the original source.]