COURT FILE NO.: YC-11-10000002
DATE: 20120528
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Respondent
M. Humphrey and K. Simone, for the applicant
M. Webster & S. Stauffer, for the respondent
HEARD: April 24, 25 & 26 and May 17, 2012
Nordheimer J.:
[1] S.M. is on trial for first degree murder. The prosecution seeks a ruling on the admissibility of two statements that S.M., who was then sixteen years old, made to the police at and after he was arrested on January 14, 2010. The first was a spontaneous utterance that S.M. made very shortly after his arrest and the other is a videotaped statement that S.M. gave a short time later at the police station. The morning after the argument on this application finished, I advised counsel of my conclusion that the spontaneous utterance was not admissible but that the videotaped statement was admissible. I said I would provide my reasons for that conclusion in due course. I now provide those reasons.
[2] On December 29, 2009, Kenneth Mark was shot and killed while walking home from a neighbourhood pizza store. A lone male ran up behind Mr. Mark and fired a single shot into the back of Mr. Mark’s head. Earlier this year, Lamar Skeete was convicted by a jury of first degree murder in this matter. It was alleged by the prosecution that Mr. Skeete shot and killed Kenneth Mark, or that he arranged for someone to do so, and that this murder occurred as retaliation for Mr. Mark having given evidence against Mr. Skeete and his younger brother, J.B., on an earlier charge of attempted murder. S.M.’s role in this murder arises from the allegation that he acted as a lookout for the shooter and as the “getaway” driver. It may be suggested that S.M. participated in this murder in other ways as well.
[3] The homicide squad began their investigation immediately after the murder. They gathered evidence including security surveillance videos from stores around the area of the shooting. One of those security surveillance videos, from a bake shop near the pizza store, showed a male walking back and forth outside of the pizza store immediately prior to the shooting. The investigators came to believe that this male was S.M.
[4] The investigators obtained cellular telephone records including records of text messages that showed a connection between S.M. and Lamar Skeete both prior to and on the day of the murder. These records suggested that S.M. may have assisted Mr. Skeete by providing a vehicle to take Mr. Skeete to and from the scene of the shooting.
[5] By January 13, 2010, the police had gathered sufficient evidence to obtain a warrant for the arrest of S.M. on a charge of first degree murder. They also obtained a search warrant for the home of S.M. On the morning of January 14, 2010, the police assembled to execute the search warrant on the residence of S.M. The execution of the search warrant was to be lead by the Emergency Task Force whose job was to clear and secure the premises prior to other officers conducting the search.
[6] While those arrangements were being made, the lead homicide detectives, Det. Idsinga and Det. Vander Heyden, were attempting to locate S.M. for the purpose of arresting him. A surveillance team observed a male leave S.M.’s residence and drive away in a vehicle that turned out to be stolen. The vehicle was followed to a school where the male parked the vehicle and then entered the school. The male was confirmed to be S.M. and the homicide detectives were notified.
[7] The detectives attended at the school. It turned out that there were actually two separate schools within the same building. The detectives went to the office of one of the schools where they were told that S.M. was not a student in that school. The detectives then learned that S.M. was in a classroom at the other school, although there is some conflict in the evidence as to how they learned this. Det. Vander Heyden says that they were directed to the classroom by someone whereas Det. Idsinga says that they were walking by the classroom when they heard a teacher mention S.M.’s name. In my view, nothing turns on that conflict in the evidence.
[8] The detectives went to the classroom and observed S.M. sitting at a computer near the door and wearing headphones. At approximately 10:54 a.m., Det. Idsinga approached S.M., identified himself and advised S.M. that he was under arrest on a charge of first degree murder. He asked S.M. to stand up and then handcuffed S.M. to the rear. There is a conflict in the evidence as to whether all of this happened in the classroom (as Det. Idsinga says) or in the hallway right outside the classroom (as Det. Vander Heyden says) but again I do not see that anything turns on that conflict in the evidence in terms of the issues that I have to determine regarding the admissibility of the statements.
[9] S.M. was taken to the lobby area of the school where a pat down search was conducted. At this time, S.M. was advised by Det. Idsinga of further charges that he was facing – one charge of possession of stolen property (the stolen vehicle he had driven to school) and one charge of obstructing police and failing to comply with recognizance arising out of an encounter with the police some weeks earlier. It was at this point that S.M. said to the detectives “I saw the whole thing go down but that was all” or words to that effect. This is the spontaneous utterance to which I referred at the outset. Det. Idsinga held up his hand and told S.M. that he did not want him to say anything until Det. Idsinga could activate an audio recorder.
[10] S.M. was taken out of the school and turned over to two uniformed officers who were there to transport S.M. to 11 Division. These officers did a further search of S.M. and then read S.M. his rights to counsel and the relevant cautions. S.M. told the officers that he did not want to speak to a lawyer at that time. The officers had been provided with a digital audio recorder by Det. Idsinga. The officers were instructed to keep the audio recorder on until they reached 11 Division and had placed S.M. in an interview room there.
[11] I should at this point say something about this digital audio recorder. Det. Idsinga said that he had the digital audio recorder with him so that he could record his interactions with S.M. during the arrest. Det. Idsinga also said that he had not activated the recorder when the detectives first encountered S.M. because he and Det. Vander Heyden had come upon S.M. before they had expected to. Accepting that to be the case, it does seem to me that there were still opportunities for Det. Idsinga to have activated the recorder before effecting the arrest. S.M. was in a classroom with only one route of exit and that was through the door where the detectives were. Det. Idsinga could have taken the few seconds needed to turn on the recorder before he entered the classroom to confront S.M. That said, I once again do not see how this failure impacts on the admissibility of the statements. The detectives were going beyond the normal practice by having a recorder with them for the actual arrest. I have their evidence as to what occurred in this time frame and, while the defence challenges the truthfulness of that evidence, it remains the fact that there is no other evidence as to what occurred in these few minutes. Of more importance is the fact that there is no suggestion that there was anything said during this brief period of time that would impact on the voluntariness of the statements or that would otherwise constitute a breach of S.M.’s Charter rights that would render the statements inadmissible.
[12] Returning to the chronology, S.M. was transported to 11 Division. He arrived there at approximately 11:21 a.m. S.M. went through the booking process, all of which was recorded. S.M. was then taken to an interview room in the Criminal Investigation Bureau at 11 Division and placed inside.
[13] Det. Cst. Rekhi was part of the investigative team for this murder. He was tasked with ensuring that S.M. was given an opportunity to speak with counsel if he wished to do so. Det. Cst. Rekhi went into the interview room and spoke with S.M. at approximately 12:15 p.m. Det. Cst. Rekhi asked S.M. if he had a lawyer. S.M. responded with the name of his lawyer although he was uncertain of its pronunciation. Det. Cst Rekhi recorded in his notes that S.M. thought his lawyer’s name was either “Morbido” or “Morbetella”. S.M. could not provide a spelling for the name of his lawyer or provide any phone numbers for him. Det. Cst. Rekhi checked a legal directory and the Law Society’s website but could not find a lawyer by either of the names as enunciated by S.M. As a consequence, Det. Cst. Rekhi contacted duty counsel. He left a message at approximately 12:34 p.m. At approximately 1:04 p.m., duty counsel called back and was put through to S.M. S.M. spoke to her in private until 1:20 p.m. At that point, S.M. asked to use the washroom. Det. Cst. Rekhi escorted S.M. to the washroom. On their return, S.M. asked to call his sister. He provided a telephone number to Det. Cst. Rekhi who attempted to contact the sister but could not. Det. Cst. Rekhi left a message. As it turns out, the number that S.M. provided to Det. Cst. Rekhi was not, in fact, the telephone number for his sister but rather was the telephone number for his girlfriend.
[14] While these events were transpiring, Det. Idsinga and Det. Vander Heyden went to S.M.’s residence, that had now been secured by the Emergency Task Force so that the search could commence. At the residence were S.M.’s mother and younger sister. Both Det. Idsinga and Det. Vander Heyden say, and I accept, that Det. Idsinga gave a copy of the search warrant to S.M.’s mother and explained it to her. I also accept that Det. Idsinga told S.M.’s mother at this time that her son was under arrest for murder.
[15] On those points, I should mention that S.M.’s mother gave evidence on this voir dire. She said that it was not until the evening of January 14 that two officers came to her home and gave her a copy of the search warrant and also told her that her son was under arrest for murder. I believe that S.M.’s mother has confused the time when she received a copy of the search warrant and the time that she received a Notice to Parent. I accept that she was given the latter Notice in the evening by two police officers but that she received the search warrant earlier in the day. This conclusion is consistent with the evidence that S.M.’s mother gave that when the Emergency Task Force arrived at her home in the morning, she was required to wait in the hallway of the building while they cleared the residence. She explained that she had to wait in the hallway because, among other reasons, the police needed to wait for the search warrant to arrive before the formal search could begin. I conclude that S.M.’s mother got a copy of the search warrant from Det. Idsinga in the morning as he described. Similarly, I believe that S.M.’s mother is confused as to when she was told that her son was under arrest for murder. The Notice she received may have confirmed that fact but I accept that she was first told earlier in the day by Det. Idsinga as he said he did. I reject any suggestion from the defence that Det. Idsinga intentionally withheld that information from S.M.’s mother in order to isolate him from his parents. As it turns out, S.M. had no interest in having his parents involved in this matter.
[16] After attending at the home of S.M., Det. Idsinga and Det. Vander Heyden went to 11 Division. At approximately 2:14 p.m., they went into the interview room and told S.M. that they wanted to take him down to a video interview room. Det. Idsinga told S.M. that he did not want S.M. to say anything until he had the chance to review “some legal things” with S.M. This encounter between the detectives and S.M. was audio recorded.
[17] The detectives and S.M. went to the video interview room. The events in the video interview room were all recorded. After some introductory conversation, Det. Idsinga explained to S.M. that there was a waiver that he needed to review with him. Det. Idsinga also told S.M. that he was free to stop the interview at any time and return to his cell upstairs (referring to the CIB interview room he had been held in). Det. Idsinga began by explaining the charges to S.M. S.M. asked a few questions about the first degree murder charge that Det. Idsinga answered. Thereafter, S.M. confirmed that he understood all of the charges. Det. Idsinga then started to explain the waiver to S.M. S.M. was told that he had the right to consult counsel and S.M. responded that he had already spoken with duty counsel and was happy with that. S.M. was asked if he wanted to speak with either of his parents and he said no. S.M. was asked if he wanted to speak with an adult relative or another adult and S.M. responded that he wanted to speak with his girlfriend’s mother. The detectives stopped the interview and took S.M. back to the CIB interview room. Det. Vander Heyden then attempted to reach the mother of S.M.’s girlfriend but was unsuccessful. Messages were left.
[18] The detectives and S.M. returned to the video interview room. Det. Idsinga confirmed that they had tried without success to reach the mother of S.M.’s girlfriend. Det. Idsinga explained to S.M. that they could wait for her to call back or they could continue. S.M. said that he wanted to continue. Det. Idsinga asked S.M. if he wanted to tell them what happened in regard to the murder. S.M. said that he did. Det. Idsinga told S.M. that if he wanted to make a statement, they needed to have the people that S.M. had spoken to present unless S.M. did not want them present. Det. Idsinga again told S.M. that he could wait for the mother of his girlfriend to call back if he wanted to. Det. Idsinga asked S.M. what he wanted to do and S.M. said he wanted to continue. Det. Idsinga told S.M. (as he had earlier) that S.M. could stop the interview at any time and ask to go back to the holding room upstairs. Det. Idsinga also told S.M. that he could speak with a lawyer, a parent or an appropriate adult at any time. S.M. again said he wanted to continue. The standard cautions were given by Det. Idsinga to S.M. After all of that had occurred, the following exchange took place:
IDSINGA: And you’re reminded that you do not have to say anything about this charge unless you want to and do you understand that?
S.M.: Yeah.
IDSINGA: Do you wish to make a statement?
S.M.: Yeah.
IDSINGA: Okay and now---
S.M.: I can stop at any time right?
IDSINGA: You can stop at any time.
S.M.: Okay.
IDSINGA: Okay and you can stop now and say you know what and I changed my mind and I do want to wait for [name of girlfriend’s mother] to call or I wanna (sic) call my mom or I wanna (sic) call another adult and you can stop at any time and tell me that and we’ll stop and we’ll take you upstairs and just as we’ve just done.
S.M.: Okay.
IDSINGA: And it’s – it’s all completely your choice.
S.M.: Okay.
IDSINGA: Okay?
S.M.: Okay.
IDSINGA: And I can’t force you to say anything to me.
S.M.: Okay.
IDSINGA: Right?
S.M.: Yeah.
[19] S.M. then proceeded to give a statement to the detectives in which he explained that he was at the scene of the murder, why he was there and what he was doing. The interview itself lasted for less than an hour.
Analysis
[20] With that recitation of the background facts, I turn to my analysis of the issues raised. The two hurdles that must be overcome to render the statements admissible are, first, as with any statement by any accused person, whether the statement was made voluntarily and then second, and additionally because this accused person is a young person, whether the requirements of the Youth Criminal Justice Act, S.C. 2002, c. 1 have been met. Both of these hurdles must be cleared by the standard of proof beyond a reasonable doubt.
[21] Turning to the first consideration, the decision of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 considers in detail the issue of voluntariness. In that case, the Supreme Court of Canada held that a statement or confession can be found to be involuntary if it is obtained as a consequence of (a) threats or promises; (b) oppression; (c) the absence of an operating mind or (d) other police trickery.
[22] In my view, none of these considerations apply in this case to the spontaneous utterance nor to the videotaped statement. S.M. clearly chose to make the spontaneous utterance of his own free will and independent of anything done by the detectives.
[23] In terms of the videotaped statement, there were no threats or promises and there was no police trickery. In terms of oppression, oppression was characterized in Oickle by Mr. Justice Iacobucci in the following terms, at para. 58:
If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.
[24] I note on this point that S.M. did not give evidence in this voir dire. There is therefore no evidence from him to the effect that he gave the statement as a result of oppressive conditions. The defence asserts that S.M. was tired because he is seen yawning on a couple of occasions. They also point to the fact that the cell phones records suggest that S.M. had been up to 3:00 that morning. Accepting that S.M. may have been tired (although there can be other reasons for a person to yawn), there is no evidence that S.M. was so tired that he lost his will to make a conscious decision whether or not to speak. On this latter point, there is no evidence that S.M. ever made any such complaint nor does his appearance on the video suggest that was the case. Further, there is no evidence that S.M. ever made a request of any officer for food or drink or the like that was refused by them. Indeed, on the one occasion when S.M. asked to go to the washroom, he was immediately escorted there by Det. Cst. Rehki.
[25] The defence also asserts that S.M. could not make a meaningful decision whether or not to speak with the detectives because the precise basis for the charge against him was not explained to him. The defence says that the police ought to have explained how S.M. could be found to be a party to the offence of first degree murder and their failure to do so left S.M. without the information necessary to make an informed choice whether or not to speak or to have an effective consultation with counsel.
[26] I do not accept that assertion. For one, I do not believe that it is the duty or obligation of the police to give an accused person a detailed explanation as to how it is that the police intend to establish that the accused person is guilty of the offence charged. I do accept that an accused person must understand the jeopardy that he or she is facing and to that end it would generally be preferable that the accused person know the charge that he or she is facing. However, the specific legal routes that the prosecution may ultimately take to establish guilt is not something that need be explained. The extent of the knowledge that must be given to an accused person is set out in R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714 where McLachlin J. said, at para. 28:
To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.
[27] S.M. was told that the charge was first degree murder. The jeopardy that he was facing would be self-evident from the nature of the offence and, in any event, there is evidence that S.M. appreciated the seriousness of the matter. For example, he asked the detectives at one point whether he would be facing life in prison. In addition, I would note that this was not the first time that S.M. had been arrested by the police. In fact, S.M. had been arrested for various offences some twelve times before – ten of those arrests occurred in 2009. While none of those prior arrests were for offences as serious as murder, it is not as if this process was an unfamiliar one for S.M. In any event, information past that which is necessary in order for an accused person to understand the mechanisms by which he or she could eventually be found to be culpable is more fittingly obtained from counsel and not from the police. If counsel is unable to properly advise his or her client without further information, then counsel would presumably seek that information from the officers in charge of the case. There was nothing that prevented duty counsel who spoke with S.M. from asking to speak to the detectives and requesting additional information if duty counsel felt that she did not have sufficient information to give advice to S.M.. That did not happen.
[28] Further, it is not appropriate for the police to assume the role of explaining to an accused person the legal basis upon which the accused might be found guilty. Specifically, it would not have been proper for the detectives to have taken it upon themselves to explain, as the defence says they ought to have, the possible bases for party liability that might have applied to S.M. I repeat that that is not the role of the police, that is the role of counsel. Among other reasons for so concluding is the reality that if the police purport to provide such guidance, the adequacy and correctness of the explanation provided by them will no doubt then become the next subject of challenge to the admissibility of any ensuing statement.
[29] The fact remains that S.M. was sufficiently aware of the jeopardy that he was facing such as to permit S.M. to make an informed decision regarding whether he did or did not wish to make a statement. He was also equipped to make an informed decision whether he wished counsel or a parent or some other adult to be present when he spoke to the police. S.M. chose not to have any such person present and he made his wishes in that regard clear more than once. There is simply nothing on the record before me that would establish any reason for S.M. so deciding other than it was his own considered decision to do so.
[30] In terms of an operating mind, the defence contends that S.M. was “scared”, “over-awed” and “cowed” at the time that he gave his statement. The defence says that this arose, in part, from the intimidating presence of the detectives – both in a physical sense and in the sense that they were adults. Neither of these contentions finds any foundation in the evidence. The suggestion that I should be able to discern from the audio and video recordings such a degree of fear on the part of S.M. that I could conclude that he was not acting voluntarily is simply not made out in either of the recordings. The detectives’ approach to S.M. in the interview was undertaken in a mild and very courteous fashion. It was repeatedly made clear to S.M. that he could stop the interview at any time and it is clear that S.M. understood that he had that right. S.M. appears relatively comfortable, given the situation, throughout the interview.
[31] I also do not accept the defence contention that there were facts known to the detectives that should have put them on the alert to possible intellectual issues with respect to S.M. This assertion appears to arise solely from the fact that S.M. was in an alternative school and that he said he was in grade 10/11. S.M. explained that he was in the alternative school because he had been skipping classes. The defence says that if S.M. had a habit of skipping classes that he could not, as a consequence, be in grade 10/11. I do not accept that the first fact must necessarily lead to the second. S.M. might well be able to skip classes and still complete his school work in a satisfactory fashion. The latter, of course, would not excuse the former and might lead to him being placed in a different school. There was nothing in S.M.’s explanation nor in his responsiveness generally that should have reasonably alerted the detectives to any issues in that regard. As the defence concedes, the police are not required to consult psychologists, call teachers or even speak to a parent in order to be satisfied that a young person is able to understand his rights – see R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739 at paras. 22-23.
[32] It is also of some relevance to a full understanding of S.M.’s reaction to being arrested, and his state of mind at the time, to know that S.M.’s arrest was not unexpected by him. S.M. knew that the police were looking for him because they had released to the press a copy of the bake shop surveillance video and that video had been broadcast on the news. S.M. had been told by a friend of his and by his girlfriend that he was on the news in connection with this murder and that the police were looking for him. S.M. himself said that he was going to turn himself in but decided instead to just go on with his normal life. S.M. added, however, that he knew that “eventually you guys are gonna (sic) come”. This is not a case where a person is caught up in something that is a complete surprise or is unexpected. S.M. had time to consider and reflect on what might happen to him and how to respond if and when it happened.
[33] In the end result, there is nothing in the manner that the detectives dealt with S.M. or in S.M.’s appearance and reaction before and during the videotaped statement that would substantiate any suggestion that he did not have an operating mind at the time that he chose to speak to the police.
[34] I am therefore satisfied beyond a reasonable doubt that S.M.’s statement was made voluntarily.
[35] Turning to the second consideration, in order for statements of an accused young person to be admissible at his or her trial, even if those statements are given voluntarily, there must be compliance with the requirements of the YCJA. The specific section of the YCJA that is of relevance is s. 146. In that regard, s. 146(2)(b) requires that the young person be advised (i) that the young person is not obliged to make a statement; (ii) that any statement may be used as evidence in proceedings against the young person; (iii) that the young person has the right to consult counsel and to consult a parent and (iv) that any statement made by the young person is required to be made in the presence of counsel and any other person consulted unless the young person desires otherwise. Additionally, s. 146(2)(b) requires that all of those rights be communicated to the young person “in language appropriate to his or her age and understanding”. Further, before any statement is taken, the young person must be given a reasonable opportunity to engage in any of the permitted consultations.
[36] As already noted, the effect of s. 146 of the YCJA was considered by the Supreme Court of Canada in R. v. L.T.H. While there was a disagreement between the majority and the minority as to the burden of proof of compliance with these requirements, both the majority and the minority found that full compliance with the section is a prerequisite to the admissibility of any statement. Speaking for the majority, Mr. Justice Fish said, at para. 63:
My reasons, and indeed the wording of s. 146, make clear that compliance with the informational component and the establishment of waiver are not simply “two factors which are to be considered and weighed by the judge, together with other relevant factors, in deciding whether the statement was made voluntarily” (Rothstein J., at para. 90). They are distinct and independent requirements of admissibility. Even where voluntariness has been established beyond a reasonable doubt (as the trial judge found in this case), the statement must be excluded where the youth has not had his or her rights clearly explained in appropriate language or where waiver has not been established.
[37] With respect to the requirements of the YCJA, it is appropriate at this stage to address another of the defence contentions and that is that S.M. was denied his right to counsel of his own choosing. While this issue would also impact on the voluntariness issue, I consider it more appropriate to deal with the issue here.
[38] As I set out earlier, when Det. Cst. Rekhi asked S.M. if he had a lawyer, S.M. responded that he did but he could not accurately recite the name of that laywer. Det. Cst Rekhi’s notes record the lawyer’s name as either “Morbido” or “Morbetella”. As the defence showed, there is a lawyer in the Greater Toronto Area by the name of “Pasquale Morabito”. When shown excerpts from legal directories showing this lawyer’s name, Det. Cst. Rekhi said that he had not seen it at the time. He did not offer any explanation why he had not noticed it (based on an assumption that it was in the directory that he looked at) nor why he did not twig to the fact that it was a name similar to the ones that S.M. had pronounced.
[39] Having failed to find the lawyer’s name, Det. Cst. Rekhi made the decision to contact duty counsel instead. The defence says, and I agree, that Det. Cst. Rekhi could have gone back to S.M. and advised him of his inability to locate the lawyer S.M. had mentioned before contacting duty counsel. Instead of doing that, Det. Cst. Rekhi made the judgment call to contact duty counsel and he did so, as he said, because he knew that S.M. wanted to speak to counsel. I cannot fault the officer for taking that step even though it might have been preferable if he had spoken with S.M. first. Of particular note in this regard is that S.M. did not object to speaking to duty counsel, he did not reiterate either before or after speaking with duty counsel that he wanted to speak to “his” lawyer and he did not express any dissatisfaction with the legal advice that he received from duty counsel. Against that factual background, the submission that S.M. was denied his right to counsel of his own choosing and that this denial results in a failure to comply with s. 146 cannot succeed.
[40] In terms of any complaint that S.M. should have had counsel or an adult present when giving the statement, it remains the fact that the requirement in s. 146(2), that any person whom the young person consults is to be present for the taking of a statement, is made subject to the exception “unless the young person desires otherwise”. The section expressly recognizes that a young person may not wish to have a lawyer or a parent or another adult present when he or she speaks with the police. A young person has the right to make that choice. In this case, S.M. made it clear that he desired otherwise and he did so on more than one occasion.
[41] With those facts and conclusions in mind, I am satisfied beyond a reasonable doubt that the requirements of s. 146 of the YCJA were fully complied with in this case. In fact, I fail to see what else the homicide detectives could reasonably have been expected to do in furtherance of the obligations that the YCJA places upon them.
[42] I reach a different conclusion with respect to the spontaneous utterance, however. Clearly, with respect to that statement, the requirements of s. 146 were not met. That failure renders the statement inadmissible unless the circumstances can be brought within the exception set out in s. 146(3), that is, that the statement was made before there was “a reasonable opportunity to comply with those requirements”.
[43] In my view, there was such an opportunity. At the very least, there was the opportunity for the detectives to have warned S.M. immediately upon his arrest that he should not say anything until he could be advised of his rights under the YCJA. This was not a high risk takedown of a suspect or the arrest of an accused who has attempted to flee or who is otherwise arrested in a situation of urgency, confusion or other difficult circumstances where there is no practical opportunity to caution the accused against speaking. This was a calm and controlled environment. S.M. was entirely compliant with the instructions of the detectives. The detectives could simply have advised S.M., immediately after telling him that he was under arrest for first degree murder, that he should not say anything. The detectives did that when they first met S.M. at 11 Division. The same process could have been followed at the school. Given those realities, the exception in s. 146(3) cannot be relied upon in this case.
[44] For these reasons, I concluded that the videotaped statement was admissible but that the spontaneous utterance was not.
NORDHEIMER J.
Released: May 28, 2012
Court File No.: YC-11-10000002
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: