ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: YC-18-1045 DATE: 2019 06 18

BETWEEN:

HER MAJESTY THE QUEEN Applicant

• and -

A.D (A Young Person) Respondent

COUNSEL: C. Nadler and A. Cornelius, Counsel for the Crown U. Kancharla, Counsel for the Respondent

HEARD: May 13-17, 2019

REASONS FOR DECISION

LEMAY J

[1] A.D. is a young person, charged with first degree murder as a result of a shooting that took place at a fast food restaurant in Mississauga on April 27th, 2017. He was arrested on May 3rd, 2017 at approximately 3:00 p.m. when the Peel Regional Police Tactical and Rescue Unit executed a warrant to search the house where he lived as well as arresting him.

[2] Within a few minutes of being arrested, the accused was turned over to investigators from the Homicide Bureau of Peel Police. He had his rights explained to him by Cst. Ben Irwin of the Peel Region Homicide Bureau while he was in a police transport vehicle. He was then taken to the Peel Region Homicide Bureau where Cst. Irwin went over his rights again in more detail. He then spoke to his lawyer and had a lengthy discussion with his mother. The discussion with his mother was at least partly in Romanian. All of it was videotaped. Then, the accused had an interview with Cst. Irwin.

[3] The Crown brings an application to have both the statement of the accused to Cst. Irwin, and the conversation that the accused had with his mother, admitted into evidence. If both are admitted into evidence, then the Crown will seek to use the statements as part of the Crown’s case at trial.

[4] In the alternative, even if I am not prepared to admit the conversation that the accused had with his mother, then the Crown seeks to have me declare that the statement the accused gave to Cst. Irwin was voluntary so that it can be used for cross examination.

[5] For the reasons that follow, the conversation between the accused and his mother is excluded from evidence and may not be relied upon at trial. The statement that the accused gave to Cst. Irwin, on the other hand, may be used for cross-examination.

Evidence

[6] As part of the voir dire, Crown Counsel called evidence from now Sergeant Chris Ovebeek, Cst. Ben Irwin and Sergeant Donald Deleen.

[7] Sgt. Overbeek was a Constable in the Tactical and Rescue Unit of Peel Regional Police on the day that the accused was arrested. He is currently a Sergeant in the Recruiting Bureau for Peel Police. Sergeant Deleen was a Sergeant in the Tactical and Rescue Unit of Peel Regional Police on the day that the accused was arrested. He is currently a Patrol Sergeant with 11 Division at Peel Police. Cst. Irwin was a Detective Constable with the Homicide Bureau on the day that the accused was arrested. He is currently employed with the South Simcoe Police Service.

[8] The defence called the accused’s mother, who provided testimony about her experiences on the day that the accused was arrested, including the circumstances of the conversation she had with the accused. I will refer to her as the accused’s mother throughout these reasons.

[9] On April 27th, 2017, Kamar McIntosh was shot to death at a restaurant in Mississauga. I understand that there may have been more than one weapon involved in the shooting, and that at least one of them was a “long gun”. The police investigated this shooting and determined that the accused, along with two other individuals, should be charged with first degree murder. They obtained warrants to search the house where the accused lived as well as arrest him.

[10] The Tactical and Rescue Unit is brought in to execute high risk search and arrest warrants. In this case, the Peel Police had a warrant for the arrest of the accused, and a warrant to search his house. Both of these warrants were deemed to be high risk because of the seriousness of the charges and the fact that the weapon (or weapons) from the shooting had not been recovered.

[11] The Tactical and Rescue Unit developed a plan for executing the warrants at the accused’s residence. This plan involved a “dynamic entry” to the house through the front door, which was effected at around 3:10 pm on May 3rd, 2017. As part of this plan, seven officers entered the house and another two were assigned to the backyard for containment.

[12] Immediately before entering, the officers discovered the accused’s mother walking up the stairs to the house. Officers moved her away from the entrance. She was subsequently brought to the police station, given the opportunity to speak to the accused and interviewed about what she knew about the shooting.

[13] Upon entering the house, the officers secured the basement and the main floor. They then determined that the accused was on the upper floor of the house. The accused was directed to come downstairs, and complied with the police directions.

[14] The accused was then put face down on the floor and handcuffed with zipties. He was then allowed to stand up and was escorted outside by the Tactical and Rescue Unit officers.

[15] The accused was transferred to the control of Cst. Irwin within approximately ten minutes of being arrested. Cst. Irwin read him his rights to counsel, and his other rights as a young offender, in the van at the scene before the accused was transported to the Homicide Bureau. A recording and a typewritten transcript of the entire interaction between Cst. Irwin and the accused while they were in the car was filed as evidence, and played in Court.

[16] On arrival at the Homicide Bureau, the accused was taken to an interview room where he was cautioned in detail by Cst. Irwin. The caution took approximately 50 minutes to read and review. Prior to the caution being reviewed by Cst. Irwin, the accused was advised on a number of occasions that the room was being videotaped. Indeed, on one occasion the accused was told that if he wanted anything while he was alone in the room he should wave at the camera.

[17] During the course of the interview, the accused was asked on numerous occasions to explain his rights in his own words. Cst. Irwin also went over points where he was not sure where the accused had understood the questions on more than one occasion. In that regard, there are two passages from the transcript that demonstrate the efforts that Cst. Irwin made to explain the accused’s rights to him:

IRWIN: That’s right, okay? So they talk about two judicial 16:49 determination at different proceedings or trials okay that that young person could be committed, that young person had committed serious violent offences. That means before the serious violent offence was committed the young person had been found guilty of at least two or other offences at a different proceeding that the sentencing Judge ruled were serious violent offences. Does that make sense? [A.D] Yeah. IRWIN: Okay explain that to me. I just want to make sure you’ve grasped it. You can read it as many times as you want. [A.D] So that means like before the serious violent offence was committed a young person had been found guilty or at least two other offences and proceedings (inaudible). No you will have to explain that. IRWIN: No? Okay. Number 8, if you think of any questions and I’ve already hit on this, but if you think of any questions ask me later, okay? [A.D] Okay. IRWIN: You can, you can ask me at any time. [A.D.] (Nods head yes).

[18] In the interview immediately following the first excerpt, a detailed explanation of this point was provided to the accused.

[19] After the caution was read to the accused and he had an opportunity to speak to his lawyer, he was asked if he wished to talk to his mother and/or have her present for the interview. The accused stated that he did not want to talk to her, but just to give her a hug. However, the accused had a conversation with his mother for nearly two hours, and the accused spoke in Romanian for a significant portion of this conversation.

[20] At approximately 8:15 p.m., the accused’s mother left the interview room and the accused then met with Cst. Irwin. Cst. Irwin conducted an interview of the accused which lasted (on and off) until approximately midnight.

[21] It is these two statements that the Crown wishes to have admitted as evidence in this case.

The Issues

[22] There are two issues that present themselves for resolution in this case, as follows:

a) Is the accused’s discussion with his mother admissible at trial as part of the Crown’s case?

b) Was the accused’s statement to Cst. Irwin taken in accordance with section 146 of the Youth Criminal Justice Act (YCJA)?

[23] I will deal with each issue in turn. As I will be referring to significant portions of section 146 of the YCJA, it is helpful to set that section out at this point:

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.

(i) When statements are admissible

(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.

(ii) · Marginal note:Exception in certain cases for oral statements

(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.

(iii) Waiver of right to consult

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

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

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

(iv) · Marginal note:Waiver of right to consult

(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.

(v) · Marginal note:Admissibility of statements

(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.

Issue #1 - The Discussion Between the Accused and His Mother

a) The Context of the Conversation

[24] The question is whether the conversation between the accused and his mother should be admitted as evidence and viewed by the jury during the Crown’s case. In answering that question, the context in which the conversation between the accused and his mother took place must be considered. In that regard, I note the following points:

a) It is clear that both the accused and his mother were aware that the conversation was being recorded by the Police.

b) The Police did not advise the accused or his mother that anything they said to each other could be used in Court later to incriminate the accused.

c) The accused’s mother was not informed of the accused’s rights at any time prior to having the conversation with the accused.

d) In the minutes leading up to the discussion with his mother, the accused had changed his mind at least once as to whether he wanted his mother present in the interview room when he spoke to police. In particular, he had changed his mind and decided that he did not want his mother present after speaking to counsel.

[25] In addition to these contextual points, the discussion between the accused, his mother and Cst. Irwin just before the conversation starts is an important consideration. That discussion is as follows:

18.11 Mother enters the room MOTHER: Antonio what happened? [A.D.]: (Inaudible). MOTHER: What happened Antonio? [A.D.]: I didn’t do anything. MOTHER: You talk in English you can’t (inaudible) the gentleman to say if you want to be here be here sir. I don’t mind. [A.D.]: No. No. MOTHER: (Inaudible). [A.D.]: Can I just (inaudible). 18.11 Constable Irwin opens the door IRWIN: If you want your… [A.D.]: Yeah. IRWIN: …privacy that’s, that’s by all means. MOTHER: For me it’s okay sir for you to be here. [A.D.]: Here. MOTHER: I’m asking you why, why (inaudible). [A.D.]: I just want to-, IRWIN: I’ll give you a few minutes okay. MOTHER: Thank you. 18.11 Constable Irwin closes the door.

[26] When Cst. Irwin closed the door, the accused and his mother were alone. They then proceeded to have a discussion about what had happened for approximately two (2) hours. The transcript of the conversation provides significant information about the accused’s version of events on the day that the shooting took place.

b) Positions of the Parties

[27] The Crown argues that this discussion, which went on for almost two hours and was at least partly in Romanian, is admissible and should be considered by the jury as evidence at the trial. In support of this argument, the Crown advances the following arguments:

a) The statement was not a consultation within the meaning of section 146(2)(b)(iii) of the YCJA.

b) The accused and his mother were both aware that the interview was being recorded and monitored by the police.

[28] Defence counsel argues that this conversation should not be admitted at trial because it was a consultation and because the accused and his mother had a right to have a private conversation.

c) The Law

[29] There is very little case law on this issue. The Crown directed my attention to two appellate decisions that deal with conversations between young persons accused of a crime and their parents. Both of them were decided under a predecessor section, section 56(2) of the Young Offenders Act (“YOA”). Section 56(2) of the YOA is virtually the same as section 146(2) of the YCJA.

[30] The first decision is an Ontario Court of Appeal decision in R. v. K.J.K. ((1990) 38 O.A.C. 5, [1990] O.J. No. 15). This decision is a very short endorsement, and does not reference a trial decision.

[31] K.J.K was a case where the trial judge admitted a conversation between an accused young person and his mother that took place at the police station in the presence of his mother. Brooke J.A. found that the statement should not have been included and stated as follows:

We are all of the opinion that this appeal fails. We do, however, agree with the appellant’s submissions that the trial judge was wrong in admitting into evidence a conversation between the appellant and his mother at the police station in the presence of the police officers.

In our opinion, that conversation should be properly viewed in the circumstances of this case as a consultation between the young offender and his mother contemplated by s. 52(2) and in the same sense as a consultation contemplated by the section between young offender and his counsel. The consultation is one that should be accorded privacy and so privilege against admissibility. However, in reaching his decision rejecting the appellant’s evidence as he did on the fundamental issues in the Crown’s case and the defences available to the appellant, the trial judge did not rely on that statement in his reasons for judgment in which he has really quite fully set out the basis of his findings, there is no suggestion that he relied upon what the young man said to his mother.

[32] The Crown argues that the facts of the case before me are distinguishable from the Court of Appeal’s holding in K.J.K. The Crown submits that the accused in this case was not engaged in a consultation with his mother. As a result, the Crown argues that the accused’s statement is not covered by the privilege envisioned by section 146(2).

[33] In support of this position, the Crown directs my attention to the decision of the New Brunswick Court of Appeal in R. v. T.K.E. (2005 NBCA 27). In that decision, the New Brunswick Court of Appeal distinguished the decision in K.J.K. on the basis that K.J.K involved a consultation and the facts in T.K.E. did not involve a consultation.

[34] It is useful to outline the background facts of the T.K.E. decision. T.K.E. was involved in the death of N.S. on November 21st, 2002, but he was not arrested by the police and charged with manslaughter for that death until March 21st, 2003. In the meantime, on December 3rd, 2002, the Police obtained an order authorizing the interception of T.K.E.’s private communications. This warrant was continued until the charge of manslaughter was laid on March 21st, 2003.

[35] In the meantime, T.K.E. was sentenced to serve several months in a closed custody facility for unrelated offences. He had a meeting on February 1st, 2003 with his mother and step-father at the Youth Detention Centre where he was being held and, pursuant to their authorization, the police bugged the meeting room.

[36] T.K.E. discussed the events of November 21st, 2002 with his mother and step-father. The Crown sought to introduce this communication at trial and the trial judge denied the Crown’s application. The New Brunswick Court of Appeal reversed the trial decision and directed that the communication be admitted.

[37] In reaching their decision, the Court of Appeal found that the conversation between the accused and his mother and step-father was not a consultation within the meaning of section 56(2) of the YOA. On that basis, and on the basis that the reasoning in K.J.K, supra was obiter, the Court of Appeal distinguished K.J.K. and admitted the statement.

[38] There are two key differences between T.K.E. and the case before me. First, in this case, the meeting was held at the police station, immediately after the arrest of the accused. In T.K.E., the accused had not even been charged when he had the discussion with his parents.

[39] Second, in T.K.E., the police had lawful judicial authorization to intercept the communications between T.K.E. and his parents. No such authorization had been given in this case.

[40] As a result, in my view, T.K.E. is distinguishable from the case before me. In that regard, I note that the Court of Appeal acknowledges (at paragraph 21) that the case before them is “not a case where a young person’s consultation with a parent contemplated by s. 56(2) of the Young Offenders Act is lawfully intercepted”. A consideration of the differences between the facts in T.K.E. and the facts in the case before me bring me to my analysis.

d) Analysis

[41] The first issue is whether the accused was engaged in a consultation with his mother. I reject the Crown’s argument that the accused was not engaged in a “consultation” with his mother for four reasons.

[42] First, the facts in T.K.E. demonstrate that that case is distinguishable from the facts in this case. The T.K.E. case concerned a conversation that took place between the accused and his parents that was intercepted by an authorized judicial wiretap and where the accused was not yet facing charges for the offences. As a result, in the absence of charges, it is difficult to see how T.K.E.’s rights under the predecessor to section 146 of the YCJA were engaged. In this case, however, the accused before me had his discussion with his mother immediately after having been cautioned about his rights under section 146 of the YCJA.

[43] Second, the purpose of the conversation with his mother was to discuss the very charges that the accused was facing. It is difficult to see how this was not a “consultation” within the meaning of section 146(2)(b)(iii) of the YCJA.

[44] Third, Crown Counsel confirmed in argument that there was no definition of consultation in the YCJA. As a result, it is most helpful to focus on what the accused and the police thought that consultation (or consult) meant in the case before me. To that end, the dialogue between Officer Irwin and the accused is instructive:

[A.D.]: Yeah. So I have the right to call my lawyer. IRWIN: Yeah. [A.D.]: Or talk yeah. IRWIN: And speak. Consult is just another word… [A.D.]: Yeah. IRWIN: …for speaking, right? You confer, you speak whatever. So you have the right to call and speak to a lawyer. [A.D.]: Yeah. IRWIN: Okay. It is my duty to tell you that you have also have the right to call and consult with your parents, so speak to your parents. [A.D.]: (Nods head yes) IRWIN: Okay? Or any other adult relative or if they are not available some other adult. Do you understand? [A.D.]: Yes.

[45] It is clear from this passage that, when the accused was talking to his mother, he understood that he would be consulting with his mother under section 146(2)(iii) of the YCJA. It is also clear that Officer Irwin had the same understanding.

[46] Fourth, the accused had just finished reading and reviewing his rights under the YCJA with Cst. Irwin. A key one of those rights was the right to consult with his mother or another adult about the situation he found himself in. It is not unexpected that the accused, when given the opportunity to see his mother, would have immediately started to talk to her about his predicament. In my view, the accused was consulting with his mother.

[47] This brings me to the arguments on privacy. The Crown argues that both the accused and his mother knew that their conversation was being recorded and observed by police officers. As a result, the Crown says that the conversation was not private. I reject this argument.

[48] I start by observing that a consultation between a young person who is accused of a crime and a parent is one of the enhanced protections that is provided to young people under section 146 of the YCJA. It is important to remember why those enhanced protections exist. As Fish J. noted in L.T.H. (at para 24):

24. This Court has consistently held that the rationale for s. 146, and its predecessor, lies in Parliament’s recognition that young persons generally do not understand their legal rights as well as adults, are less likely to assert those rights in the face of a confrontation with a person in authority and are more susceptible to the pressures of interrogation.

[49] The legislative acceptance that young persons accused of crimes have a lower level of sophistication than adults is an important consideration in this case. The Crown’s argument is premised, in part, on the fact that the accused knew that the conversation with his mother was being recorded. However, the accused did not waive his right to have a consultation with his mother, and those consultations are private.

[50] Put another way, the police should not be present during a consultation between a young person accused of a crime and the adult that they have asked to consult with. Part of the purpose of that consultation is to obtain the wisdom, guidance and assistance of the adult in dealing with the predicament that the accused young person finds themselves. It is, in short, the type of conversation that should be protected by privilege.

[51] I am fortified in my conclusions on this point by the decision in R. v. J.W. ([2003] O.J. No. 1954 (O.C.J.)). In that decision Pringle J. was faced with an accused who had given contradictory statements to the police about how he had come to have a gunshot wound. These statements were made while J.W. was in hospital awaiting surgery. Ultimately, J.W. admitted to police that he had picked the gun up and had accidentally shot himself. Based on that admission, the police arrested J.W. and charged him with weapons offences.

[52] Almost immediately after he was arrested, J.W.’s mother arrived at the hospital and demanded to know what had happened. J.W. felt compelled to give his mother the same explanation that he had given to the police minutes earlier. The police stayed and took notes of that explanation. The Crown sought to rely on those notes as a cornerstone of their case against J.W.

[53] Pringle J. accepted that the young person was entitled to have the conversation with his mother treated as a private and similar to a conversation with counsel, and excluded the evidence about the conversation. A similar finding was reached in R. v. A.A. ([2003] O.J. No. 5653). This conclusion was based on the reasoning in K.J.K., supra.

[54] I agree with this analysis. The purpose behind the protections in section 146 of the YCJA is to provide young persons accused of a crime with enhanced rights. Allowing the police to use a conversation that flows from the exercise of the young person’s rights under section 146 of the YCJA would interfere with a young person’s rights rather than providing the young person with enhanced rights. Put another way, if a young person was aware that the conversation between the young person and the adult could be used against them, they would be less likely to have it, and less likely to be candid in the course of the conversation. This outcome would be contrary to the purposes of the YCJA protections.

[55] For these reasons, I am of the view that, in the first instance, a young person accused of an offence should be entitled to a consultation with their chosen adult in a private setting. That is clearly part of the young person’s section 146 rights.

[56] I also reject the Crown’s assertion that the accused gave up his right to privacy because he knew the conversation was being recorded and monitored. On the facts of this case, this argument cannot be sustained for two reasons. First, the accused spoke in Romanian, partly in an effort to ensure that he was not understood by the officers. This clearly indicated that the accused did not want the conversation overheard by the police.

[57] Second, and more importantly, Cst. Irwin left the room after having expressly said that he would provide the accused with privacy. This conversation is produced at paragraph 25 above.

[58] Given the meaning of privacy in the context of a consultation between a young person accused of a crime and his or her parents, this was clearly a consultation and there was no waiver of the privacy associated with that consultation. Indeed, the consultation only started after Officer Irwin offered the accused and his mother their privacy and left the room.

[59] As a result, the conversation between the accused and his mother is a consultation within the meaning of section 146(2)(b)(iii) and is not admissible for any purpose at trial.

Issue #2 - Voluntariness

a) The Test for Admissibility

[60] The YCJA sets out specific protections for young persons who are charged with an offence. In considering whether a statement made by a young person accused of a crime to a person in authority is admissible, section 146(2) of the YCJA applies.

[61] This section has been considered by the Supreme Court on a number of occasions. In R. v. L.T.H. (2008 SCC 49, [2008] 2 S.C.R. 739). In that case, Fish J. (for the majority) concluded that the standard of proof that should be applied throughout this section is reasonable doubt (see paragraph 32). As noted by Pepall J.A. in R. v. N.B. (2018 ONSC 556):

102. In conclusion, the Crown always bears the burden, on a standard of proof beyond a reasonable doubt, of showing compliance with all elements of s. 146(2) including the preconditions to the provision’s applicability.

[62] The requirements that the Crown must demonstrate beyond a reasonable doubt are:

a) The statement was voluntary;

b) The person who took the statement clearly explained to the young person, in language that was suitable to their age and understanding, the young person’s right to silence, the right to consult counsel and the right to consult another appropriate adult (and the requirement that any person consulted be present during the interview); and

c) The young person was given a reasonable opportunity to exercise those rights.

[63] These requirements are designed to provide accused young people with enhanced protections. However, under section 146, an accused young person can waive their rights, but there are certain conditions that must be met for a waiver to be effective. I will return to those issues below.

[64] In the subsections that follow, I will review each part of the test that is set out at paragraph 61 above.

b) Voluntariness

[65] The leading case on voluntariness is R v. Oickle (2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.)). In that decision, the Supreme Court outlines that for a statement to be voluntary, it must meet four requirements:

a) There cannot be any threats or inducements offered to the person making the statement.

b) There cannot be oppression. A statement cannot be voluntary if the will of the person making it has been overborne.

c) The accused person must have an operating mind.

d) There cannot be any police trickery.

[66] In this case, most of the argument was focused on the circumstances in which the statement was made. The Defence argued that there were no specific promises or threats, but that the accused had been assaulted, his mother had been detained, he was questioned immediately after an emotionally draining two hour conversation with his mother, and that this amounted to police trickery and/or oppressive circumstances.

[67] I will analyze each of the four Oickle, supra criteria separately. However, in that analysis, I will consider the global circumstances in which the accused’s statement was made. One of those circumstances is the age of the accused. He was sixteen (16) at the time that he gave this statement, so the question of whether the statement is voluntary in all the circumstances should be approached with that fact in mind.

[68] Even in the context of this case, the Crown argued that there was nothing particularly wrong or concerning about the interaction between the accused and Officer Irwin, and that the requirements for voluntariness were met. I agree. I will now review each of those requirements.

Threats or Inducements

[69] The only statements that were arguably threats or inducements were exhortations to the accused to tell the truth. A good example of these exhortations is as follows:

IRWIN: Okay? But what I’m not going to do is sit here and lie to you. [A.D.]: Yeah. IRWIN: Okay and what I need in return is for you not to lie to me. [A.D.]: I’m not lying. IRWIN: Okay? I know, I know what you just said there was not true. 20:27 [A.D.]: What? IRWIN: About the bathroom. [A.D.]: What about it.

[70] This exchange comes near the beginning of the interview. There are others in which Cst. Irwin reminds the accused to tell the truth. However, there are no threats or promises in this statement. It is simply an exhortation to be honest. As noted in Oickle, supra, exhortations to tell the truth will not automatically require the exclusion of the statement.

[71] In my view, when the circumstances of the statement are viewed globally, there are no threats or promises in this case. The one arguable exception comes at the end of the interview (from 23:40 onwards), when Cst. Irwin talks about both telling the truth and about the sentence that the accused could face. I raised concerns with this portion of the statement with Crown Counsel, who agreed that it should be excluded. My Order will reflect that agreement on the part of Crown Counsel.

Oppressive Circumstances

[72] In this case, the defence argues that there were oppressive circumstances when the accused made his statement to Officer Irwin. The following points are raised in support of this argument:

a) The accused was assaulted by police when he was arrested.

b) The accused saw his mother being “manhandled” by police when he was being brought into the police station. The accused’s mother was also detained by the police.

c) The accused had a very emotional two hour conversation with his mother immediately before he was interviewed by Officer Irwin.

[73] I start with the alleged assault. The only evidence I have of an assault is the accused’s statement to Cst. Irwin that he needed Advil because of the fact that his head had been slammed by the Tactical and Rescue Unit when he was arrested earlier in the day.

[74] The accused was also seen in the video pulling at his lip. It was clear that there was something on his lower lip that was bothering him. However, Cst. Irwin specifically addressed this issue both with the accused and in his evidence on the voir dire. Cst. Irwin identified that he observed the accused’s lip and that it appeared to be a chapped lip. Further, in the accused’s interactions with Cst. Irwin, he did not identify the lip as something that had happened to him at arrest although he did talk about the fact that his head was sore as a result of the arrest. There was also no visible blood or other injury.

[75] In addition, both Officers Overbeek and Deleen testified that they did not notice anything with the accused’s lip at the time of his arrest. This evidence was not seriously challenged on cross-examination.

[76] As a result, I find that the accused’s lip simply appeared to be a chapped lip as described by Cst. Irwin. In terms of the arrest, I note that whether the police acted inappropriately in pushing the accused to the ground firmly is something that must be judged with the information that the police had at the time of the arrest, rather than with the information we have now.

[77] In that regard, I note that at the time of the arrest the police knew that there had been a homicide, and that the weapon (or weapons) used in the homicide had not been recovered. In addition, the police would have been concerned about the brazen nature of the homicide, as it occurred in a fast food restaurant in the middle of the afternoon. As a result, some forceful management of the accused would be expected.

[78] Then, there are the other concerns that defence counsel has raised. In terms of the manhandling of the accused’s mother and her detention, I do have some concerns about how this interaction was handled and, in particular the fact that the mother’s cell phone was taken from her when she was at the police station.

[79] However, the question is not whether the detention of the accused’s mother was proper or properly handled. Instead, the question is whether the police’s interactions with the accused’s mother would have affected the voluntariness of his statement. In that regard, I note two points:

a) The accused would have seen his mother entering the police station for only a moment or two. Even if I accepted the accused’s mother’s version of this event, she was being touched by a police officer and made her unhappiness known. I do not find it to be a significant interaction, both because it was very short and because there was no real issue.

b) At no point, either in his discussion with his mother, or in the interview with Cst. Irwin, did the accused express any concern with how his mother had been treated.

[80] This brings me to the emotional two-hour conversation that the accused had with his mother before being interviewed by Cst. Irwin. As I understand the accused’s argument, this conversation led to oppressive circumstances for two reasons. First, the accused would have been emotionally distressed when he was being interviewed by Cst. Irwin. Second, Cst. Irwin had listened to the conversation and tried to identify with the accused’s mother in an effort to make the accused answer questions. I reject both arguments.

[81] On the issue of the accused being emotionally distressed, I would note that there was little evidence of that during the course of the accused’s interview with Cst. Irwin. I also note that the event of being arrested for first degree murder is, in itself, going to be a stressful experience, especially when the arrest is carried out by the tactical and Rescue Unit.

[82] Then, there is the question of the use that Cst. Irwin allegedly makes of both the accused’s mother’s mental state, and the discussion that the accused had with his mother. In reviewing the statement given by the accused to Cst. Irwin in detail, it is clear that Cst. Irwin does not make any use of the discussion between the accused and his mother. At the beginning of the statement, Cst. Irwin asks the accused how he is doing and how his mother is doing. This is a natural human inquiry, and is nothing more than a transition into the discussion. Further on in the conversation, Cst. Irwin uses an example of the accused lying to his parents. This was a general statement and was not intended to reference anything specific from the accused’s discussion with his mother.

[83] Indeed, in considering this argument, I must be mindful of three facts. First, Cst. Irwin would not have had a copy of the transcript of the accused’s discussion with his mother. Second, the discussion was partly in Romanian and there is no issue that Cst. Irwin did not understand Romanian. Finally, Cst. Irwin testified (and this was not disputed) that he did not observe all of the statement.

[84] It is therefore not surprising that Cst. Irwin did not make any use of the statement as he did not see it, did not have details of it, and did not understand significant parts of it.

[85] This brings me to the question of whether the accused’s mother’s emotional distress created oppressive circumstances. In my view, it did not for three reasons. First, it would not be surprising or unusual for the parent of a young person to be distressed and emotional upon finding out that the young person has been charged with first degree murder. Second, the accused was given a significant period of time (almost two hours) to talk to his mother, explain his situation and calm her down. Finally, a complete review of the accused’s discussion with his mother does not disclose any particularly concerning comments between them. In light of these circumstances, this emotional two-hour discussion did not create oppressive circumstances when the accused was subsequently interviewed by Cst. Irwin.

[86] One of the leading cases on what amounts to oppressive circumstances is R. v. Hoilett ((1999), 136 C.C.C. (3d) 449 (Ont. C.A.)). In that case, the accused was charged with sexual assault and arrested while he was under the influence of crack cocaine. His clothing was removed for forensic testing, and he was left naked in a cold cell with only a metal bunk to sit on. He was eventually provided with light clothes and no underwear. He was awakened to be interrogated at 3:00 a.m. and nodded off to sleep during the course of the interview. He asked for warmer clothes and a tissue to wipe his nose, both of which were refused. These were viewed as oppressive circumstances.

[87] The circumstances in this case stand in stark contrast. The accused was provided with regular washroom breaks. When he was cold, the police officers provided him with a blanket to keep himself warm. The officer purchased food for the accused, and gave him his choice of what he wished to eat. There is nothing in the circumstances of this case that amount to oppression.

Operating Mind

[88] The test for an operating mind has been described in R. v. Whittle (, [1994] 2 S.C.R. 914) as follows (at para. 45):

45. The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.

[89] Again, in this case, there is nothing that would demonstrate that the accused did not have an operating mind.

Police Trickery

[90] Counsel for the accused conceded that there was nothing that amounted to police trickery in this case. However, she argued that the decision to interview the accused immediately after he had finished his discussion with his mother was “draconian”.

[91] I have outlined at paragraph 85 why the accused’s conversation with his mother does not amount to oppressive circumstances. I will briefly set out why it does not amount to police trickery either.

[92] The context of the interview with Cst. Irwin must be considered. The accused had been read his rights, had exercised both the right to speak to counsel and the right to speak to a parent. Cst. Irwin then sought to interview the accused.

[93] I note that R. v. Singh (2007 SCC 48, 2007 S.C.C. 48) outlines the principles relating to the right to silence. At paragraph 28, Charron J. states that, while the accused has a right to silence, there is no right not to be spoken to by state authorities. Cst. Irwin was simply speaking to the accused. Even considering that the accused in this case was a young person, and entitled to enhanced protections under the YCJA, when the interview is reviewed as a whole it is clear that his right to silence was not interfered with by Cst. Irwin.

The Derived Confessions Rule

[94] There was some argument made by Counsel for the Accused suggesting that the derived confessions rule might apply in some form to the accused’s second statement. In essence, the argument is that the accused somehow felt compelled to provide information to the police because of the discussion he had with his mother.

[95] In considering the derived confessions rule in the context of a young offender, I reviewed R. v. M.D. (2012 ONCA 841). In determining whether the two statements are connected, there a number of factors that should be considered (see paragraph 54). In considering the case before me, none of those factors (except the temporal connection) between the discussion with the accused’s mother and his statement to Officer Irwin are present. An application of the derived confessions rule does not support the accused’s position in this case.

Conclusion on Voluntariness

[96] In my view, the Crown has proven all four elements of the Oickle, supra test beyond a reasonable doubt. Even when the whole context of the accused’s statement is considered, there is nothing in it that suggests that it was not voluntary.

[97] For the foregoing reasons, I am persuaded beyond a reasonable doubt that the accused’s statement to the police was voluntary.

c) Were the s. 146 Rights Sufficiently Explained to the Accused?

[98] The test that the Crown must meet for compliance with this informational component is an objective one. It also requires an individualized approach that accounts for the age and understanding of the specific youth that the police officer is dealing with (see L.T.H., supra at para. 22).

[99] Defence counsel did not vigorously pursue this portion of the test, except to say that the accused’s operating mind would have been diminished by the circumstances of the arrest, and that he had a learning disability that is covered by an Individualized Education Plan (“IEP).

[100] First, I have already explained above why I do not view the circumstances of the accused’s interview as being oppressive. Similarly, I do not view those circumstances as having prevented the accused from understanding his rights when they were explained by Cst. Irwin.

[101] In that regard, I note that Cst. Irwin spent nearly an hour explaining the accused’s rights to him. In addition, during that discussion, Cst. Irwin confirmed with the accused as to what he understood and had the accused repeat certain portions of his rights back in the accused’s own words. In my view, the accused’s rights were appropriately explained to him.

[102] I turn now to the issue of the accused’s IEP. These plans are implemented pursuant to the Education Act. A copy of the IEP was not filed in evidence, but the accused’s mother testified that this plan was necessary because the accused needed to be in a smaller class so that he could be focused and receive individualized attention. I was not advised of any specific learning disability that the accused has.

[103] I accept that this IEP existed, and that the accused was having issues in school. However, all that was described to me was a need for the accused to be in a smaller class with more one-on-one attention so that he could focus more. In my view, this need was accommodated during the course of Cst. Irwin’s review of rights with the accused. It was a one-on-one discussion over a period of almost an hour, and Cst. Irwin confirmed the accused understood his rights.

[104] Therefore, I find beyond a reasonable doubt that the accused’s rights under section 146 of the YCJA were properly and sufficiently explained to him.

d) Was the Accused Given a Reasonable Opportunity to Exercise Those Rights?

[105] In my view, the accused was given a reasonable opportunity to exercise his rights. First, the police assisted the accused in obtaining his lawyer’s phone number. When he was being given his rights, the accused advised that his lawyer’s name was “Uma”. The police used that information to track down the number for the accused’s counsel, which assisted the accused in exercising his right to counsel.

[106] Second, the police arranged for the accused’s lawyer to contact him and speak with him directly. The accused did not have to have an interview with another lawyer or a legal aid lawyer. He was able to speak to the counsel of his choice before speaking with Officer Irwin.

[107] Third, the police arranged for the accused to consult with his mother, and did not try to bring that conversation to a premature end. Again, this permitted the accused to fully exercise his rights under section 146(2) and I am persuaded beyond a reasonable doubt that the accused had a reasonable opportunity to exercise his rights under 146(2) and, in fact, did so.

[108] The only issue that counsel raises is whether the accused was denied his section 146(2) rights because he was not specifically asked if he wanted to have his counsel present for the interview. In my view, this is more an issue of waiver than of a denial of the reasonable exercise of the accused’s rights. I now turn to the waiver question.

e) Waiver

[109] A key component of the defence’s argument was an assertion that the accused’s rights were denied because he did not have his counsel present when he provided a statement to the police. It is important to understand the context of this claim.

[110] First, prior to exercising his right to speak to counsel, the accused was specifically told about his right to have his counsel and/or his mother present. Indeed, in the written caution that was reviewed with the accused, it states in part:

(a) “Do you want to call or consult a lawyer now? We can get you a book with lawyer’s names and phone numbers if you need one.” If answer is yes, ask (and note) which lawyer he wants to call. If that lawyer is not available ask him if there is any other lawyer he/she wants to call.

(b) “Do you want to call or consult your parent(s), another adult relative or if they are not available, some other adult?” If answer is yes, ask (and note) who he wants to call.

4. (a) “If you call or consult with a lawyer, they are required to be here with you while you speak with us, unless you do not want to have them here with you.” Do you understand? What does that mean?

[111] This caution was read to the accused, and explained to him. In response, the accused indicated that he might wish to have his lawyer present. Counsel for the accused argues that, because the accused said he might want to have his lawyer present when he was being cautioned, it was incumbent upon Cst. Irwin to check again with the accused before starting the actual interview.

[112] The problem with this assertion is two-fold. First, there was an intervening event. The accused, knowing his rights, took legal advice from his lawyer. He did not mention any desire to have his lawyer present after taking this legal advice. For Cst. Irwin to ask whether, based on the accused’s discussion with his lawyer, he wanted her present might be infringing on the privilege associated with the accused’s solicitor-client relationship with his lawyer.

[113] Second, and more importantly, Cst. Irwin actually asked the accused whether he wanted his mother or anyone else present for the interview. The dialogue, which takes place immediately after the accused has finished consulting with his lawyer, is as follows:

IRWIN: Okay all good? Spoke, spoke to Uma? [A.D.]: Yeah. IRWIN: Okay. [A.D.]: Talk to my mom? IRWIN: Yeah. I’m going back to speak to her. Just getting this phone out of here. [A.D.]: You can tell her to leave if she wants. IRWIN: Tell mom to leave? [A.D.]: Yeah. IRWIN: Oh do you not want her here? [A.D.]: No. IRWIN: Are you sure? [A.D.]: Yeah. IRWIN: Is there someone else you want here on her behalf or your behalf? [A.D.]: No IRWIN: No? Okay, do you not want to see her at all? 17:48 [A.D.]: No.

[114] It is clear that Cst. Irwin asked the accused if there was anyone else he wanted to have in the room with him when he was interviewed. Even if Cst. Irwin was obligated to specifically follow up with the accused because he had taken inconsistent positions previously, he actually did so. In my view, this is a waiver of the accused’s right to have counsel present during the interview with Cst. Irwin.

[115] Based on the foregoing, I find, beyond a reasonable doubt, that, prior to having his interview with Cst. Irwin, the accused waived his right to have his lawyer present for that interview.

Conclusions

[116] For the foregoing reasons, I order as follows:

a) The conversation between the accused and his mother is inadmissible for any purpose.

b) The statement of the accused given to Cst. Irwin for the period up until 23:25 is admissible for the purposes of cross-examination.

c) The statement of the accused given to Cst. Irwin for the period after 23:35 is inadmissible.

LEMAY J

Released: June 18, 2019