Young offender confessions: right versus required. R. v. S.S. (2007) Ont. C.A. 1. By Gino Arcaro B.Sc., M.Ed

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1 Young offender confessions: right versus required R. v. S.S. (2007) Ont. C.A. 1 By Gino Arcaro B.Sc., M.Ed I. Sec. 146(2)(b)(iv) and sec. 146(6) YCJA Among the numerous controversies surrounding young offender laws is the admissibility of young offender confessions. One of the interrogation issues centers on how to properly instruct a young offender about waiving the presence of a third party consultant, in accordance with sec. 146(2)(b)(iv)YCJA. Another related issue is what constitutes a technical irregularity under sec. 146(6) YCJA. Three laws govern the admissibility of young offender confessions and statements: i. Common law confession rule relating to voluntariness. ii. Charter provisions including right to silence, right to counsel, reason for arrest and sec. 24(2). iii. Statutory protections created by the YCJA, including section 146 YCJA The first two laws apply to both adult and young offenders. The third law applies only to young offenders, increasing the complexity of young offender confession admissibility. Section 146(2) YCJA is virtually identical to its predecessor, sec. 56 of the Young Offenders Act: Sec. 146(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 a. the young person is under no obligation to make a statement, b. any statement made by the young person may be used as evidence in proceedings against him or her, c. the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and 1 ONCA 481 CanLII

2 d. 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: a. with counsel, and b. 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. Subsection 146(6) YCJA is new. It created discretionary admission of confessions and statements in certain circumstances where sec. 146(2)(b)(iv) is violated: Sec. 146(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. Sec. 146(2)(b)(iv) YCJA states that no written or verbal statement made by a young offender to a person in authority is admissible unless the young offender clearly understands that his/her statement must be made in the presence of a third person adult consultant, unless the young person specifically waives the presence of the third person adult consultant. The issue in this case, R. v. S.S., was the way the police communicated that instruction. The police conducted a consent interrogation with a young offender after mere suspicion was formed relating to a robbery. The officer told a young offender that the young offender had the right to have a lawyer, parent, or adult present during the interrogation but did not explain to the young offender that any statement made was required to be made in the presence of any consulted third party. In other words, the police replaced required with right. The young offender waived the right to have a third part present. Afterward, the police applied a skilled interviewing technique that resulted in a confession that made up the entire Crown s case. The trial judge excluded the confession because the instruction was

3 incorrect constituting a violation that exceeded a technical irregularity. The Ontario Court of Appeal dismissed the Crown s appeal. The skilled interrogation technique was not ruled inappropriate. This case is significant for three reasons: 1. It serves as a point of reference of what constitutes a skilled interrogation technique to elicit a confession from a young offender during a mere suspicion/consent interrogation. 2. It demonstrates how to solve the right versus required instructional paradox. 3. A valuable case law literature review explains the rationale for sec. 146 YCJA and other examples of how to properly communicate the sec. 146(2)(b)(iv) requirement. II. Circumstances Offences: (i) robbery (ii) use disguise in commission of indictable offence The mere suspicion belief: The officer in charge of the investigation received an anonymous tip causing mere suspicion that the accused committed a robbery. No other evidence existed. Knowing that reasonable grounds did not exist, the officer contacted the accused to arrange a consent interrogation. The consent: The accused lived with his uncle. The officer went to the house. Only the uncle was home. The officer asked him to have the accused contact the officer. The accused telephoned the officer that evening. The officer told the accused that he was a suspect in the robbery. The accused agreed to an interview at the police station the next day. During this telephone call, the office neither asked nor suggested to the accused that his uncle, or any other adult, could accompany him to the police station. The following afternoon, the officer picked up the accused at his home. The officer did not speak with the accused s uncle nor ask the accused whether he wanted his uncle to accompany him to the police station. At the police station, a videotaped interview began. The officer first reviewed the Statement of a Young Person form (the Form). During this review, the officer told the accused: (a) that he was investigating a robbery and (b) that he was not under arrest. After reviewing the Form, the officer cautioned the accused, telling him that he was under no obligation to make a statement and that any statement could be used in evidence in proceedings against him. The officer informed him about his right to consult a lawyer, the availability of Legal Aid, and about his right to consult with an adult. The officer asked the accused to explain these rights to him in his own words. He did, stating his understanding that he could speak to a lawyer or call an adult if he wished. The instruction and waiver:

4 The following conversation occurred: Q. Do you want to speak with or consult a lawyer? A: Don t think I need to. Q. Do you want to have a lawyer here with you? A: Nope. <shakes head> Q: If your parent or parents are not available do you want to speak with an adult relative? A: No. Q. If an adult relative is not available do you want to speak with or consult another adult? A: No. Q. Do you want to have a parent an adult relative or another appropriate adult here with you? A: No Q: Okay S.S. this is called the Waiver of Rights. I ll read this to ya and then I ll explain it to ya okay? It says I ve been given the opportunity to obtain immediate free advice from a Legal Aid lawyer and the opportunity to speak with or consult a lawyer and/or my parents or in the absence of a parent an adult relative any other appropriate adult. I have been informed that I have the right to have any of these people with whom I have consulted present when making a statement. These rights have been explained to me and I understand them. A: <nods head> Q: So you understand that? A: Yep. <nods head> Q: Okay..You you don t choose to you don t want to talk with them and you don t want to have them here with you A: No. The key points were: The accused was told he had the right to have a parent, adult relative, or other appropriate adult here with you. When the officer read the waiver to the accused, he told him that he had the right to have any of these [consulted] people present when he made a statement. The accused acknowledged receipt of this information by signing a Form of waiver.

5 After obtaining the accused s signature, the officer told the accused to let the officer know if he changed his mind about waiving his rights. At no time, did the officer explain to the accused that any statement he made was required to be made in the presence of any consulted third party. The skilled technique: The officer then interviewed the accused about the robbery applying what the court called a skilled interviewing technique consisting of: Expressing empathy for the accused s unfortunate personal circumstances, including the recent death of his grandmother who had been the accused s sole caregiver. Expressing an interest in various aspects of the accused s personal life. Telling the accused a lengthy story about the officer s younger brother confessing to an isolated incident of car theft so that his involvement would not eat away at him. When the accused made no admission, the officer implied that the police had DNA and videotaped evidence implicating the accused and that he had no doubt about the accused s involvement. The officer appealed to the respondent whom he described as a decent guy to admit to an offence that was out of character and that was not intended to hurt anyone. At the end of the hour-long interview, the accused provided a statement. Afterward, he was charged and arrested. III. Trial Ruling on the voir dire The trial judge found that the officer violated sec. 146(2)(b)(iv)YCJA. The Form did not accurately include the information required by s. 146(2)(b)(iv) and the police officer did not give the information to the accused. It was not sufficient to tell the accused that he had the right to have a consulted third party present. The police officer was also required to clearly explain that any statement made by him was required to be made in the presence of any consulted third party, unless the accused desired otherwise. The trial judge concluded that the accused, who had no prior experience with the police, may have more fully understood his rights and consulted a third party, or declined to give a statement, if he had been told the required information.

6 The trial judge implicitly decided that the violation exceeded a technical irregularity. The statement was excluded because the admission of the statement would bring the principle of enhanced procedural protection for young persons into disrepute. IV. Appeal The Crown s appeal to the Ont. C.A. was denied. The accused had been deprived of a substantial informational component of sec. 146(2)(b)(iv) YCJA. This type of violation is not a technical irregularity it is more severe. V. History & Rationale The judgment in R. v. S.S. (2007) included the following case law literature review explaining the history and rationale of the sec. 56 YOA sec 146 YCJA continuum. Section 56(2) YOA is the predecessor to sec. 146 YCJA. These sections provide additional protection for young offenders. The Supreme Court of Canada explained the reasons for additional protections, based on the susceptibilities of young persons to be influenced by persons in authority, in R. v. J. (J.T.) (1990) 2 : By its enactment of s. 56, Parliament has recognized the problems and difficulties that beset young people when confronted with authority. It may seem unnecessary and frustrating to the police and society that a worldly wise, smug 17-year-old with apparent anti-social tendencies should receive the benefit of this section. Yet it must be remembered that the section is to protect all young people of 17 years or less. A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado and braggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority; certainly they would not appreciate the nature of their rights to the same extent as would most adults. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons in authority. A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure. It is also not without significance that prior to the passage of the Young Offenders Act courts had recognized that the confessions of young people should not be treated in the same manner as those of adults. For example, in Re A, (1975) 3, the Alberta Supreme Court suggested a number of CanLII 85 (S.C.C.), [1990] 2 S.C.R. 755 [J.T.J.] at paras W.W.R. 425 (Ab. S.C.)

7 safeguards before an admission of a young person would be deemed to be admissible, including the requirement that an adult relative accompany a young person to the place of interrogation and that a caution be given in words that the young person would understand. The courts have thus extended certain protections to young persons when dealing with the police and the Act has simply expanded upon and codified that practice. It is just and appropriate that young people be provided with additional safeguards before their statements should be admitted. Section 56(2) to (6) inclusive, specify the additional protection which must be provided to all young people under the age of eighteen. Consequently, sec. 146(2)(b)(iv) is an enhanced procedural protection that Parliament deemed important to provide reasonable protection for a young person confronted by police officers seeking a statement. According to the Ontario Court of Appeal: As the Supreme Court of Canada has explained, this protection is important because, no matter how well-intentioned the officer, young persons are susceptible to feeling intimidated by the police, whom they consider to be persons of significant authority and power. In addition, young persons may lack the maturity to consider the consequences of unburdening themselves of their misdeeds, particularly when encouraged to do so by an apparently understanding (or, alternatively, formidable) police officer. The lack of maturity and their susceptibility to yield to authority, underscores the significance of telling the young offender that the presence of a third person consultant is required in order to help the young offender make informed decisions about actually consulting with a lawyer, parent, or adult. The requirement provides critical, not insignificant, information that is essential to the enhanced procedural protection provided by sec. 146(2). Additionally, sec. 146(2)(b) requires the police to clearly explain the information set out in that subsection. Failure to tell the young person that counsel and any other consulted third party must be present during the taking of any statement does not constitute a clear explanation. A waiver is lawful only after the police obligations have been clearly explained to the young person, and he or she has been given all the required information, whether he or she desires otherwise. The importance of telling the young person of the requirement increases during consent interrogations because the notice to parent does not apply to consent interrogations. It applies only when the young person is arrested and detained in custody or until a summons or appearance notice is issued.

8 This interpretation of s. 146(2)(b)(iv) is consistent with the objectives and principles of the YCJA. It does not place an undue burden on the police. It is not difficult to tell the young person about the requirements of the section. It is apparent that a uniform Form that correctly addresses all of the procedural protections would facilitate uniform compliance with s. 146(2) and, more importantly, would ensure that a young person had his or her rights, and the obligations of the police, clearly explained. VI. Case Law Review Three years after R. v. J. (J.T.), in R. v. I.(L.R.) and T.(E.) (1993) 4 the Supreme Court of Canada reiterated the rationale for the sec. 56 YOA protections. Young persons generally have a lesser understanding of their legal rights than do adults and are less likely to assert and exercise fully those rights when confronted with an authority figure. In this case, in one respect, the Form complied with the procedure recommended in R. v. D.J.M., (1991) 5 because it first provided the young person with an overview of all his or her rights before breaking those rights down into their component parts. However, the Form in this case failed to include the requirement at issue. Although in a somewhat different factual context, the Ont. C.A already ruled that the police must advise a young person of the requirement that any statement be made in the presence of a consulted third party present. In R. v. A.(W.), (1989) 6 where the young person had consulted a lawyer, the police did not tell him about the requirement. The Form in that case only informed the young person that he may have his lawyer present during the interview and later, that he had the opportunity to have his lawyer present, which was his right. The court explained, The printed Form or a sufficient oral explanation had to make it clear to him that the person consulted must be present when he made his statement to the police unless he otherwise desired. Since this requirement had not been met, the court ruled that the trial judge correctly excluded the young person s statements. Although in that case, the young person had exercised his right to counsel, the statutory requirement on the police is the same whether or not the young person chose to consult a third party. Accordingly, the absence of a prior consultation cannot dictate a different result. In any event, as the trial judge noted, one cannot determine whether the respondent in this case may have exercised a right to consult counsel or another third party if he CanLII 51 (S.C.C.), [1993] 4 S.C.R. 504, para O.J. No (O.C.J. - Prov. Div.) 6 O.J. No (C.A.),

9 had known that any statement had to be taken in the presence of that consulted third party. R. v. A.M., (1998) 7 : In that case, the young person was told and understood that she was entitled to have a consulted third party present when she gave her statement, but not that there was a requirement that such a person be present, unless the young person desires otherwise. Although the court in A.M. considered this explanation to be deficient and not completely accurate, it held the young person s statement was admissible because, even if she had been told of the requirement, she would still have provided her statement. However, not only is the factual matrix in A.M. different, more importantly, that court did not discuss the requirement to have a consulted third party present as a component of the total information a young person must have before deciding whether he or she will consult a third party in the first place. In the absence of such a discussion on the very point raised in this appeal, I do not find A.M. to be helpful on this issue. In R. v. B.S.M. (1995) 8 the court explained, What constitutes a sufficient explanation under [s. 146(2)(b)(iv)] is fact specific. While a uniformly clear explanation is to be both preferred and required, it may be that a different emphasis is necessary in one case than another. VII. Conclusion 1. What constitutes a sufficient explanation under sec. 146(2)(b)(iv) YCJA is fact specific. Although a clear explanation is mandatory, how it is explained may be different in each case, depending on the facts and the context. 2. Tell the young offender that a third party consultant must be present during the interrogation. Do not say may be present. Do not use the phrase, You have the right to have a lawyer, parent, or adult present. Tell every young offender that at least one of these people must be present and that the only exception to the mandatory presence is if the young person clearly waives the mandatory requirement. This rule applies to both consent interrogations and custody interrogations. 3. Using empathy is not an illegal inducement. It is a lawful, skilled interrogation technique. The actual interrogation in this case, R. S.S. (2007), was proper. It serves as a point of reference of a skilled interview technique when interrogating a young offender. Comments or questions are invited by ing the author at xfitness@bellnet.ca 7 M.J. No. 525 (C.A.) 8 M.J. No. 85 (C.A.)

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