R. v. I. (L.R.) and T. (E.), [1993] 4 SCR 504

R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504

 

E.T.                                                                                                     Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. I. (L.R.) and T. (E.)

 

File No.:  22873.

 

1993:  March 31; 1993:  December 16.

 

Present:  La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for british columbia

 

                   Criminal law ‑‑ Young offenders ‑‑ Evidence ‑‑ Statements ‑‑ Admissibility ‑‑ Statement made without counsel but in presence of adult ‑‑ Second statement made explaining aspects of first statement ‑‑ Lawyer consulted after first and before second statement made ‑‑ First statement found to be inadmissible ‑‑ Second statement admissible ‑‑ Conviction based on inculpatory exchange in second statement ‑‑ Whether or not second statement admissible ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 3 (e), (g), 11 , 56(1) , (2) (a), (b)(i), (ii) ‑‑ Canadian Charter of Rights and Freedoms, ss. 10(b) , 24(2) .

 

                   Evidence ‑‑ Criminal law ‑‑ Young offenders ‑‑ Statements ‑‑ Admissibility ‑‑ Statement made without counsel but in presence of adult ‑‑ Second statement made explaining aspects of first statement ‑‑ Lawyer consulted after first and before second statement made ‑‑ First statement found to be inadmissible ‑‑ Second statement admissible ‑‑ Conviction based on inculpatory exchange in second statement ‑‑ Whether or not second statement admissible.

 

                   Appellant was charged with second degree murder of a cab driver.  His great‑aunt, a first nation band elder with little formal education, accompanied him on his arrest to the police station.  Appellant regarded her as his mother.  The police informed her that there would be time to look for a lawyer on their arrival at the police station but, on their arrival, both were taken to an interview room where the investigating constable began taking a statement over the course of four and a half hours.  Prior to taking the statement, a "Statement to Person in Authority Form" required by s. 56  of the Young Offenders Act  (YOA ) was completed.  The officer tried to explain the right to counsel, the right to have an adult present, and the fact that any statement could be used in proceedings against the accused.  A statement was made without the advice of a lawyer.  Later, appellant, at his request, met with his lawyer for a half hour.  The next day, appellant informed the investigating constable that he had information to add to his statement.  After appellant finished speaking with his lawyer, he and the constable went through the process of completing the "Statement to Person in Authority" form.  Appellant indicated that he did not want a lawyer or other adult present.  The second statement included an exchange about the plan the appellant and his co‑accuseds had to murder a cab driver.

 

                   The trial judge excluded the first statement but admitted the second.  Appellant unsuccessfully appealed his conviction.  He had sought to have the second statement excluded and an acquittal on the basis that on the evidence absent the second statement he ought to have been acquitted.

 

                   At issue here were the principles ‑‑ under the common law, the Young Offenders Act  (YOA ) and s. 10( b )  of the Charter  ‑‑ that were applicable to determine the admissibility of a statement preceded by a confession ruled inadmissible.

 

                   Held:  The appeal should be allowed.

 

                   Although only the admissibility of the second statement was in issue, its admissibility was affected by the grounds for exclusion of the first statement.  The latter was excluded as involuntary by the trial judge, a finding which was assumed to be correct by the Court of Appeal.  It was necessary to consider its admissibility by reasons of non-compliance with the YOA and the Charter  as well.

                   A parent is not an alternative to counsel unless the right to counsel is waived.  Section 56  YOA , which appears to provide that a parent or other adult may be an alternative to counsel, must be interpreted in a manner consistent with both the s. 10( b )  Charter  right to counsel and the provision in s. 11  YOA  requiring that counsel be available.

 

 

                   The determination of whether or not a young person validly waived his or her s. 10( b )  Charter  right to counsel is not to be based simply on what the police told the young person, but upon the young person's actual awareness of the consequences of his or her actions.  The police need not advise an accused as a matter of course of the maximum penalty he or she might face.  The phenomenal difference in potential consequences faced by the young person in youth court as opposed to adult court, however, mandates that a young person be aware of the possibility (where it exists) that he or she will be elevated to adult court, and the potential result of this in terms of stigma and penalty.  The particular characteristics of young offenders make extra precautions necessary in affording them the full protection of their Charter  rights.

 

                   Because appellant was neither advised of nor given a reasonable opportunity to exercise his right to counsel either under the Charter  or the YOA , the issue of whether he validly waived that right did not arise.  With respect to the first statement, neither appellant nor his great‑aunt appreciated the consequences of his act of confession, despite the fact that appellant had had previous dealings with the police.  If waiver had been in issue, appellant would not have had sufficient information concerning the extent of his jeopardy to make an informed and valid decision as to whether or not to speak with a lawyer.  Accordingly, neither s. 56  YOA  nor s. 10( b )  of the Charter  were complied with and the first statement was inadmissible on this ground as well. 

 

                   With respect to the second statement, its admissibility was considered independently of the first statement and in conjunction therewith.  The finding that appellant did not waive his right to counsel with respect to the first statement because he was not advised that he might be transferred to adult court had no application to the second statement because the appellant exercised his right to counsel.  He asserted, however, that advice concerning transfer was a pre-condition to admissibility.  The strict requirements set out in s. 56 concerning the admissibility of statements of a young person to a "person in authority" in proceedings against him or her recognize that young persons generally have a lesser understanding of their legal rights than adults and are less likely to assert and exercise those rights fully when confronted with an authority figure.  In addition, ss. 56(1)  and 56(2) (a) YOA , read together, incorporate the common law relating to the voluntariness of statements made by accused persons, including any special requirements applicable in the case of young persons.  An analysis of the common law with respect to advising a young person over age 14 of the possibility of being tried in adult court demonstrates that this was considered to be an important consideration in determining voluntariness where the statement was tendered in adult court following a successful transfer application

 

                   A warning that a young person may be raised to adult court should not be interpreted as an absolute requirement of s. 56 in all cases in which the young person is over the age of 14.  Parliament has set out with great precision in s. 56(2)(b) those procedures which it has determined must be complied with in every case in order that a statement made by a young person to a person in authority be admissible against the young person.  Those necessary procedures do not include a warning as to the possibility of being raised to adult court.  The presence or absence of such a warning is to be considered not as a specific requirement of s. 56(2)(b) but as an aspect of determining whether or not, apart from complying with s. 56(2)(b), the statement was voluntary.  In these circumstances, the Court would be hesitant to find that the statement was involuntary independently of the first statement.

 

                   The appellant's second statement could be excluded on the grounds that it was involuntary, or was obtained in breach of s. 10( b )  of the Charter  as well as breach of the YOA , when considered in conjunction with the first statement.

 

                   Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination, based on factors designed to ascertain the degree of connection between the two statements.  These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances.  A subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the making of the first statement was a substantial factor contributing to the making of the second statement.  An explanation of one's rights either by a police officer or counsel may not avail in the face of a strong urge to explain away incriminating matters in a prior statement.  Unless counsel knows that the first statement will be inadmissible, the best advice may not be to say nothing.  In most cases, it is unlikely that counsel will be able to say with any assurance that the first statement will be adjudged inadmissible.

 

                   Section 56 not only incorporates the common law of voluntariness but also imposes statutory requirements with respect to the right to consultation and the presence of counsel or an adult.  The requirement that the explanation as to the accused's rights precede the making of the statement is to ensure that the young person does not relinquish the right to silence except in the exercise of free will in the context of a full understanding and appreciation of his or her rights.  A previous statement may operate to compel a further statement notwithstanding explanations and advice belatedly proffered.  If, therefore, the successor statement is simply a continuation of the first, or if the first statement is a substantial factor contributing to the making of the second, the condition envisaged by s. 56 has not been attained and the statement is inadmissible.  The final basis for exclusion of the second statement is breach of s. 10( b )  of the Charter .  If an inadmissible statement is followed by a further statement which in and of itself involves no Charter  breach, the admissibility of the latter will be resolved under s. 24(2)  of the Charter .  The presence of a causative relationship is not a requirement in order to trigger a s. 24 analysis. 

 

                   Here there was not only a close temporal relationship between the statements, but also the second statement was a continuation of the first, and the first statement was a substantial factor leading to the making of the second.  The statements were taken less than a day apart by the same officer.  There was no evidence that the police in the interval between the two statements had gathered further evidence tending to incriminate appellant to which appellant might be asked to respond.  There was also continuous advertence by the police officer throughout the second statement to information given in the first statement.  All of the evidence leads to the conclusion that the second statement was a continuation of the first.  Communication with counsel did not obviate this conclusion.

 

                          Given these findings, the second statement was inadmissible both on the basis of the common law test and the exclusionary language of s. 56.  It would also have been inadmissible under s. 24(2)  of the Charter , had it been necessary to so rule.  Appellant was accordingly acquitted.

 

Cases Cited

 

                   Considered:  R. v. Smith, [1991] 1 S.C.R. 714; referred to:  R. v. Collins, [1987] 1 S.C.R. 265; R. v. Yensen (1961), 130 C.C.C. 353; R. v. D.M. and J.P. (1980), 58 C.C.C. (2d) 373; R. v. A. (1975), 23 C.C.C. (2d) 537; Boudreau v. The King, [1949] S.C.R. 262; Horvath v. The Queen, [1979] 2 S.C.R. 376; Hobbins v. The Queen, [1982] 1 S.C.R. 553; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Grant, [1993] 3 S.C.R. 223.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 8 , 10( b ) , 24(2) .

 

Criminal Code, R.S.C. 1970, c. C‑34, s. 21(1)(b), (c).

 

Police and Criminal Evidence Act 1984, 1984 (U.K.), c. 60.

 

Young Offenders Act , R.S.C., 1985, c. Y‑1 , ss. 3 (e), (g), (2) , 11 , 16 , 56(1) , (2) (a), (b)(i), (ii).

 

Authors Cited

 

Cross, Sir Rupert.  Cross on Evidence, 7th ed.  By Sir Rupert Cross and Colin Tapper.  London:  Butterworths, 1990.

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1991), 8 B.C.A.C. 199, 17 W.A.C. 199, 14 W.C.B. (2d) 578, dismissing an appeal from conviction by Metzger Prov. Ct. J.  Appeal allowed.

 

                   Steven M. Kelliher, for the appellant.

 

                   Dirk Ryneveld, Q.C., for the respondent.

 

                   The judgment of the Court was delivered by

 

                   Sopinka J. -- This appeal concerns the appropriate principles which are applicable to determine the admissibility of a confession which is preceded by a confession that is ruled inadmissible.  These principles will be examined in connection with three bases on which the first confession may be inadmissible, namely, because:

 

                   (i)        it was involuntary;

 

                   (ii)   it was obtained without complying with the Young Offenders Act  ("YOA ");

 

                   (iii)it was obtained in breach of s. 10( b )  of the Canadian Charter of Rights and Freedoms  ("Charter ").

 

Facts

 

                   The appellant E.T. was convicted in Youth Court of the second degree murder of a cab driver on October 12, 1988.  E.T. was at the time a 16-year-old drop-out who lived with his great-aunt, C.T., a 62-year-old Elder of the Tsawout Band with two years of schooling.  Three other persons, two young offenders, A. and L.I.R., and an adult of approximately 23 years, were also implicated in this murder.  The adult, Michael Allen, was tried before a judge and jury and convicted of manslaughter.  His trial and the appeals therefrom took place prior to commencement of the trial of the young offenders and Allen gave evidence for the Crown at the latter trial.  The three young offenders were charged with first degree murder.  The Crown's theory was that the death of the cab driver was the intended culmination of a plan to rob a taxi cab driver.  The trial judge concluded on a no-evidence motion that with respect to all three accused there was no evidence of first degree murder.  The Youth Court judge convicted the appellant and A. of murder in the second degree and L.I.R. of manslaughter. 

 

                   During the course of the trial, the Crown sought to have admitted as evidence two statements made by E.T. to the police after the killing.   The trial judge excluded a first statement made the day of E.T.'s arrest, but admitted a second statement made the next day.  The circumstances surrounding the making of the two statements were as follows.  On the morning of October 12 (the murder of the cab driver having taken place in the very early hours of that morning), the appellant was arrested at his home, warned, and his clothes were seized.  He asked that his great-aunt, C.T., whom he regarded as his mother, be allowed to come with him and the two were taken to the RCMP station.  While en route to the station in the police car, C.T. began searching in her purse for her lawyer's card, and was advised by the police officers that "all of that" would be taken care of at the police station.  When they arrived at the station, however, E.T. and his aunt were taken directly to an interview room, and Constable Logan commenced taking a statement from E.T. which lasted some four and a half hours.  The statement was preceded by the following exchange which involved the filling out of the Statement to Person in Authority form required by s. 56  of the Young Offenders Act :

 

[Logan]. . . Now um, [E.], I'm gonna do, give you the ah, give you your choices of, of giving a statement to a person in authority, you understand that I'm a person in authority.  I've identified myself as Constable Matt LOGAN and um, given you the, the same ah, type of thing at your home, but I'd like to give it to you again and in front of both of you so you understand. . . . First of all um, I'm explaining to you that you, that you're under no obligation to give a statement. 

 

ET                      Yeah.

 

                   [Logan]That any statements that I may give may be used as evidence in proceedings against me.  I've been given an opportunity to speak to a lawyer or a parent or in the absence of a parent, the adult relative or in the presence or the absence of a parent or an adult relative, an adult of my own choosing.  And you're choice that you gave me at the home would still stay the same that you wish to speak to ah, to me in front of your, in front of your ah, grand-aunt, in front of [C.T.], aye.  Ah, do you refer to [C.T.] as mom?

 

                   ET   Yeah. 

 

                                                                   . . .

 

[Logan]. . . Okay now ah, out of those choices I wish to speak with one of my parents, I wish to speak with an adult relative or an adult of my own choosing ah, you would circle which one and I'll let you go ahead and do it. 

 

ET               Well (undecipherable).

 

[Logan]Your mom um, [C.T.] would be a, an adult of your ah, your choosing, yeah.

 

ET (undecipherable).

 

                   [Logan]. . . Relative now, now here it says I have the right to give my statement in the presence ah, of and you circle your choice.  You have the right to give in the presence of a lawyer, of a parent or of an adult relative or an adult of your own choosing.  And you just circle the person that you would like in the room when you ah, when you give a statement. 

 

ET I guess one of my parents?

 

[Logan]Um . . . probably the presence of an adult relative would be the choice there.  Um, [C.T] is like a parent but she um, we'd have to go with an adult relative.  Okay.  Um ...

 

ET               Sign right here?

 

[Logan]Okay, right, I need your signature right there, yeah.  And I'll get [C.T.] to sign it too.  Just figure out where she should sign it first.

 

                                                                   . . .

 

                   [C.T. signs and Constable Logan signs.]

 

[Logan]. . . I think before we start off ah, you know I understand you're sixteen years of age, you're ah, you know you're just starting out in life.

 

ET               Yeah.

 

[Logan] And um, you know, you've got a long way, long life ahead of you, long ways to go and ah, you'll make a lot of decisions in your life and today is one, is a decision that you have to make on whether to ah, whether to tell us the truth about what happened and ah . . . your truthfulness will make a lot of ah, make a lot of things come clear and ah, it'll be a major, major thing in your, in your life to, to do that.  So what I'd like to ask you ah, [E.], is that ah, is, what you can relate to me about ah, an incident that happened early this morning. 

 

ET               Yeah. 

 

                   After the statement was completed, E.T. and C.T. were driven back to their home where E.T. produced a knife and the keys to the driver's cab.  C.T. was told that she was through, and that E.T. would remain in police custody.  Constable Logan then took E.T. to visit the scene of the crime after which they returned to the police station.  Following the appellant's request, he had an interview in person with his lawyer which lasted half an hour.  The next morning, the appellant telephoned Constable Logan and said he remembered some things he had forgotten the day before and wished to add them to his statement.  When the Constable arrived at the police station, he found the appellant engaged in a telephone conversation with his lawyer which ended shortly thereafter.  When Logan sat down with the appellant, they again went through the filling out of the "Statement to Person in Authority" form and E.T. indicated without prompting that he did not wish to speak to anyone other than Constable Logan or have anyone else present during his statement.  Constable Logan also explained to E.T. that if anyone had offered him any hope of advantage or suggested any fear of prejudice with respect to giving this statement, that E.T. should forget about what they had said.  The second statement was taken over a relatively short period, and after covering the topics which E.T. had apparently mentioned over the phone, reverted to a discussion of what the youths' plan with respect to the cab driver had been.  The second statement included the following exchange:

 

Q.               . . . What was the complete plan?

 

A.[A.] was gonna sit behind the driver and stab him in the neck. . . . I was supposed to sit in the passenger side in the front and just stab when ah . . . [L.I.R.] and [Allen] were to hold the guns to his head. 

 

The same statement also included the following question and answer:

 

Q.. . . Was everyone aware and in agreement with the plan to kill the taxi driver?

 

A.[A.] and [L.] were, Mike and I were I don't know, wondering I guess.

 

                   As mentioned above, the trial judge excluded the first statement but admitted the second, and convicted E.T. of second degree murder.  The appellant appealed his conviction to the Court of Appeal for British Columbia, seeking to have the second statement excluded, and if successful, he claimed that he would be entitled to an acquittal on the ground that the evidence established his innocence as a principal, and that there was no evidence to support his conviction as an aider or abettor under s. 21(1)(b) and (c) of the Criminal Code, R.S.C. 1970, c. C-34.  The Court of Appeal for British Columbia dismissed the appeal.

 

Judgments Below

 

Provincial Court (Metzger, Prov. Ct. J.)

 

                   Voir Dire on Admissibility of Statements Made by Appellant

 

                   The trial judge stated that the statements could only be admitted into evidence if they were voluntary and that voluntariness includes the accused's appreciating the consequences of giving the statement.  With young offenders, ss. 11  and 56  YOA  must also be complied with.  The trial judge stated that the reason that a young person is entitled to have an adult with him is that "[t]he young offender needs someone who appreciates what is happening to be there with him to give him advice because the law treats him differently from adult persons".  The trial judge found as a fact that C.T. did not understand that E.T. could face life imprisonment, that E.T. did not have to talk to the police, or that she could have stopped the questioning at any time.  While stating that Constable Logan behaved in a forthright and proper manner throughout, the trial judge held that the additional steps, which should have been taken in this case given the lack of sophistication of E.T. and C.T., would have been to say something like the following:

 

 

`C.T.', `E.' could go to prison for life if he confesses to me.  Do you understand that he can be convicted of murder in adult court if he was in the taxi and even if he did not even touch the taxi driver?  `C.T.', I urge you to talk to a lawyer.  Now, do you appreciate what may happen to `E.T.'?  Do you still want to talk to me?

 

                   The trial judge held that although E.T. was given his Charter  and YOA  rights, there were no threats or promises made to him, he had had previous dealings with the police, and this was a first degree murder case, the first statement made by E.T. should be excluded as he did not appreciate the consequences of his act of confession when he made this statement to the police.  The trial judge concluded, however, that the second statement made by E.T. "is admissible as the defect of not appreciating the consequences of his acts was cured by his consultation with a lawyer before he gave that statement".

 

                   Judgment on Conviction

 

                   The entirety of Metzger Prov. Ct. J.'s judgment on conviction reads as follows:

 

I have considered all of the evidence properly before me along with the arguments of counsel and including the consumption of alcohol and the aspect of intent, and I make the following findings if each of you would stand, please, gentlemen:

 

                   You, [E.T.], I find guilty of second degree murder; [A.], I find you guilty of second degree murder; and, [L.], guilty of manslaughter.

 

Court of Appeal, R. v. L.R.I. and E.T. (1991), 8 B.C.A.C. 199 (Toy, Proudfoot and Goldie JJ.A.)

 

                   Goldie J.A. accepted the Crown's concession that the trial judge was correct to exclude the first statement, but commented that this did not mean he agreed with the trial judge's reasons for doing so.  With regard to the trial judge's finding that the constable should have explained to E.T. the possibility of life imprisonment if he were raised to adult court, Goldie J.A. was of the view, at p. 207, that:

 

                   Requiring a police officer to explain the potential consequences of the charge facing a young offender may very well cause a number of difficult problems.  The potential disadvantages are not confined to the additional burden it places on the police officer.

 

                   Goldie J.A. concluded that the trial judge was correct to admit the second statement because E.T. had spoken to a lawyer prior to making it.  He stated that although the trial judge could not guess what advice E.T. received from his lawyer, it offended common sense to assume that E.T. did not tell his lawyer of his choice to talk to Constable Logan again, and that it would be destructive of solicitor-client relationships if the trial judge accepted that E.T. had not discussed his decision with his lawyer.

 

                   Goldie J.A. added that when the case against the appellant was examined in light of the second statement, the basis for a conviction of second degree murder becomes clear. He added at p. 208:

 

                   Allen's evidence confined the stabbing to A.  Unlike L.R.I., however, there were blood stains on E.T.'s clothes which might have been taken by the trier of fact to confirm the thrust of E.T.'s statement.  In short, the trier of fact could have concluded that E.T. and A. shared an intention which culminated in the death of the cab driver who responded to the call made at 5:35 a.m. and that E.T. either actively participated or aided and abetted A. in the execution of that intention.

 

                   Toy J.A. (Concurring reasons)

 

                   In concurring with the reasons of Goldie J.A., Toy J.A. commented on the need for more adequate reasons for the convictions by the Youth Court judge in the circumstances of this case.

 

The Issues

 

                   It should be noted that it is only the second of the two statements given by E.T. to the police which is at issue on this appeal.  The first statement was excluded by the trial judge because he was of the view neither E.T. nor his great-aunt, C.T., understood the consequences of E.T.'s confession to the police or the full extent of the jeopardy in which he found himself.  The Court of Appeal assumed that the first statement had been properly excluded (and indeed the Crown did not dispute its exclusion on appeal) but Goldie J.A. made it clear that this assumption did not mean that he agreed with the trial judge's reasons for excluding the statement.  The Crown likewise did not seek to reopen the analysis of the first statement in this Court.  As did the Court of Appeal, I am prepared to assume the correctness of the finding of the trial judge that the first statement was inadmissible because it was involuntary.  In view of the fact that the admissibility of the second statement depends on the reasons for the inadmissibility of the first statement, I will consider whether it was inadmissible, as well, by reason of non-compliance with the Charter  and the YOA .  I will then deal with the admissibility of the second statement.

 

Requirements of the Charter  and the Young Offenders Act 

 

                   Section 10( b )  of the Charter  provides that "[e]veryone has the right on arrest or detention . . . (b) to retain and instruct counsel without delay and to be informed of that right".  Likewise, s. 11  YOA  requires that all young persons arrested or detained under the Act have "the right to retain and instruct counsel without delay at any stage of proceedings against [them]" and that they shall be advised of this right "forthwith on [their] arrest or detention" and "be given an opportunity to obtain counsel".  Section 56 then imposes further obligations upon the police in respect of taking statements from young persons, including the obligation to allow the young person to consult with a parent, adult relative or other adult or a lawyer and to have that person present when making the statement.  Section 56 provides explicitly that if its requirements are not complied with, then the statement is inadmissible. 

 

                   In this case, the officer purported to comply with the Charter  and the YOA  by advising the appellant that he had the right to a reasonable opportunity to speak to either a lawyer or a parent or, in the absence of a parent, another adult of his choosing.  The trial judge accepted this as a compliance with both the Charter  and the YOA .  I disagree.  While s. 56 appears to provide that a parent or other adult is an alternative to counsel, s. 11 does not.  How is this apparent conflict resolved?  In my view, s. 56 cannot be interpreted in a manner that derogates from the mandatory requirement in s. 11.  If so interpreted, s. 56 would purport to reduce the constitutional right of an accused young person under s. 10( b )  of the Charter .  This it cannot do and s. 56 should therefore be interpreted in a manner that is consistent with s. 10( b )  of the Charter  and with s. 11  YOA .  The only interpretation of s. 56 which is consistent with both s. 10( b )  of the Charter  and s. 11  YOA  is that a parent is not an alternative to counsel unless the right to counsel is waived.

 

                   E.T. was not advised of his independent right to counsel and therefore it cannot be said that he waived the right.  In any event, apart from this omission, it is my view that that waiver would not have been valid in the circumstances of this case.  In this regard, I accept the submission of counsel for the appellant that if waiver is to be relied upon in these circumstances, the young person cannot be presumed to know the extent of his or her jeopardy and must be advised that an application may be made to have the case tried in adult court under s. 16 YOA and that the result of such an application is that the appellant would face up to life imprisonment rather than the three-year maximum under the YOA .  Such an application was, in fact, made here and was successful at first instance but reversed on appeal.

 

                   The right of the accused to know the extent of his or her jeopardy in the context of the s. 10(b) right to counsel was discussed by this Court in R. v. Smith, [1991] 1 S.C.R. 714, a case in which the police had failed to advise the accused that his shooting victim had died.  McLachlin J., for the Court, summarized the law in this area as follows, at pp. 726-27:

 

                   In Canada, we have adopted a different approach [than that in the United States].  We take the view that the accused's understanding of his situation is relevant to whether he has made a valid and informed waiver.  This approach is mandated by s. 10( a )  of the Charter , which gives the detainee the right to be promptly advised of the reasons for his or her detention.  It is exemplified by three related concepts:  (1) the "tainting" of a warning as to the right to counsel by lack of information; (2) the idea that one is entitled to know "the extent of one's jeopardy"; and (3) the concept of "awareness of the consequences" developed in the context of waiver. 

 

McLachlin J. went on to conclude that in the circumstances of the case, the accused must have been aware that he had been involved in a most serious crime and, particularly, that his victim had likely died.  Thus, he was possessed of sufficient information as to make a valid decision whether or not to exercise his right to counsel. 

 

                   Applying these principles to the young offender context, it seems to me that the phenomenal difference in potential consequences faced by the young person in youth court as opposed to adult court mandates that a young person be aware of the possibility (where it exists) that he or she will be elevated to adult court, and the potential result of this in terms of stigma and penalty.  In the present case, this means that E.T. should have been advised that the Crown might apply to have E.T. tried in adult court and that the maximum penalty which he might face, given that a death was involved, is life imprisonment without parole for 25 years.  As McLachlin J. noted in Smith, however, the determination of whether or not a young person validly waived his or her s. 10(b) right to counsel is not to be based simply on what the police told the young person, but upon the young person's actual awareness of the consequences of his or her actions.  In the present case, the trial judge concluded after hearing the testimony that, with respect to the first statement, neither E.T. nor his great-aunt appreciated the consequences of his act of confession, despite the fact that E.T. had had previous dealings with the police. 

 

                   This is not to say that in the normal course, it is necessary that the police advise an accused of the maximum penalty he or she might face.   In my view the particular characteristics of young offenders make extra precautions necessary in affording them the full protection of their Charter  rights.

 

                   With respect to the first statement, of course, I have already said that E.T. was neither advised of nor given a reasonable opportunity to exercise his right to counsel either under the Charter  or the YOA , and thus the issue of whether he validly waived that right does not arise.  If waiver were in issue, however, I would have found that E.T. did not have sufficient information concerning the extent of his jeopardy to make an informed and valid decision as to whether or not to speak with a lawyer.  Accordingly, s. 56 was not complied with and the first statement was inadmissible.  It follows from what I have said that there was a failure to comply with s. 10( b )  of the Charter  in addition to non-compliance with s. 56  YOA .  The result of the total failure to comply with s. 10(b) was that a confession was obtained from a young person who was conscripted against himself.  Admission of the statement would have affected the fairness of the trial and its rejection was mandated on any view of the Collins factors (R. v. Collins, [1987] 1 S.C.R. 265). 

 

                   This takes me to the admissibility of the second statement.  I will address this question from two aspects:

 

(1)Was it admissible when considered independently of the first statement and the circumstances surrounding it?

 

(2)Was it admissible when considered in conjunction with the first statement?

 

The Second Statement

 

                   (1)  Admissibility Independent of First Statement

 

                   Prior to the making of the second statement, E.T. had had a half-hour interview in person with his lawyer and also spoke with his lawyer on the telephone immediately before making the second statement.  He had therefore exercised his right to counsel, and the provisions of s. 56 as interpreted above were complied with.  My finding that E.T. did not waive his right to counsel with respect to the first statement because he was not advised that he might be transferred to adult court has no application to the second statement.  But counsel for the appellant forcefully contended that apart from its role with respect to waiver, discussed above, the obligation under s. 56 to advise a young person of the possibility of being raised to adult court is a pre-condition of admissibility.  If this is so and a young person must be expressly advised of this possibility by the police, whether or not the young person has had the advice of counsel, then the second statement should also have been excluded.  This raises the question as to whether s. 56, either by its express language or by implication in incorporating the common law doctrine of voluntariness, makes it mandatory that a young person be advised that he or she may be transferred to adult court prior to the taking of a statement.  If so, then clearly this obligation was not met in this case, and it would be necessary to consider whether this deficiency was rectified by E.T.'s consultation with counsel prior to making the second statement.

 

                   Section 56 sets out strict requirements which must be complied with in order to render a statement made by a young person to a "person in authority" admissible in proceedings against him or her.  The rationale for this lies in Parliament's recognition that 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.  The requirements in s. 56(2)(b) reflect this concern;  a young person is given the right to consult with a parent or other adult as well as the right to counsel upon arrest or detention, and is entitled to have a lawyer or a parent or other adult present when making a statement.  The young person must also be specifically told prior to the taking of any statement, in language appropriate to his or her level of understanding, that he or she is under no obligation to make a statement and that anything said may be used as evidence in proceedings against him or her. 

 

                   There is no express requirement in s. 56(2)(b) that a young person over the age of 14 be warned of the possibility of being raised to adult court.  The initial inference to be drawn from this omission is that Parliament did not feel that such a warning should be an absolute requirement in every case.  However, there are a number of ways in which this requirement may be seen to have been incorporated into s. 56.  First, the requirement in s. 56(2)(b)(ii) that the young person be advised that "any statement given by him may be used as evidence in proceedings against him" could be seen to require by inference that the young person be told what the "proceedings against him" may consist of, at least where there may be special proceedings such as a trial in adult court.  Such an interpretation would somewhat strain the wording of s. 56(2)(b)(ii), however, since the purpose of this part of the caution, in conjunction with that in s. 56(2)(b)(i), appears to be simply to advise of the right to silence and that any statements made may be used against the young person.

 

                   More importantly, s. 56(2)(a) provides that, along with the requirement of the specific procedures in s. 56(2)(b), the statement must be voluntary.  Further, s. 56(1) provides that subject to the specific requirements of the rest of the section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.  The effect of these two subsections is clearly to incorporate the common law relating to the voluntariness of statements made by accused persons, including any special requirements applicable in the case of young persons.  An analysis of the common law with respect to advising a young person over age 14 of the possibility of being tried in adult court demonstrates that this was considered to be an important consideration in determining voluntariness where the statement was tendered in adult court following a successful transfer application (R. v. Yensen (1961), 130 C.C.C. 353 (Ont. H.C.)).  In Yensen, McRuer C.J.H.C. stated at p. 358 that while he did not have to decide the case on this ground (the young person not having been properly warned as to his right to remain silent), he had "very grave doubts" as to the right to use the statement of a juvenile in adult court "unless great care is taken to give a full explanation to the accused that that is the course that events might take."  Likewise, in cases where, as here, the statement was only offered as evidence in youth court, the absence of such a warning was held to be an important factor in determining whether or not the statements were voluntary (R. v. D.M. and J.P. (1980), 58 C.C.C. (2d) 373 (Ont. Prov. Ct.); R. v. A. (1975), 23 C.C.C. (2d) 537 (Alta. S.C.T.D.)).  It is important to note, however, that in none of the above cases was it held to be a hard and fast rule in all cases that a young person over 14 years of age be warned that they could be raised to adult court.  Rather, the presence or absence of such a warning was one factor to be considered in determining whether the statement was voluntary.

 

                   In my view, though, a warning that a young person may be raised to adult court should not be interpreted as an absolute requirement of s. 56 in all cases in which the young person is over the age of 14.  Parliament has set out with great precision in s. 56(2)(b) those procedures which it has determined must be complied with in every case in order that a statement made by a young person to a person in authority be admissible against the young person.  Those necessary procedures do not include a warning as to the possibility of being raised to adult court.  In my view, therefore, the presence or absence of such a warning is to be considered not as a specific requirement of s. 56(2)(b) but as an aspect of determining whether or not, apart from complying with s. 56(2)(b), the statement was voluntary. 

 

                   I have already stated that a valid waiver of the right to counsel in s. 10(b) or s. 56 can only be made where a young person is aware of the consequences of his or her actions, including the possibility of being raised to adult court.  Here, E.T. exercised his right to counsel and s. 56(2)(b) was complied with prior to the making of the second statement.  Was the statement nonetheless involuntary because E.T. was not explicitly warned by the police that he could be raised to adult court?  To answer this question, I must apply the common law approach to date pursuant to which the presence or absence of this warning is one factor to be considered in determining voluntariness, the importance of which will vary depending upon the other facts of the case, including the age, level of understanding and sophistication of the young person and whether or not the young person has consulted with counsel.  While it would have been preferable had the police given him this warning, E.T. did exercise his right to counsel prior to making the second statement -- he spent a half-hour with counsel the evening before and spoke with counsel on the phone immediately prior to making the statement.  Although the Court should not speculate upon what advice the lawyer gave E.T. with regard to what his subsequent actions should be, we can presume, in the absence of any suggestion to the contrary, that counsel was competent and was aware of and imparted to E.T. the basic information about his rights, including the possibility of a transfer application being made.  It appears that it was on this basis that the trial judge concluded that the statement was voluntary.  In the circumstances of this case, I would hesitate to hold that the statement was involuntary simply because of the absence of an express police warning that E.T. might be raised to adult court. 

 

                   (2)  Admissibility:  Considered in Conjunction with First Statement.

 

                   The principles that govern the admissibility of the second statement when considered in conjunction with the first statement are directly influenced by the grounds for the exclusion of the first statement.  As I have already stated I will assume the correctness of the finding of the trial judge that the first statement was not voluntary.  This issue was not contested by the Crown.  In addition, I have found that it was inadmissible by reason of the breach of s. 10( b )  of the Charter  as well as breach of the statutory right to counsel and the right to be advised thereof under the YOA .  Section 56 both incorporates the common law of voluntariness and adds statutory grounds for exclusion.  Each of these constitutes a possible basis for exclusion of the second statement.  With respect to the breach of the  Charter , s. 24(2)  provides its own formula for exclusion.  I propose to consider the principles that bear on the admissibility of the second statement on each of these bases.

 

                   Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements.  These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances.  See Boudreau v. The King, [1949] S.C.R. 262; Horvath v. The Queen, [1979] 2 S.C.R. 376; and Hobbins v. The Queen, [1982] 1 S.C.R. 553.  No general rule excluded subsequent statements on the ground that they were tainted irrespective of the degree of connection to the initial admissible statement.  In this regard I adopt the language of Laskin C.J. in Hobbins, supra, at p. 558, when he states:

 

                   There can be no hard and fast rule that merely because a prior statement is ruled inadmissible a second statement taken by the same interrogating officers must be equally vulnerable.  Factual considerations must govern, including similarity of circumstances and of police conduct and the lapse of time between the obtaining of the two statements.

 

                   In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement.  In Cross on Evidence (7th ed. 1990), the learned author summarizes the common law on this point and contrasts it with the provisions of the Police and Criminal Evidence Act 1984, 1984 (U.K.), c. 60, which was enacted in England and now governs the admissibility of confessions.  At page 619, he states: 

 

                   It had become well-established in the old law that a confession which, considered in isolation, appeared to satisfy the conditions for being voluntary, might nevertheless be excluded if preceded by an earlier involuntary confession.  It would be so excluded if either the factors tainting the earlier confession continued to apply, or if the fact of having made such a confession could itself be regarded as precipitating its successor.  There is nothing in the new Act to displace so sensible an approach.

 

                   In these cases the fact that a caution or warning had been given or that the advice of counsel had been obtained between the two statements was a factor to be considered but it was by no means determinative.  While such an occurrence went a long way to dissipate elements of compulsion or inducement resulting from the conduct of the interrogators, it might have little or no effect in circumstances in which the second statement is induced by the fact of the first.  This point was made by Estey J. in Boudreau, supra, at p. 285, where he states:

 

A warning under such circumstances, when already he had given information in reply to questions and when immediately after the warning he is further questioned by the same parties in a manner that directed his mind to the information already given, is quite different in its effect from a warning given before any questions are asked.

 

                   An explanation of one's rights either by a police officer or counsel may not avail in the face of a strong urge to explain away incriminating matters in a prior statement.  Moreover, unless counsel knows that the first statement will be inadmissible, the best advice may not be to say nothing.  In most cases, it is unlikely that counsel will be able to say with any assurance that the first statement will be adjudged inadmissible.

 

                   In view of the fact that s. 56 incorporates the common law of voluntariness, these principles apply to resolve the issue as to the admissibility of a confession which is made after a prior involuntary confession.  But section 56 does more than incorporate the common law.  It imposes additional statutory requirements with respect to the right to consultation and the presence of counsel or an adult, to which I have referred above.  There is no requirement that failure  to comply with these provisions has any causative relationship to the making of the statement.  The only relationship prescribed is a temporal one.  Unless the requisite explanations are made before the statement is taken from the young person, it is inadmissible.  This responds to the declaration in s. 3  YOA  that young persons "have special guarantees of their rights and freedoms" (3(e)) and have the right "to be informed as to what those rights and freedoms are" (3(g)). 

 

                   In order to determine what principles should govern the admissibility of successive statements in which there is a failure to comply followed by an attempt to comply, it is necessary to interpret s. 56 and to decide what Parliament intended when it states that "[n]o oral or written statement . . . is admissible against the young person unless . . . the person to whom the statement was given has, before the statement was made, clearly explained . . ." the rights to counsel, etc.  In arriving at the appropriate interpretation, by virtue of s. 3(2) of the Act is to be "liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1)" which include the principles to which I have specifically referred above.

 

                   In my opinion, the purpose of the requirement that the explanation prescribed by s. 56 precede the making of the statement is to ensure that the young person does not relinquish the right to silence except in the exercise of free will in the context of a full understanding and appreciation of his or her rights.  A previous statement may operate to compel a further statement notwithstanding explanations and advice belatedly proffered.  If, therefore, the successor statement is simply a continuation of the first, or if the first statement is a substantial factor contributing to the making of the second, the condition envisaged by s. 56 has not been attained and the statement is inadmissible.

 

                   The final basis for exclusion of the second statement is breach of s. 10( b )  of the Charter .  If a statement is followed by a further statement which in and of itself involves no Charter  breach, its admissibility will be resolved under s. 24(2)  of the Charter .  This provides that evidence "obtained in a manner that infringed or denied any rights or freedoms guaranteed" by the Charter  is inadmissible if its admission would bring the administration of justice into disrepute.  This language has been interpreted to apply irrespective of any causal relationship between the breach and the obtaining of the evidence provided that there is a sufficient temporal relationship between the evidence and the breach.  Initial expression to this interpretation was given in R. v. Therens, [1985] 1 S.C.R. 613.  At page 649, Le Dain J. (dissenting on another point) stated:

 

It is not necessary to establish that the evidence would not have been obtained out [sic] for the violation of the Charter .  Such a view gives adequate recognition to the intrinsic harm that is caused by a violation of a Charter  right or freedom, apart from its bearing on the obtaining of evidence.  I recognize, however, that in the case of derivative evidence, which is not what is in issue here, some consideration may have to be given in particular cases to the question of relative remoteness.

 

                   Later, in R. v. Strachan, [1988] 2 S.C.R. 980, a majority of this Court, per Dickson C.J., endorsed the approach of Le Dain J. in Therens with respect to the necessary connection to operationalize s. 24(2), stating the following in that regard, at pp. 1001-2:

 

                   In the present appeal, Esson J.A. rejected the Crown's submission that s. 24(2) requires a causal link between the Charter  infringement and the discovery of the evidence.  He considered R. v. Therens and held that it did not stand for the proposition that s. 24(2) requires a causal nexus.  In his view the language of s. 24(2) militated against such an interpretation.  If present, a causal link was one factor to take into account in the later s. 24(2) determination whether the admission of the evidence would bring the administration of justice into disrepute. . . .

 

                   I am inclined to agree with Esson J.A. and to reject the approach to the first requirement of s. 24(2) advanced by the Crown.  In my view, reading the phrase "obtained in a manner" as imposing a causation requirement creates a host of difficulties.  A strict causal nexus would place the courts in the position of having to speculate whether the evidence would have been discovered had the Charter  violation not occurred.  Speculation on what might have happened is a highly artificial task.  Isolating the events that caused the evidence to be discovered from those that did not is an exercise in sophistry.  Events are complex and dynamic.  It will never be possible to state with certainty what would have taken place had a Charter  violation not occurred. Speculation of this sort is not, in my view, an appropriate inquiry for the courts.

 

                   A causation requirement also leads to a narrow view of the relationship between a Charter  violation and the discovery of evidence.  Requiring a causal link will tend to distort the analysis of the conduct that led to the discovery of evidence.  The inquiry will tend to focus narrowly on the actions most directly responsible for the discovery of evidence rather than on the entire course of events leading to its discovery.  This will almost inevitably lead to an intellectual endeavour essentially amounting to "splitting hairs" between conduct that violated the Charter  and that which did not.

 

                   Recently, this interpretation was applied to subject to a s. 24 analysis the results of a search effected by means of a valid search warrant which had been preceded by a search held to be unlawful by reason of a breach of s. 8  of the Charter .  See R. v. Grant, [1993] 3 S.C.R. 223.  Accordingly, while the presence of a causative relationship may be relevant, particularly on the issue of remoteness referred to by Le Dain J. and on the question of whether admission would bring the administration of justice into disrepute, it is not a requirement in order to trigger a s. 24 analysis.

 

Application to this Case

 

                   I have concluded that applying any of the above bases, the second statement must be excluded.  Not only was there a close temporal relationship between the statements, but the second statement was a continuation of the first, and the first statement was a substantial factor leading to the making of the second.  The statements were taken less than a day apart by the same officer.  There is no evidence that the police in the interval between the two statements had gathered further evidence tending to incriminate E.T. to which E.T. might be asked to respond.  There was also continuous advertence by the police officer throughout the second statement to information given in the first statement.  For example, after E.T. had said what he wished to say regarding the blood on his clothing, Constable Logan told him to think back to the plan and proceeded to ask him further details about it.  In essence, E.T., having started a statement, asked to complete it and did.

 

                   All of the evidence in this case leads to the conclusion that the second statement was causally connected to the first.  In Constable Logan's own words, E.T. wished to add something to his statement of the day before.  The fact that E.T. consulted with counsel between the making of the two statements and immediately prior to making the second does not obviate this conclusion.  Both E.T. and Constable Logan were operating from the perspective that the facts were already largely on the table, and the relative lengths of the statements reflect this view -- the first lasted some five hours, the second only half an hour.  Secondly, no one, including E.T.'s lawyer, would have known at that point that the first statement would be held to be inadmissible at trial as Constable Logan had advised E.T. according to the requirements of s. 56 as he understood them to be.  While it is beyond this Court to speculate as to what E.T.'s lawyer told him, I do not think we can infer that the lawyer would have advised E.T. that the first statement was inadmissible such that E.T. should refrain from corroborating incriminating statements already made.  Further, while we cannot determine with any assurance what E.T.'s motivation for making the second statement was, the largely exculpatory nature of the statement and the fact that E.T. told Constable Logan that he wanted to explain why he might have had blood on his pants suggests that E.T. wanted to give credence to his avowals in the first statement that he was merely a bystander to the murder.  In the end, then, as the appellant put it, "[o]nce the first statement was given, the rationale for further restraint in self-incrimination was gone".  In short, in these circumstances, communication with counsel cannot be said to have the determinative effect that it would have had if it had taken place before the first statement.

 

                   In view of the finding that the existence of the first statement was a substantial factor in inducing the making of the second statement, the latter is inadmissible both on the basis of the common law test and the exclusionary language of s. 56.  Moreover, had it been necessary, I would have also excluded it under s. 24(2).

 

                   Having concluded that the trial judge erred in not excluding the second statement made by E.T. as well as the first, I need not deal with the final ground of appeal -- that is, whether even with the second statement there was sufficient evidence upon which to base a conviction for second degree murder.  It remains only to determine the appropriate remedy.  In their written submissions, counsel for the appellant asked that an acquittal be entered, while the Crown asked only that the appeal be dismissed.  The usual remedy in a case such as this would be to order a new trial, likely on the charge of manslaughter given the finding of the Court of Appeal, with which I agree, that the trial judge's conviction for second degree murder rested on the second statement made by E.T.  When asked in oral argument before this Court whether he would care to amend his Prayer for Relief to seek an order for a new trial in the event this Court determined that the second statement should have been excluded, Crown counsel initially responded affirmatively.  However, Crown counsel then conceded in the face of vehement opposition from counsel for the appellant that such an amendment would not be fair as the Crown had never suggested that it might seek a manslaughter conviction in E.T.'s case.  Notwithstanding, that even in these circumstances the Court retains a discretion to order a new trial on manslaughter, in light of the foregoing  and bearing in mind that E.T. has already served his term of detention for the second degree murder conviction, an acquittal will be ordered. 

 

Disposition

 

                   The appeal is allowed, the conviction for second degree murder is quashed and an acquittal is entered.

 

                   Appeal allowed.

 

                   Solicitors for the appellant:  Kelliher, Brooks, Purves & Marshall, Victoria.

 

                   Solicitor for the respondent:  Regional Crown Counsel, Victoria.