Police failed to recaution young offender upon change in jeopardy during questioning.

R. v. D.T. 2013 ONCA 166 – the accused appealed his convictions for break and enter, theft under $5,000, and possession of marihuana for the purpose of trafficking.  The accused, age 16, was driving one of two vehicles stopped by police. The second vehicle was determined to be stolen. The accused initially told police that the vehicle he drove belonged to his mother, but subsequently admitted it was stolen. The accused was arrested, read his rights, and given the standard young person’s warning. At the station, the police advised the accused of his rights and his right to have a parent present. The accused agreed to make a videotaped statement and indicated he did not require his mother present during the interview. The accused admitted his role in the theft of the vehicles. At the end of the interview, he admitted to breaking into a private home and stealing marihuana, which he intended to sell. At trial, the accused sought exclusion of his statement. The trial judge found the accused’s rights were complied with, as he understood his rights, and declined multiple opportunities to have counsel or another adult present. The accused was convicted. He appealed on the basis that the trial judge erred in admitting his statement and erred in failing to find his s. 10(b) Charter rights were violated by his increased jeopardy arising at the end of his statement.

The ONCA allowed the appeal in part. There was no error in admitting the accused’s statement, as police comprehensively and scrupulously complied with the requirements of s. 10(b) of the Charter and ss. 146(2) and (4) of the Youth Criminal Justice Act.  However, the accused’s jeopardy changed markedly during the interview, obliging police to re-caution the accused.

“The original charge against the appellant was possession of stolen property under $5000. This was the only charge recorded on the Statement of a Young Person form filled in by the officer and signed by the appellant. At the start of the interview, the officer said, “so right now … you’re charged with possession of stolen property under five thousand (5000) dollars.”   The Judge said for some time, the interview proceeded entirely on the path of questions and answers about the two stolen motor vehicles. However, near the end the interview it veered onto new terrain. The officer started to ask questions about the contents of the cars. She mentioned several iPods. The appellant said that one belonged to him and “the black iPod was stolen from a house.”  In the Judge’s view, the spirit underlying, and the essential content of, the police duty to re-advise detainees of their s. 10(b) rights during an interview/statement are set out in R. v. Sawatsky 1997 ONCA 3561.  In short, Sawatsky held that the police must reiterate the right to counsel if they want to ask questions that go beyond an exploratory stage in connection with a related, but significantly more serious offence, or a different and unrelated offence. This obligation to re-advise applies even where the detainee brings up the other offences.

The Judge went on to say that in the YCJA context dealing with the intersection of young people and the criminal justice system, the “enhanced procedural safeguards” of s. 146(2) strongly support a similar analytical framework. In the Judge’s view, in the passage from the interview set out above, the appellant’s jeopardy changed noticeably. He started to talk about crimes that were both different and potentially more serious than that with which he had already been charged. In short order, he introduced, at a minimum, the following crimes: break and enter of a private dwelling, theft of an iPod and marihuana, possession of marihuana, and possession for the purpose of trafficking. Once all of this information was on the table, the officer had a duty to recognize that, in the language of Sawatsky, there was a real potential for the focus of the criminal investigation “to shift and broaden”.

In fact, as the Judge put it, this was precisely what happened. After the passage set out above, the officer continued to ask questions about the details of the break and enter into the private dwelling, the theft of the marihuana, and the reason for the theft, namely, “selling it”. In those circumstances, the Judge felt that the questions went well beyond being exploratory; they were patently investigatory. They should not have been asked without the police officer stopping, carefully re-advising the appellant of his various rights pursuant to s. 10 of the Charter and s. 146(2) of the YCJA, ensuring once again that the appellant understood those rights, and, if the appellant still wanted to make a statement about these new and more serious offences, ensuring that he properly waived his rights pursuant to s. 146(4) of the YCJA. Unfortunately, none of this happened.

The Judge ruled that the appropriate remedy was to exclude the portions of the accused’s statement directed toward the break and enter and the marihuana. The convictions for those offences were set aside and a new trial was ordered. The conviction for theft under $5,000 was affirmed.

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Filed under Recent Case Law, Section 10 Charter

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