R. v. J.(J.T.)

R. v. J.(J.T.)
Collection
Supreme Court Judgments
Date
1990-09-13
Report
[1990] 2 SCR 755
Case number
20758
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20758
Decision Content
R. v. J.(J.T.), [1990] 2 S.C.R. 755
Her Majesty The Queen Appellant
v.
J.(J.T) Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General for Alberta and
the Attorney General of Newfoundland Interveners
Indexed as: r. v. j.(j.t.)
File No.: 20758.
1990: March 27; 1990: September 13.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for manitoba
Constitutional law ‑‑ Charter of Rights ‑‑ Right to life, liberty and security of the person ‑‑ Right to be presumed innocent ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code contravened ss. 7 and/or 11(d) of the Charter ‑‑ If so, whether justified under s. 1 ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 213(a) ‑‑ Canadian Charter Rights and Freedoms, ss. 1, 7, 11(d).
Criminal law -- Constructive murder -- Whether s. 213(a) of the Criminal Code contravened ss. 7 and/or 11(d) of the Charter ‑‑ If so, whether justified under s. 1 .
Criminal law ‑‑ Young offenders ‑‑ Evidence ‑‑ Admissibility of statements and actions ‑‑ Admissibility dependant on safeguards provided in Young Offenders Act being met ‑‑ Act providing that adult relative be present ‑‑ Mature 17‑year‑old interrogated by police ‑‑ Youth charged with murder after oral inculpatory statement made ‑‑ Youth then asked if wanted to contact lawyer and to have adult relative present ‑‑ Adult relative attended briefly and youth advised by lawyer ‑‑ Interrogation continued without either lawyer or adult relative present ‑‑ More oral inculpatory statements made ‑‑ Youth declined to make written statement ‑‑ Whether oral inculpatory statements admissible ‑‑ Whether compliance with s. 56 of the Young Offenders Act ‑‑ Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, s. 56.
Respondent, a 17‑year‑old who had been living in a common law relationship and who had fathered a child, was tried in adult court and convicted of first degree murder. After a lengthy evening interrogation at the police station, he made an oral inculpatory statement and was then asked if he wanted an adult relative present. The relative attended and was present for about three minutes of the interrogation. J.T.J. was charged with murder and informed of his right to counsel. His clothing was seized and hair and finger nail scrapings were taken before his lawyer arrived after midnight. The lawyer spoke with J.T.J. and then with the adult relative. The police again interrogated J.T.J. and neither his lawyer nor the adult relative was present. Indeed, the police this time did not ask him if he wished to have an adult relative present. J.T.J. made an oral inculpatory statement during this interrogation but twice refused to make a written statement. En route to a youth detention facility in the very early morning after almost nine hours of custody, the police stopped at site of the crime and asked more questions. J.T.J. responded by nodding or pointing, coupled with some verbal responses.
The verdict was overturned on appeal and a new trial directed. J.T.J. was again found guilty of first degree murder and for a second time launched an appeal. On this occasion the appeal was allowed in part and a verdict of manslaughter was substituted for that of first degree murder. The Crown appealed and respondent cross‑appealed.
The constitutional questions before this Court queried whether s. 213 (a) of the Criminal Code contravened ss. 7 and/or 11(d) of the Canadian Charter of Rights and Freedoms and, if so, whether it was justified by s. 1 . Also at issue was whether the provisions of s. 56 of the Young Offenders Act had been complied with so that the statements made by respondent could be admitted.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be dismissed and the cross‑appeal allowed. The first constitutional question should be answered in the affirmative, the second in the negative.
Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: Section 213 (a) was unconstitutional for the reasons given by Lamer C.J. in R. v. Martineau, [1990] 2 S.C.R. 000.
Parliament, in enacting s. 56 of the Young Offenders Act, recognized the problems and difficulties that beset young people when confronted with authority. The section is to protect all young people of 17 years or less and must be applied uniformly without regard to the characteristics of the particular young person. Notwithstanding their bravado, young people would not appreciate the nature of their rights to the same extent as would most adults and are more susceptible to subtle threats arising from their surroundings and from persons in authority. It is just and appropriate that young people be provided with additional safeguards before their statements should be admitted. Under s. 56(2) no statement given by a young person to a person in authority is admissible without compliance with its enunciated requirements. These requirements are eminently fair and reasonable.
J.T.J.'s statements complied with s. 56(2)(a) because they were voluntary. They also complied with s. 56(2)(b)(i) and (ii) in that J.T.J. was told that he was under no obligation to give a statement and that any statement given by him might be used as evidence. None of the statements made by J.T.J., however, complied with either s. 56(2)(b)(iii) or (iv). He was not told that before a statement was made that he had the right to consult counsel or an adult relative and neither counsel nor an adult person was present when he made any of his statements.
J.T.J.'s first statement was inadmissible in that it was not spontaneous and therefore within the purview of s. 56(3). J.T.J. was only a suspect when it was made. The police, if they had wished to obtain a statement from J.T.J. at that time, should have complied with the provisions of s. 56(2), particularly since they were familiar with its requirements. And, they should have advised J.T.J. once again of his right to have either an adult or his lawyer present if they wished to obtain a statement from J.T.J. by their continued questioning. Both he and his lawyer were entitled to expect that the police would comply with the provisions of s. 56.
J.T.J.'s refusal to give a written statement did not demonstrate that he was aware of his rights and had either waived them or did not wish to exercise them. It could just as effectively indicate that he was not fully aware of his rights and that he believed an oral statement was not of the same significance as a written statement.
The statement made up of gestures and verbal responses made en route to the youth detention centre were inadmissible for want of compliance with s. 56(2). The gestures and verbal responses are all an integral part of the final statement given in response to continued police questioning and cannot be separated the one from the other.
Per Sopinka J.: For the reasons expressed in R. v. Martineau, [1990] 2 S.C.R. 000, the constitutional questions should be answered in the same manner as Cory J. For the reasons given by Cory J., the statements made to the police by J.T.J. are inadmissible and a new trial should be ordered on the charge of manslaughter given the way in which the case was presented.
Per L'Heureux‑Dubé J. (dissenting): For the reasons stated in R. v. Martineau, [1990] 2 S.C.R. 000, s. 213 (a) of the Criminal Code does not violate ss. 7 and 11 (d) of the Charter .
All the evidence at issue would have been admissible were it not for J.T.J.'s age. There was strict compliance with all the substantial procedural protection afforded adults through basic principles of fundamental justice entrenched in the Canadian Charter of Rights and Freedoms .
The importance of the dispositions of the Young Offenders Act cannot be overemphasized. Police must be particularly vigilant to observe the rights of suspected young offenders, recognizing their tender years and susceptibility to influence.
Young offenders suspected of a criminal offence should be treated in a manner befitting their age. The term "young persons" cannot be interpreted in static isolation; the spirit of the Act reflects the evolution of the maturation process. Certain relevant "indicia of adulthood" must be considered, especially when dealing with an offender approaching the end of his or her term of protection under the Act. While principles of fairness require that s. 56 be applied uniformly, the totality of circumstances of the particular case must be taken into account when measuring compliance with the Young Offenders Act. Such an interpretation is consistent with a liberal construction of the Act. In crimes involving young offenders, the fear is that the "totality of circumstances" approach does not provide a minimum of consultation with either an adult or counsel, and that even under the per se approach, consultation with an adult may not be sufficient. J.T.J. had both. Therefore, even under the most stringent of per se standards, the accused in the present case was extended every procedural protection.
The accused was relatively mature, well apprised of his predicament and alerted to the dangers of answering certain questions after he had received explicit warnings from both the police and his lawyer. The indicia of his adulthood do not excuse non-compliance with the Act.
The accused's willingness to respond can be considered "constructive desire" given all of the preceding events and the continued presence of J.T.J.'s adult relative at the police station. Having regard to the totality of circumstances, it must have been clear to the accused that he could decline to comment in the absence of his lawyer just as he refused to sign the written waiver. His pattern of behaviour reflected a deliberate and considered decision‑making process indicating a conscious choice to proceed with his statement in the absence of his counsel.
The police have no discretion regarding compliance under the Act. The legislation itself, however, provides a means by which any impugned statements can be assessed as to whether they were made "voluntarily, knowingly, and intelligently".
Holding a third trial in this case would ignore the spirit of the Young Offenders Act, generate palpable disrespect for the criminal justice system and cast serious aspersions on the benefits and balances inherent in the Act.
Cases Cited
By Cory J.
Applied: R. v. Martineau, [1990] 2 S.C.R. 000; referred to: Re A, [1975] 5 W.W.R. 425.
By Sopinka J.
Applied: R. v. Martineau, [1990] 2 S.C.R. 000.
By L'Heureux‑Dubé J. (dissenting)
R. v. Martineau, [1990] 2 S.C.R. 000; R. v. Vaillancourt, [1987] 2 S.C.R. 636; Miranda v. Arizona, 384 U.S. 436 (1966); In re Gault, 387 U.S. 1 (1967); Fare v. Michael C., 442 U.S. 707 (1979); State in the Interest of Dino, 359 So.2d 586, cert. denied, 439 U.S. 1047 (1978); R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. G. (1985), 20 C.C.C. (3d) 289.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d), 15 .
Criminal Code, R.S.C. 1970, c. C‑34, s. 213(a).
Criminal Code, R.S.C., 1985, c. C-46, s. 695(1) .
Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, ss. 3, 16(2), 56.
Authors Cited
Bala, Nicholas. "The Young Offenders Act: A Legal Framework," in Joe Hudson, Joseph P. Hornick and Barbara A. Burrows, eds., Justice and the Young Offender in Canada. Toronto: Wall & Thompson, 1988.
Canada. Ministry of the Solicitor General. The Young Offenders Act: Highlights. Ottawa: Communication Division, Ministry of the Solicitor General, 1981
Grisso, Thomas. "Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis" (1980), 68 Cal. L. Rev. 1134.
House of Commons Debates, 1st Sess., 32nd Parl., 30 Eliz. II, 1981, vol. IX, pp. 9517, 9647, 10073.
Platt, Priscilla. Young Offenders Law in Canada. Toronto: Butterworths, 1989.
APPEAL AND CROSS‑APPEAL from a judgment of the Manitoba Court of Appeal (1988), 50 Man. R. (2d) 300, 40 C.C.C. (3d) 97, [1988] 2 W.W.R. 509, allowing an appeal from conviction by Hewak C.J.Q.B. Appeal dismissed and cross‑appeal allowed, L'Heureux‑Dubé J. dissenting.
J. G. Dangerfield, Q.C., and Marva J. Smith, for the appellant.
Brenda Keyser and Jeff Harris, for the respondent.
Bruce MacFarlane, Q.C., and Don Avison, for the intervener the Attorney General of Canada.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
Jack Watson, for the intervener the Attorney General for Alberta.
Wayne Gorman, for the intervener the Attorney General of Newfoundland.
//Cory J.//
The judgment of Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ. was delivered by
CORY J. -- The prime concern on this appeal is whether the provisions of s. 56 of the Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, as amended, were met so that the statements made to the police by J.T.J. could be admitted.
Factual Background
The crime committed in this case was violent and brutal. The facts pertaining to it are both depressing and enraging.
Shortly after 8:00 p.m. on Friday evening September 13, 1985, a three‑year-old girl was pulled into a garage and sexually assaulted. Because she cried, her skull was smashed with a 50‑pound cinder block. She died instantly. Head hair similar to that of J.T.J. and that of the victim were found on the cinder block close to the child's body. A pubic hair similar to that of J.T.J. was located on the garage floor in the area where the body was found. Fibres similar to those found in the clothing that J.T.J. wore at the time were found on the body of the victim and on her clothing.
At the time of the crime, J.T.J. was 17 years old and as a young person came within the provisions of the Young Offenders Act. The day following the murder, at about 7:10 p.m., the police arrived at the house where J.T.J. was living and took him down to the police station for questioning. They did not advise him as to their reasons for picking him up. At 7:30 p.m. he was placed in an interrogation room. The police then left him alone to get a coffee. They offered a cup to the accused which he accepted. They then questioned him for some time and finally left him at 10:23 p.m.
At 11:05 p.m. the police team came back into the interview room. They accused him of lying to them. He was asked if he remembered anything at all about the little girl. J.T.J. replied that he had grabbed her, taken her to a garage down the lane and then blacked out.
It was only then that the police asked if he wanted to have his uncle present and he replied that he did. The police left the interview room and arranged for the attendance of the "uncle", who was in reality a cousin with whom the accused was living. At this time J.T.J. was charged with the murder of the little girl and informed of his right to retain and instruct counsel. J.T.J. indicated that he wished to retain counsel. His "uncle" appeared to approve this decision. It is worth noting that the uncle was only with the appellant for three minutes throughout the entire period of the police interrogation.
J.T.J. was taken to a telephone in order to call a lawyer. He then was taken back to the interview room a few minutes after the call was made. His clothing was seized together with some hair samples and finger nail scrapings.
At 12:23 a.m. a lawyer arrived and spoke to J.T.J. At 1:09 a.m. the lawyer left J.T.J. in the interview room and went to talk with the adult uncle/cousin, H.J. At 1:28 a.m. the appellant J.T.J. was taken to be fingerprinted and photographed. When the necessary process was completed, he was once again returned to the interview room. At 1:50 a.m. the police re‑entered the room and took the routine background information from him. At 1:55 a.m. they asked J.T.J. if he wished to make a written statement and he refused. The police then began to question him regarding his activities on the night of the murder. The police concede that they did not ask him if he wished to have his cousin or lawyer present. J.T.J. then made an inculpatory statement. When the oral statement was completed, the police again asked J.T.J. if he wished to make a written statement. He said he would think it over. The police left for a very few minutes. When they returned at 2:10 a.m. he once again refused to make a written statement.
At 3:40 a.m. he was put into a police car to be transferred to a youth detention facility. On route, the police stopped the car in front of the building where the little girl had been killed. J.T.J. was asked further questions such as the route he had taken to the scene of the killing and the door by which he left the garage. He was then taken to the garage itself and asked further questions to which he responded by nodding or pointing, coupled with some verbal responses.
J.T.J. was tried in an adult court and convicted of first degree murder. This verdict was overturned on appeal and a new trial was directed. At the second trial the accused J.T.J. was again found guilty of first degree murder and for a second time launched an appeal. On this occasion the appeal was allowed in part and the majority of the Court of Appeal substituted a verdict of manslaughter for that of first degree murder.
Decision in the Court of Appeal (1988), 50 Man. R. (2d) 300
Huband J.A., writing for the majority, was of the view that the oral statement which was made in response to police questioning at 1:55 a.m., subsequent to the accused's having consulted with counsel, was not admissible as the requirements set out in s. 56 of the Young Offenders Act had not been met. However, he concluded that the gestures and statements made by the accused at the scene of the crime were admissible. In the result, he would have substituted a verdict of manslaughter for that of murder.
O'Sullivan J.A. indicated that he would have found both the oral statement and the subsequent gestures and statements made at the scene of the crime to be inadmissible. However, as both Huband J.A. and Monnin C.J.M. would have admitted the gestures, he agreed with the conclusion reached by Huband J.A. that a verdict of manslaughter should be substituted for that of murder.
Monnin C.J.M. considered that there had been substantial compliance with s. 56 so as to render admissible the statements and the gestures. He would have dismissed the appeal.
Issues
The constitutional questions were stated as follows by Dickson C.J. in his order of October 4, 1989:
1.Does s. 213(a) of the Criminal Code (now s. 230 (a) of the Criminal Code , R.S.C., 1985) contravene the rights and freedoms guaranteed by s. 7 and/or 11(d) of the Canadian Charter of Rights and Freedoms ?
2.If the answer to question 1 is affirmative, is s. 213 (a) of the Criminal Code (now s. 230 (a) of the Criminal Code , R.S.C., 1985) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?
In addition to the constitutional questions, there is the issue as to whether the provisions of s. 56 of the Young Offenders Act had been complied with so that the statements made by J.T.J. could be admitted.
Requirements of the Young Offenders Act
Section 3 of the Young Offenders Act sets out the aim of the legislation. It reads as follows:
3. (1) It is hereby recognized and declared that
(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;
(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;
(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;
(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;
(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;
(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;
(g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and
(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate.
(2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).
Section 56 of the Act expands upon these principles in the context of statements made by youths to persons in authority. In 1985 that section read as follows:
56. (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.
(2) No oral or written statement given by a young person to a peace officer or other person who is, in law, a person in authority is admissible against the young person unless
(a)the statement was voluntary;
(b) the person to whom the statement was given has, before the statement was made, clearly explained to the young person, in language appropriate to his age and understanding, that
(i) the young person is under no obligation to give a statement,
(ii) any statement given by him may be used as evidence in proceedings against him,
(iii) the young person has the right to consult another person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult with counsel or 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; and
(d) where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
(3) The requirements set out in paragraphs 2(b), (c) and (d) do not apply in respect of oral statements where 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.
(4) A young person may waive his rights under paragraph (2)(c) or (d) but any such waiver shall be made in writing and shall contain a statement signed by the young person that he has been apprised of the right that he is waiving.
(5) A youth court judge may rule inadmissible in any proceedings under this Act a statement given by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was given under duress imposed by any person who is not, in law, a person in authority.
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] 5 W.W.R. 425, the Alberta Supreme Court suggested a number of 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.
The Application of s. 56
Section 56 itself exists to protect all young people, particularly the shy and the frightened, the nervous and the naive. Yet justice demands that the law be applied uniformly in all cases. The requirements of s. 56 must be complied with whether the authorities are dealing with the nervous and naive or the street‑smart and worldly‑wise. The statutory pre‑conditions for the admission of a statement made by a young person cannot be bent or relaxed because the authorities are convinced, on the basis of what they believe to be cogent evidence, of the guilt of the suspect. As soon as the requirements are relaxed because of a belief in the almost certain guilt of a young person, they will next be relaxed in the case of those whom the authorities believe are probably guilty, and thereafter in the case of a suspect who might possibly be guilty but whose past conduct, in the opinion of those in authority, is such that he or she should be found guilty of something for the general protection of society. Principles of fairness require that the section be applied uniformly to all without regard to the characteristics of the particular young person.
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.
The Application of s. 56(2)
When considering the application of s. 56(2), it must be remembered that it begins with the admonition that no statement given by a young person to a person in authority is admissible unless the subsequent requirements enunciated are complied with. A brief review of those requirements shows that they are eminently fair and reasonable.
Section 56(2)(a) states that the statement must be voluntary.
Section 56(2)(b) requires the person to whom the statement is given to clearly explain to the young person in language appropriate to his or her age and understanding that (i) there is no obligation to give a statement; (ii) the statement may be used as evidence in proceedings against the young person; (iii) he or she has the right to consult an adult person; and (iv) that any statement made by the young person is required to be made in the presence of the person consulted unless the young person desires otherwise.
Section 56(2)(c) provides that before the statement is made the young person must be given a reasonable opportunity to consult with counsel or a parent or, in the absence of a parent, an adult relative or any other appropriate adult chosen by the young person.
Section 56(2)(d) provides that where the young person consults any person pursuant to para. (c), the young person must have been given a reasonable opportunity to make the statement in the presence of that person.
Have these requirements been met in this case? There can be no doubt that in this case the statement was voluntary and thus s. 56(2)(a) was complied with. Yet, I cannot accept that all of the requirements of s. 56(2)(b) were met. Of course there is no question that J.T.J. was told that he was under no obligation to give a statement and, further, that any statement given by him might be used as evidence. Although the police omitted to add the words "in proceedings against you", nothing can turn on that omission. Thus s. 56(2)(b)(i) and (ii) were fulfilled. However, in my view neither s. 56(2)(b)(iii) nor (iv) were complied with in regard to any of the statements which were made by J.T.J. That is to say, J.T.J. was not told that before a statement was made he had the right to consult counsel or an adult relative. Further, neither counsel nor an adult person was present when he made any of his statements.
J.T.J. made three inculpatory statements while he was in the custody of the police. The first was made at 11:05 p.m., the second at 1:55 a.m. and the third statement, comprised of words and gestures made at the scene of the crime, at 3:45 a.m. It was argued on behalf of the Crown that the first statement made at 11:05 p.m. was spontaneous and therefore came within the purview of s. 56(3). I cannot accept that contention. The facts are such that it could not be said that J.T.J. was anything other than a suspect in the eyes of the police at the time the statement was made. He had been held in custody by the police primarily in the same interview room for four hours. During this time, he had been questioned at length by the police. Thereafter he was left alone for a short time. The police then returned and confronted him with the allegation that he had been lying. It was only at this point that J.T.J. made the inculpatory first statement.
By this time J.T.J. was obviously a suspect, if not the prime suspect. Nor, in light of the continued questioning by the police, could his statement have been considered to be spontaneous. If the police had wished to obtain a statement from J.T.J. at 11:05 p.m. when they re‑entered the interview room, then they should have complied with the provisions of s. 56(2), particularly since they were admittedly familiar with its requirements. The first statement must be deemed inadmissible.
Even stronger reasons support the conclusion that the statement made at 1:55 a.m. was inadmissible. The police had advised counsel, who had earlier attended and given advice to J.T.J., that they were going to continue the interrogation. If such was their intention, then they were duty bound to again comply with the requirements of s. 56. On every occasion when he had been asked whether he wished to have an adult in attendance or to obtain the services of a lawyer, J.T.J. had replied affirmatively. This therefore gives a strong indication that he would, if properly advised, have availed himself of the opportunity to have a lawyer or adult present during this next session of questioning.
There can be no question that if the police wished by their continued questioning to obtain a statement from J.T.J., then he should have been advised once again of his right to have either his cousin or lawyer present. A mistake was made. The police were aware of the requirements of s. 56 yet saw fit to ignore them. No matter how worldly wise J.T.J. may have been, by the time of his second statement he must have been a tired 17‑year‑old after spending nearly seven hours in police custody. He was entitled to be advised of his rights. Both he and his lawyer were entitled to expect that the police would comply with the provisions of s. 56.
The Crown argues that the fact that J.T.J. refused to give a written statement demonstrates that he was aware of his rights and either waived them or did not wish to exercise them. This submission cannot be accepted. The evidence that J.T.J. refused to give a written statement can be used just as effectively as an indication that he was not fully aware of his rights and that he believed an oral statement was not of the same significance as a written statement.
It was also argued that there was substantial compliance with s. 56(2) so as to make the statements of J.T.J. admissible. I cannot accept that contention. Two of the most important requirements were not met. To repeat, J.T.J. was not advised of his right to counsel, nor of his right to have counsel or an adult present when he made his statements. In these circumstances, there cannot be said to have been substantial compliance with s. 56(2).
Lastly, the statement made up of gestures and verbal responses made at 3:45 in the morning must be held to be inadmissible. By now the accused had spent almost nine hours in custody. Once again the verbal responses must be held to be inadmissible as there was no compliance with s. 56(2). Nor can I in some way separate the gestures from the verbal statement. The gestures and verbal responses are all an integral part of the final statement given in response to continued police questioning. The Crown readily conceded that if the statement made at 1:55 a.m. was deemed to be inadmissible, then this later statement must as well be deemed inadmissible, including both the oral responses and the gestures. The Crown was correct to make such a concession.
In the result, all three of the statements made by J.T.J. to the police are inadmissible.
Section 213 (a) of the Criminal Code
It was also argued that s. 213 (a) of the Criminal Code contravened the provisions of s. 7 of the Charter . For the reasons given by Lamer J. in R. v. Martineau, I agree that s. 213 (a) must be held to be unconstitutional.
Disposition
In the result, I would dismiss the appeal, allow the cross‑appeal and direct a new trial of J.T.J. on the charge of manslaughter. It was argued that if the statements were held to be inadmissible, an acquittal should be entered. I cannot accept that submission. There is, in my view, evidence upon which a jury properly instructed could properly convict J.T.J. on the charge of manslaughter.
The answers to the constitutional questions are:
1.Does s. 213(a) of the Criminal Code (now s. 230 (a) of the Criminal Code , R.S.C., 1985) contravene the rights and freedoms guaranteed by s. 7 and/or 11(d) of the Canadian Charter of Rights and Freedoms ?
A. Yes
2.If the answer to question 1 is affirmative, is s. 213 (a) of the Criminal Code (now s. 230 (a) of the Criminal Code , R.S.C., 1985) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?
A. No.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'HEUREUX‑DUBÉ J. (dissenting) -- Ruby Adriaenssens was killed at the age of three. Her body was found abandoned in a garage, nude from the waist down. She was dressed in a red and white T‑shirt. Light blue panties lay at her feet. Her rectum had been bruised and torn. The injuries to the anal area were consistent with those sustained in a sexual attack. Blood was observed on the left side of her head as well as around the right ear. The death resulted from massive fractures on both sides of the skull and a broken neck, consistent with her head's having been squashed against the ground with a heavy object.
J.T.J. was originally invited to the local police station by the police as a witness. However, his testimony soon provided details that could only be known by the perpetrator of the crime, such as, "Yeah. Like I said he came back and said he saw this little girl on the stairs. He took her to a garage and she was crying for her grandmother." Then at one point he blurted out, "Yeah. I grabbed her. I took her to a garage down the lane. I can't remember that well. I blacked out."
The police immediately ceased their questioning, located J.T.J.'s closest adult relative in Winnipeg, H.J., and brought him to the police station. They further informed the accused of his right to retain and instruct counsel. He did so. His lawyer, Brenda Keyser, arrived at the building and met with the accused for 37 minutes. Thereafter she consulted with H.J. before departing. H.J. remained in the building.
The police continued to question the accused and asked him whether he would like to make a written statement concerning the events of the night in question. The accused responded: "No. She told me not to." The police then divulged some of the evidence which they had obtained and asked him additional questions. The accused replied willingly, disclosing how he had seized the child from the steps of an apartment building and took her down a lane and into a garage. There, he sexually assaulted the child who was screaming and crying for her grandmother. The accused then revealed that, as he feared someone was approaching, he bludgeoned the child with a brick in order to silence her.
J.T.J. was then taken from the police station to a detention facility for young offenders. On route, the police stopped in front of the apartment building where the child had resided. When asked from what door he exited with the little girl, the accused indicated and replied, "That one". He then showed the police the course he had taken with the child to the garage where the killing took place. Once there he identified for the police the concrete block that he had used to silence the child.
J.T.J. was charged with first degree murder, and although 17 years old, the case was transferred to adult court pursuant to s. 16(2) of the Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110. He was convicted before judge and jury for first degree murder. On appeal his conviction was overturned and a new trial ordered. The Court of Appeal held that those statements made while J.T.J. was still regarded as a witness should have been excluded. The Court of Appeal also held, however, that the statements and gestures communicated while J.T.J. was a suspect, excluded by the trial judge, ought to have been admitted.
The second trial was also held before a judge and jury, and similarly resulted in a conviction for first degree murder. The Court of Appeal, however, reversed its original assessment, and held that only the gestures, and not the statements, can be admitted under the Young Offenders Act. It therefore reversed the judgment of the lower court, and substituted a conviction for manslaughter.
The present appeal is taken from this second decision of the Manitoba Court of Appeal, and it raises two distinct issues; the constitutionality of s. 213(a) of the Criminal Code, R.S.C. 1970, c. C‑34, as well as the exclusionary rules prescribed by s. 56 of the Young Offenders Act. I have had the advantage of the opinion of Justice Cory, and with respect I cannot agree with his disposition of either issue. For the reasons stated in R. v. Martineau, [1990] 2 S.C.R. 000, heard and released concurrently, I am of the view that s. 213 (a) of the Crim