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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 Criminal Code does not violate ss. 7 and 11(d) of the Charter.  In that case I found that an objective foreseeability test of death was constitutionally valid for the crime of murder, and I distinguished this Court's decision in R. v. Vaillancourt, [1987] 2 S.C.R. 636.

 

    Hence, the focus of the present appeal is the applicability of s. 56 of the Young Offenders Act.  The provision reads 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 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.

 

    It is incontrovertible that were it not for J.T.J.'s age, all the evidence at issue would have been admissible.  That is not to say that adults are not afforded substantial procedural protection through basic principles of fundamental justice entrenched in the Canadian Charter of Rights and Freedoms.  They are.  However, all of these safeguards were strictly complied with in the present case.

 

    As soon as J.T.J. began to make a statement that was somewhat inculpatory, the police stopped him from proceeding further.  The interviewing officer immediately told him, "Hold on a minute.  I'll get your uncle.  Do you want your uncle here?"  Clearly, J.T.J. was being made aware of his right to consult an adult.  He chose to exercise that right.  The police summoned H.J., the accused's closest adult relative in Winnipeg, his employer, and the person in whose house the accused resided.  When the group reassembled, with H.J. present, the accused was arrested, charged with first degree murder, and advised of his right to retain and instruct counsel.  He was told that he was not bound to say anything but that anything he did say would be taken down in writing and might be used against him.  The accused explicitly acknowledged that he understood these warnings, and he exercised his right to retain and instruct counsel.  No further questioning took place until his lawyer arrived.  The accused met with his lawyer for 37 minutes.  The lawyer also consulted with H.J. before departing.

 

    This procedure satisfies all the normal precautions mandated in order to preserve an arrested person's rights.  However, when the arrested person is under 18 years of age, the Young Offenders Act applies as well.  In this appeal two specific issues arise under the Act:  Were the procedural requirements prescribed by the provision complied with by the interrogating police officers, and are acts and gestures contemplated within the Act's definition of "oral or written statements"? 

 

    With respect to the second aspect, two of the three Manitoba Court of Appeal judges distinguished between the oral statements made at the police station and gestures at the scene of the crime, ruling that the Young Offenders Act did not affect the admissibility of the latter.  However, the appellant Crown concedes that the gestures made by J.T.J. to police officers should not be excluded from the protection of s. 56 on the ground that they were neither written nor verbal statements.  Rather, it is argued that these actions ought to be admitted, yet for the same reasons as the oral statements at the police station.  Hence, it is not necessary to disturb this conclusion of the Manitoba Court of Appeal, and the matter can be decided on the basis that all the communications, oral statements as well as gestures, are to be considered together.

 

    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.  Furthermore, young persons are characteristically more prone to intimidation when facing police interrogators.  Their restraint and abilities to preserve and act in their own best interest are somewhat attenuated.  It is the responsibility of the police and other authority figures to appreciate this discrepancy, and conduct themselves accordingly. 

 

    The Young Offenders Act serves a dual role in this regard.  It establishes critical guidelines and principles that direct police behaviour and gives practical meaning to youth protection from potential transgressions in the evidence gathering process.  The Act also formulates its own exclusionary rules - clearly delineating what standards must be complied with in addition to the existing constitutional controls.  These directives acknowledge that young persons are not adults; their naivety and relative lack of experience mandate that their rights be preserved with an extra measure of protection.

 

    However, young offenders suspected of a criminal offence should also be treated in a manner befitting their ages.  The Young Offenders Act makes it clear that young persons should bear responsibility for their contraventions.  The term "young persons" cannot be interpreted in static isolation.  Adolescence cannot be viewed as a snapshot in time.  Those youths between the ages of 12 and 18 cannot be aggregated and dealt with uniformly without regard for the discrepancies in their faculties and competence.

 

    The spirit of the Act is intended to reflect the evolution of the maturation process.  The Act establishes a spectral scheme ensuring that the treatment of these young persons is commensurate with their abilities and understanding.  The objectives and purposes of the Act were identified by then Solicitor General Robert Kaplan as follows:

 

    They must strike a balance between helping young offenders and protecting society from harmful conduct.  They must safeguard the rights of young people in conflict with the law, while discouraging offenders from committing further crimes.

 

House of Commons Debates, May 12, 1981, at p. 9517.

 

    This balancing process is fluid -- and as Mr. Wenman said during Parliamentary debate:

 

Before this act is passed, the offenders are those between 7 and 18 years of age.  After we pass this act, we are talking only about a small part of that child‑adult grouping, and I refer specifically now to 12 to 17‑year‑olds.  That is narrowing it to a very particular group called adolescents.  We are now talking about adolescent offenders.

 

    Who and where are these adolescent offenders?  We can even narrow it a little more than that.  Statistics show that the offenders to whom we refer specifically within that 12 to 17‑year‑old grouping are 14 and 15 years old.  Fifty‑six per cent of juvenile or adolescent crime is committed by 14 and 15‑year‑olds specifically.  [Emphasis added.]

 

House of Commons Debates, May 12, 1981, at p. 9517.

 

    Within this "child‑adult grouping" there are those that are more "child" and those that are more "adult".  We should be especially sensitive to 12‑ and 13‑year‑olds at the younger end of the spectrum.  Their youth borders on that age considered too young to be included within the scope of the Act entirely.  Conversely, 17‑year‑olds are on the brink of adulthood, months away from attaining their full measure of protection under the Canadian Charter of Rights and Freedoms, but no more.

 

    Hence the need to consider certain relevant "indicia of adulthood", especially when dealing with an offender approaching the end of his or her term of protection under the Act.  Such an interpretation is consistent with a liberal construction of the Act.  While a graduated scale may result in a perceived curtailment of an older offender's rights, it also serves to increase the protection extended to those who are in reality children.  While I agree with my colleague's proposition at p. 000, that "Principles of fairness require that the section [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.

 

    In The Young Offenders Act:  Highlights (1981), the Solicitor General's Office detailed the approach, now legislated within the Declaration of Principle of s. 3, that the new Act was to take towards young offenders, at p. 4:

 

The philosophy of the new Act is expressed in a policy section.  This section will serve as a guide to the Act's spirit and intent for everyone concerned with its administration throughout Canada. 

 

The Act's approach blends three principles:  that young people should be held more responsible for their behaviour but not wholly accountable since they are not yet fully mature; that society has a right to protection; that young people have the same rights to due process of law and fair and equal treatment as adults, and these rights must be guaranteed by special safeguards.  Thus the Act is intended to strike a reasonable and acceptable balance between the needs of youthful individuals and the needs of society.

 

In particular, the policy section states:

 

                                                                        . . .

 

nYoung offenders have special needs because they are dependents at varying levels of development and maturity.  They therefore also require guidance and assistance.  [Emphasis added.]

 

    These varying levels of development and maturity infuse the Act with a spirit of flexibility and accommodation.  Young offenders have the same rights as adults.  The Act ensures that the safeguards necessary to protect those rights are not diluted.  The underlying principle is one of graduated application depending on the particular needs of the young offender, and the parens patriae duty of the state.

 

    Mr. Hawkes commented on this statement of principle:

 

Which 17‑year‑old youngsters require supervision, all those who break the law?  What positive consequence is inherent in the concept of supervision?  What do we mean by that?  In societal terms it means parole officers.  Historically, that has been our method of supervision.  Has it worked?  I suggest the scientific evidence would indicate that supervision is not necessarily the answer for all these young offenders.  Do they all need discipline and control?  Are they all in a state of dependence?

 

    House of Commons Debates, May 12, 1981, at p. 9516.

 

    Originally, the Bill proposed that the maximum age of 18 years could be lowered to 16 years if any province so requested.  However, this latter component was removed due to potential violations of s. 15 of the Charter, as provinces would have varying ages of application.  See House of Commons Debates, May 15, 1981, at p. 9647, and May 29, 1981, at p. 10073.

 

    This interpretation of the Young Offenders Act is also consistent with the approach adopted in the United States.  The general rule that a criminal suspect must be specifically warned of his Fifth Amendment rights to silence and to counsel under the United States Constitution before interrogation was established in Miranda v. Arizona, 384 U.S. 436 (1966).  These rights were extended to juveniles in In re Gault, 387 U.S. 1 (1967).  Any waiver of these rights would be invalid unless it was made "voluntarily, knowingly, and intelligently".

 

    The interpretation of that federal constitutional standard was clarified in Fare v. Michael C., 442 U.S. 707 (1979), at pp. 724‑25 requiring a consideration of the "totality of circumstances" in determining whether rights were in fact waived "voluntarily, knowingly, and intelligently":

 

We noted in North Carolina v. Butler, 441 U.S., at 373, that the question whether the accused waived his rights "is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case."  Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.

 

                                                                        . . .

 

The totality approach permits -- indeed, it mandates -- inquiry into all the circumstances surrounding the interrogation.  This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.

 

    In the particular circumstances of that case, the United States Supreme Court dealt with a murder conviction of a 16-year‑old juvenile, overturned by the California Supreme Court which excluded the juvenile's confession.  The United States Supreme Court reversed that decision, finding, at p. 726, that:

 

The transcript of the interrogation reveals that the police officers conducting the interrogation took care to ensure that respondent understood his rights.  They fully explained to respondent that he was being questioned in connection with a murder.  They then informed him of all the rights delineated in Miranda, and ascertained that respondent understood those rights.  There is no indication in the record that respondent failed to understand what the officers told him.

 

    In my view, the same holds true in the present case.  Moreover, the statements at issue here were made following an audience with both an adult relative and counsel.  Most states have incorporated the Fare v. Michael C. federal constitutional "totality of circumstances" standard into their "young offender" statutes.  However, some have promulgated legislation which prefers a per se approach whereby waivers are excluded unless an adult was present to advise the juvenile prior to interrogation.  In State in the Interest of Dino, 359 So.2d 586, cert. denied, 439 U.S. 1047 (1978), the Supreme Court of Louisiana held that:

 

. . . in order for the State to meet its heavy burden of demonstrating that a waiver is made knowingly and intelligently, it must affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian, or other adult interested in his welfare before he waived his right to counsel and privilege against self‑incrimination.

 

    Grisso, "Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis" (1980), 68 Cal. L. Rev. 1134, discusses both the "totality" and the "per se" approaches at pp. 1141‑42:

 

    Under the per se approach, the courts retain limited discretion in determining whether the applicable per se requirements have been satisfied.  Foremost among the criteria they must consider is whether the adult was "interested" - genuinely concerned with the juvenile's welfare.  They must also determine whether the adult was informed of the juvenile's rights, whether the adult understood those rights, whether the child and the adult had an adequate opportunity to confer in private, and whether the conference was meaningful.

 

    The per se approach has been criticized by some commentators for not going far enough to safeguard the rights of juveniles, while others have claimed that, by interfering with police activities, it goes too far.  On the one hand, commentators have argued that requiring the presence of a parent at waiver proceedings is not sufficient; his competing interests, emotional reactions to his child's arrest, or intellectual incapacities may interfere with his ability to provide the counsel and support needed by the child.  This criticism has contributed to an emerging trend of statutory per se exclusion of confessions made by juveniles without prior assistance of legal counsel.

 

    Grisso also acknowledges that the per se approach has been frequently attacked for unnecessarily restricting the prosecution of sophisticated juvenile offenders.  This position is consistent with the United States Supreme Court's decision in Fare, where it placed upon per se advocates the burden of proving that the great majority of young offenders do not understand and appreciate the rights they are being asked to waive.

 

    The totality of circumstances approach has also recently been adopted by this Court in R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168, and endorsed by Chief Justice Dickson, dissenting, in R. v. Greffe, [1990] 1 S.C.R. 755.  Both these cases dealt with the exclusion of evidence procured during drug searches, and whether such exclusion would bring the administration of justice into disrepute.  By analogy, the instant case deals with whether compliance with the Young Offenders Act requires the exclusion of those statements made by J.T.J. to the police.  In my view, the integrity of the Act can only be preserved by admitting the evidence at issue.

 

    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.  Furthermore, the Crown is not arguing that the accused waived any of his rights.  These rights were retained and exercised by J.T.J. throughout.  Rather, the focus of attention revolves around his conduct after he had invoked both his constitutional and statutory rights, and whether he was in fact acting "voluntarily, knowingly and intelligently".

 

    J.T.J. was 17 years old at the time of the offence.  Prior to that, he had lived in a common law relationship for about 10 months.  That union produced a child.  While he no longer resides with the mother, he had made sporadic support payments.  J.T.J. was working as a roofer for his cousin H.J., who was present at the police station and provided guidance and support.  When the police advised him of his right to counsel, J.T.J. produced a solicitor's business card from his pocket.  He subsequently consulted with his solicitor for 37 minutes.  The solicitor either acknowledged the police's statement that they would have to speak to J.T.J. some more, or told the police that her client would not be making a statement.

 

    These facts reveal that the accused was relatively advanced and well apprised of his predicament.  His level of maturity would have alerted him to the dangers of answering certain questions after he had received explicit warnings from both the police as well as his solicitor.  These indicia of adulthood do not excuse non-compliance with the Act.  Rather, they define with sharper resolution what measures are necessary in order to extend the prescribed safeguards to this particular young person, taking into account his age and level of sophistication.

 

    In R. v. G. (1985), 20 C.C.C. (3d) 289, the British Columbia Court of Appeal unanimously overturned the trial judge's decision to exclude evidence on the basis that s. 56 of the Young Offenders Act had not been complied with.  In that case, the accused actually had signed a waiver of his rights, and his capacity to make that decision was at issue.  The Court of Appeal pointed out that "the trial judge found that the juvenile with whom we are concerned was both mature and streetwise", and that these factors must be considered when applying the Act.

 

    If one dissects the requirements prescribed by s. 56(2), it becomes clear that there was indeed purposeful compliance in the present appeal:

 

(1)the statement must be voluntary [s. 56(2)(a)] -- all statements made by J.T.J. to the police were voluntary;

 

(2)the police must explain to the young person that he is under no obligation to give a statement [s. 56(2)(b)(i)] -- that was done;

 

(3)the police must explain that any statement can be used against the youth in proceedings against him [s. 56(2)(b)(ii)]   -- that was also done;

 

(4)the police must further explain that he has a right to consult with a lawyer or a parent, or in the absence of a parent, an adult relative [s. 56(2)(b)(iii)] ‑‑ that was done as well;

 

(5)the police must also explain that any statement by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise [s. 56(2)(b)(iv)] -- this is the focus of the dispute.

 

    The majority at the Manitoba Court of Appeal found that this last requirement was not met in this case.  I disagree.  Taking into account the aforementioned indicia of adulthood, and having regard to the introductory words of s. 56(2), I believe that all of the requirements of the provision have been complied with.  The police must tender their explanations to the young person "in language appropriate to his age and understanding".  It is against this background that "unless the young person desires otherwise" must be assessed.

 

     I would like to emphasize that this does not repose discretion in the police as to the degree of protection individual young offenders are entitled to under the legislation.  It is not the province of the police to interpret the Act.  Rather, if police conduct is subsequently challenged, the trier of fact should determine whether, having regard to all the circumstances, the rights owed to the young offender were properly complied with.

 

    As Platt has written in Young Offenders Law in Canada (1989), at pp. 15‑13 and 15‑14:

 

Since the test in s. 56(2)(b) is subjective, the "person in authority" ought to find out what the young person's background is regarding age, schooling and language skills.

 

                                                                        . . .

 

... rights and warnings must be explained in a way that is meaningful to the young person before the court.  Each case must be looked at individually to determine whether, upon a regard to the age and background of the young person, s. 56(2)(b) was complied with.  [Emphasis added.]

 

    J.T.J. was given every procedural protection up to the remarks at issue.  He was offered both his right to have an adult present as well as his right to counsel.  He exercised both these rights.  He had conferred with both his adult relative and his lawyer.  He was told not to make any statements; he even conveyed that message to the police expressly.  Therefore, when on the heels of these admonitions he proceeded to respond voluntarily to subsequent questions, it becomes difficult to argue that this was contrary to his alleged wishes.

 

    Moreover, the fact that his solicitor counselled him not to sign any written statements does not detract from the above proposition.  She could have very well been ensuring that her client not waive his rights under s. 56(4).  These waivers must be in writing.  They must also contain a statement signed by the young person that he has been apprised of the right that he is waiving.  To read these explicit requirements into s. 56(2)(b)(iv) would render s. 56(4) a redundant provision.  J.T.J. was explicitly asked whether he was willing to sign a waiver.  He declined.  Consequently his rights were retained.  They were also observed.

 

    While the accused did not specifically declare that,  "Notwithstanding my right to make any statements in the presence of my relative or my lawyer, I proclaim my choice to proceed in their absence," such a declaration is not required, and certainly not for an offender with J.T.J.' level of maturity.  Given all of the preceding events, and the continued presence of H.J. at the police station, the accused's willingness to respond can certainly be considered "constructive desire".

 

    Huband J.A., who wrote for the majority at the Manitoba Court of Appeal, originally adopted this approach following J.T.J.'s first visit to the Manitoba Court of Appeal (1987), 44 Man. R. (2d) 265, at p. 271:

 

    Under s. 56(2)(b)(iv) any statement made by the young person is required to be made in the presence of legal counsel, with whom the accused has consulted, unless the young person desires otherwise.  In this case legal counsel attended upon the accused.  Thereafter the accused refused to give a written statement, but proceeded to answer police questions.  The accused had full opportunity to make a statement in the presence of his legal counsel, but obviously chose not to do so when she was present at the Public Safety Building.  By volunteering information after she had left, I think it is clear that, by his own choice, he responded to the questions without his lawyer being present.  We know nothing of what took place in the interview between the accused and legal counsel, but one might reasonably infer that the accused was advised of his rights, including the right to maintain his silence, or alternatively, if he were to give a statement, to make that statement in the presence of his legal counsel.  Legal counsel was present at the Public Safety Building, and if the accused had wished to make a statement in the presence of his counsel it could have been done then.  He was afforded the right to make a statement in the presence of counsel and chose not to do so.  He volunteered a statement after his counsel had departed.  [Emphasis added.]

 

    Bala, "The Young Offenders Act: A Legal Framework", in Hudson, Hornick and Burrows, eds., Justice and the Young Offenders in Canada, wrote, at p. 17:

 

    Section 56 is based on the recognition that young persons may lack the sophistication and maturity to fully appreciate the legal consequences of making a statement, and so require special protection when being questioned by police.  It is also premised on the notion that some youths are easily intimidated by adult authority figures, and may make statements that they believe those authority figures expect to hear, even if the statements are false.  It is hoped that consultation with a parent or lawyer will preclude the making of such false statements.  [Emphasis added.]

 

    Such consultation was provided for.  The guidance and direction furnished by his relative and his solicitor allowed the accused to make an informed decision.  The ultimate choice was his own.

 

    In the present appeal (1988), 50 Man. R. (2d) 300, Huband J.A. summarized his earlier position at p. 307, yet felt compelled to reverse himself:

 

    After having had the benefit of a meeting with his lawyer, the accused volunteered answers to questions posed by the police.  It might be argued that having been apprised of his rights, the accused obviously desired to make his statement by way of answers to police questions without the benefit of the presence of legal counsel.  That was my earlier impression.  But in the end that argument cannot be sustained.  Under s. 56(2)(b) an explanation must be given to the young person that his legal counsel is required to be present unless the accused makes a conscious choice to proceed with the statement in the absence of his counsel.

 

    Having regard to the totality of circumstances it must have been clear to J.T.J. 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 reflects a deliberate and considered decision making process such that it cannot be argued that his was not "a conscious choice to proceed with the statement in the absence of his counsel".

 

    Huband J.A. also raised s. 56(2)(d) relating to the "reasonable opportunity to make the statement in the presence" of his lawyer and felt that was not complied with as "the accused formed no intention to make a statement during the time that his lawyer was present".  Yet that is not the thrust of the provision.  The accused knew of those facts when the lawyer was present and could have easily revealed them at that time.  However, the accused was not so inclined.  We can only speculate whether this was a manifestation of counsel's instructions.  Yet his subsequent intention cannot defeat the admissibility of the statements simply because he had chosen or was advised not to disclose them at an earlier time.

 

    Platt also discussed s. 56(2)(c) (the right of consultation), s. 56(2)(d) (the reasonable opportunity to make the statement), and s. 56(4) (the waiver of these rights).  She concluded at p. 15‑19 that:

 

Presumably, where a consultation has occurred pursuant to s. 56(2)(c), and the young person is given a "reasonable opportunity" to make the statement in the presence of the person consulted but declines to do so, no waiver need be signed.  This is because, on the strict wording of s. 56(2)(d), the right need only be waived where the young person does not wish to be "given a reasonable opportunity to make the statement in the presence of that person".

 

    Essentially, Platt interprets this series of provisions as substituting the waiver requirement with a reasonable opportunity to make the statement in the presence of the person consulted.  While I do not believe that the waiver right was supplanted in this case, the factual situation does promote the impression that J.T.J. was afforded the reasonable opportunity to pronounce himself in the presence of his relative or counsel.  If these provisions were interpreted so as to insist that all statements made by accused persons be in the presence of a relative or counsel, then as Monnin C.J.M. stated at the Court of Appeal, at p. 308:

 

No statement could ever be obtained without giving the young person a reasonable opportunity to make that statement in the presence of a lawyer or the person consulted.  If that is the law, police interrogation, which is legitimate and proper procedure in criminal investigations, has received a death blow, and interrogation in the presence of defence counsel will be an exercise in futility.

 

    Such a stultification of the criminal justice system would be inconsistent with the objectives and purposes of the Young Offenders Act, as discussed above.  O'Sullivan J.A., who concurred with Huband J.A., assumes that J.T.J.'s willingness to answer questions exposes "his lack of intelligence, education and spirit" to understand "and appreciate the warnings of his counsel of his right to `keep his mouth shut'".  I do not share that conclusion.

 

    The evidence reveals that J.T.J. had the faculties to make an educated decision.  The Act is not violated if the young person chooses to respond.  It is only infringed if that choice was neither informed nor motivated by proper guidance and direction.  The purpose of the consultation right is to elevate the young person's capacities from potential youthful indiscretion to the balance and discipline more common in adults.  Any margin of deficiency in this case was certainly compensated for by the deliberate instructions on the part of the police and their successful efforts to secure proper supervision.  It cannot be argued that despite all these precautions, the fact that the accused tendered statements of his own volition necessarily demonstrates a shortcoming in the conduct of the police.

 

    I must underscore once again that this conclusion does not emanate from a finding that the police properly exercised their discretion regarding compliance under the Act.  The police are vested with no such discretion.  However, the legislation itself provides a means by which we can assess whether any impugned statements were made "voluntarily, knowingly, and intelligently".

 

    As Monnin C.J.M. indicated at p. 317:

 

    The accused had 37 minutes with Mrs. Keyser [his lawyer].  I can only assume that she properly informed him of his rights including the right to make a statement in her presence and to be given a reasonable opportunity to make such a statement if he so wished in her presence as well as the right to stand mute.  What is the value of the right to counsel if courts must assume and infer that counsel did not adequately and properly inform or advise a client?  There is no evidence on the record from the two police officers that they offered the accused an opportunity to have Mrs. Keyser present when they resumed their interrogation since they had already specifically told her earlier that the accused would be given an opportunity to reply to the charge of murder.  Counsel when so informed could easily have requested to be present for the re‑interrogation.

 

    It is apparent from the record, reviewed as a whole, that the police extended meticulous consideration for the accused's rights under the Charter and the Young Offenders Act.  J.T.J. was provided with the opportunity to choose how to conduct himself and with the partisan advisors to ensure that his perspective was both developed and informed.  That having been accomplished, the resulting evidence cannot be excluded merely because it reflects unfavourably upon the accused.

 

    Monnin C.J.M. concluded, at p. 321, that:

 

The factual situation is clear.  There was a killing and the author of it was the accused.  Two jury panels reached that conclusion without difficulty.  In addition to that we have the voluntary statement of the young person admitting that he committed the crime.  To reach any other conclusion but that of guilty of murder is to ignore the real facts of this case.  [Emphasis added.]

 

I would go further.  In the particular circumstances of this case, holding a third complete trial after two successive convictions for first degree murder would, in my view, not only ignore the law, i.e., the spirit of the Young Offenders Act, but would also generate palpable disrespect for the criminal justice system and cast serious aspersions on the benefits and balances inherent in the Act.  Moreover, according to counsel for the respondent, ordering a new trial while excluding all of the statements and gestures would compel the trial judge to withdraw the case from a jury and direct that a verdict of acquittal be entered.  Faced only with the independent circumstantial evidence adduced by the prosecution, all charges would have to be dismissed.

 

    The Young Offenders Act ensures that the rights of young persons are upheld by extending to them additional safeguards that must be adhered to.  The barometer of adherence must be calibrated according to the particular youth, having regard to all of the surrounding factors and circumstances.  Ordering a third trial would, in my view, subvert the interests of the justice system and the protection of our youths.  Respect for the Act can only be preserved through logical application.  Uniform implementation in all cases would ignore the vast range of individuals who fall within the ambit of protection, and thus frustrate the objectives and purposes of the Act itself. 

 

    Furthermore, there was compliance in the present case.  As soon as J.T.J. became a suspect, his closest adult relative in Winnipeg was brought to the public safety building.  J.T.J. was granted and exercised his right to retain and instruct counsel.  Following consultation with both of these individuals, J.T.J. made incriminating statements voluntarily, on the basis of which he was convicted of first degree murder twice.  The procedural requirements dictated by the Act were observed, and in my view ordering a third trial would severely undermine rather than preserve the utility of the Young Offenders Act.  I would allow the appeal, dismiss the cross‑appeal, and restore the conviction and sentence imposed at trial.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    SOPINKA J. -- I have had the advantage of reading the reasons of Justices L'Heureux‑Dubé and Cory.  I would answer the constitutional questions in the same manner as Cory J., for the reasons I gave in R. v. Martineau, [1990] 2 S.C.R. 000.  I agree, for the reasons given by Cory J., that the statements made to the police by J.T.J. are inadmissible and that there must be a new trial.  I would have been inclined to direct a new trial on the original charge of murder.  I am satisfied that we have the power to do so in this case pursuant to s. 695(1) of the Criminal Code, R.S.C., 1985, c. C‑46.  Nonetheless, I agree with Cory J. that, in view of the way in which the case was presented, a new trial should be directed on the charge of manslaughter.

 

    Appeal dismissed and cross‑appeal allowed, L'HEUREUX‑DUBÉ J. dissenting.

 

    Solicitor for the appellant:  The Department of the Attorney General, Winnipeg.

 

    Solicitors for the respondent:  Keyser, Harris & Rusen, Winnipeg.

 

    Solicitor for the intervener the Attorney General of Canada:  John C. Tait, Ottawa.

 

    Solicitor for the intervener the Attorney General of Quebec:  The Attorney General of Quebec, Ste‑Foy.

 

    Solicitor for the intervener the Attorney General for Alberta:  The Attorney General for Alberta, Edmonton.

 

    Solicitor for the intervener the Attorney General of Newfoundland:  The Attorney General of Newfoundland, St. John's.

 



     *   Chief Justice at the time of hearing.

     **  Chief Justice at the time of judgment.

 

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