Last week the Ontario Court of Appeal released its decision in R v NB, 2018 ONCA 556. N.B. was convicted on February 20, 2009 for the 1st degree murder of his cousin, B. The murder occurred on March 9, 2006. He received an adult sentence of life imprisonment with no possibility of parole for 10 years.
The appeal decision focused on whether or not a statement N.B. gave to the investigating officers was taken in compliance with the requirements of section 146 of the Youth Criminal Justice Act. The Court ruled there was violations of that section and excluded the statement from evidence.
The decision has many interesting aspects regarding the scope and depth of section 146. This blog post will focus on what I consider to be the most important features of the decision.
In brief, N.B. and B.B were cousins. On March 9, 2006, they had been hanging out together. Eventually, N.B. and B.B. became separated. B.B’s body was found by a creek. He had been stabbed to death.
N.B. was acting out at the scene when the police arrived. He was agitated. One officer alleged he had been physical with him and arrested N.B. for obstructing police. He was taken into custody. At that point, it does not appear the police had any grounds to charge him with B.B.’s murder.
N.B. was taken to the police station for custody. He had not been formally charged. He was never told he did not need to go to the police station for questioning. It was his choice. The police had decided not to charge him with obstruct police either but he was not informed of that decision either.
At approximately 10pm, N.B. was taken to an interview room at the police station. The room was locked. N.B. was never told why he was there, that he did not have to be there (he was not formally in custody) and that he did not have to speak to the police. He was also never told he could leave at any time.
After nearly an hour of questioning, the police now viewed N.B. as a possible suspect. He was left alone for nearly 3 hours. At approximately 2am, they formally arrested him and charged him with 1st degree murder.
YCJA section 146(2)
YCJA s. 146(2) sets out certain criteria that must be complied with by police or other persons in authority before any oral or written statement statements made by a young person to police will be admitted in a proceeding against that young person.
No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless
(a) The statement was voluntary;
(b) The person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that
(i) the young person is under no obligation to make a statement,
(ii) any statement made by the young person may be used as evidence in proceedings against him or her,
(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
(c) The young person has, before the statement was made, been given a reasonable opportunity to consult
(i) with counsel, and
(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and
(d) If the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
There are three preconditions to the application of the section: arrest, detention, or reasonable grounds for believing the young person has committed an offence.
The section then mandates both informational and implementational duties on police officers.
As explained in R. v. L.T.H., 2008 SCC 49, no statement by a young person to a person in authority will be admissible in evidence against that young person unless:
(i) the statement was voluntary;
(ii) the person who took it “clearly explained to the young person, in language appropriate to his or her age and understanding” the young person’s right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview); and
(iii) the young person was given a reasonable opportunity to exercise those rights.
Key Holdings In N.B.
- The “Triggering Mechanism” And Onus
In a standard Charter application, the onus rests with the applicant to demonstrate his or her rights were violated on a balance of probabilities. For example, if an accused person alleged he was detained by the police unlawfully in violation of section 9 of the Charter, that standard would apply.
In N.B. one of the issues that arose on appeal was who bore the onus with respect to the “triggering mechanism” of section 146 of the YCJA. The Court of Appeal ruled that unlike in a Charter application, where the onus fell on the applicant, the onus under section 146 of the YCJA rests with the Crown. Thus, the Crown had the onus to prove the young person was not arrested or detained, or that the peace officer did not have “reasonable grounds for believing the young person has committed an offence”.
Furthermore the standard was proof beyond a reasonable doubt: N.B. at para 98.
- Psychological Detention
The test applicable to determining whether a psychological detention has occurred under s. 146(2) was explained by the Court of Appeal in an earlier decision, R. v. Todorovic, 2014 ONCA 153. The Court of Appeal confirmed that the test from R. v. Grant, 2009 SCC 32 for psychological detention under ss. 9 and 10 of the Charter applies to s. 146(2) of the YCJA.
As explained in the decision, the Supreme Court summarized the law on detection in Grant:
- Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint.
- Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
- In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider [a variety of factors].
In N.B., the Crown attempted to argue that no psychological detention had occurred as N.B. was not formally under arrest and was at the station simply to answer questions. The trial judge analyzed N.B.’s conduct with the police and found he was not psychologically detained. But the Court of Appeal held this was unreasonable. Rather, it clarified that even if a young person displayed “bravado and braggadocio”, that does not mean a young person will appreciate the consequences of making a statement to the police.
Furthermore much turned on what the appellant was not told – that he was not there as a suspect (initially); that he was not obliged to give a statement; and that he was free to leave.
The case makes it clear that the threshold for psychological detention may be crossed far sooner for a young person than for an adult.
- Whether The Arrest or Detention Must Related To The Ultimate Charge
The Crown argued on appeal that even if the young person was detained, he was only detained on the offence of obstruct police, but not murder. Thus, any statements he gave would be admissible on a future charge of 1st degree murder.
This argument was soundly rejected.
As soon as a young person is detained, he must be afforded his rights. If a statement is ultimately given, it does not matter which offence it relates to. As a result, since N.B. was detained initially on the basis of the obstruct police allegation, that was sufficient to trigger his rights under s. 146 of the YCJA.
(Ed: I wish to add here that it has long been held under s. 10(a) of the Charter that once a detainee’s jeopardy changes the police are obligated to advise him of that change and re-advise him of his rights: see R v Evans,  1 SCR 869.)
Conclusions and Observations
The facts of this case demonstrate why it is crucial that police officers take care to zealously vanguard the special rights and protections afforded to young persons. By failing to properly inform N.B. of his rights, and to clarify that he did not have to answer questions about the incident, they simply poisoned any statement that was later provided.
Teenagers often act out with persons in authority. But as the Court reminds us here, the mere existence of bravado does not mean a young person is fully appreciative of the jeopardy he or she is facing. Crown counsel should be cautious about relying on evidence of such behaviour.
In cases where a young person is not formally arrested and the issue of psychological detention arises, the ruling on onus in these applications especially noteworthy. Defence counsel may not wish to pursue Charter applications (with a higher standard of proof) and simply rely upon evidence pointing to reasonable doubt that a young person was psychologically detained under s. 146. If the only evidence to be excluded is a statement, this would be a simpler route to achieve the same goal.