



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N.B., 2018 ONCA 556

DATE: 20180615

DOCKET: C52122

Laskin and Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

N. B.

Appellant

Anthony Moustacalis, for the appellant

Michael Bernstein and Frank Au, for the respondent

Heard: November 27, 2017

On appeal from the conviction entered on February 20,
    2009 and the disposition imposed on January 6, 2010 by Justice Alfred J. Stong of
    the Superior Court of Justice, sitting with a jury.

Pepall J.A.:

A.

Introduction

[1]

The appellant, N.B., appeals from his conviction for first degree murder
    of his 14 year old cousin, B.B., a grade nine high school student from Barrie,
    Ontario.  At the time of the offence, the appellant was 16 years old.  He was
    tried before a judge and jury.  He was sentenced as an adult to life
    imprisonment without eligibility for parole for ten years.  He has been in
    custody since March 2006.

[2]

The appellant submits that his conviction should be set aside and a new
    trial ordered because his statements to the police were admitted into evidence
    in breach of s. 146(2) of the
Youth Criminal Justice Act
, S.C. 2002,
    c.1 (the YCJA).  The effect of that subsection meant that no statement made
    by the appellant to police officers on his arrest or detention was admissible
    against him in the absence of an explanation: (i) that he was under no
    obligation to make a statement; (ii) that the statement could be used as
    evidence against him; and (iii) that he had the right to consult counsel and a
    parent prior to making any statement, and to have counsel and a parent present
    during his statements.  The appellant submits that none of that occurred.  He
    also alleges that his right to counsel under s. 10(b) of the
Charter
was breached.

[3]

As the YCJA breach is fatal to the Crowns case, there is no need to
    address the numerous other grounds of appeal raised by the appellant.  For the
    following reasons, I would allow the appellants appeal.

B.

The Facts

[4]

March 9, 2006, was a snow day.  More importantly, it was the day of B.B.s
    murder.  He had been stabbed to death.  What follows are the facts leading up
    to his murder and the events that led to the appellants arrest and conviction
    for first degree murder.

(a)

Relationship between B.B. and the appellant

[5]

The B.s were a close-knit family consisting of five adult siblings, four
    of whom lived close to one another.  They got along well and saw each other
    regularly. The one exception was S.B., the appellants father.  He and the
    appellant spent less time with the extended B. family and saw family members
    only sporadically over the years.  That contact became even less frequent when an
    incident took place in late 2015, when the appellant was 15 years old.

[6]

The events leading up to the incident began in August 2005, when the
    appellant ran into his two uncles, Colin and Terry.  Colin was B.B.s father,
    and Terry was B.B.s and the appellants uncle.  The appellant confided in Colin
    and Terry that he was having a hard time at home living with his mother and her
    boyfriend.  His uncle Terry offered to have the appellant move in with him on
    the condition that he abide by the house rules and attend school.  The
    appellant agreed, and in September 2005, Terry enrolled the appellant in the
    local high school.

[7]

B.B. had a close relationship with his uncle Terry and visited him often. 
    As a result, during the time the appellant lived with Terry, he and B.B. spent
    time together.  The appellant and B.B.  also spent time with their cousin, Kijlah,
    with whom B.B. in particular was quite close.

[8]

Terry subsequently discovered that the appellant was not attending
    school regularly and in November, he, Colin, the appellant, and the appellants
    mother, had a discussion, which culminated in a heated exchange between Terry
    and the appellant.  The appellant ultimately packed his things and left.  After
    this incident, B.B.s father Colin told B.B. he was no longer to associate with
    the appellant.  B.B.s mother testified that B.B. was a little angry when told
    this and stated that his parents were being over protective.  She recalled
    one time when the appellant called to speak with B.B. and her son tried to hide
    this from her.

[9]

Later in the fall of 2005, Colin learned that the appellant and B.B.
    continued to communicate online through MSN Messenger. He called the appellant
    and told him to stay away from B.B.  The appellant became upset and responded:
    You cant make me stay away from [B.B.]. He then said: Go fuck yourself and
    the [B] family will die.  Colin testified that, despite his direction to B.B.
    to cease any association with the appellant, he was not certain that the boys
    stopped communicating with one another.  At trial, there was no evidence given
    of any animosity between the appellant and B.B.

[10]

Later,
    the appellant emailed his uncle Terry to advise that he did not have to worry
    about him anymore as he was moving to Vancouver to live with his brother.  He
    then moved out west.  However, on February 18, 2006, he returned to Barrie.

(b)

Evening of March 9, 2006

[11]

Turning
    then to March 9, 2006: the appellant had gone to work that day, as he was no
    longer enrolled in school.  After work, he went to the apartment of his friend,
    Leonard, where he would be spending the night.  Once there, he changed out of
    his work clothes.  He then went to the bank with another friend, Casey, to cash
    a work cheque.  Casey testified that on the way, he showed her a gold-coloured
    knife with holes in it.  After the bank, the two returned to Leonards place,
    arriving around 6:30 p.m.  The appellant stayed at Leonards for about 30
    minutes, took two ecstasy pills and then went to the nearby apartment of a
    third friend, Matt, where he used the computer for about a half hour.  At 7:30 p.m.,
    the appellant left the apartment, because Matt had to go to the store.

[12]

Meanwhile,
    B.B. was spending the evening with his cousin, Kijlah. The two were at the townhouse
    of a family friend, Karen, where Kijlah lived.  B.B. and Kijlah were logged
    into MSN Messenger, and saw the appellant come online.  Kijlah testified that
    B.B. messaged the appellant, and they corresponded back and forth for about ten
    to fifteen minutes.  Karens townhouse and the apartment building containing Leonards
    and Matts respective apartments were minutes from one another; the appellant
    asked B.B. to meet him at a park close to these residences, and to bring some
    money.  They met and then returned to Leonards place just before the start of
    an 8:00 p.m. movie.  They stayed only a few minutes.  The appellant introduced
    B.B. as his cousin to the people who were at Leonards house, including Leonard,
    Leonards mom and her boyfriend, Brian, and two of Leonards and the
    appellants mutual friends. There was no evidence from those present of any
    animosity between the appellant and B.B.  A few minutes later, the appellant
    and B.B. returned to the home of Karen and Kijlah.

[13]

Kijlah
    testified that the appellant and B.B. stayed with her at Karens place for
    about half an hour. The three sat and talked with each other, and the appellant
    offered Kijlah and B.B. some ecstasy, before leaving an ecstasy pill out on a
    desk. The appellant also showed Kijlah and B.B a knife.  The appellant and B.B.
    then left for a convenience store, Macs Milk.

[14]

Kijlah
    testified that, seconds later, B.B. returned saying he had forgotten
    something.  Kijlah asked B.B. if he had taken the ecstasy pill with him and he
    responded by patting the front pocket of his pants. B.B. left again shortly
    after with the appellant. Kailey, a friend of Kijlahs who was on the phone
    with her that evening, confirmed that, between 8:30 and 9:00 p.m., she
    overheard B.B. getting ready to go to the store.  She later heard someone
    return saying he had forgotten his pocket knife.  Unlike Kijlah, she testified
    that she assumed the person who returned was the appellant, not B.B., because Kijlah
    said: Oh, [N.B.]s back.

[15]

At
    8:45 p.m., the appellant was seen on video surveillance at Macs Milk
    purchasing two sodas and a pack of gum using his debit card.  B.B. was not
    seen.

[16]

Soon
    after, the appellant arrived back at Leonards apartment. He was alone and
    wet.  He went to the bathroom and changed out of his jeans and t-shirt and put
    them into his knapsack or a plastic bag.  He then went to Karens townhouse. 
    According to Karen, who by that point had arrived home, the appellant was surprised
    B.B. was not there yet and he seemed to be a bit fidgety.  He told Kijlah, who
    was also still there, that after he and B.B. had gone to the store, they went
    their separate ways: he had returned to Leonards and had assumed that B.B. had
    gone back to Karens.  He said he was going to get his jacket and then go to
    look for B.B.

[17]

A
    few minutes later, the appellant showed up at Leonards place in a panic.  He
    said B.B. was in trouble and asked Leonard and the others to help him look for
    B.B.  He told the group that someone or his cousin had told him that a few guys
    had dragged B.B. into the bush.  The appellant, Leonard, and the two other
    friends who had been present at Leonards apartment made their way to Lackies
    Bush, which was only about two minutes away.  They found B.B. down the hill by
    the creek, and ran down to his body.

(c)

B.B.s death

[18]

The
    appellant was the first to run down to B.B. He knelt down beside B.B., checked
    his neck for a pulse, and placed his hand on the side of B.B.s chest.  He then
    shouted that B.B. was dead and hugged his body.  His friends described him as
    visibly upset, very emotional, distraught, hysterical, crying, and freaking
    out.  He was seen moving about the area punching trees and rolling in the
    snow.  He appeared to be in shock and disbelief.

[19]

Leonard
    called 911 at 9:14 p.m.

(d)

Police at scene

[20]

The
    first officer at the scene was Constable Schaus, followed by Constable Nevill
    and Sergeant Schultz.  Later, other police officers were in attendance: Constable
    Higgins and Sergeant Berriault.

[21]

When
    police and paramedics arrived, the appellant was heard shouting: You guys have
    got to help him.  Thats my fucking cousin.  Constable Nevill testified that
    as he was making his way to the bottom of the hill, he heard the appellant yelling
    and screaming and that the appellant intentionally put his shoulder into Constable
    Nevills side as he passed and said: Hes dead faggot.

[22]

At
    9:26 p.m., Constable Higgins spoke to the appellant and asked him whether he
    had anything to do with the stabbing.  The appellant responded that B.B. was
    his cousin and that he did not know what happened; he and B.B. were together 45
    minutes earlier, when they had gone to the store; B.B. had left and the
    appellant had later returned to look for him.  Constable Higgins observed that
    the appellants pupils appeared to be extremely large so he asked him whether
    he had used any drugs that evening.  The appellant replied that he had not.  Constable
    Higgins asked him to wait inside a police cruiser because he wanted to make
    sure someone interviewed him.  Constable Higgins returned a few minutes later
    and released the appellant from the cruiser but directed him to stay in the
    area because someone would speak with him.

[23]

The
    appellant walked over to his friends, who were speaking with Constable Nevill. 
    Constable Nevill testified that the appellant became a constant chatter in
    his ear.  He spoke briefly with the appellant, took down his personal
    information, and told him to back off until he had finished speaking with the
    others.

[24]

There
    were varying accounts of what happened next. Constable Nevill testified that
    the appellant reacted by shoving him from behind knocking him slightly off
    balance. Constable Nevill was 61 tall and weighed 220 pounds; the appellant
    was approximately 51 and weighed 137 pounds.

[25]

Constable
    Nevill tried to restrain the appellant so he could arrest the appellant for
    obstructing police.  He said that when he tried to take control of the
    appellant, the appellant resisted and, as he was flailing his arms around, Constable
    Nevill delivered a strike with a closed hand to the left side of the
    appellants face.  According to Constable Nevill, this did not deter the
    appellant and so Constable Nevill administered a brachial stun, an open handed
    strike to the appellants neck intended to cause a momentary loss of balance,
    followed by two additional closed hand punches to his face.  The appellant was
    taken to the ground. With the assistance of a nearby police officer, Sergeant
    Berriault, the appellant was handcuffed and placed in one of the police cruisers,
    which was locked so the appellant could not leave.

[26]

Sergeant
    Berriault only became involved when he noticed that Constable Nevill was
    holding the appellant in a headlock position, but he did not see any assault.

[27]

In
    contrast, the appellants friends observed the assault but none of them
    indicated that the appellant had struck Constable Nevill first.  The appellant
    later told police that it was Constable Nevill who started the altercation; Constable
    Nevill assaulted the appellant when he asked for an update on his cousin.

[28]

After
    the arrest, Constable Nevill made only cursory notes in his memo book about the
    altercation, and then spoke with his superior, Sergeant Schultz, telling him
    that a young person had struck him and he had arrested him.  According to Constable
    Nevill, Sergeant Schultz told him that the appellant should potentially not
    be charged with obstructing police but just with breach of the peace.  He did
    not direct Constable Nevill to vary the charge.  Constable Nevill did not
    mention to Sergeant Shultz that he had been in a physical altercation with the
    appellant.  Subsequently, having heard of the striking from other officers, Sergeant
    Schultz directed Constable Nevill to add detail to his notes on what had
    happened.

(e)

Placement in police cruiser subsequent to arrest

[29]

A
    few minutes after the appellant was placed in the locked cruiser, Sergeant
    Berriault noticed that an adult was attempting to speak to the appellant: Brian,
    an adult whom the appellant knew.  Brian was the boyfriend of Leonards
    mother.  Sergeant Berriault told Brian to step away.  Sergeant Berriault then
    spoke to the appellant.  According to Sergeant Berriault, the appellant was
    upset, told him he was the injured persons cousin, and repeatedly asked the
    name and badge number of the officer who had arrested him because he felt he
    had been unfairly treated.  Sergeant Berriault assured the appellant that he
    would get that information and told him that if he calmed down the handcuffs would
    be removed.  Not knowing that the appellant had been placed under arrest by Constable
    Nevill, Sergeant Berriault then removed the handcuffs.

[30]

After
    Sergeant Berriault left, Sergeant Schultz  who at this point knew the appellant
    had been placed under arrest by Constable Nevill for obstruct police  attended
    the locked cruiser to converse with the appellant.  The appellant asked
    Sergeant Berriault whether he could go and speak with Brian. Sergeant Schultz
    told him that it was not a very good idea, that he should relax, and that he
    would be given a cup of coffee at the station.  Sergeant Schultz asked the
    appellant who went into the bush with B.B.  The appellant told him he did not
    know; after he and B.B. had gone to the convenience store, B.B. and the
    appellant split up, and he did not know where B.B. went after that.

(f)

Appellant taken to police station

[31]

At
    9:48 p.m., Sergeant Schultz directed another officer at the scene, Constable Schaus,
    to drive the appellant to the police station for questioning.  The former
    contacted Detective Holden and Inspector Neelin, who were at the police station.
    Sergeant Shultz advised them that the appellant was in custody for bumping into
    Constable Nevill, but that he did not expect there to be a charge, and not to
    worry about lodging him. Detective Holden responded that instead, he would
    just throw [the appellant] in the interview room. Sergeant Shultz agreed.

[32]

Sergeant
    Schultz then contacted Staff Sergeant Emms.  He told her the appellant had been
    placed under arrest by Constable Nevill for obstructing a police officer.  He said
    that the appellant was in custody, but did not think a charge would be laid as
    the appellant was an emotional kid who is out of control.  He told Staff Sergeant
    Emms that the appellant was being brought in as a witness, and directed that he
    be kept away from any phones and be put in an interview room to be interviewed
    tout suite.

[33]

For
    his part, Constable Schaus radioed the station and advised that he was on his
    way with a male in custody.  He heard the appellant whimper and ask him whether
    his cousin was going to be okay.  Constable Schaus responded that he did not
    know, to which the appellant responded: Those guys are going to have to pay.
    The appellant appeared very emotional and distraught to Constable Schaus.

[34]

Neither
    Sergeant Shultz nor Constable Schaus advised the appellant that he did not need
    to go to the police station for questioning if he did not want to. Nor did
    either officer clarify that he would not be charged for obstruct police once he
    arrived at the station.

(g)

Appellant placed in interview room

[35]

Constable
    Schaus and the appellant arrived at the station at 9:59 p.m. Once there, Constable
    Schaus led the appellant to an interview room, where the two were met by Staff
    Sergeant Emms.  The latter testified that she understood that the appellant was
    brought into the station as a witness and was no longer in custody.  She
    directed Constable Schaus to look through the pockets of the appellants coat. 
    She asked the appellant whether he had any injuries to which he responded no,
    and she advised that someone would be in shortly to speak with him. She then
    left the appellant in the interview room. The interview room was locked when
    the police were not with the appellant and unlocked when they were.

[36]

It
    is important to note what Staff Sergeant Emms did not do.  She did not tell the
    appellant why he was brought to the police station.  She did not tell him that
    he did not have to be there or that he was no longer in custody.  She did not
    tell him that he did not have to speak with the police or provide a statement. 
    And she did not tell him that he could leave at any time.

(h)

Preliminary interview of the appellant by Detective Constables Brooks
    and Parcells

[37]

The
    appellants interview was conducted by Detective Constables Brooks and
    Parcells.  The two had been told by Detective Holden that there had been a
    homicide and to interview the appellant.

[38]

At
    no time prior to the interview did Detective Constables Brooks or Parcells tell
    the appellant that: he did not have to make a statement to the police as a
    witness; he was free to leave at any time; he could consult with a parent,
    adult, or counsel, and have any of these people present for the interview.  He
    was not sworn or cautioned.

[39]

At
    10:06 p.m., Detective Constables Brooks and Parcells entered the interview room
    to conduct a preliminary interview of the appellant.  The appellant asked about
    his cousins status and was told:  Itll be a while anyway buddy. Although Detective
    Constable Parcells knew B.B. was dead; he wanted the appellant to remain calm. 
    The Detective Constables told the appellant that they were going to go through
    everything that happened that evening so that they could figure out what went
    on and to see what they could do to help the appellant, saying:

PARCELLS: Okay what were gonna do, were gonna uh  were
    gonna take a statement from ya, try to figure out what went on, see what we can
    do to help you, okay?

N.B.: I dont know anything that happened really, I left him.

PARCELLS: Okay, no thats cool, but were just gonna go through
    everything what happened tonight.

N.B.: Okay.

PARCELLS: Its gonna be on audio and video and the reason were
    asking you these questions now, we dont want your address and name gettin
    out, okay?

N.B.: Okay.

[40]

After
    this exchange, the Detective Constables began leaving the interview room,
    prompting the appellant to inquire: Youre not gonna read me my rights or
    nothin? The Detective Constables then clarified, for the first time to the
    appellant since he had been placed under arrest by Officer Nevill, that he was
    not in fact under arrest. Detective Constable Brooks told him that he had been
    arrested for breach of the peace. Although the appellant tried to explain the
    details of the altercation with Constable Nevill, the Detective Constables did
    not ask him about it. Instead, they explained that the police at the scene were
    trying to help B.B. and that at the time the police dont know what your
    involvement [was]. For all they kn[e]w, you could be the guy that did it.  Detective
    Constable Parcells went on to tell the appellant that, once no one had any
    further questions for him, the police would drive him home. He added that the
    appellant did not need his rights read to him because he was not going to be
    charged and did not need a lawyer.

[41]

The
    specific exchange went as follows:

N.B.: Youre not gonna read me my rights or nothin?

BROOKS: No...

BROOKS: No...

PARCELLS: Youre not  youre not...

BROOKS: No, youre not under arrest.

N.B.: Oh okay.

BROOKS: You  you - youre - what ended up happening is you
    were arrested for breach of the peace

N.B.: After I got punched in the nose.

BROOKS: By?

N.B.: By one of the officers.

BROOKS: Oh okay. Well uh...

N.B.: He was uh  this is how it goes. We were talkin about it
    and asked him if he was dead and he goes oh are you the one flappin your gums
    that hes already dead and I said well he had a knife mark through his earring
    cuz he had a big hole right here in his ear.

BROOKS: mm... hm...

N.B.: cuz we went down there and he grabbed a hold of me and
    he goes if you dont wanna be under arrest shut up right now, right and I
    grabbed a hold of him and he just clocks me.

BROOKS: Okay.

N.B.: And then two of the other guys came over and grabbed me
    and threw me up against the ambulance and then it drove away.

BROOKS: Here heres the deal though, okay.

N.B.: And I never got (unintelligible) ...

BROOKS: Well okay, okay. All  you know what? There was a lotta
    stuff happening at that time. You got police officers there theyre trying ta
    help your cousin, okay. No one knows whats goin on and ya know, youre 
    youre irate, youre upset and thats understandable.

PARCELLS: And thats understandable.

N.B.: But I shouldnt be goin (unintelligible) (talking over
    each other)

BROOKS: No, no, but  but  but at the time the police dont
    know what your involvement is. For all they know, you could be the guy that did
    it, right? So what they ended up doin is yeah, youre arrested for breach of
    peace. Forget about all that. Youre not being charged with anything tonight,
    okay? When were done this statement were

PARCELLS: Were gonna drive you home.

BROOKS: Yeah. Unless anyone has any further questions for ya
    then uh were probably gonna drive you home after that.

PARCELLS: What breach of the peace is its just a way of
    settlin somebody down, get him calmed down and everythings cool and then it
    goes away. Okay?

N.B.: Sounds good.

PARCELLS: Sound fair. So youre not under arrest. Youre not
    facin any charges and you dont need your rights read to ya.

N.B.: Okay.

PARCELLS: Okay.

N.B.: Sounds good.

PARCELLS: And you dont need a lawyer. Were just here shootin
    the shit. Thats all. Were tryin ta help you okay.

N.B.: Well like I said I

PARCELLS: Well like you say it may be bullshit now but it may
    be real cool later, okay?

N.B.: Yeah.

(i)

Substantive interview
    of the appellant by Detective Constables Brooks and Parcells

[42]

The
    Detective Constables then left the room briefly, returning at 10:12 p.m. to
    begin the substantive interview.  They told the appellant to tell them
    everything that had happened that day.

[43]

At
    first, the appellant told the Detective Constables that he and B.B. had walked
    over to the convenience store, where the appellant had used his debit card to
    purchase a pop and some gum. Then, the two walked to a complex in between Leonards
    and Karens respective residences. There, the appellant put his baseball cap on
    B.B.s head, gave him a hug, and said See ya later.  The two split up, with the
    appellant going to Leonards home. B.B. did not say where he was going. The
    appellant clarified that he only began looking for his cousin when he went to
    visit Karen, where he found out from Karen that B.B. had not returned yet. At
    that point, the appellant said he went back to Leonards home to enlist his
    friends to help him find B.B. He denied any involvement in his cousins death
    and said they had always gotten along.

[44]

The
    appellant also initially told the Detective Constables that, at no point in the
    night, did he and B.B. go to Lackies Bush together. But when the Detective
    Constables falsely told the appellant that there were video surveillance
    cameras outside a recreation centre near Lackies Bush, the appellant changed
    his story.  He said that he and B.B. had walked through Lackeys Bush to smoke
    a joint and that, while there, two guys unknown to the appellant asked B.B. if
    he had a cigarette.  B.B. responded that he did not, and one of the guys pulled
    out a knife.  The appellant told the officers that he saw one of the guys holding
    a sandy coloured knife that was dark in the middle.  The appellant left and told
    B.B. to follow him but B.B. did not listen.  The appellant stopped at the
    recreation centre, where he used the washroom and washed his hands.  He then
    ran to Leonards home and told his friends there that two guys had dragged his
    cousin to Lackies Bush and asked them to go back with him to help B.B.  He
    explained to the Detective Constables that he had not mentioned this earlier in
    the interview because he could not justify why he was going back to Lackies Bush
    so late at night, but admitted that he had changed my story.

[45]

The
    main parts of this exchange went as follows:

BROOKS:  I have ta ask ya. In any way, shape or form, were you
    involved in this tonight?

N.B.: I wasnt.

BROOKS: Okay. There is uh - just so you know okay - the
    Allandale Rec Centre...

N.B.: Hm.. .mm.

BROOKS: ... fortunately for us has an excellent video system
    and uh they have a video system of the uh the main parking area because
    obviously ya know cars get broken into all the time. Is there any way on that
    video were gonna see you walking with [B.B.] to Lackies Bush at any time
    during the night?

N.B.: Maybe. We walked through an then we came back out an then
    we came back out. No, that wasnt tonight no.

BROOKS: Think about it though because were-were in the
    process of pulling the tapes now an we-we half ta verify ya know your
    whereabouts an stuff like that.

N.B.: Hm. . mm.

BROOKS: Is there anyway tonight that on video itll show you an
    [B.B.] walking towards the area of Lackies Bush together  at any time of the
    night tonight?

N.B.: Hm. ..mm.

BROOKS: Okay.

N.B.: We went there to smoke a joint.

BROOKS: Okay. What happened when you were there when you were
    smokin the joint?

N.B.: It was...

BROOKS: [N.B.], okay. Youre here now, right?

N.B.: Hm.. mm.

BROOKS: We need ta hear what happened tonight?

PARCELLS: [N.B.], were not judgin ya an we dont care if you
    were smoking dope okay.

N.B.: Hm. ..mm.

PARCELLS: That was gonna be my next question. I can tell by
    your eyes youve been  youve been doin a lot okay but we dont give a fuck
    about the dope okay. We care about your cousin whos your family an you should
    care about him. Okay so everything  dont leave anything out, okay. Be
    straight up with us.

BROOKS: .. Did something happen between you an your cousin
    tonight?

N.B.: Oh no, nothin. That was  weve always gotten along. Thats
    one thing Ive always liked. Thats why I still talk to him an stuff.

BROOKS: Were not judgin you for anything...

N.B.: I know that.

BROOKS: .. like I said okay. If you guys were down there an
    something happened while you were there an youre scared, we understand that,
    okay? But you have ta be straight with us. You have ta tell us whats goin on.

N.B.: This is the road right there, There was one path into
    Lackies an theres the other path into Lackies an thats where they meet up an
    then theres uh  this path continues all the way along here like that an
    theres a little creek here an this is all land over here an theres urn a
    bunch a shit piled just to make a little half-ass bridge here  an we walked
    down there an we were standing just right here an then uh two of em - we
    didnt know who the hell they were  came probably  well thats the other path
    right  so they came from over here  an I started walkin an [B.B.] stood there
    an then they came up an asked him if he had a cigarette an he said no an then
    fuckin one a them pulled outta knife an I fuckin bucked it back to Leonards
    an I grabbed Leonard and uh by the time we got back, he was over here an they
    were gone. I dont know who they were. I-I couldnt tell ya.

BROOKS: Okay. Why didnt you  why wouldnt you tell us that
    from the start?

N.B.: I...

BROOKS: [N.B.]. Look I - I want ya to listen - listen to us
    okay. If you know what was goin on tonight okay  were not sayin  were not
    sayin youre - youre the guy that - that stabbed your cousin okay. Were not
    sayin that. But we know that you know more than what youre tellin us okay an
    we...

N.B.: I couldnt justify why me an him were goin back there so
    late at night so.

BROOKS: Heres the thing buddy. Youre goin to smoke a joint
    okay. That is the absolute least of anyones concern right now okay. Our
    concern is in regards to [B.B.] okay. You either tell us who these two guys
    were?

N.B.: I - I swear to God sir, I have no idea.

BROOKS: Okay he pulls...

N.B.: Like I said, I dont live here.

BROOKS: Why - tell me why these two guys are approaching [B.B.]
    an youre walking away?

N.B.: Because I  Im not like that. I dont  hes tiny.

BROOKS: [N.B.].

N.B.: I dont feel safe with him. I dont feel safe around here
    and being back in the dark bush that late at night.



BROOKS: Or tell [B.B.] to come with you?

N.B.: I did tell him to come with me.

BROOKS: What did he say?

N.B.: He didnt listen.

BROOKS: Why wouldnt he listen to ya?

N.B.: I have no idea. He took a few steps anyway.

PARCELLS: Do you think he knows these guys?

N.B.: Quite possibly. I didnt.

PARCELLS: Did they - did they talk? Did you hear them talkin at
    all?

N.B.: Yeah, he - one - the one guy asked him if [B.B.] had a
    smoke an [B.B.] said no an then this guy  cuz there was two of em that came
    this way an this way cuz theres another path that leads out the exit at the
    back.

PARCELLS: Yeah.

N.B.: And. uh one a them - I was walkin  I was about here - an
    [B.B.] had just crossed the bridge so he was about here  an they come over an this
    one guy asked him if he had a smoke an [B.B.] said no an then this one ran up
    on him an I seen him pull out the knife from his side.



BROOKS: What did the knife look like?

N.B.: It was uh kind of sandy coloured like right here an then
    it was a darker colour right here in the middle and it was like another sandy
    colour right there.

BROOKS: An you ss  an you were able to identify the knife that
    well being ten to fifteen feet away?

N.B.: Yeah.

BROOKS: In the pitch black?

N.B.: It wasnt pitch black.



BROOKS: No. Let-lets go back to the Allandale video uh. Tell
    us what were gonna see on the video?

N.B.: Me going down there with him.

BROOKS: Okay what time are we gonna see you going down there
    with him? Approximate?

N.B.: Approximate? See I dont even know what time it is now so
    Id say.

BROOKS: We started the interview at ten after ten.

N.B.: Um best guess would be nine maybe.

BROOKS: Okay so were gonna see originally you an [B.B.]
    walking down there around nine?

N.B.: Right.

BROOKS: So lets say for hypothetical circumstance, lets say
    the camera video says 9:00 oclock right on the nose...

N.B.: Hm. . mm.

BROOKS:  okay. What are we gonna see when we see you again?
    Are we gonna see you with [B.B.]?

N.B.: No.

BROOKS: What are we gonna see you doin?

N.B.: Me going out of Lackies...

BROOKS: How...

N.B.:  an walking back...

BROOKS: Whats your manner?

N.B.: Pardon?

BROOKS: How - are you - are you walkin? Are ya takin your time?
    Do walk over to Allandale Rec Centre? Do ya hang out somewhere?

N.B.: Its kind of a  I guess a fast pace but dont draw
    attention to yourself run.

BROOKS: So a fast walk?



BROOKS: Did you go inside the rec centre?

N.B.: Yes.

BROOKS: An what did you do while you were inside there?

N.B.: I went to the washroom an then I came back out an I
    walked back out the front door.

BROOKS: Okay, you just finished telling us that youre  that
    two guys just pulled a knife on your cousin...

N.B.: Hm. .mm.

BROOKS: .. an then you walk across an go to the washroom?

N.B.: Right.

PARCELLS: Did you tell anybody that...

N.B.: I didnt know.

PARCELLS: . . .your cousins in trouble down there?

N.B.: Yeah, I went an told Leonard.

PARCELLS: Okay, but wheres Leonard?

N.B.: Up at his place.

PARCELLS: Okay.

N.B.: Its just - its just right here.

PARCELLS: Yeah its just around the corner but you took time
    out to go have a piss in the rec?

N.B.: Hm...mm. I had to.

PARCELLS: Well.., okay I-I-Im thinking if-if.if somebody pulls
    a shank on my cousin, a guy I really like an havent seen in a while an yeah
    Im scared an I get the fuck outta there, Im gonna be runnin B line goin for
    help  not stoppin for a piss an then goin to Leonards. Cuz you know what Im
    sayin.



BROOKS: An what about this story about Karen? Is she coming to
    look for him as well?

N.B.: Hm...mm. That was true,

BROOKS: Well, did you go to Karens house?

N.B.: Yeah.

BROOKS: So you went to Leonards house?

N.B.: No, no. This was before.

BROOKS: Before what?

N.B.: Before we even went down there.

PARCELLS: Yeah but...

N.B.: See cuz I...

BROOKS: . (unintelligible) (talking over each other)

N.B.: ...changed my story right so.

[46]

By
    10:55 p.m., the appellants status had changed in Detective Constable Parcells
    mind: he had become a person of interest or a suspect.  Detective Constable Parcells
    took a break and went to speak with Sergeant Holden, returning a couple of
    times to tell the appellant that the officers were still talking.

[47]

The
    appellant sat alone in the interview room for nearly three hours.  During this
    time, he was monitored.  When he stood up and walked around the room, a voice
    directed him to sit back down in the chair.  He was also observed speaking to
    himself saying: Them bastards. Ill fuckin kill you both. Fuckin wanna stab my
    cousin you fuckin silly ass faggots. Bunch of fuckin dick heads.

(j)

Arrested for first degree murder

[48]

At
    1:59 a.m., Detective Constable Parcells and another police officer, Sergeant
    Winn, entered the interview room and arrested the appellant for first-degree
    murder.  He reacted by using various expletives.  He was cautioned and he immediately
    asked if he could speak with his mother and a lawyer.  He subsequently spoke
    with duty counsel.  At 4:09 a.m., the officers interviewed the appellant again,
    this time in the presence of his mother.  His step-father asked to be present
    but the police initially refused his request.  The appellant reiterated that he
    did not stab his cousin.

[49]

While
    the officers explained the situation to his mother, the appellant stated that
    he did not know that making a statement was voluntary and no one had told him
    he did not have to be there.  The officers responded by indicating that his
    inconsistent statements had led them to consider him a suspect and ultimately
    led to his arrest.

C.

The Trial

[50]

The trial proceeded before a judge and jury.

(a)     Forensic
    evidence

[51]

At
    trial, the Crown introduced into evidence certain forensic evidence. It
    consisted of three things.

[52]

First,
    the police found a copper flick knife at the recreation centre. No fingerprints
    were found on the knife.  DNA from at least two individuals was found on the
    inside of the knife but it could not be linked to anyone.  Blood was found at
    the recreation centre in various places: on the sink counter, on the side of
    the garbage can, and on the interior door handle of the bathroom.  The appellant
    could not be excluded as the source of this blood.  The major profile of the blood
    found on B.B.s fingernails included unidentified DNA that did not match the
    appellant.

[53]

Second,
    blood was detected on the appellants winter coat, pants, and T-shirt that he
    was wearing at the time of his arrest as well, as on a blue shirt and blue
    jeans found in a backpack seized by the police from Leonards residence. B.B. could
    not be excluded as the source of the male DNA profile on the winter coat and
    blue jeans.  B.B.s black toque was found 5.23 meters and the appellants
    baseball cap 3.85 meters away from B.B.s body.

[54]

Third,
    the appellant had a cut on his neck and his face and some redness and small
    cuts on his hands near his knuckles.  He told Detective Constables Parcells and
    Brooks that he did not know how or when he was cut.

(b)     Appellants
    statements and utterances

[55]

At trial, the Crown also sought to introduce the
    appellants statements to the police and his utterances.  The admissibility of
    the appellants statements to the police and utterances were challenged by the
    defence and the judge accordingly conducted a
voir dire
.

(c)     The
voir dire

[56]

Before the trial judge, the Crown
conceded that the
    appellants rights under ss. 25(2) and 146 of the YCJA, as well as those under s.
    10(b) of the
Charter
, were breached at the scene of the crime as he
    was not advised of his rights prior to his arrest for obstruction of police. 
    However, the Crown argued that this breach did not taint his subsequent
    statements to Detective Constables Parcells and Brooks.

[57]

The
    appellant sought to exclude statements he made to Constable Schaus at about
    9:48, to Staff Sergeant Emms at about 9:59, and to Detective Constables Brooks
    and Parcells starting at 10:05 and 10:12, as well as the words and gestures
    made while alone in the interview room.

[58]

The
    trial judge admitted all of the evidence sought to be excluded.

[59]

In
    his ruling, the trial judge reviewed the facts and noted that the appellant had
    never been arrested or charged before and had no criminal record. The appellant
    testified, but the trial judge considered that he had embellished his evidence
    and that his testimony was unreliable, stating:

One cannot rely upon his testimony when he claims he was
    intimidated, afraid, and influenced to make a statement to the police ... It is
    clear he is an individual, although of tender age, who is in control of the
    situation, manipulative, and determined to get his point across.  He is not
    reluctant in any respect.  On the contrary, [N.B.] is in control and
    demonstrates a degree of confidence that causes him to inquire about his rights
    to counsel.  He is not an uninformed witness.

[60]

The
    trial judge stated that it was agreed by counsel that at no time did any police
    officers tell the appellant that he was no longer under arrest for obstruction
    of police, that he was free to leave, or that he did not have to make a
    statement.  Moreover, the police never gave him the opportunity to consult with
    counsel even though he inquired of Detective Constables Parcells and Brooks
    whether they were going to read him his rights. However, despite this
    agreement, the trial judge found:

I am satisfied that if [N.B.] had entertained any reasonable
    belief as a result of the actions of the police that he was under arrest for
    anything as he sat in the police station that such belief was specifically
    addressed and adequately disposed of by the explanation of the officers Brooks
    and Parcells and their assurances to him that he was not under arrest based on
    the information in their possession at the time. The police officers assured
    Mr. [N.B.] that he is not under arrest, that he is not facing any charges, and
    that he does not need his rights read to him because of that, and that after
    they are finished interviewing him they are going to give him a lift home.

[61]

The
    trial judge turned his mind to the voluntariness of the statements, stating
    that he was required to look at the surrounding circumstances and consider
    whether there were threats or promises, whether an atmosphere of oppression
    existed, whether police trickery was used, and whether the operating mind
    doctrine was applicable.  He found no threats or promises or trickery and
    concluded that the appellants consumption of ecstasy had not impaired his
    operating mind.  He was satisfied that the Crown had met its onus of proving
    voluntariness beyond a reasonable doubt.

[62]

He
    then turned to his consideration of s. 10(b) of the
Charter
and s. 146
    of the YCJA.  He concluded that, to Detective Constables Parcells and Brooks, the
    appellant was merely a witness.  He was neither induced nor threatened to give
    an interview to the police, nor did he regard himself to be under arrest or
    compelled to give a statement. The trial judge found that the evidence of the
    appellant on what transpired at the scene was unhelpful, whereas he accepted
    the evidence of the officers at the scene.  He concluded that the appellant was
    neither detained nor arrested for first degree murder prior to 1:59 a.m. on
    March 10, 2006.

[63]

Furthermore,
    none of the police officers had reasonable grounds to consider the appellant to
    be a suspect at the time the statements were made. Although the appellant had
    been arrested at the scene, before he was transferred to the police station,
    the police had made the decision that he was not under arrest and that he was
    only being viewed as a witness.  As he was not under arrest, his rights under
    s. 10(b) of the
Charter
and s. 146 of the YCJA were not engaged.

[64]

In
    considering whether the appellant had been detained prior to his arrest for
    first degree murder, the trial judge noted that the police are not required to
    caution and advise each person they interview of their rights and he identified
    the factors to determine detention described in
R. v. Moran
(1987), 36
    C.C.C. (3d) 225 (Ont. C.A.) and in
R. v. Azzam
, 2008 ONCA 467, 91 O.R.
    (3d) 335.

[65]

The
    trial judge held that the appellant bore the responsibility of establishing on
    a balance of probabilities that he was psychologically detained.  He stated
    that:

The compulsion to comply cannot be inferred simply because of a
    request by police, nor should it be presumed unless the Crown can show evidence
    of informed consent.

[66]

In
    assessing the appellants reasonable belief that he was detained, the trial
    judge reasoned that low intelligence, emotional disturbance, youth, and lack of
    sophistication were not evident.  Furthermore, he held that where a young
    person had been detained but the detention does not relate to the crime for
    which the information is elicited, the provisions of the YCJA did not apply.  In
    addition, he held that s. 146 did not apply where there were no reasonable
    grounds to believe the young person had committed the offence.

[67]

Although
    the appellant may have been detained as an accused by Officer Nevill with
    respect to the offence of obstruction of police, the trial judge found that
    this detention ended shortly afterwards.  He was not detained nor arrested as a
    person accused of homicide.  The trial judge reasoned that, [w]hile in the
    strictest sense [N.B.] was detained in interview room three he was certainly
    not detained as a suspect or a person of interest in the homicide.  Given
    credibility concerns, there was insufficient evidence upon which to make a
    finding that the appellant reliably believed he was detained.  He was in
    control of himself and sought to control his interaction with the police.

[68]

The
    trial judge concluded that the appellant had failed to meet his onus on the
    balance of probabilities on this breach of
Charter
rights motion.  Although
    Detective Constable Parcells had admitted that the appellants status had
    changed to a person of interest by 10:55 p.m., the trial judge concluded that,
    prior to being charged at 1:35 a.m., there had been no basis to view the
    appellant as a suspect.  As a result, although the appellant was detained in a
    technical sense as a witness, none of his statements were made as a result of a
    breach of his
Charter
or YCJA rights.  The trial judge accordingly
    admitted into evidence all of the appellants statements to the police.

[69]

The
    statements were admitted in both audio and transcript form, and considered by
    the jury at trial. Crown counsel highlighted the statements in both her opening
    and closing addresses to the jury. The trial judge also reviewed the statements
    in his jury charge as evidence for the jury to consider.  He noted that the
    Crown invited the jury to rely on the statements as evidence of:

·

The appellants intent to kill, as the appellant initially tried
    to get the police to accept one version of the story so he could avoid
    detection;

·

That the appellant continued his charade, and only changed his
    story after being confronted with possible video surveillance from the
    recreation centre;

·

That the appellant was in control and sought to manipulate the
    police at the scene and the police station; and

·

The appellants fabrication of a story to hide his plan to kill
    B.B., showing that his actions were planned and deliberate.

[70]

After
    considering the statements, the testimony of the various witnesses, and the
    physical evidence, the jury ultimately concluded that the appellant was guilty
    of first degree murder.

D.

Fresh Evidence

[71]

On March 24,
2011, Constable Nevill was
    charged with assault causing bodily harm of an individual unrelated to the
    appellant and the events in issue, as well as with fabricating evidence and
    obstructing the course of justice.  On June 21, 2013, he was convicted of all
    counts.  The convictions were based on an altercation between Constable Nevill
    and the unrelated individual.  The trial judge concluded that Constable Nevills
    entire brief was a fabrication, that he used excessive force on the
    individual, and that there was no evidence of the individuals purported
    provocative actions.  The exculpatory language and conduct used by Constable Nevill
    in that case were similar to that used in the case under appeal.

[72]

The
    appellant seeks leave to admit this fresh evidence.  He argues that the trial judge
    relied on Constable Nevills evidence given at the preliminary inquiry to make credibility
    findings against the appellant.  Therefore, Constable Nevills evidence
    contributed to the trial judges admission of the appellants statements to
    police and his ultimate conviction.

E.

Analysis

[73]

This
    appeal turns first on whether the appellant was entitled to the protection of
    s. 146 of the YCJA when the police took his statements.  In my view, he was.  I
    must then consider whether the statements were improperly admitted into
    evidence.  I am of the opinion that they were.  I reach these conclusions for
    the following reasons.

[74]

The
    trial judge made two fatal errors, both legal in nature.

[75]

First,
    he erred in law by holding that the appellant failed to meet his burden of
    showing that he was psychologically detained on a balance of probabilities. 
    This was an error because the burden to show that the appellant was detained should
    never have shifted to the appellant; it should have remained with the Crown
    throughout.  Having shifted the burden, the trial judge then improperly
    concluded that the appellant had not been detained and therefore was not
    entitled to the protections provided for in s. 146 YCJA.

[76]

Second,
    the trial judge made a further legal error in concluding that the protections
    under s. 146(2) of the YCJA did not apply to the appellant because he was
    neither detained nor arrested on the offence set out in the indictment. That
    is, the appellants detention and arrest were unrelated to the offense he was
    ultimately charged with, first degree murder. On this basis, the trial judge
    erred in concluding that s. 146 did not apply to the statements made by the
    appellant.

[77]

I
    will commence my analysis with a discussion of the objectives of the YCJA and
    s. 146(2) of that statute.  I will then address the standard of proof
    applicable to detention for the purposes of s. 146(2) of the YCJA, followed by an
    assessment of whether the appellant was detained by police and a discussion of whether
    s. 146(2) requires an arrest or detention to relate to the offence for which
    charges are ultimately laid. I will then consider s. 146(6), to determine
    whether any statements taken in breach of s. 146(2) should nonetheless be
    admitted.  Lastly, I will address the rights protected by s. 146(2) of the YCJA
    in comparison with those protected by s. 10(b) of the
Charter
.

(1)

Discussion of the objectives of the YCJA generally and s. 146
    specifically

(a)

The objectives and principles of the YCJA

[78]

The
    YCJA applies to all young persons, who are defined by that statue as people 12
    years or older but less than 18 years of age.  The main purpose of the YCJA is
    to lay down special rules for young persons:
R. v. L. (S.J.)
, 2009
    SCC 14, [2009] 1 S.C.R. 426, at para. 6.

[79]

As
    set out in s. 3(2) of the YCJA and emphasized by the Supreme Court in
R. v.
    J.(J.T.)
, [1990] 2 S.C.R. 755, the provisions of the YCJA are to be
    liberally construed so as to ensure that young persons are dealt with in
    accordance with the principles reflected in that statute.  The principles that
    inform the statute recognize that young persons are not adults and their rights
    require special attention.

[80]

Subsection
    3(2)(b)(iii) provides that the criminal justice system for young persons must
    be separate from that of adults, must be based on the principle of diminished
    moral blameworthiness or culpability, and must emphasize enhanced procedural
    protection to ensure that young persons are treated fairly and that their
    rights are protected.  Subparagraph 3(1)(d)(i) provides that special
    considerations apply in respect of proceedings against young persons:

[Y]oung persons have rights and freedoms in their own right,
    such as a right to be heard in the course of and to participate in the
    processes, other than the decision to prosecute, that lead to decisions that
    affect them, and young persons have special guarantees of their rights and
    freedoms.

[81]

Section
    3(1)(a) provides that the youth criminal justice system is intended to protect
    the public.

(b)

Section 146 regarding the admissibility of statements

[82]

The
    Supreme Court addressed the predecessor to s. 146 of the YCJA, s. 56 of the
Young
    Offenders Act
, R.S.C. 1985, c. Y-1, in
R. v. J.(J.T.)
, a case
    involving the bludgeoning to death of a 3 year old girl following a sexual
    assault.  At paragraph 82, Cory J. explained the rationale and objectives
    underpinning the provision:

[T]he requirements of s. 56 must be complied with whether the
    authorities are dealing with the nervous and naïve or the street smart and
    worldly wise.

A young person is usually far more easily impressed and
    influenced by authoritarian figures.  No matter what the bravado and
    braggadoccio 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
    in 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 procedures.

[83]

In
    addition, at para. 43 of
R. v. D.(M.)
, 2012 ONCA 841, 293 CCC (3d) 79 (Ont.
    C.A.),  Watt J.A. observed that:

Section 146(1) affirms that the law relating to the
    admissibility of statements made by persons accused of committing offences
    applies to young persons in similar circumstances, but is subject to the
    provisions of s. 146.

[84]

Subsection
    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. The provision describes the requirements for admissibility of a
    statement and the protections afforded to a young person, stating:

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
.  [Emphasis added.]

[85]

Section
    146(2) of the YCJA sets out the contours of the law relating to admissibility
    of statements as it applies to young persons.  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
    describes the requirements for admissibility of a statement  which place both
    informational and implementational duties on police officers  and the
    protections afforded to a young person.

[86]

Like
    common law admissibility rules, s. 146(2) is exclusionary by nature, but
    inclusionary by exception:
R. v. D.(M.)
, at para. 44.  Section 146 statements
    are presumptively inadmissible.  The Crown must satisfy the cumulative
    requirements of s. 146(2) beyond a reasonable doubt for the statement to be
    admissible:
R. v. L.T.H.
, 2008 SCC 49, [2008] 2 S.C.R. 739, at para.
    32-34.  Therefore, s. 146 is unlike ss. 10(b) and 24(2) of the
Charter
,
    which are rules of exclusion that presume a statement is admissible and require
    proof of the mandated conditions to exclude the statement, where the burden of
    proof is on the accused:
R. v. L.T.H.
, at para. 44.

[87]

The
    leading case on s. 146(2) is
R. v. L.T.H.
There, Fish J. held that 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 persons 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.

(c)

Preconditions to the application of s. 146(2)

[88]

As
    I mentioned, the protections of s. 146(2) are triggered only if one of three
    preconditions are met. What then are these preconditions?  The opening language
    of s. 146(2) sets out that its protections are applicable: (i) on the young
    persons arrest; (ii) the young persons detention; or (iii) in circumstances
    where the peace officer or other person has reasonable grounds for believing
    that the young person has committed an offence.

[89]

Nothing
    in my reasons should be read as suggesting that the provisions found in s.
    146(2) are triggered in any encounter between a young person and the police.  Rather,
    they are applicable if a young person has been arrested or detained, or where
    there are reasonable grounds for believing the young person has committed an
    offence.  As Code J. observed at para. 7 of
R. v. J.(P.)
, 2015 ONSC
    6057, 125 W.C.D. (2d) 275:

Section 146 does not purport to regulate all police
    interactions with witnesses, persons of interest, or suspects who become
    involved in a criminal investigation and who happen to be under the age of 18. 
    The section only applies where one of three possible triggering events has
    occurred.

See also:
R. v. S. (C.L.)
, 2011 MBQB 22, 92
    W.C.B. (2d) 449, at paras. 89-92.

[90]

Put
    differently, police are entitled to interview youth witnesses and to rely on
    their statements as admissible in court proceedings even where the
    informational and implementational duties under s. 146(2) have not been carried
    out, so long as none of the preconditions to s. 146(2) has been triggered. 
    This approach is consistent with the objectives of the YCJA.  The goal of
    protecting the public by allowing police to pursue the investigation of crime
    is preserved and at the same time, young persons are afforded the protections
    provided by the Act.

(i)

The
    informational and implementational components of s. 146(2)

[91]

A
    statement taken by police from a young person in circumstances where s. 146(2)
    is triggered will be presumptively inadmissible unless the informational component
    under s. 146(2)(b) is satisfied. This informational component requires that
    police provide the young person with a clear explanation of his or her rights.
    Justice Fish explained at para. 6 of
L.T.H.
:

[T]he Crowns evidentiary burden will be discharged by clear
    and convincing evidence that the person to whom the statement was made took
    reasonable steps to ensure that the young person who made it understood his or
    her rights under s. 146 YCJA.  A mere probability of compliance is incompatible
    with the object and scheme of s. 146, read as a whole.  Compliance must be
    established beyond a reasonable doubt.

[92]

The
    test for determining whether there has been compliance with the informational
    component of s. 146(2)(b) is objective:

It does not require the Crown to prove that a young person in
    fact understood the rights and options explained to that young person pursuant
    to s. 146(2)(b).  That said, compliance presupposes an individualized approach
    that takes into account the age and understanding of the particular youth being
    questioned:
L.T.H.
, at para. 21.

[93]

The
    informational requirements set out in s. 146(2)(b) are aimed at preventing
    false confessions by young people inclined to make a statement in order to end
    the pressure of interrogation or to please an authority figure: para. 38,
    citing
J. (J.T.)
, at pp. 766-67 and at ensuring that any statement
    given manifests the exercise of free will: para. 38, citing
R. v. I.
    (L.R.) and T. (E.)
, [1993] 4 S.C.R. 504, at p. 528.

[94]

Subsections
    146(2)(c) and 146(2)(d) prescribe implementational components that must also be
    satisfied before a statement made by a young person to police will be
    admissible in a proceeding against that young person:
L.T.H.
, at para.
    18. In addition to informing the young person of the matters provided for in s.
    146(2)(b), police must give the young person a reasonable opportunity to
    consult with i) counsel and ii) a parent or other adult. If the young person elects
    to consult with counsel or a parent or adult, he or she must also be given a
    reasonable opportunity to make his or her statements in the presence of those
    people.

(2)

The standard of proof applicable to determining whether the
    preconditions for the applicability of s. 146(2) have been met

[95]

In
L.T.H.
, Fish J. dealt extensively with the standard of proof
    applicable to demonstrating compliance with s. 146(2).  Significantly, at
    para. 32, he considered whether different burdens of proof should apply to
    different parts of the provision, and explained that the standard of proof of
    beyond a reasonable doubt should be applied throughout.  Although this
    standard was not expressly incorporated into the section, Fish J. held that:

·

Parliament has determined that [a]ll of the factors listed in s.
    146(2) [are] appropriate preconditions to the admissibility of a statement by a
    young person and all must be proved beyond a reasonable doubt: para. 34.

·

By codifying the requirement of voluntariness in s. 146(2)(a), Parliament
    should be taken to have incorporated the associated burden of proof beyond a
    reasonable doubt: para. 36.

·

The reasonable doubt standard also applies to compliance with s.
    146(2)(b).  This is because it is recognized that, in a eliciting a confession,
    there must be respect for an individuals freedom of will that includes the
    right of the detained person to make a meaningful choice whether or not to
    speak to state authorities: paras. 37 and 38.

·

With respect to the standard of proof for the requirement for any
    waiver made by a young person of his or her s. 146(2) rights under s. 146(4),
    reasonable doubt is likewise appropriate.  This standard best harmonizes with
    the elements necessary to establish a valid waiver.  A clear and unequivocal
    waiver is essential, but not sufficient: it must be accompanied by a proper
    understanding of the purpose the right was meant to serve and an appreciation
    of the consequences of declining its protection: para. 39.

[96]

Reasonable
    doubt on compliance with s. 146(2) may therefore arise in evaluating the
    voluntariness of the statement, the adequacy of the statutorily mandated
    informational or implementational components, or the adequacy of any waiver
    under s. 146(4). Furthermore, reasonable doubt in regard to these elements provides
    a sufficient basis for excluding the statement:
L.T.H.
, at para. 38.

[97]

Justice
    Fish did not explicitly consider whether proof beyond a reasonable doubt was
    also required in support of the preconditions to the applicability of s. 146(2)
    (arrest, detention, or reasonable grounds to believe).  That said, as
    mentioned, he did state on numerous occasions throughout the decision that the
    standard of beyond a reasonable doubt applied to the entirety of s. 146(2).  In
S. (C.L.)
,
at para.
    197, Beard J. observed:

Fish J.s comments [regarding the standard of proof of beyond a
    reasonable doubt] were not limited to the informational components of s.
    146(2); he emphasized on several occasions that they applied to the entire
    section, which would include the preconditions.
The
    preconditions are as important to carrying out the purposes of the legislation
    as are the informational components because, if the preconditions are not met,
    then the youth does not receive the benefit of the informational components,
    which defeats the protection purposes of the legislation and is not consistent
    with the requirement in s. 3(2) that the statue be construed liberally
. 
    [Emphasis added.]

See also:
R. v. J.(P.)
, at paras. 5 and 12.

[98]

In
    any event, based on the reasoning in
L.T.H.
, in my view, the onus to
    prove that the youth was not arrested or detained, or that the peace officer
    did not have reasonable grounds for believing that the young person has
    committed an offence should lie with the Crown on a standard of beyond a
    reasonable doubt.  This is for three reasons.

[99]

First,
    as Fish J. explained at para. 46, requiring a standard of beyond a reasonable
    doubt for all of the elements of s. 146(2) is appropriate because:

Parliament has considered it right and necessary to afford
    young persons rights and procedural safeguards which they alone enjoy.  Young
    persons should not lightly be found to have relinquished this enhanced level of
    protection they were found by Parliament to require.

This rationale is equally applicable to the
    preconditions found in s. 146(2).

[100]

Second,
    uniformity in interpreting the standard of proof required for the elements of
    s. 146(2) is desirable.  Again, to quote Fish J. at para. 47:

Adopting a single standard of proof for compliance with each
    component of s. 146 offers significant advantages over a fragmented approach. 
    It is consistent, moreover, with the relevant principles of statutory
    interpretation  in particular, the presumption that legislation is internally
    consistent and coherent.  As R. Sullivan explains, the provisions of a statute are
    presumed to fit together logically to form a rational, internally consistent
    framework; and because the framework has a purpose, the parts are also presumed
    to work together dynamically, each contributing something toward accomplishing
    the intended goal. The provisions of the YCJA should be read harmoniously.  In
    accordance with the presumption of coherence, s. 146 must be interpreted in
    light of the YCJAs declaration of principles (s. 3).  Those principles
    emphasize fairness and proportionality consistent with young persons higher
    levels of dependency and lower levels of maturity and the related need for
    greater procedural protections.  Section 146, in its entirety, is aimed at
    fulfilling one of the objectives of the legislation  to offer enhanced protection
    to young persons and ensure they are treated fairly.  In practical terms,
    adopting a single standard ensures that the trial judges mind is properly
    directed to this task.

[101]

Third, s. 146 provides
    for an admissibility regime.  As Fish J. noted at para. 44, the concern is not with
    the exclusion of otherwise admissible evidence, but rather with the
    admissibility, at the Crowns behest, of incriminating evidence which Parliament
    has subjected to mandatory conditions set out in s. 146 of the YCJA.  Because
    statements made by a young person are presumptively inadmissible under s.
    146(2), the burden to establish admissibility on all elements should always
    rest with the Crown.

[102]

In conclusion,
    the Crown always bears the burden, on a standard of proof beyond a reasonable
    doubt, of showing compliance with all elements of s. 146(2) including the
    preconditions to the provisions applicability.

(a)

The
    trial judges misapplication of the burden of proof

[103]

The trial
    judges discussion of burden of proof was confusing  at times he seemed to
    place the onus on the Crown, and at other times on the appellant.  I have
    concluded that the trial judge held that the appellant failed to meet his
    burden that he was psychologically detained on a balance of probabilities.

[104]

At p. 2 of his
    ruling, the trial judge first noted that the burden of proof with respect to
    proving the voluntariness of the statements lay with the Crown and the standard
    was beyond a reasonable doubt.  He then stated that the burden of proof of compliance
    with s. 146 of the YCJA lay with the Crown, also to be proved beyond a
    reasonable doubt.  The onus of proof of a breach of s. 10(b) of the
Charter
lay with the appellant, on a balance of probabilities.  So far, so good.

[105]

Then, at p. 20
    of his ruling, the trial judge stated:

After his arrest at the scene for obstruct police and his
    transport to the police station for the conduct of an interview until 1:59 a.m.
    on March 10, 2006, [N.B.] was in effect detained.  Until 1:59 a.m. on March 10,
    2006, at which time [N.B.] was arrested for first degree murder, no officer
    advised him of his rights under s. 25(2) of the YCJA or of any of his
Charter
rights or had the requirements of s. 146 of the YCJA been implemented.

[106]

The trial judge
    considered voluntariness, and found the appellants statements and utterances
    to be voluntary.

[107]

Next, he
    concluded that the appellant had been neither detained nor arrested for the
    offense he was charged with  first degree murder  prior to 1:59 a.m. on March
    10, 2006.  At p. 35, the trial judge accepted the evidence offered by way of
    agreed facts and
viva voce
evidence of Detective Constables Brooks and
    Parcells that neither they nor any other police officer had reasonable grounds
    to consider the appellant a suspect at the time the statements were made. He
    was satisfied that before the appellant was transferred from the scene to the
    police station, the decision was made that he was not under arrest and the
    removal of the handcuffs by Sergeant [Berriault] was corroborative of that fact,
    but that [N.B.] was clearly being viewed and treated as a witness only: p. 36.

[108]

Having dealt
    with the issues of reasonable grounds and arrest, he then turned to whether the
    appellant had been detained prior to his arrest.  He stated at p. 39:

In this case, [the appellant] bears the responsibility of
    establishing on a balance of probabilities that he was psychologically
    detained.

[109]

As mentioned, this
    was an error.  As I have explained, the burden to show that he was detained
    never shifted from the Crown to the appellant.  Reading his reasons as a whole,
    it appears that the trial judge was aware that, if any of the three preconditions
    to s. 146(2) were met, the burden was on the Crown to establish implementation
    of the protections beyond a reasonable doubt.  However, he failed to appreciate
    that the burden was also on the Crown to prove the absence of the preconditions
    beyond a reasonable doubt.

(3)

Determining whether a detention has occurred for the purposes of s.
    146(2) of the YCJA

[110]

Even if the
    trial judge erred by shifting the onus regarding s. 146(2) protections from the
    Crown to the appellant, the Crown argues that any such error is of no significance
    because there was no physical or psychological detention. I will focus my
    analysis on the issue of psychological detention, because this was the focus of
    the inquiry into whether the appellant was detained.

[111]

I disagree with
    the Crowns submissions on this issue. I will first deal with the appropriate
    test for assessing whether there has been a psychological detention for the
    purposes of s. 146(2). I will then discuss how this test has been applied in
    the caselaw on s. 146(2). Finally, I will apply the test to the facts at
    hand.

(a)

The test applicable to determining
    whether a psychological detention has occurred under s. 146(2)

[112]

In
R. v.
    Todorovic
, 2014 ONCA 153, 306 C.C.C. (3d) 171, this court confirmed that
    the test from
R. v. Grant
, 2009 SCC 32, 245 C.C.C. (3d) 1 for psychological
    detention under ss. 9 and 10 of the
Charter
applies to s. 146(2) of
    the YCJA.  In
Grant
, the Supreme Court summarized the law on
    detection:

1.    Detention under ss. 9 and 10 of
    the
Charter
refers to a suspension of the individuals liberty
    interest by a significant physical or psychological restraint.

2.    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.

3.    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 individuals
    circumstances would conclude that he or she had been deprived by the state of
    the liberty of choice, the court may consider the following factors:

a)

The circumstances
    giving rise to the encounter as would reasonably be perceived by the
    individual: whether the police

were
    providing general assistance; maintaining general order; making general
    inquiries regarding a particular occurrence; or singling out the individual for
    focused investigation.

b)

The nature of the
    police conduct, including: the language used; the use of physical contact; the
    place where the interaction occurred; the presence of others; and the duration
    of the encounter.

c)

The particular
    characteristics or circumstances of the individual where relevant, including:
    age; physical stature; minority status; and level of sophistication.

[113]

Grant
remains the leading authority on assessing psychological detention: see
R.
    v. Le
, 2018 ONCA 56, 145 W.C.B. (2d) 592, at paras. 59 and 63; R. v.
    Nicholas, 2017 ONCA 646, 141 W.C.B. (2d) 224, at paras. 39-40;
R. v.
    Guenter
, 2016 ONCA 572, 131 W.C.B. (2d) 129, at para. 37; and
R. v.
    Wong
, 2015 ONCA 657, 127 O.R. (3d) 321, at paras. 39-43.

[114]

In carrying out
    an analysis under
Grant
, it is important to remember that the test
    attempts to capture at what moment an interaction between the police and a
    member of the public is converted into a detention of that individual, thereby
    triggering the rights subsidiary to detention:
Grant
, at para. 153. 
    The police may exert a range of control over someone when questioning him or
    her in the course of investigating an offence or determining whether one has
    been committed, from voluntary compliance by the person with no control by the
    officer through detention to full arrest and complete control.  This concept
    was described by Gonthier J. in
R. v. Schmautz
, [1990] 1 S.C.R. 398,
    at p. 574:

The concept of detention has evolved since the
Charter
came into force and it is not always easy to determine in given circumstances
    whether and when it legally occurs.  From the mere investigation to which a
    person wilfully collaborates to the custodial arrest of that person, there is a
    wide spectrum encompassing the varying degrees of legal jeopardies in which the
    state can put individuals; in some cases, the precise moment when detention
    arises is by no means easy to ascertain.

[115]

In
Grant
,
    McLachlin C.J.C. and Charron J. also dealt with the spectrum of possibilities
    engaged by police contact, where they stated at para. 38:

In the context of investigating an
    accident or crime, the police, unbeknownst to them at that point in time, may
    find themselves asking questions of a person who is implicated in the
    occurrence and, consequently, is at risk of self-incrimination.  This does not
    preclude the police from continuing to question the person in the pursuit of
    their investigation
.  Section 9 of the
Charter
does not require
    that police abstain from interacting with members of the public until they have
    specific grounds to connect the individual to the commission of a crime.
Nor does s. 10 require that the police advise everyone at
    the outset of any encounter that they have no obligation to speak to them and
    are entitled to legal counsel
.

Effective law enforcement is highly dependent on the
    cooperation of members of the public.  The police must be able to act in a
    manner that fosters this cooperation, not discourage it.
However, police investigative powers are not without limits. 
    The notion of psychological detention recognizes the reality that police
    tactics, even in the absence of exercising actual physical restraint, may be
    coercive enough to effectively remove the individuals choice to walk away from
    the police
.  This creates the risk that the person may reasonably feel
    compelled to incriminate himself or herself.  Where that is the case, the
    police are no longer entitled simply to expect cooperation from an individual. 
    Unless, as earlier stated, the police inform the person that he or she is under
    no obligation to answer questions and is free to go, a detention may well crystallize
    and, when it does, the police must provide the subject with his or her s. 10(b)
    rights.

[116]

The central
    question is whether the police conduct would cause a reasonable person to
    conclude that he or she was not free to go and had to comply with the police
    direction or demand:
Grant
, at para. 43.  The test for psychological
    detention must be determined objectively, having regard to all the
    circumstances of the particular situation.  The focus is on the state conduct
    in the context of the surrounding legal and factual situation, and how that
    conduct would be perceived by a reasonable person in the situation as it
    develops:
Grant
, at para. 32.  The objective nature of the inquiry
    recognizes that the police must be able to know when a detention occurs, in
    order to allow them to fulfill their attendant obligations under the
Charter
and afford the individual its added protections:
Grant
, at para. 32.

[117]

The views of the
    arresting officers may be significant in determining whether a psychological
    detention has occurred.  However, those subjective intentions are not
    determinative:
Grant
at para. 32.  Similarly, while the test is
    objective, the individuals specific circumstances must be taken into account,
    as will his or her personal circumstances, including age, physical stature, and
    minority status, and level of sophistication.  The individuals perception at
    the time may also be relevant.

[118]

In determining
    whether there has been a psychological detention in the YCJA context, the
    factors described in
R. v. Moran
may be applied.  Indeed, the trial
    judge did mention this decision but never addressed the enumerated factors in a
    cohesive or meaningful manner.  The factors listed in
Moran
are not
    exhaustive.  They include:

1.

The precise language used by the police officer in requesting the person
    who subsequently becomes an accused to come to the police station, and whether
    the accused was given a choice or expressed a preference that the interview be
    conducted at the police station, rather than at his or her home;

2.

Whether the accused was escorted to the police station by a police
    officer or came himself or herself in response to a police request;

3.

Whether the accused left at the conclusion of the interview or whether
    he or she was arrested;

4.    The
    stage of the investigation, that is, whether the questioning was part of the
    general investigation of a crime or possible crime or whether the police had
    already decided that a crime had been committed and that the accused was the
    perpetrator or involved in its commission and the questioning was conducted for
    the purpose of obtaining incriminating statements from the accused;

5.    Whether
    the police had reasonable and probable grounds to believe that the accused had
    committed the crime being investigated;

6.    The
    nature of the questions: whether they were questions of a general nature
    designed to obtain information or whether the accused was confronted with
    evidence pointing to his or her guilt;

7.    The
    subjective belief by an accused that he or she is detained, although relevant,
    is not decisive, because the issue is whether he or she
reasonably
believed that he or she was detained.  Personal circumstances relating to the
    accused, such as low intelligence, emotional disturbance, youth and lack of
    sophistication are circumstances to be considered in determining whether he had
    a subjective belief that he was detained.

[119]

The Manitoba
    Court of Appeal also undertook an extensive examination of the law regarding
    detention in
R. v. H.(C.R.)
, 2003 MBCA 38, 174 C.C.C. (3d) 67, in
    relation to ss. 8, 9 and 10 of the
Charter
.  To summarize, Steel J.A.
    wrote:

·

Police officers may enter into conversations with individuals and
    ask questions on the street, in the back of police cars, or in police stations:
    para. 16.

·

Conversation with a police officer does not necessarily result in
    a detention.  The use of the word detention necessarily connotes some form of
    compulsory restraint.  There must be a deprivation of liberty: para. 18.

·

The basis of psychological detention, absent a legal requirement
    to comply, remains that of a demand by the police officer coupled with a
    reasonable belief that there is no option but to comply with that demand: para.
    22.

·

The police are entitled to question anyone in the course of
    investigating an offence or determining whether an offence has been committed,
    but they have no power to compel answers.  Police questioning, even at a police
    station, does not necessarily result in a detention where the accused attended
    voluntarily as a result of a request and there was no evidence that he or she
    felt deprived of his liberty: para. 23.

·

A review of the cases shows that there is no easy test or single
    determining factor that will lead to the conclusion that a psychological
    detention took place.  The criteria that the courts have referred to over the
    years include the following:

-

whether
    there was a demand or direction for information as opposed to a request;

-

the
    language and tone of voice used;

-

the place
    of contact;

-

the personal
    circumstances of the accused, such as age, intelligence and level of
    sophistication; and

-

whether
    the accused had a subjective belief that he was detained and whether that
    belief was reasonable: paras. 27-28.

[120]

This decision in
R. v. H.(C.R.)
was adopted by this court in
R. v. B.(L.)
, 2007
    ONCA 596, 86 O.R. (3d) 730, at para. 47, where Moldaver J.A. (as he then was)
    noted that, for assessing the issue of detention, [t]he correct principles of
    law are found in the Manitoba Court of Appeals decision in
R. v. H.(C.R
.
)
.

[121]

C.R.H.
and
Moran
pre-date
Grant
,
    which was decided in 2009.  Nonetheless, the specific factors identified in
    these earlier cases are useful in carrying out an analysis under the approach
    in
Grant
, and the principles underpinning them are shared by
Grant
and therefore remain applicable.  They have also been used in the YCJA context:
    see
R. v. J.(P.).

(b)

Application
    of the test from
Grant
to s. 146(2) in the jurisprudence

[122]

The question
    then becomes, how have the
Grant
factors been applied to
    s. 146(2) in the jurisprudence?  The Crown submits that the subject appeal
    is akin to this courts decision in
Todorovic
,
which dealt with the issue of detention
    for the purposes of s. 146(2).

[123]

In
Todorovic
,
    the young person freely came to the police station after her mother told the
    police that she and her daughter would assist in any way they could to help in
    the investigation of the murder of a 14 year old girl.  Although the interview
    room door was closed when the young person was interviewed, she and her mother
    were told that it was not locked, that the young person was not under arrest,
    and that nobody could force her to make a statement.  She was expressly asked:
    Do you understand your right to choose whether or not to make a statement?  The
    young person confirmed that she did understand that she had the right to choose
    whether to make a statement.  When the young person made an incriminating
    statement, the interview was terminated.

[124]

The young person
    was left alone in an interview room for several hours, until the investigating
    officers returned to the room to explain to the appellant her rights under s.
    146 of the YCJA.  By this time, the young person had spoken to duty counsel,
    and said that she wanted her mother to be present.  When the young persons
    mother returned to the police station, the officers resumed the questioning. 
    They again explained the youths s. 146 rights to her, and she waived her right
    to have a lawyer present.

[125]

Justice
    Rosenberg noted at para. 15 that, since the young person had no legal
    obligation to comply with the request from a police officer to attend at the
    station, the issue is whether the circumstances amounted to psychological
    detention.  In finding that there was no psychological detention, the trial
    judge had noted that:

There is no evidence to contradict the position of the police
    officers involved that if [the young person] and her mother had declined to
    attend at the station that would have been the end of the matter at that
    point.

[126]

Justice
    Rosenberg held that this finding, along with the other trial judges findings,
    supported the view that there was no demand or detention amounting to
    psychological detention.  These other findings included:

·

The appellant and her mother freely attended at the station;

·

The appellants mothers reaction to the request from the police
    officer was to assist the police in whatever way she and the appellant could;

·

The appellants mothers testimony at trial that she felt she had
    no choice but to attend at the station was at odds with her actions and
    statements at the time and during the interview.

[127]

Additionally,
    Rosenberg J.A. held at para. 17 that the trial judge had not erred in finding
    that there was no detention, despite the interview room door being closed
    because:

The door was closed, but the appellant and her mother were
    told that the door was not locked.  While they were not told explicitly that
    they could leave at any time, they were told that nobody could force the
    appellant to make a statement and that she was not under arrest.  The appellant
    agreed that she understood she had the right to choose whether or not to make a
    statement.  It was not necessary for the officers to expressly tell the
    appellant that she could leave at any time.  The only reason she was there was
    to make a statement.  If she chose not to make a statement there was no reason
    for her to remain.

[128]

As I will
    explain the facts in
Todorovic
are quite different from those in this
    appeal, and a different result should ensue.

(c)

Application
    of the test from
Grant
to this case

[129]

The application
    of the law to the facts in conducting the inquiry of whether a reasonable
    person would conclude that he or she was not free to leave and to comply with
    the police direction or demand is a question of law that is reviewable for
    correctness:
Grant
, at para. 43.  Deference is owed to a trial judges
    findings of fact.

[130]

Having misplaced
    the burden of proof with respect to detention, the trial judges detention
    analysis was flawed and conducted through the wrong lens.  A proper detention
    analysis would cause a reasonable person in the appellants circumstances to
    conclude that, by reason of state conduct, he or she had no choice but to
    comply with the polices demand for an interview.  Consider the following
    factors:

·

At the scene, Constable Higgins spoke with the appellant, and asked
    him whether he had anything to do with the stabbing.  The appellant told
    Higgins that [B.B.] was his cousin and that he did not know what happened.  Constable
    Higgins suspected the appellant took drugs, as his pupils were enlarged.  Constable
    Higgins asked the appellant to wait in the cruiser, but then he released him,
    directing him to stay in the area so someone could interview him.

·

The appellant then walked over to his friends, who were speaking
    to Constable Nevill.  Constable Nevill then either assaulted the appellant or
    responded to the appellant shoving him from behind.  In trying to arrest the
    appellant, Constable Nevill struck his face, delivered a brachial stun  an
    open-handed strike to the appellants neck  and two more punches to his face. 
    The appellant was then handcuffed by Constable Nevill and Sergeant Berriault
    (who had seen Constable Nevill put the appellant in a headlock) and placed him
    back in a locked police cruiser.

·

A few minutes after the appellant was placed in the cruiser, Sergeant
    Berriault noticed that an adult, Brian, was attempting to speak to the
    appellant.  Sergeant Berriault told Brian to step away.

·

Sergeant Berriault told the appellants he would remove his handcuffs
    if the appellant calmed down; eventually Sergeant Berriault removed the
    handcuffs.

·

Constable Schultz then spoke to the appellant.  The appellant
    asked if he could go speak with Brian.  Constable Schultz told him that it was
    not a very good idea, that he should relax and that he would be given a cup
    of coffee at the station.  Constable Schultz asked the appellant who went into
    the Bush with B.B.

·

Constable Schultz directed Constable Schaus to drive the
    appellant to the station for questioning.  Constable Schultz contacted
    Detective Holden and Inspector Neelin at the station, advising them that the
    appellant was in custody and coming in for an interview.

·

Constable Schultz then contacted Staff Sergeant Emms.  The
    communication between Constable Schultz and Staff Sergeant Emms suggests that
    the appellant was considered in custody and had to be kept away from phones
    and interviewed too suite.  Constable Schultzs call to Detective Holden
    indicated the appellant was in custody and that hes told a couple of
    different stories so I think he knows more than he initially said so and to
    throw him in an interview room when he arrived at the station.

·

When Constable Schaus arrived at the station, he noted that the
    appellant was crying, and led him to an interview room where he was met by
    Staff Sergeant Emms.  Staff Sergeant Emms did not tell the appellant why he was
    brought to the station, that he did not have to provide a statement, and that
    he could leave at any time.  Instead she directed Constable Schaus to look
    through the appellants pockets and asked him whether he had any injuries.  She
    then told the appellant someone would be in shortly to speak with him.

·

The interview room was locked when police where not inside it,
    but was unlocked when they were.  The door was closed when they were present,
    but unlike in
Todorovic
, they did not inform the appellant that it was
    unlocked.

·

It was only when he was interviewed by Detective Constables
    Parcells and Brooks that the appellant was told that he was no longer under
    arrest.  Therefore, up until he was in the interview room with Parcells and
    Brooks, he had no idea that he was not under arrest.

·

When the appellant asked if the police were going to read him his
    rights at the station, Detective Constables Parcells and Brooks indicated that
    they would drive the appellant home but only once were done with statement 
    [u]nless anyone has any further questions for ya.  They then said: [y]oure not
    facin any charges and you dont need your rights read to ya  And you dont
    need a lawyer.  Were just here shootin the shit.  Thats all.

·

The appellant was brought to the station around 9:50.  He became
    a suspect in the mind of Detective Constable Parcells at 10:55 p.m. but was not
    arrested for first degree murder until 1:59.  Parts of his interview were used
    by the police as grounds for his arrest.

·

The appellant sat alone in the interview room for nearly three
    hours and was monitored.  When he stood up and walked around the room, a voice
    directed him to sit back down in the chair.

·

Despite asking to consult a lawyer, during his interview, the
    appellant was explicitly told that he did not need a lawyer.

·

The nature of the questions including the deliberately false
    statements of the police to the appellant that the recreation centre had video
    surveillance.

[131]

These facts show
    that the circumstances under which the appellant made his statements to police
    are distinguishable from
Todorovic
. This is not a case where the
    appellant voluntarily attended the station after being invited there to help
    with an investigation.  He was brought into the station for questioning in a
    locked police cruiser, after being denied the chance to speak with an adult he
    knew, and after being arrested following an altercation with a police officer. He
    was only told he was not under arrest once Detective Constables Parcells and
    Brooks began interviewing him, after he had been placed in the interview room.

[132]

Unlike
Todorovic
,
    the appellant was not invited by police to attend the station, he was simply
    taken there.  He did not freely attend the station, as the young person and
    her mother did in
Todorovic
. And unlike
Todorovic
, at no
    point did the police communicate that the interview was voluntary and that the
    appellant was not obliged to give a statement.  Nor did they suggest he have a
    parent or counsel present, let alone invite a parent to attend the interview as
    occurred in
Todorovic
, even though they did suggest a parent be
    present to some of the other youth witnesses they interviewed that evening.

[133]

In addition to
    relying on
Todorovic
, the Crown also argues that there was no
    detention, because the officers testified that they were treating the appellant
    as a witness: in their minds, when the appellant entered the police station, he
    was neither under arrest nor detention. Therefore, any reasonable person in the
    appellants shoes would have concluded they were at the station merely as a
    witness. I disagree with this submission.

[134]

The views of
    police officers are but one factor in conducting the
Grant
analysis. 
    Moreover, the actual words and conduct of police, as revealed by the
    transcripts of that evening, are more telling and support a conclusion that a
    reasonable person in the appellants circumstances would have felt no choice
    but to comply with their orders to go to the police station and answer their
    questions.  This is particularly so given that the antecedent police conduct
    had included a brachial stun and an arrest.  The trial judges adverse
    credibility and reliability findings against the appellants version of events
    describing his interaction with Constable Nevill do not detract from this
    conclusion.

[135]

Nor would I give
    effect to the Crowns submission that the appellant was not psychologically
    detained because his initial arrest for obstruct police dissipated almost
    immediately from the viewpoint of the police officers. The problem with this
    position is that any such dissipation of arrest was not communicated to the
    appellant until he was already in the interview room at the police station.  From
    the viewpoint of a reasonable person in his circumstances  the viewpoint one
    must consider when assessing psychological detention  the police decision not
    to press charges against the appellant for obstruct police was immaterial.

[136]

Finally, the
    Crown points out that the appellant, despite his youth, was not a frightened
    youth who felt psychologically compelled to speak with the police. In making
    this point, the Crown relies on the trial judges findings that the appellant
    was in control of the situation, manipulative, and determined to get his point
    across  demonstrat[ing] a degree of confidence that cause[d] him to inquire
    about his rights to counsel.

[137]

Even if one
    accepts the trial judges position on the issue of whether the appellant felt
    psychologically detained, his findings with respect to this issue are
    unreasonable.  The trial judge ignored Cory J.s admonition in
R. v.
    J.(J.T.)
that no matter the display of bravado and braggadocio, it is
    unlikely that a young person will appreciate the consequences of statements
    made to the police.  The trial judge also overlooked the nature of the
    questioning including the fabrication by the police of the presence of a video
    camera at the recreation centre  a falsehood that reflected a concern with the
    appellants guilt rather than his observations as a witness.  Furthermore, the trial
    judge completely overlooked the context in which the appellant was brought in
    for questioning at the police station, and the appellants own knowledge: up
    until he was in the interview room with Detective Constables Parcells and
    Brooks, he had no idea that he was not under arrest.  And once he was in that
    interview room, there was no clear way to leave: he was physically locked in,
    or in the presence of the police officers, and was not allowed to leave.

[138]

The appellant
    was detained and he was entitled to, but denied, the protections afforded by s.
    146(2) of the YCJA.  As such, his statements to the police and his utterances
    while locked alone in the interview room were improperly admitted into
    evidence.

(4)

Whether a s. 146(2) arrest or detention must relate to the ultimate
    charge

[139]

This brings me
    to a consideration of the trial judges other error.  At p. 44, the trial judge
    stated that while in the strictest sense [the appellant] was detained in
    interview room number three, he was certainly not detained as a suspect or as a
    person of interest in the homicide. Furthermore, at p. 35, he said that the
    appellant was neither detained nor arrested on the offence set out in the
    indictment.  In essence, the trial judge held that the language related to an
    offence under s. 146(2) of the YCJA related only to the offence about which
    the young person is being questioned.

[140]

The Crown relies
    on the trial judges conclusions on this issue to argue that s. 146(2)
    protections cannot apply to the appellant, because any psychological detention
    he experienced related to the offence of obstruct police, and does not preclude
    admitting statements relating to the offence of first degree murder.

[141]

There is little
    jurisprudence on the issue of whether an arrest or detention must relate to the
    ultimate charge to trigger the protections of s. 146(2).

[142]

In concluding
    that the appellants arrest and detention had to relate to the subsequent
    charge of first degree murder before s. 146(2) protections would be engaged, the
    trial judge relied on
R. v. D.T. (D)
.  Specifically, he relied on
    Germain J.s statement at para. 49 that it would be inappropriate to extend the
    protections of s. 146 to a point in time where the police had no basis for
    suspicion.  Additionally, it would be insulting to apply the full effect of
    s. 146 to an apparently innocent victim and witness: para. 49.

[143]

R. v. D.T.
    (D.)
is a decision of the Alberta Queens Bench and is not binding on this
    court. Furthermore, the holding in that decision is inconsistent with the plain
    language of s. 146(2), which I reproduce for ease of reference:

No oral or written statement made by a young person  to a
    peace officer
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.

[144]

That language
    shows that the an offence qualifier applies to circumstances were the police
    believe a young person has committed an offence.  However, the preceding
    portion indicates that s. 146(2) protections apply automatically when police
    arrest or detain a young person, regardless of the grounds.  On this reading,
    the trial judges holding that s. 146(2) does not protect a youth who has been
    detained and not read his rights related to one offence, but then gives
    incriminating statements related to another offence, is an error in law.  As
    soon as the appellant was detained, he should have been afforded his rights. 
    That police continued to detain and question him regarding a different offence
    does not make statements that the appellant made during that detention
    admissible.

[145]

The Crown further
    relies on
R. v. S. (C.L.)
to support its position that the trial
    judges conclusion on this issue was correct. However, the Crown misconstrues the
    holding in
S. (C.L.)
.

[146]

When one
    examines Beard J.s reasons in
S. (C.L.)
, it becomes clear that,
    consistent with the plain language of s. 146(2), she read the an offence
    portion of the provision as modifying only the reasonable grounds
    precondition for the applicability of s. 146(2), not the arrest or detention
    preconditions, which stand on their own: see paras. 124-148 and 153-177.
    Therefore, Beard J.s conclusion in
S. (C.L.)
that an offence is
    limited to the offence that the police are investigating applies only to the
    reasonable grounds precondition for applicability.  That case does not hold
    that a youth cannot rely on s. 146(2) if they have been arrested or detained
    for a different offence than the offence that is the subject of the statement
    the Crown seeks to admit.

[147]

Moreover, the
    Crowns position is inconsistent with the principle that the YCJA be construed
    liberally. Accepting the Crowns position would lead to a significant watering
    down of the protections of s. 146(2). Artificial demarcations should not
    overtake consideration of the totality of the circumstances in which the young
    person finds him or herself.

[148]

Consider the
    facts of the appellants case. While the appellants initial arrest dealt with
    a different offense, his psychological detention, starting with his altercation
    with Constable Nevill and leading up to his questioning at the station, was all
    part of one transaction.  This entire transaction culminated in his interview,
    where he was asked questions that exclusively related to the offence set out in
    his indictment  B.B.s murder. On the facts of this case, the moment when the
    appellants detention relating to the obstruct police charge stopped and that relating
    to the offense of first degree murder began is amorphous. Furthermore, segregation
    runs the risk of losing sight of the specific context leading up to the statement
    made to police. It is this context that informs whether a reasonable young person
    would have felt compelled to speak to police.

(5)

Whether exclusion of the statements warranted under s. 146(6)

[149]

The Crown, in
    the alternative, asks that, if a breach of s. 10(b) of the
Charter
is
    found, the appellants statements be admitted under s. 24(2) of the
Charter
.
    Given that I have concluded that the statements were obtained in contravention
    of s. 146(2) of the YCJA, I have not gone on to address s. 10(b) breach and
    there is no need to consider s. 24(2) of the
Charter
.

[150]

The Crown did
    not seek any relief under s. 146(6) of the YCJA, however, given its position on
    s. 10(b), it is appropriate to consider whether that subsection of the YCJA can
    be invoked to admit the appellants statements to police. Subsection 146(6) is a
    saving provision that allows for statements obtained in contravention of s.
    146(2) to be admitted in a proceeding against a youth accused in certain
    circumstances. Subsection 146(6) of the YCJA is therefore analogous to s. 24(2)
    of the
Charter
. Indeed, the Legislative Summary of the Bill that
    introduced s. 146(6), Bill C-7, suggests that Parliament modelled s. 146(6) after
    s. 24(2): see Canada, Parliament, Bill C-7: The Youth Criminal Justice Act, by David
    Goetz, Legislative Summary LS-385-E (revised May 16, 2001).

[151]

However, s.
    146(6) is much more restricted in scope than s. 24, as is clear from the text
    of each respective provision. Subsection 24(2) of the Charter provides that:

Where  a court concludes that evidence was obtained in a
    manner that infringed or denied any rights or freedoms guaranteed by this
Charter
,
the evidence shall be excluded if it is established that, having regard to
    all the circumstances, the admission of it in the proceedings would bring the
    administration of justice into disrepute
. [Emphasis added.]

[152]

In contrast, s. 146(6)
    of the YCJA provides that:

When there has been a technical irregularity in complying
    with paragraphs 2(b) to (d)
, the youth justice court may admit into
    evidence a statement referred to in subsection (2),
if satisfied that the
    admission of the statement would not bring into disrepute the principle that
    young persons are entitled to enhanced procedural protection
to ensure that
    they are treated fairly and their rights are protected. [Emphasis added.]

[153]

There are two
    key differences between s. 146(6) and s. 24(2).

[154]

First, under s.
    24(2), the effects of admission of the evidence on the administration of
    justice as a whole are considered: see
Grant
, at paras. 67-71. In
    contrast, under s. 146(2), the question is whether admission would bring into
    disrepute the principle that young persons are entitled to enhanced procedural
    protections to ensure fair treatment and protection of rights.

[155]

Second, reliance
    on s. 146(6) is constrained to circumstances where the violation of s. 146(2) amounted
    to a technical irregularity. Where the violation is more serious, s. 146(6)
    is unavailable.  In contrast, there is no such limitation in s. 24(2). Rather,
    the seriousness of the
Charter
violation, which may range from
    fleeting and technical to profoundly intrusive, is but one consideration
    under the three-part
R. v. Grant
test for the admissibility of
    evidence under s. 24(2): see
Grant
, at para. 76.

[156]

Therefore,
    judicial discretion to rely on s. 146(6) to admit a statement obtained in
    contravention of 146(2) is significantly confined,
reflecting the
need to vigorously guard against the
    diminishment of the protections provided by s. 146(2) and the need for fair
    treatment for young persons.

[157]

Here, the
    breaches of the appellants s. 146(2) right cannot be described as technical
    irregularities. The breaches were committed by multiple police officers who
    interacted with the appellant. The breaches were also serious in nature and
    compounded one another. Despite the appellants request to speak with Brian, the
    adult at the scene who he knew, or to be read his rights or consult a lawyer at
    the police station, he was not advised of any of the matters in s. 146(2)(b).
    He was also
not given the opportunity to consult
    any of the people named in s. 146(2)(c) or to make statements in their presence
    in accordance with s. 146(2)(d).

[158]

Admitting the
    statements and utterances in the circumstances that they were obtained would
    run afoul of the principles of fair treatment and rights protection afforded to
    young people under the YCJA.  Therefore, the Crown cannot avail itself of s.
    146(6) to have the appellants statements admitted.

(6)

Contrasting s. 146(2) of the YCJA and s. 10(b) of the
Charter

[159]

Although the
    appellant also relies on a breach of his right to counsel under s. 10(b) of the
Charter
to show that the trial judge erred in admitting his statements
    to police, I have focused my analysis on s. 146(2).  As the appellant was
    entitled to rely on the protections under s. 146(2), and as the special
    protections afforded to young persons under this provision are broader than
    those afforded under s. 10(b) of the
Charter
, recourse to s. 10(b) is
    unnecessary.

[160]

Subsection
    146(2) possess three key features that render its protections more robust than
    those of s. 10(b).

[161]

First, the
    protections offered by s. 146(2) are more comprehensive: police are required to
    inform a young person of his or her right to consult with a lawyer and parent
    or other adult prior to making any statements. A young person is also entitled
    to have a lawyer and a parent or other adult present when the police take any
    statements from the young person. Any waiver of these rights must be audio and
    videotaped or written and signed by the youth: see YCJA, s. 146(4).  In
    contrast, the right to counsel protected by s. 10(b) must be specifically
    invoked by a detained individual, and there is no right to have counsel present
    during a police interview: see
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R.
    310, at paras. 27 and 42.

[162]

Second, s.
    146(2) contains stringent requirements for the admissibility of statements. As
    I discussed, unlike s. 10(b), s. 146(2) renders statements made by a young
    person to police presumptively inadmissible. The burden of proof to show why a
    statement is admissible is borne by the Crown; a young accused need not argue
    why a statement is inadmissible. Furthermore, the standard is one of beyond a
    reasonable doubt, not a balance of probabilities.

[163]

Third, s.
    146(6), the provision that provides a judge with discretion to admit a
    statement obtained in contravention of s. 146(2), applies on much narrower
    grounds than s. 24(2).

[164]

Accordingly, where
    a young offender claims both a breach of s. 146(2) and of s. 10(b), it makes
    sense to begin with an analysis of s. 146(2). To this end, I agree with the
    comments of Beard J. at para. 209 of
R. v. S. (C.L.)
, where she
    stated:


Requiring that the Crown prove that the youth
    was not arrested or detained under s. 146(2) at the time of the statement will
    likely have the practical effect of removing the need for a youth to make an
    application to exclude his or her statement under s. 10(b) of the
Charter
in most, if not all, circumstances, as it is difficult to imagine a
    situation where the statement would be ruled admissible under s. 146 and yet
    excluded under s. 10(b).  While this results in the law being applied
    differently to young persons than to adults, it is in keeping with the
    objective of the
Y.C.J.A.
to offer enhanced
    procedural and evidentiary protection to young persons to ensure that they are
    treated fairly.  This is not the only such extension, as the requirements
    that the right to counsel be provided to a youth where the person in authority
    has reasonable grounds for believing that the youth has committed an offence
    and that all rights be explained in language that the youth can understand also
    extend s. 10(b) rights for youth in ways that are not available to an adult.

(7)

Fresh evidence application

[165]

As mentioned earlier,
    the appellant seeks to introduce fresh evidence on appeal that addresses
the
altercation between him and Constable Nevill the night of
    B.B.s murder.  The evidence demonstrates that Constable Nevill used excessive
    force on another individual he arrested, and that he also falsely claimed that
    the individual provoked him to do so. The appellant argues that, because the
    trial judge relied on Constable Nevills evidence to make credibility findings
    against the appellant during the
voir dire
, the evidence should be
    admitted, as the evidence influenced the trial judges decision to admit the
    appellants statements to police.

[166]

Given my
    conclusion that the trial judge erred in admitting the appellants statements
    to police, it is unnecessary to consider the appellants fresh evidence
    application.

F.

Conclusion

[167]

This was a very serious case.  A young male tragically lost his
    young life and another has spent numerous years in prison.  This decision
    cannot alter either of these realities.  The most it can do is emphasize the
    need to respect the principles of fair treatment and rights protection found in
    a statute designed by Parliament to address the intersection of young persons
    with the criminal justice system.

G.

Disposition

[168]

For these
    reasons, I would allow the appeal, set aside the conviction, and order a new
    trial.

Released:

JUN 15 2018                          S.E. Pepall J.A.

JL                                          I agree
    John Laskin J.A.

I agree
    Arthur Gans J.


