



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.

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    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to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    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent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. M.D., 2012
    ONCA 841

DATE: 20121130

DOCKET: C48312

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.D. (a young person)

Appellant

Mark C. Halfyard and Lance C. Beechener, for the
    appellant

Emile A. Carrington, for the respondent

Heard:  April 24, 2012

On appeal from the conviction entered by Justice Fern M.
    Weinper of the Ontario Court of Justice, sitting in the Youth Justice Court on
    October 24, 2007.

Watt J.A.:

[1]

M.D., who was 14 years old, spoke to the police twice about a robbery he
    had committed. The first time, one of the officers made notes of what M.D. said
    about the robbery. The second time, about an hour after the first, the
    discussion was videotaped.

[2]

Special rules govern the admissibility of statements made by young
    persons to police officers tendered for admission at the young persons trial. 
    Compliance with these rules is essential if the prosecutor seeks to rely on the
    statements to establish the young persons guilt.

[3]

At M.D.s trial, the prosecutor conceded that the first statement recorded
    in a police officers notebook was not admissible. The prosecutor tendered, and
    the judge admitted, the videotaped interview that began about an hour after the
    first statement had concluded.

[4]

M.D. says that the judge was wrong when she admitted the videotaped
    statement because that statement was tainted by its connection to the first
    statement. These reasons explain why I think the judge was wrong to admit the
    videotaped statement and would allow the appeal and order a new trial.

THE BACKGROUND FACTS

[5]

Little need be said about the circumstances of the underlying offence,
    but some detail is essential to an appreciation of the circumstances
    surrounding the police interviews that yielded the statement admitted at trial.

The Robbery

[6]

In the early afternoon of April 15, 2006, two men and a woman left a
    convenience store with their purchases and walked towards their car. Their
    progress was impeded by an older man and a youth.  The older man produced a
    handgun, pointed it at one of the men, then pressed it against the mans neck
    to reinforce his demand for the mans wallet. In the end, the only property
    taken from the victims was a cell phone.

The Identification and Arrest

[7]

In the weeks that followed the robbery, one of the victims reported to
    the police that he had seen the youthful robber around the area in which the
    robbery had occurred. On one occasion, police arrested the wrong man as the
    robber.  The victim could not identify this person in a photo line up. Police
    released the man from custody.

[8]

About three weeks after the robbery, on May 4, 2006, the same victim saw
    the appellant on a mountain bike across the road from a convenience store. A
    police officer arrested the appellant and advised him of his right to counsel.
    The appellants mother arrived shortly after.

[9]

The appellant was taken to the 23 Division police station. There, the
    victim who had called police about seeing the suspect by the convenience store
    identified the appellant as the robber in a show-up procedure.

The First Interview

[10]

The
    appellant was lodged in an interview room at 23 Division after he had been
    booked on the robbery. The investigating officer, who had been summoned to the
    station after the appellants arrest, briefed a colleague about the
    allegations.

[11]

The
    officers entered the interview room where the appellant was seated.  They
    wanted to see whether the appellant wished to say anything to them about the
    robbery, to give his side of the story. The interview room did not have any
    video equipment. The investigating officer, Det. Peacock, would speak to the
    appellant and his colleague, Det. Alkins, would take notes about what was said.

[12]

The
    discussion in the interview room lasted 12 minutes, starting at 9:41 pm.  Det.
    Peacock confirmed the appellants understanding of the reason for his arrest (the
    charge of robbery), his right to counsel, and his right to call anyone. The
    appellant declined to call a lawyer, his mother, or his brother.

[13]

Det.
    Peacock then asked the appellant some questions. The appellant answered.  Det.
    Alkins noted the conversation:

Q.      Do you understand why you are here?

A.      Yeah, I robbed that guy at the store.

Q.      Do you remember the date it was?

A.      Not sure about the date.  I think a few weeks ago.   I
    think a Saturday.

Q.      Do you remember the time?

A.      Not really, I think it was afternoon.

Q.      What did the guys look like that you robbed?

A.      One tall guy, I dealt with the most, a shorter guy, he
    was with --- there was a driver, I think it was a girl.

Q.      Where did the robbery happen?

A.      At the convenience store.

Q.      Who were you with?

A.      I wasnt with him.  I met him.  I didnt know he was  going
    to do it.  I swear.

Q.      What is his name?

A.      I think Kyle Smith.



[
some

questioning about Kyle Smith ensues
]

Q.      Who had the gun?

A.      Kyle did.

Q.      Was it real?

A.      I dont know.  It looked real.

Q.      Tell me what happened.

A.      Went to the plaza to eat, saw Kyle. Kyle said, youre
    going to help me rob these guys. He showed me a gun, not sure if its real. I
    scared. Thats what he said.  Kyle went to this guy with his gun. Kyle went up
    to the guy with his gun and started robbing him, a big guy went to Kyle and I
    said dont touch him twice.

Q.      Do you want to tell us this on video?

A.      Yeah.  Ill tell you everything.

Q.      Before we get going I will read you something.

[14]

On
    the
voir dire
to determine the admissibility the videotaped interview,
    the appellant testified that Det. Peacock slapped him on the face five times
    during the first interview. The slapping started when the appellant denied that
    anyone else had been involved in the robbery or that a gun had been produced.

[15]

Both
    detectives agreed that they had not complied with the requirements of s. 146 of
    the
Youth Criminal Justice Act,
S.C.
    2002, c. 1,
(
YCJA
) when they first spoke to the
    appellant.

The Interlude

[16]

At
    the conclusion of the first interview, the appellant was left alone in the
    interview room for about an hour until the officers escorted him to a second
    room with video recording equipment.

The Second Interview

[17]

The
    second interview, which was videotaped, involved the appellant and the same
    police officers who had participated in the first interview. The second
    interview lasted about an hour.

[18]

Prior
    to any discussions about the circumstances of the offences with which the
    appellant was charged, Det. Peacock explained to the appellant the charges of robbery
    and using an imitation firearm in the commission of an indictable offence. The
    officer told the appellant that if he were found guilty, he could be sent to a
    detention center. Det. Peacock later advised the appellant that he could also
    be sentenced as an adult to a maximum term of imprisonment for life.

[19]

Det.
    Peacock then explained to the appellant that a statement included anything the
    appellant said, did, or wrote during the interview, and confirmed the
    appellants ability to read and to write. The officer advised the appellant
    about the evidentiary use of his statement in later proceedings and apprised
    him of its recording.

[20]

Det.
    Peacock read the secondary caution to the appellant, then explained and
    confirmed the appellants understanding of his several rights including:

·

the right to silence;

·

the right to counsel, including duty counsel;

·

the right to apply for legal aid;

·

the right to speak to a lawyer, parent, adult relative, or
    another appropriate adult and to have them present during the statement; and

·

the right to stop at any time during the making of the statement.

For each right he explained, Det. Peacock asked the
    appellant whether he understood what the officer had said. The appellant
    confirmed his understanding.  Det. Peacock then asked the appellant to explain
    the meaning of each right. The appellant did so.

[21]

After
    concluding the discussion about the appellants rights as a young person
    charged with a criminal offence, Det. Peacock continued:

PEACOCK   -        Since youve been in custody at 23 Division,
    here at 23 Division, youve had the opportunity to speak to your mom on the
    telephone?

[D.]    -                  Yes.

PEACOCK -          Okay  And a short time after that, I came
    in along with this officer here and we talked to you about certain things.

[D.]    -                  Yes.

PEACOCK   -        And at that time you expressed an interest
    in providing a statement, is that correct?

[D.]    -                  Yes.

PEACOCK   -        Okay  And even back then when I asked if
    you wanted to talk to a lawyer at that time you declined as well you didnt
    want to speak to a lawyer, is that correct?

[D.]    -                  Yes.

PEACOCK   -        So what well do now, is I want you to take
    me back, if you dont know the dates with the exact times thats fine.  I want
    you to take me back, and you tell me the story of what happened in your mind on
    that date.

[D.]    -                  Right now?

PEACOCK   -        And then what Ill do is ask you some
    questions afterwards, okay?

The interview continued.

The Positions of Counsel at Trial

[22]

Trial
    counsel for the Crown (who is not counsel on the appeal) sought admission of
    the videotaped interview only, but asked the trial judge to find that what the
    appellant had said during the first interview was voluntary. She contended that
    even if the failure to videotape the interview made its voluntariness and
    accuracy suspect, the evidence of the investigating officers provided a
    sufficient evidentiary basis upon which to make a finding of voluntariness.

[23]

Crown
    counsel at trial submitted that the videotaped interview was voluntary,
    compliant with s. 146 of the
YCJA
, and untainted by the earlier
    interview that was voluntary but not compliant with s. 146.

[24]

Trial
    counsel for the appellant (who is also not counsel on the appeal) contended
    that the first interview was not voluntary. The interview was suspect because
    the police had failed to videotape the interaction even though recording
    equipment was readily available at 23 Division. The appellants evidence about
    Det. Peacocks assault on him also raised a reasonable doubt about
    voluntariness.

[25]

Counsel
    for the appellant at trial urged exclusion of the videotaped interview on the
    basis that it was tainted by what had happened in the first interview. The time
    period between the two interviews was brief. The same officers were involved in
    both interviews. The second was simply a continuation of the first, as is indicated
    by the reference to the initial interview in the second.  The failure to remove
    the taint of the first interview, to make a clean break and begin anew, spelled
    exclusion for the second.

The Ruling of the Trial Judge

[26]

The
    trial judge was satisfied beyond a reasonable doubt that the first statement
    was voluntary. She concluded that the evidence on the
voir dire
rebutted the presumption of involuntariness created by the failure to record
    the interview when recording equipment was readily available. She rejected the
    appellants claims of threatened and actual violence by Det. Peacock. What
    would have rendered the first interview inadmissible, had it been tendered for
    reception, was the failure of investigators to comply with s. 146 of the
YCJA
.

[27]

The
    trial judge examined the relationship between the first and second interview to
    determine the link or nexus between them. She concluded that the videotaped
    interview would have taken place even if the first interview had not occurred. 
    Neither the disqualifying factor that rendered the first interview inadmissible
    (non-compliance with s. 146 of the
YCJA
) nor the fact that the first
    statement had been made rendered the videotape interview inadmissible. The
    failure to comply with s. 146 of the
YCJA
, fatal to the admissibility
    of the first statement, exerted no influence on the videotaped interview that
    began with a lengthy discussion and confirmed understanding of the requirements
    of s. 146. The appellant wanted to give his side of the story, an intention
    confirmed by his demeanour during the videotaped interview.

the grounds of appeal

[28]

The
    appellant advances a single ground of appeal. He says that the trial judge was
    wrong to admit the videotaped interview as evidence. The two interviews were so
    closely linked in time and circumstances that the second was merely a
    continuation of the first. The failure to remove the taint of the first from
    the second rendered the second as inadmissible as its predecessor.

Ground #1: The Error in Admitting
    the Videotaped Interview as Evidence

[29]

A
    convenient point of departure for the discussion that follows is a summary of
    the arguments advanced by the parties on appeal.

The Arguments on Appeal

[30]

For
    the appellant, Mr. Halfyard says the derived confessions rule holds that
    subsequent statements of an accused made after an earlier inadmissible
    statement are also inadmissible, provided there is a sufficient connection
    between the statements and a failure to extinguish the taint of the earlier
    from the making of the later. The rule, he submits, originally developed in
    connection with the voluntariness requirement of the confessions rule at common
    law, applies with equivalent vigour where the contaminant is failure to comply
    with the requirements of s. 146(2) of the
YCJA
.

[31]

To
    engage the derived confessions rule in this case, Mr. Halfyard contends,
    requires a temporal or causal connection between the tainting failure in the
    first statement (failure to meet the requirements of s. 146(2) of the
YCJA
)
and the making of the second statement.
    The necessary connection may reside in the continuation of the tainting feature
    in the second statement or the fact that the making of the first statement was
    a substantial factor contributing to the making of the second statement.

[32]

In
    this case, Mr. Halfyard continues, the trial judge erred in her application of
    the derived confessions rule. Here, Mr. Halfyard says, the videotaped interview
    was a continuation of the first interview. Further, the fact that the first
    interview took place was a substantial factor that contributed to the second
    interview. No fresh start intervened to rid the second of the taint of the
    first.

[33]

Mr.
    Halfyard points out that the interviews were only an hour apart. The same
    investigators conducted both and followed the same question and answer
    approach. The first interview ended with a question, do you want to tell us
    this on video?, and the second included a reference to what the appellant had
    said in the first. The subject-matter discussed in both interviews was the
    same, as was the purpose of the interviews. No fresh start eliminated the
    taint, thus the videotaped interview should have been excluded.

[34]

For
    the respondent, Mr. Carrington acknowledges that the application of the derived
    confessions rule is not confined to cases in which the underlying taint is the
    involuntariness of the first statement. Other contaminants include
Charter
violations,
    which are subject to the application of s. 24(2) of the
Charter
, and, as
    here, failure of the first statement to satisfy the demands of s. 146(2) of the
YCJA
.

[35]

Mr.
    Carrington says that the principal focus and essential inquiry under the
    derived confessions rule is the nature and extent of the connection between the
    first and second (or subsequent) statement. Although the derived confessions
    rule may be engaged by either the continued presence of the contaminating
    features in the second statement or by the substantial contribution of the
    first statement to the making of the second, it will generally be easier to
    make out a case for exclusion under the rule when both conditions are present.

[36]

Mr.
    Carrington reminds us that the determination of issues like voluntariness and
    the nature and extent of the connection between the two statements involve
    largely, if not entirely, questions of fact. The findings made by the trial
    judge on both issues are owed substantial deference on appellate review, all
    the more so in the absence of any allegation that the trial judge
    misapprehended the governing principles or the evidence adduced on the
voir

dire
.

[37]

In
    the end, Mr. Carrington says, the trial judge properly concluded that the first
    statement was voluntary, not tainted by a failure to videotape it or by
    improper police conduct. The trial judge properly applied the derived
    confessions rule in deciding to admit the second statement. The tainting
    feature of the first statement was remedied at the outset of the second by a
    full explanation and confirmed understanding of each of the requirements of s.
    146(2) of the
YCJA
.  There was minimal reference to the fact and content
    of the first statement during the second interview and the appellant, despite
    his youth, made it clear that he wanted to provide
his
side of the
    story about the robbery.

The Governing Principles

[38]

The
    parties differ little on the legal principles that are at work in this case. 
    They depart common ground, however, on the result the application of those
    principles should yield in this appeal. For discussion purposes, I have
    collected the applicable principles under three headings:

i.        the
    voluntariness issue;

ii.       the
    requirements of s. 146(2) of the
YCJA
; and

iii.      the
    derived confessions rule.

The Voluntariness Issue

[39]

The
    confessions rule is concerned with voluntariness, broadly defined:
R. v.
    Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 32. The application of
    the confessions rule is contextual, requiring a trial judge to take into
    account all relevant circumstances in order to determine whether the
    prosecution has established the voluntariness of the confession beyond a
    reasonable doubt:
Oickle
, at paras. 47, 68, and 71.

[40]

Recording
    police interviews of persons suspected or accused of crime can be of
    inestimable value in assessing their voluntariness at trial. Video recordings
    permit the trial judge to be an ear and eyewitness to the interview tendered
    for admission:
Oickle
, at para. 46. The
Oickle
court was not
    prepared, however, to consider non-recorded interrogations as inherently
    suspect:
Oickle
, at para. 46.

[41]

In
    this province, where a suspect is in custody in a place where recording
    facilities are available and police deliberately set out to interrogate the
    suspect without giving thought to the creation of a reliable record of the
    interview process, the resulting non-recorded statement is inherently suspect:
R.
    v. White
(2003), 176 C.C.C. (3d) 1 (Ont. C.A.), at para.
21;
R. v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at
    paras.
65-67. In these circumstances, the trial judge must decide
    whether there was a suitable substitute for a recording to satisfy the heavy
    onus on the Crown to prove voluntariness beyond a reasonable doubt:
White
,
    at para. 21;
Moore-McFarlane
, at paras. 65-67.

[42]

The
    application of the voluntariness rule to individual cases is contextual:
Oickle
,
    at para. 47;
Moore-McFarlane
, at para. 64. A disagreement with a trial
    judge about the weight to be assigned to individual items of evidence
    constitutes no basis upon which an appellate court can set aside a finding of
    voluntariness:
Oickle
, at para. 22. Trial judges findings of
    voluntariness are entitled to deference here. Interference with those findings
    should only occur where the trial judge has committed legal error in
    determining the test for voluntariness or has made overriding and palpable
    errors of fact:
Moore-McFarlane
, at para. 68.

The Requirements of s. 146(2)
YCJA

[43]

Section
    146(1) of the
YCJA
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.

[44]

Section
    146(2) of the
YCJA
enacts an admissibility rule that applies to oral
    and written statements made by a young person under 18 to a peace officer or
    other person in authority on arrest or detention, or where a person in
    authority has reasonable grounds to believe the young person has committed an
    offence.  Like common law admissibility rules, s. 146(2) is exclusionary by
    nature, but inclusionary by exception.

[45]

To
    gain entry by exception to the general rule of exclusion, the oral or written
    statement of the young person to a person in authority must satisfy the
    cumulative requirements of s. 146(2) of the
YCJA
:

146. (2) 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.

[46]

Several
    features of s. 146(2) warrant examination in the circumstances of this case.

[47]

First,
    the conditions precedent to admissibility that s. 146(2) enacts impose
    correlative duties on peace officers and other persons in authority to whom the
    young person speaks in the circumstances described in the subsection. The
    duties include both informational and implementational obligations.

[48]

Second,
    informational duties are the focal point of s. 146(2)(b). The substance of the
    rights to which the section refers must be communicated to the young person in
    language that is appropriate to the young persons age and understanding. Said
    in another way, the language used must fit its consumer, a young person of
    immature years and qualified understanding.

[49]

Third,
    since the mandatory explanation must be appropriate to the age and
    understanding of the specific young person to whom authorities are speaking,
    reading a standardized form, without more, will not normally be enough to
    establish the sufficiency of the caution:
R. v. L.T.H
., 2008 SCC 49,
    [2008] 2 S.C.R. 739, at para. 27.  It also follows from the requirement that
    the explanation be appropriate to the age and understanding of the specific
    young person concerned that persons in authority will need to acquire some
    insight into the specific young persons level of comprehension:
L.T.H.
,
    at para. 27.

[50]

Fourth,
    the burden falls upon the Crown to prove by clear and convincing evidence that
    the person in authority to whom the statement was made took reasonable steps to
    ensure that the young person understood his or her s. 146
YCJA
rights.
    The standard of proof is proof beyond a reasonable doubt:
L.T.H
., at
    para. 6.

[51]

Fifth,
    where the Crown proves compliance with the informational component beyond a
    reasonable doubt, the trial judge is entitled, indeed expected to infer that
    the young person understood his or her s. 146
YCJA
rights, absent any
    evidence to the contrary:
L.T.H
., at para. 8. The Crown does not have
    to prove that the young person in fact understood the rights and options
    explained under s. 146(2)(b):
L.T.H
., at para. 21. Nor is it necessary
    for persons in authority to ask young persons in every case to read back or
    recite back the rights explained by investigators. That said, this practice
    may go some way to demonstrate that the explanation was at once appropriate and
    sufficient:
L.T.H
., at para. 26.

[52]

Sixth,
    the issue of whether a detained young person has received a clear explanation
    of his or her rights and options and whether he or she has understood those
    rights to the extent necessary for an effective waiver are essentially
    questions of fact. Findings made about the requirements of s. 146, like a
    finding of voluntariness, should only be overturned on appeal for some palpable
    and overriding error that affected the trial judges assessment of the facts:
L.T.H
.,
    at para. 55.

The Derived Confessions Rule

[53]

The
    derived confessions rule is a common law rule that governs the admissibility of
    a confession that has been preceded by an involuntary, thus inadmissible
    confession. The derived confessions rule is not a
per se
or bright
    line rule that excludes all subsequent confessions on the ground that they are
    tainted, irrespective of the degree of their connection to the prior
    inadmissible statement:
R. v. I (L.R.) and T. (E.)
, [1993] 4 S.C.R.
    504, at p. 526; and
R. v. Hobbins
, [1982] 1 S.C.R. 553, at p. 558.

[54]

To
    determine whether a subsequent statement will be excluded under the derived
    confessions rule because of the taint left by its involuntary and thus
    inadmissible predecessor, a trial judge must examine all the relevant
    circumstances to determine the degree of the connection between the two
    statements:
T. (E.)
, at p. 526.  The Supreme Court of Canada has set
    out some of the relevant circumstances or factors to consider in determining
    the degree of connection between the two statements, and thus the influence of
    the antecedent taint: see
T. (E.)
, at p. 526;
Hobbins
, at p.
    558; and
R. v. G. (B.)
, [1999] 2 S.C.R. 475, at para. 21. These
    include but are not limited to:

·

the time span between the statements;

·

advertence to the earlier statement during questioning in the subsequent
    interview;

·

discovery of additional information after completion of the first
    statement;

·

the presence of the same police officers during both interviews;
    and

·

other similarities between the two sets of circumstances.

[55]

The
    application of these factors will render a subsequent statement involuntary if
    either the tainting features that disqualified the first continue to be
    present, or if the fact that the first statement was made was a substantial
    factor that contributed to the making of the second statement:
T. (E.)
,
    at p. 526;
G. (B.)
, at paras. 21 and 23. It will generally be easier
    to establish that tainting affected the first when both these conditions are
    present. In the end, however, what matters most and mandates exclusion is that
    the connection is sufficient for the second to have been contaminated by the
    first:
G. (B.)
, at para. 23.

[56]

The
    inquiry required when the derived confessions rule is invoked to exclude a
    subsequent statement is essentially a causation inquiry that involves a
    consideration of the temporal, contextual, and causal connections between the
    proffered and earlier statements:
R. v. Plaha
(2004), 188 C.C.C. (3d)
    289 (Ont. C.A.), at para. 46. The inquiry is a case-specific factual inquiry:
R.
    v. Simon
, 2008 ONCA 578, 269 O.A.C. 578, at para. 69.

[57]

Despite
    its origins as a common law rule where lack of voluntariness is the
    contaminating factor, the derived confessions rule is of more general
    application.  The contaminating factor may be constitutional infringement, say
    a breach of s. 10(b) of the
Charter
. There, the subsequent
    statement is tainted if the breach and impugned statement can be said to be
    part of the same transaction or course of conduct. The admissibility analysis
    in these cases is performed under s. 24(2) of the
Charter
:
R. v.
    Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21;
Simon
, at
    para. 69; and
Plaha
, at paras. 42-45.

[58]

The
    derived confessions rule may also be engaged where the contaminant in the prior
    statement is a failure to comply with s. 146(2) of the
YCJA
, or its
    predecessor, s. 56 of the
Young Offenders Act
, R.S.C. 1985, c. Y-1, as repealed by
Youth
    Criminal Justice Act
, S.C. 2002, c. 1
:
T. (E.)
, at p. 527;
R. v. S.G.T
., 2010 SCC 20, [2010] 1
    S.C.R. 688, at para. 28.

[59]

To determine whether the derived confessions rule will warrant
    exclusion of a subsequent statement, a trial judge must follow a contextual and
    fact-based approach:
S.G.T
, at para. 29. The nature of the inquiry and
    the findings required in the derived confessions analysis have implications for
    the scope of appellate review. The admissibility of a confession that has been
    preceded by an involuntary (or otherwise) inadmissible confession, in other
    words, the application of the derived confessions rule, involves a factual
    determination based on factors designed to ascertain the degree of connection
    between the two statements:
T. (E.)
, at p. 526. This
    determination, like a determination of whether a statement is voluntary or
    compliant with s. 146(2)
YCJA
,
is largely a question of fact. Appellate review of the judges decision is
    limited to deciding whether the judge erred in her assessment of the evidence,
    failed to consider relevant circumstances, or failed to apply the correct
    principles:
T. (E.)
, at p. 526;
R. v. McIntosh
(1999), 141
    C.C.C. (3d) 97 (Ont. C.A.), at paras.
21-22.

The
Principles

Applied

[60]

I
    would give effect to this ground of appeal because, for reasons that I will
    explain, I am not satisfied that the trial judge properly applied the derived
    confessions rule when she decided to admit the appellants videotaped police
    interview as evidence at trial.

[61]

The
    derived confessions rule is a common law rule that governs the admissibility of
    a confession that has been preceded by an involuntary confession. In more
    general terms, the rule applies where a subsequent statement, sufficiently
    connected to an earlier inadmissible statement, is proposed for admission. The
    parties agree that the rule applies in the circumstances of this case where
    what rendered the prior statement inadmissible was a failure to comply with s.
    146(2) of the
YCJA
.

[62]

In
    this case, counsel for the Crown at trial did not seek to have the first
    statement admitted. The parties agreed that the first statement could not be
    admitted as evidence because of non-compliance with s. 146(2) of the
YCJA
.

[63]

The
    trial Crown sought a finding from the trial judge that the first statement was
    voluntary even though it could not be admitted if tendered because of
    non-compliance with ss. 146(2)(b)-(d) of the
YCJA
. Trial counsel for
    the appellant argued that the statement was involuntary because the
    investigating officer repeatedly assaulted the appellant or that voluntariness
    could not be established beyond a reasonable doubt because the police failed to
    videotape the interview when facilities were available to do so.

[64]

The
    trial judge found that the first statement was voluntary.  She rejected the
    appellants claim of physical abuse and was satisfied that the written record
    of the interview prepared by Det. Alkins was sufficient to permit her to make
    an informed decision on the issue of voluntariness.

[65]

On
    the evidence adduced at the
voir dire
on the voluntariness of the
    first statement, it was open to the trial judge:

i.        to
    reject the evidence of the appellant that he was repeatedly     assaulted by
    Det. Peacock;

ii.       to
    accept the evidence of the investigating officers about why    they did not
    videorecord the first interview with the appellant;

iii.      to
    accept the evidence of the investigating officers about the      completeness
    of Det. Alkins notes of the first interviews;        and

iv.      to
    conclude, on all the evidence adduced on the
voir dire
, that    the
    initial statement, the product of the first interview, was     voluntary.

[66]

The
    voluntariness inquiry and the application of the legal test for voluntariness
    involve a case-specific factual inquiry. In the absence of any error in the
    application of the governing legal principles, error in the assessment of evidence,
    or failure to consider relevant circumstances, the trial judges finding of
    voluntariness is entitled to deference on appellate review:
McIntosh
,
    at para. 21;
Oickle
, at para. 22. No such error or failure appears in
    the trial judges finding of voluntariness.

[67]

At
    trial, the appellant made no attempt to demonstrate that the first interview
    was also tainted by constitutional infringement. On arrest, the appellant was
    told the reasons for his arrest and advised of his s. 10(b)
Charter
rights. He indicated he understood both and did not want to call a lawyer. The
    trial judge concluded, rightly in my view, that the sole tainting factor at
    work in connection with the first interview and the basis on which it would be
    inadmissible, if tendered, was a breach of s. 146(2) of the
YCJA
.

[68]

The
    trial judge correctly described the standard to be applied under the derived
    confessions rule when she considered the admissibility of the videotaped
    interview. She appreciated that the videotaped interview would be inadmissible
    under the derived confessions rule if either the tainting features that
    disqualified the first statement from reception, the failure to comply with s.
    146(2)(b) of the
YCJA
, continued to be present in the second, or if
    the fact the first statement had been made was a substantial factor
    contributing to the making of the second.

[69]

In
    my respectful view, however, for reasons that I will explain, the trial judge
    erred in her application of the governing principles of the derived confessions
    rule in the circumstances of this case.

[70]

When
    Det. Peacock and Det. Alkins first approached the appellant in the interview
    room without video equipment, they claimed to have done so to build a rapport
    with M.D., to find out information about the other suspect and the gun, and to
    see whether M.D. wanted to give his side of the story.

[71]

Det.
    Peacock asked M.D. several questions that elicited admissions from him. The
    youth said that he robbed a guy at a convenience store on a Saturday afternoon
    a few weeks earlier.  He described his role in the robbery and identified the
    person with the gun as Kyle Smith. These experienced police officers knew, or
    should have known, that what M.D. told them amounted to an oral  statement
    within s. 146(2) of the
YCJA
. Further, they knew, or should have
    known, that the oral statement was taken in violation of s. 146(2)(b) of the
YCJA
and would not be admissible if it were tendered at M.D.s trial.

[72]

When
    the videotaped interview began, Det. Peacock attempted to comply with the
    informational component of s. 146(2)(b) of the
YCJA
. This advice
    lasted about 20 minutes and included subjects not expressly required by the
    subsection but relevant to issues of voluntariness and the right to counsel. In
    general terms, the appellants responses to inquiries about his understanding
    of the advice given reflected an appropriate level of comprehension except in
    connection with the secondary caution.

[73]

The
    advice provided by Det. Peacock at the outset of the videotaped interview
    represented at once an attempt to comply with s. 146(2)(b) of the
YCJA
,
    to establish the voluntary nature of the interview, and to cleanse the
    interview of any contaminating effects of the first interview. Nowhere,
    however, did Det. Peacock advise M.D. in the second interview that he should
    not be influenced in his decision whether to speak or to say nothing by the
    fact that he had earlier talked to the officers or by what he had said there:
Plaha
,
    at para. 53. Nor was M.D. told that the prior statement would not be admissible
    against him at his trial: R. v. J. L., [2000] O.J. No. 299 (C.A.), at para. 5.

[74]

In
    my respectful view, the error in this case consisted of a failure to consider
    all the relevant circumstances in the application of the derived confessions
    rule. Taken as a whole, the evidence disclosed that the tainting features that
    disqualified the first statement from admission continued to be present during
    the second and that the fact the first statement had been made was a
    substantial factor that contributed to the making of the second that was little
    more than a continuation of the first.

[75]

The
    first interview concluded with a question from Det. Peacock about whether the
    appellant wanted to tell the police about the robbery on video.  The appellant
    agreed. Immediately after completing his s. 146(2)(b) advice at the start of
    the second interview, Det. Peacock reminded M.D. of his offer and the interview
    proceeded. The same officers conducted both interviews without M.D. having any
    contact with anyone else in the hour that separated the two interviews.

[76]

The
    trial judge does not appear to have considered the effect of Det. Peacocks
    failure to tell M.D. about the inadmissibility of the prior statement at the
    outset, indeed at any time during the second interview. This admission left
    M.D., a 14-year-old grade 9 student, with an incomplete understanding of his
    jeopardy when deciding whether to speak or remain silent. In the circumstances
    of this case, such advice was necessary to dispel the taint associated with the
    first interview.  Its absence cemented the connection between the two
    statements.  In a similar way, the failure to advise M.D. that, in deciding
    whether to speak a second time, he should not be influenced by the fact that he
    had talked to the police earlier, or by what he had said then, was an essential
    factor that required, but did not receive consideration in the admissibility
    decision.

[77]

In
    the result, I am satisfied that the trial judge erred in her application of the
    derived confessions rule and erred in admitting the videotaped interview as
    evidence at trial.

CONCLUSION

[78]

I
    would allow the appeal, set aside the convictions, and order a new trial.

Released:
November 30, 2012  JL

David
    Watt J.A.

I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.


