C.A.C. No. 02763 NOVA SCOTIA COURT OF APPEAL Matthews, Chipman Pugsley, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on July 10, 2008. Maurice Smith for the Appellant Robert E. Lutes, Q.C. for the Respondent Appeal Heard: June 3, 1993 Judgment Delivered: September 15, 1993 THE COURT: The appeal is allowed and a new trial is ordered as per reasons for judgment of Pugsley, J.A.; Matthews and Chipman, JJ.A., concurring. Publishers of this case please take note that s.38(1) of the Young Offenders Act applies and may require editing of this judgment or its heading before publication. Section 38(1) provides: "38(1) No person shall publish by any means any report (a) of an offence committed or alleged to have been committed by young person, unless an order has been made under section 16 with respect thereto, or (b) of hearing, adjudication, disposition or appeal concerning young person who committed or is alleged to have committed an offence in which the name of the young person, child or young person aggrieved by the offence or child or young person who appeared as witness in connection with the offence, or in which any information serving to identify such young per‑son or child, is disclosed." PUGSLEY, J.A: This is an appeal by the young offender who was convicted of nine charges of break and enter and one charge of assault. He submits that the Youth Court judge erred in law, in concluding that the statements taken from him by the R.C.M.P. on March 3, 1992 were voluntary statements, and erred, as well, in finding that the statements had been taken in compliance with the provisions of s. 56 of the Young Offenders Act. He does not appeal the finding of guilt on two of the convictions, but submits that the balance of the eight convictions are based solely on the impugned statements. The Youth Court judge found, and counsel agree, that if the statements are not admissible, then there is no evidence of guilt on the remaining eight charges. (1) The appellant, and his girlfriend L., were living in trailer, maintained by the appellant's sister C,, at [name of town changed]. At 12:39 hours on March 3, 1992, Constables Deveau and Coughlin of the local R.C.M.P. Detachment attended at the trailer and took the appellant into custody. The appellant was placed under arrest for break and enter on the previous evening into the office of local lawyer. The appellant was given his rights to counsel, as well as police warning. (2) The appellant was taken to the police station in [name of town changed] arriving about 12:40 hours where he remained until approximately 16:00 hours. (3) In the interview room, shortly after arrival at the station, Constable Deveau produced form, apparently devised by the R.C.M.P., to be used as guideline to explain the rights afforded to young person under s. 56 of the Act, and if applicable and the young person were so inclined, to be signed as waiver pursuant to s. 56(4). The appellant signed the form and wrote the following: "Last night was home with C. and L. and we watched few movies and went to bed about 3:00 o'clock in the morning." (4) Constable Deveau remained in the interview room with the appellant for further 15 minutes to discuss "off the record" as they had on number of occasions in the past, the appellant's involvement in recent crimes in the area. During the course of the "discussion", the appellant admitted to Constable Deveau that he was responsible for the crime for which he had just been charged, notwithstanding his written exculpatory statement given few minutes earlier. Constable Deveau testified that this admission, in the light of the "off the record" nature of the discussion, did not constitute evidence against the appellant. (5) Constable Deveau then left the interview room. He was replaced by Constable Coughlin who advised the appellant that, he was under investigation for break, enter and theft at the [name of school changed]. The appellant was not placed under arrest for this offence. Constable Coughlin produced fresh copy of the s. 56 form. The appellant signed waiver of the right to speak to counsel, and to have counsel present, during the giving of the statement, but shortly thereafter the appellant requested to speak to lawyer. He was taken to an adjoining room where he used telephone to complete the call in private. At 13:25 hours, the appellant returned to the interview room and advised Constable Coughlin that he had spoken to his lawyer, who was going to get in touch with the Crown prosecutor to inquire about having the appellant released. Prompted by an inquiry from Constable Coughlin at 14:38 hours the appellant replied that he was not going to give statement. Constable Coughlin was aware that the appellant was still waiting to hear from his lawyer. (6) Constable Coughlin was replaced by Constable MacDonald at 14:40 hours. He advised the appellant that he had evidence to indicate that the appellant was involved in break and enter at the [name of place changed] and break in at the airport in [name of town changed]. The appellant refused to give statement in connection with either matter. (7) At approximately 15:00 hours, the appellant was placed in cell. Shortly thereafter, he asked Constable Coughlin and another officer, if they would release him in consideration of disclosure by the appellant of the names of "the big hash dealers" in [name of town changed]. The police rejected the proposal. (8) At approximately 16:00 hours, the appellant was taken to the courthouse in [name of town changed] to be remanded. He was transported in police car by Constables Coughlin and Ott, but they were also accompanied by the appellant's girlfriend L. who had been arrested by the police an hour earlier. Although the appellant had been advised by Constable Coughlin that he was under investigation for the break and enter at the [name of school changed], the appellant was not charged with that offence. Upon inquiry by the appellant as to why L. was in the police car, Constable Coughlin advised that she was being charged with the break and enter at the [name of school changed]. The appellant became extremely upset upon hearing this news. (9) While waiting for the justice of the peace, in his chambers at the courthouse, the appellant testified that Constable Coughlin then said to him: "You are pretty upset. If you are willing to give statement admitting to everything, I'll think twice about entering information on L.." Constable Coughlin's recollection of this conversation is, as follows: "If you couldn't tell me otherwise, she was being charged ... if you'd given me statement like contrary to the proof that we had if (the appellant) had something to say that was contrary to our evidence, or didn't support her evidence, that she may not be charged ..." The trial judge found that "there was something conveyed to [the appellant] that would have caused him to consider whether by giving statement, he could give benefit to his girlfriend L.". (10) Constable Deveau, seeing that the appellant was upset, invited the appellant to have cigarette in the police car outside the courthouse. While sharing the front seat, the appellant stated that he was thinking of giving statement and, according to the appellant, Constable Deveau responded: “Well it would be in your best interests because if you were to open up about all of the charges, the judge probably wouldn't give you too much more time for them all than he would for three of them only ... and then you wouldn't have to worry about them coming and haunting you in the future when you get released. ... it would be best for me to open up about all of the charges and get them dealt with while was young offender instead of having to worry about them after got released because I'd more likely be an adult when was released." Constable Deveau testified that he only told the appellant that he could not give an answer to him as to what kind of sentence he would get but that it was entirely within the control of the court. The trial judge concluded: "[The appellant] was the one who brought up the possibility of giving statement, and although no doubt Constable Deveau did go on to discuss what the possible outcome might be, how court might handle it, and there is suggestion made by Constable Deveau and by Constable Coughlin that in situation where person makes confession to number of crimes at once it's quite likely that the outcome, in terms of sentence, would be less onerous than if they were dealt with one at time ... if there were no admission, if he was convicted at trial on the presentation of other evidence. There's no doubt there were such conversations; nevertheless, in my view, this was not imposed on [the appellant] in any sense ... don't find that anything that was said to him .. was blatantly untrue; in fact, think that anyone with experience in the justice system would have to acknowledge that it's been explicitly acknowledged on sentencing that the giving of confession in the dealing with charges at once, plea of guilty and so forth, are proper considerations to take into account in mitigating sentence. This was conveyed to him. don't see anything improper in that ..." (11) At 17:00 hours upon being returned to the police station, the appellant advised Constable Coughlin that he wanted to see his sister C., his girlfriend L., his former girlfriend M.G. and his friend C.H., in private so that he could discuss with them giving statement to the police concerning the break and enter at the [name of school changed]. This request was granted. After an interval, Constable Coughlin returned to the group to determine whether or not the appellant was ready to give statement and according to L., Constable Coughlin told [the appellant] that A... if he gave statement and cooperated he would recommend that he be given lighter sentence, two years instead of three. can't remember his exact words. It was something to that effect ... if you cooperate we'll recommend ... something like that ... that you'll get less of sentence you'll get two years instead of three." The recollection of the appellant's sister, C., with respect to this conversation is as follows: "'[Cnst.] Coughlin said that if [the appellant] were to cooperate with him and give the statement that it would be probably easier on him ... and asked him ... said 'well' ... he said 'Right now he's looking at three to ten years'. He said if he gives statement he'll probably only get two as long as he cooperates with us, and asked him ... said, 'Well, what's his guarantee?' He said there is no guarantee. It depends on the judge, and said 'Well why should he give you the statement if if he's got no guarantee?' And he said, 'Well, if he gives statement, I'll help him out' He said 'I'll put good word in for him.'" The trial judge then questioned the witness on this point: "Q. You said that now [the appellant's] looking at three to ten years and then there was somebody said if he gave statement he'd be looking at two years. Who was it that ...? Coughlin. Q. According to your evidence, said that? It was Constable Coughlin? Q. So if he gave statement he'd be looking at two years or something like two years .. Q. Is the way you recall it? A. If he cooperated he'd be looking at less time and he said anywhere from year to two years. He said at the most you'd get two years if you cooperate." Her brother then wrote out statement in long hand implicating himself in variety of crimes in the [name of town changed] area. C.H.'s only recollection is that Constable Coughlin's attitude was: "It would help yourself out give the statement get it over with you know be easy on yourself." The appellant was "pretty sure" that there was discussion with Constable Coughlin concerning sentence before he committed pen to paper "but can't say for sure it there was or not" Constable Coughlin denies holding out any inducement with respect to assisting the appellant to obtain lesser sentence in consideration of an inculpatory statement. M.G.., who was present throughout the entire interview which commenced at 17:11 and concluded at 19:42 hours, did not corroborate the evidence of the appellant's sister or his girlfriend. The trial judge did not deal with this conflict in his decision and made no findings of credibility with respect to this issue. (12) After completing statement in writing before Constable Coughlin wherein the appellant acknowledged his direct involvement in ten crimes in the [name of community changed], the appellant then completed second statement in front of Constable Deveau concerning the only charge on which he had been arrested (the break and enter at the lawyer's office). During the course of giving the statements to Constable Coughlin at 17:11 hours and Constable Deveau at 19:50 hours, the appellant was accompanied throughout by M.G., an adult of his choice, and for substantial period of time, his sister C.. ISSUE: While a number of issues have been raised by the appellant, the critical matter in dispute is whether or not the statements taken at 17:11 hours and 19:50 hours were voluntary statements. statement given to police officer is only admissible if it is voluntary statement. This requirement is imposed, not only by the Young Offenders Act (s. 56(2)(a)) but also by the common law. The test enunciated by Lord Sumner in Ibraham v. R. (1914), (A.C. 599) at p. 609: "It has long been established as positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice, or hope of advantage, exercised or held out, by person in authority." has been adopted by the Supreme Court in R. v. Rothman (1981), 1981 CanLII 23 (SCC), S.C.R. 640. At 13:15 hours the appellant consulted counsel by phone and, at the conclusion of the call, advised Constable Coughlin that he was waiting to receive additional advice from counsel. At 14:38 hours the appellant advised Constable Coughlin that he was still waiting to receive counsel's advice, and accordingly, did not wish to give statement. At 17:11 hours the appellant advised Constable Coughlin that he was prepared to give statement acknowledging his participation in various crimes recently committed in the [name of town changed] area. The appellant had not, to the knowledge of the police, spoken to counsel in the interim. What prompted the change in the appellant's position? There are, in my opinion, two matters which could have influenced his decision: 1. the inducement offered by Constable Coughlin not to charge the appellant's girlfriend, L.. 2. the alleged inducements, concerning the participation of the police, in recommending lighter sentence in the event the appellant confessed to all of the crimes in which he was involved. With respect to the first issue, the trial judge, found that something was conveyed to the appellant "that would have caused him to consider whether by giving statement he could give benefit to his girlfriend L.." Notwithstanding this finding, the trial judge did not exclude the statement because he felt the offer did not have much of an impact on the appellant's decision. The trial judge stated that the appellant "maintained his anger towards the police and felt L. would beat the charge anyway." This conclusion is supported by the appellant's failure to comment on this topic during his trial evidence. The appellant did not, at any time, suggest that Constable Coughlin's offer was the impetus to give the written statement. The matter that is most troublesome, however, is the evidence dealing with the statements allegedly made by Constable Coughlin that if the young offender were to cooperate that he (Constable Coughlin) would help him out "to secure lesser sentence." The evidence given by the appellant\'s sister on this point was raised during the course of her cross‑examination by the appellant\'s counsel, and also confirmed in her responses to questions from the Court. Evidence of a similar nature was given by the appellant\'s girlfriend L.. The trial judge, in the course of careful review of the evidence, unfortunately, did not make any findings of fact or determinations of credibility on this essential matter. If the evidence of the appellant\'s sister and girlfriend was accepted, then the inducement was clearly established, and the Crown, in my view, would have failed to prove, beyond a reasonable doubt, that the statements were voluntary. This was critical issue. It is the primary duty of trial judge to make findings of fact and determinations of credibility. (See Matthews J.A. on behalf of the Court in Foster v. R., May 1993, unreported.) An appellate court should not attempt to guess what those conclusions might be in the absence of such findings. The failure by the trial judge to make any finding with respect to this issue was, in my opinion, a palpable and overriding error. I would therefore allow the appeal and order a new trial with respect to the eight charges which were based solely on the impugned statements. Pugsley, J.A. Concurred in: Matthews, J.A. Chipman, J.A. IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION and HER MAJESTY THE QUEEN RESPONDENT NOTICE OF APPEAL PARTICULARS OF CONVICTION: 1. PLACE OF CONVICTION: Sydney, Nova Scotia. 2. NAME OF JUDGE: Judge Peter Ross. 3. NAME OF COURT: Youth Court for the Province of Nova Scotia. 4. NAME OF CROWN PROSECUTOR AT TRIAL: Richard MacKinnon. 5. NAME OF DEFENCE COUNSEL AT TRIAL: Maurice Smith. 6. OFFENCES FOR WHICH APPELLANT CONVICTED: Break, enter and theft; break, enter with intent and assault. C.A.C. No. 02763 NOVA SCOTIA COURT OF APPEAL and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: PUGSLEY, J.A.
This was an appeal by a young offender who was convicted of nine charges of break and enter and one charge of assault. He argued the youth court judge erred in concluding statements made to the police were made voluntarily. Allowing the appeal and ordering a new trial, that both the appellant's sister and girlfriend gave evidence of inducements by the police to the accused to admit to the alleged crimes, in return for a lighter sentence. The trial judge failed to address this evidence, thereby committing a palpable and overriding error.