Barristers and Solicitors	German Spanish

   Margaret Creal, for the Crown.

   J. Gardner Hodder, for the Youth.

   NASMITH Prov. Ct. J.:— This has been a Voir Dire to determine the admissibility of an unsigned, typewritten statement allegedly containing answers to two questions. Being unsigned, it should be treated as an oral statement.

   T.D.C. is charged that on June 4th, 1987, at the age of 14, he broke into a pizza store. From the evidence thus far it appears that two older acquaintances of the accused youth (aged 17 and 20) entered a window of a pizza store and took four bottles of liquor. The Crown theory may be that this youth was in the vicinity at the time and could have served a function as a lookout, thereby, possibly becoming a party to the offence.

   In any event, the immediate issue is whether the unsigned document containing answers attributed to the youth, can be admitted into evidence which in turn depends on whether I am satisfied that Section 56 Y.O.A. has been complied with.

   Officers Boyd and Scriven arrested the youth and two others at approximately 2:40 a.m. on June the 4th. After receiving a call to assist in investigating a break-in and after scouring an area in the north Regent Park area they located three youths sitting in a grassy area. They claim that these youths answered a general description of a number of youths who had been seen in the vicinity of the suspected break-in.

   The officers first took the three arrested persons to the scene of the alleged crime. On the way they had discussions which they say involved giving the "usual, advice regarding cautions and the right to counsel. There is no specific evidence about what was said.

   From there they went to 51 Division. It is obvious that there were many discussions between the youths and the officers, but the evidence as to exactly what was said is again limited to some generalizations about usual police procedures.

   At some point it was discovered that this particular accused was a youth and officer Scriven felt that he had to repeat the earlier warnings. However, it is my conclusion that officer Scriven had no clear understanding of the specific requirements of Section 56. He apparently made only a general and unsuccessful attempt at explaining the prerequisites of Section 56(2)(b). More relevant to this particular case, no one explained the rights of the accused youth under Section 56 (2) (b)(iv):
 

No oral or written statement given by a young person to a peace officer or other person who is, in law, a person in authority is admissible against the youth unless the person to whom the statement was given has, before the statement was made, clearly explained to the young person, in language appropriate to his age and understanding that any statement made by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise.

   This requirement is a major focus for the shortcomings in the procedures that followed.

   The youth's detention at 51 Division commenced at approximately 3:11 a.m. and the youth was "paraded" before the officer in charge. He was then taken to a detention room and separated from his co-accused. To the credit of the police, they contacted the mother sometime prior to 4:00 a.m. As it turned out, she lived only a minute or two from the police station. She says that she arrived there at about 3:45 a.m. and this is entirely consistent with the police evidence. She was apparently somewhat disruptive and although the officers acknowledged some kind of "problem" at the front desk, there is no explanation as to why she was prevented from seeing her son for over an hour after her arrival. In the meantime he was sitting, isolated, in a detention room.

   Finally, at approximately 4:55 the mother was allowed to talk to her son in this room for about five to ten minutes. Apparently, no one explained to the mother or the youth that she had a right to be present during any interviews that might be pending.

   After a short discussion between mother and son the mother went to another part of the building and the youth was taken to an investigative office. At about 5:35 the accused youth was turned over to two completely new officers being Sergeant Zeggil and Officer Jenkins. This is well over two hours after the youth had been detained at the police station and it is the first time that the Section 56 requirements were directly referred to and it was in the context of exhibit 1 which is a waiver form that was presented to the youth.

   Beyond the perfunctory nature of the waiver exercise, it must be noted that the youth apparently answered "yes" to the question of wishing to speak with one or both of his parents. This answer however was totally ignored. The officers went right on to the questions and answers that are the issue on this Voir Dire.

   By way of explanation Sergeant Zeggil says that he had been told that there had been earlier contact between the mother and son and he apparently thought that the "yes" answer had already been dealt with. This rather illogical development I think reflects a casual approach to the requirements of Section 56.

   When the youth had first been arrested he was searched by Officer Boyd to ensure that he was carrying no weapons. He was only wearing bermuda shorts and light summer clothing. One of the procedures of Officer Scriven was to take a detainee into a room and completely strip search him. Officer Scriven said he did this to the youth as a matter of general routine for all suspects and for his own protection. Given the earlier search by officer Boyd and the nature of the clothing being worn, there was really no need for this at all. In the circumstances it contributed to an accumulating atmosphere of duress.

   During their brief discussion the boy had indicated his hunger to his mother and she had gone home and prepared sandwiches but was not allowed to take food to his cell and as late as 8 a.m. that continued to be the situation. The boy had not eaten and the food was not allowed.

   We have relatively minor developments contributing to an appearance of duress as the morning wore on.

   In summary, the evidence as to the police procedures during the early morning hours of June 4, 1987 as they relate to the accused youth leaves me less than satisfied that Section 56 has been fully complied with. They may have been fairly routine, even mundane, bureaucratic procedures for the police but when taken as a whole they create the appearance of something less than full compliance with the spirit of that Section.

   In summary, the Crown has failed to discharge its onus to show that Section 56 has been complied with by virtue of the following factors:
 

1.		Section 56 (2)(b)(iv) concerning the presence of the mother was not complied with and that in itself is the end of the matter.
2.		Moreover, there were other aspects of the police procedures which contributed to an accumulating appearance of duress. They included:

(a)		a forceful arrest and lengthy detention based on mere suspicion;
(b)		a return to the scene of the crime with no explanation as to the accompanying conversations;
(c)		there were references to the right to counsel in the police car but no meaningful opportunities to actually consult counsel at least until the waiver form was completed approximately three hours after the arrest;
(d)		an apparently unnecessary full strip search;
(e)		fairly significant slowness and delay which has not really been explained.

   Anyone who is familiar (as I am) with the sometimes thankless tasks facing the police in fighting crime, realizes that police investigative procedures, inevitably, include tricks and subtle persuasions. However, the net effect of Section 56 of the Y.O.A. is to restrict the police to a straigthforward compliance with procedures designed to demonstrate that a youth, as a suspect, will be given very clear and meaningful options with regard to providing them with a statement.

   Failure on the part of the Crown to establish that the letter and spirit of section 56 has been complied with at a level which is virtually immaculate will result in the statement being rejected as evidence at trial. It has been argued that the effect of Section 56 is to make it virtually impossible for the police to base a case solely on the admission into evidence of a youth's confession. My experience has been that some police are gradually adjusting to the strict requirements of Section 56 and indeed in a substantial number of cases, the Crown has succeeded in entering a youth's confession into evidence.

   In this case the police procedures left them short of compliance with Section 56.

   Ruling accordingly that the typewritten questions and answers are not to be admitted.

NASMITH Prov. Ct. J.