Guest post by Brock Jones, Crown Counsel

On February 27, 2014, the Ontario Court of Appeal released its decision in R v Todorovic, 2014 ONCA 153. The central issue on the conviction appeal was whether Todorovic’s statements to the police on the night of her arrest were properly admissible pursuant to the requirements of section 146 of the Youth Criminal Justice Act (S.C. 2002, c. 1).

The Court of Appeal ruled the statements were properly admitted by the trial judge and upheld the appellant`s conviction for first degree murder. Key to this outcome was the Court of Appeal`s deference to the trial judge`s finding that Todorovic was not “detained” when she was first questioned by the police, thus not triggering any duty on the police to inform her of her rights under the YCJA (and the Charter of Rights and Freedoms). After a lengthy interrogation, Todorovic ultimately confessed that she told her boyfriend she wanted the victim dead due to jealously over his past relationship with her.

Curiously absent from the decision however is any significant discussion of what role, if any, Todorovic’s status as a young person should have played in the trial court’s assessment of whether or not she was “detained” for the purposes of the YCJA.

A Brief Review of the Facts

The facts of this case have received widespread attention in the media and only some of them need be reviewed here. On January 1, 2008, David Bagshaw, then 17, stabbed Stefanie Rengel to death outside her home. He was dating Todorovic (then 15), at the time. The Crown alleged Todorovic encouraged Bagshaw to kill the victim due to an obsessive jealously she had over Baghshaw’s prior relationship with the victim several years earlier.

Bagshaw confessed his role in the crime to a friend that same night. Officers began their investigation and learned of his relationship to Todorovic. They interviewed her with her mother at a police station beginning around 3:05 am on January 2, 2008. Before they began questioning her, they gave Todorovic a standard “K.G.B.” warning and she was told she could choose whether to make a statement or not. As the police did not believe she was a suspect at the time, they did believe they had to caution her about her rights under the YCJA or the Charter.

She ultimately gave an incriminating statement to the effect that she had asked Bagshaw to kill the victim. At that point, she was formally arrested and read her rights.

Section 146 of the YCJA

Section 146 of the YCJA governs the admissibility of statements made to persons in authority by young persons. In order for those protections to become available, however, the young person must be arrested or detained, or the police must have reasonable grounds to believe the young person has committed an offence. It does not apply to the questioning of young persons who are simply witnesses, or persons of interest.

In R v LTH, 2008 SCC 49 the Supreme Court of Canada explained the purpose behind this section was to recognize that “’[y]oung persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate.” (LTH at para 1.) These protections are required because “young persons… are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.” (LTH at para 3.)

Todorovic’s Interrogation and the Test for Detention

The Court of Appeal held the test for determining if someone is “detained” was established by the Supreme Court of Canada in R v Grant, 2009 SCC 32. One can be detained psychologically, in circumstances where a “reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.” (Grant at para 44.) Both the nature of the police conduct and the circumstances of the individual are relevant, including the individual’s age. (Grant at para 44.)

In Todorovic’s case, the police knew before questioning began that her boyfriend had killed the victim and about an incident three months earlier in which Baghsaw had attended at the victim’s house and told her that his girlfriend wanted him to stab her.

The police called Todorovic’s mother just before 3 am and told her she could come to the station with her daughter or the police could come and pick them up. She offered to cooperate and attended at the station with her daughter. During questioning, the door to the interview room was shut but not locked. The appellant was told she was not under arrest and was not obligated to give a statement. She was never told she could leave, however.

In rejecting Todorovic’s argument that she was detained at this early stage of the interrogation, the Court of Appeal noted that she was free to leave at any time. But nowhere in the decision does the Court consider whether or not her status as a young person was relevant to making this determination.

A Reasonable Young Person?

Surely a child’s age would affect how a “reasonable person” in her position would perceive her freedom to leave in these circumstances. By definition, s. 146 of the YCJA requires an analysis of the “reasonable young person.” Behaviour and perception are very different at an early age; indeed, as the Supreme Court of the United States observed in JDB v North Carolina (131 S. Ct. 2394 (2011)), it is folly for courts to mistakenly view children as simply “miniature adults.” (JDB at 2404.)

Ignoring those “very real differences between children and adults” could have the effect of disenfranchising children from their enhanced procedural safeguards. (JDB at 2408) Thus in JDB, the Supreme Court of the United States held that courts must consider the age of a detainee when assessing if his or her Miranda rights were triggered.

Yet nowhere in the Todorovic decision is any such consideration explored. Perhaps it would not have made any difference. Todorovic was ultimately sentenced as an adult.

It will now be for a future Canadian court to determine whether or not in certain circumstances, detention may be found for a child where it would not be found for an adult, as the Supreme Court of the United States found in JDB.

This guest post was written by Brock Jones: Crown counsel, Crown Law Criminal; Adjunct Prof. Of Law, University of Toronto. The opinions expressed herein are those of the author and do not reflect those of the Ministry of the Attorney General.