Crown appeal from acquittal in relation to a 15 year old youth charged with attacking a cab driver with a knife. Accused (covered in blood) ran to a nearby home, and asked the home owner for a phone, saying that he had been attacked. The homeowner did not believe him, and after some threatening behaviour, he got the accused to confess to the attack on the cab driver while recording the confession on his cell phone. Trial judge did not accept that any form of confession had occurred prior to the recording, and excluded the recorded confession as having been made under duress, as per s. 146(7) YCJA.
Held: Appeal dismissed.
No error regarding onus, as the judge found that duress was established. Regarding the trial judge’s finding that she could not conclude that a confession was made prior to the recording, “[t]he issue of whether the accused actually made an inculpatory statement is a question of fact, reserved for the trier of fact: R v Evans  3 SCR 653″.
G. Johnson – Defence Counsel