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| Patrick Ducharme |
In R v. H. (L.T.)1 the Supreme Court of Canada held that “young 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.” Parliament has provided young persons with enhanced procedural safeguards contained in section 146 of the YCJA. The pertinent provisions of the Act provided as follows:
146(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.
When statements are admissible –
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.
Exception in certain cases for oral statements –
s. 146 (3) The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.
Waiver of right to consult –
s. 146 (4) A young person may waive the rights under paragraph (2) (c) or (d) but any such waiver
(a) must be recorded on video tape or audio tape; or
(b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.
Waiver of right to consult –
s. 146 (5) When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth Justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.
Admissibility of statements –
s. 146 (6) When there has been a technical irregularity in complying with paragraphs (2) (b) to (d), the youth Justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.
Statements made under duress are inadmissible –
s. 146(7) A youth Justice court Judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the Judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.
Section 146 gives statutory expression to common law rules and constitutional rights classically in place for young persons. It provides most importantly that no statement by a young person to a person in authority will be admissible in evidence against that young person unless it is voluntary. Also, it reaffirms the right to counsel enshrined in section 10 of the Charter.
Our courts have recognized that the right to counsel and the right to silence are inter-connected. That relationship is underscored in section 146 by the additional requirements that must be satisfied in order for statements made by young persons to be admissible against them at their trials. Procedural and evidentiary safeguards available to adults do not adequately protect young persons who are presumed, on account of their age and lack of sophistication to be more vulnerable than adults to suggestion, pressure and influence at the hands of police interrogators. Unfortunately, the same safeguards are not available to all adult persons accused of committing crime.
In fact, our courts have more recently whittled away at the rights of individuals in custody and particularly have targeted the area of rights to counsel. While subsection 11(b) of the Charter speaks only of the constitutional rights of an individual on arrest or detention, our Supreme Court of Canada has recently read in to this section societal rights, that the court says must be balanced against individual rights.
Accordingly, section 146 provides that statements made by young persons are inadmissible against them unless the taker of the statement “clearly explained to the young person, in language appropriate to his or her age and understanding”, the specific rights conferred by section 146. This condition of admissibility has been referred to as the “informational requirement” of section 146.
Section 146 of the YCJA
Subsection 146(1) of the YCJA directs that the law relating to the admissibility of statements made by accused persons apply to young persons. Subsection 146(2) states that no oral or written statement made by a young person to a peace officer or any person who is considered, in law, to be a person in authority, on his or her arrest or detention is admissible against the young person unless:
(a) the statement was voluntary;
(b) the person to whom the statement was made, prior to making the statement, clearly explained to the young person, in a language appropriate to his age and understanding that:
1. the young person is under no obligation to make a statement;
2. any statement made by a young person may be used as evidence in proceedings against him;
3. the young person has the right to counsel, a parent or an appropriate adult chosen by the young person; and
4. any statement made by the young person is required to be made in the presence of counsel or any person consulted, unless the young person directs otherwise.
(c) prior to making the statement, the young person must be given a reasonable opportunity to consult with counsel, a parent, or in the absence of a parent an adult relative, or in the absence of an adult relative, any other appropriate person chosen by the young person; and
(d) if a young person consults a person in accordance with (c), the young person has been given a reasonable opportunity to make the statement in the presence of the person.
This subsection requires that the police provide a young person the informational component of their rights to counsel and caution. In attempting to elicit the statement as evidence, the Crown is required to prove that the person in authority took reasonable steps to ensure that the young person was capable of understanding his rights that were explained. The Crown does not have to prove that the young person understood his rights. In R v. H. (L.T.)3 the S.C.C. held that reading a standardized form will not normally suffice to establish the sufficiency of the caution. The person in authority must make some inquiry into the young person’s level of comprehension and make efforts to become aware of relevant factors such as learning disabilities or prior involvement with the Justice system. Adherence to standardized forms can facilitate but will not always constitute compliance according to this subsection. The Youth Justice Court must be satisfied that the person in authority in fact explained the young person’s rights clearly and comprehensively. The Crown is required to establish all of these factors beyond a reasonable doubt.
In R v. Hodgson4 the Supreme Court of Canada held that a person in authority includes police officers and prison guards, as well as a person who the declarant honestly and reasonably believes is acting on behalf of the police or prosecuting authorities and could therefore influence or control the investigation or proceedings against him. Teachers and principals can sometimes be defined as persons in a position of authority.
Subsection 146(3) directs that the requirements set out in (b) to (d) do not apply to spontaneous utterances made by the young person to a peace officer or a person in a position of authority. However, the Crown still has to prove the voluntariness of the spontaneous utterance beyond a reasonable doubt. Also, a spontaneous statement is inadmissible where the person in authority had a reasonable opportunity to comply with the provisions but did not. “Spontaneous” is defined as “arising, proceeding, or acting entirely from natural impulse, without any external stimulus or constraint.” The mere presence of a person in authority could be the stimulus giving rise to a spontaneous statement.
If the young person consults with a parent pursuant to subsection 146(2)(c) then those communications between the young person and his/her parent are privileged. The scope of privilege only extends to the communications confined within this limited, defined relationship. It does not extend to all communications with the parent including i.e. subsequent communications regarding the circumstances of the alleged offence. If the parent and young person engage in this type of communication then the parent jeopardizes becoming a witness against the young person.
Subsection 4 directs that a young person can waive his rights under subsection 2, but any such waiver must be (i) recorded on video or audio or (ii) in writing and contain a statement signed by the young person that he has been informed of the right being waived. The Crown is required to prove the waiver beyond a reasonable doubt.
Subsection 7 directs that a Youth Justice Court may rule a statement inadmissible where it was made under duress imposed by any person who is not, in law, a person in authority. Finally, subsection 8 directs that a Youth Justice Court may rule that a statement is admissible where (i) the young person has held himself to be eighteen years or older, and (ii) the person that took the statement conducted reasonable inquiries to ascertain the person’s age and had reasonable grounds to believe that he was eighteen years of age or older.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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