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Youth: Police and the Right to Be Warned

Police are often an individual’s first point of contact with the criminal process. They investigate possible criminal violations and they can detain, arrest, and lay charges against those believed to have violated the criminal law. Police can be seen as the community’s first formal agency in bringing the accused to the “dock” — or not.

Here we will discuss those special rules binding on police in dealing with the young. For the most part, the rules for police conduct or interface with the young are set out in the Youth Criminal Justice Act (YCJA), portions of which were set out in previous chapters.

The rules of conduct for police under the YCJA are mandatory. If they fail to follow the rules, the Crown prosecutor may find the case against the accused significantly weakened because the court might throw out evidence derived through improper police procedures. The YCJA, in its interpretation and enforcement, must conform to the Charter of Rights and Freedoms, which as we noted in previous chapters, is part of the Constitution of Canada.

Among the questions raised in this chapter are:

 Can youths be singled out to receive greater rights than adults?

 Are police required to ensure that youths understand any cautions given?

 What results from police failure to give lawful cautions to youths?

There is a protective shield for youths between the ages of twelve and eighteen at the point when they are detained or arrested by police. That shield gives young people greater rights than adults may claim under similar circumstances. Much of this chapter deals with the scope of such rights for youths.

Before going to the sources of youth procedural rights, we will describe the reasons underlying their establishment, as given by the Supreme Court of Canada in the principal case discussed in this chapter: L.T.H. v. The Queen, 2008 Supreme Court of Canada Reports 49.

Justice Fish spoke for the seven-member Court majority in L.T.H. v. The Queen. This is how he began his opinion:

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 for that reason provided them by statute with a complementary set of enhanced procedural safeguards in section 146 of the Youth Criminal Justice Act, Statutes of Canada 2002, chapter 1 (YCJA), which governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences.

These rights, as we shall see, apply to all young persons between the ages of twelve and eighteen. They are cast in terms of procedural rights — such as the right to have counsel and/or an adult present before making a statement to the police. But the failure to comply with these procedural rights can have real consequences: The Crown may be denied the right to introduce such statements in evidence against the accused.

While the intent of the YCJA seems clear — protect vulnerable youth from police interrogation until they obtain the assistance of counsel or an adult — a number of questions arose in L.T.H. v. The Queen. They include:

 What must police do to obtain a waiver of a young person’s right to the assistance of counsel or an adult?

 Will a young person give up the right to counsel or the advice of an adult simply by making a clear statement to that effect?

 Can police assume that a young person knows his/her rights to counsel or assistance of an adult if that individual has had frequent contact with the police?

 Does the seriousness of the offence have any bearing on whether a trial judge will forgive police errors in obtaining a lawful waiver by a young person of the right to counsel or the advice of an adult?

To aid in understanding this chapter, we have added section 146 of the YCJA as an appendix.

The Facts of L.T.H. v. The Queen

By the time the Supreme Court of Canada handed down its decision in L.T.H. v. The Queen, the accused was nineteen and no longer a youth within the meaning of the YCJA. The Court made its decision four years after L.T.H.’s arrest. (This “coming of age” — of being a young offender at the time of arrest and moving to adult status at the time of final judgment — often occurs in YCJA cases.)

L.T.H., then fifteen, was arrested in the early morning hours of August 8, 2004, by the RCMP in Cole Harbour, Nova Scotia, following a car chase that ended only when L.T.H.’s car caught fire and was brought to a stop. Initially, he was charged with dangerous driving. Then, he was transferred to the Halifax Regional Police Service where the charges against him increased. They included theft, possession of property obtained by crime, and failing to stop — as well as the original charge, dangerous driving.

L.T.H. was taken into custody by police at about 5:00 a.m. He was asked several times if he wanted the services of a lawyer. Each time, he refused such assistance.

Several hours after the arrest, police took L.T.H. from the Cole Harbour police station to the Dartmouth police station, where he slept for a few hours. Police then transferred him to the Halifax police station, where Constable Jeffrey Carlisle interviewed him. The constable had a young offender police statement form that he reviewed with L.T.H.

The interview was videotaped, and the Crown made the tape available to the trial court judge, the appellate court, and with the consent of Crown counsel and L.T.H.’s lawyer, to the Supreme Court of Canada, which reviewed it in the appeal that gave rise to the Court’s decision.

The Interview and the Waiver

This was not the first time that police had interviewed L.T.H. In the hearing before the trial judge, his mother said she had warned the police, at the time of his arrest, that her son had a learning disability that made understanding the questions put to him difficult. In earlier encounters with the police, she said, she had to explain the questions and their meaning to her son.

However, Constable Carlisle pressed on with the interview of L.T.H. He read from questions in the form that included a statement of an accused young offender’s rights. He asked L.T.H. if he understood his rights. L.T.H. answered, “Yes.” The constable asked L.T.H. if he wanted to call a lawyer or talk with a lawyer in private. L.T.H. answered, “No.” L.T.H. also answered that he did not want a parent or “another appropriate adult” present while he gave a statement or while he was questioned.

This is not to say that L.T.H. was frozen in his replies. He did assert himself. At one point, he interrupted Constable Carlisle’s reading of the form and said he was “not going to answer all of the questions” asked.

Constable Carlisle responded that the questions were only of the “do-you-understand” type. L.T.H. raised no further objection to the questioning, and Constable Carlisle continued. He finished reading the “waiver-of-rights form,” which L.T.H. initialled. L.T.H. then signed a waiver of rights.

At that point, police took a statement from L.T.H. in which he inculpated himself. That is, he confessed to actions that formed the basis of the Crown’s case against him.

A Technicality?

Counsel for L.T.H. challenged the waiver and, with it, the statement that formed the Crown’s case against L.T.H. The trial judge agreed. She ruled that the statement could not be received in evidence. The Crown presented no further evidence. The result: The charges against L.T.H. were dismissed. An acquittal was ordered.

The trial judge accepted that L.T.H.’s statement was voluntary. But that was not enough. The trial judge said that the YCJA sets additional requirements for a youth to give a lawful waiver. In this regard, the trial judge said she was not convinced beyond a reasonable doubt that L.T.H. understood his rights and the consequences of waiving them.

The Crown appealed the decision of the trial judge. The Nova Scotia Court of Appeal allowed the appeal. It set aside the acquittal and ordered a new trial. The Court of Appeal ruled that the Crown must prove beyond a reasonable doubt that the young person was given a clear and proper statement of rights and choices under the YCJA.

But, said the Court of Appeal, the Crown does not have to prove that the young person in fact understood those rights. In this regard, the Court of Appeal acknowledged that actual (or subjective) understanding of such waiver rights is required by the YCJA.

But, having said this, it is another matter to state the level of proof required to show such understanding. That is, how does one prove actual understanding? Here, the Court of Appeal said that the Crown must prove waiver on a balance of probabilities. This is, a lower standard of proof than beyond a reasonable doubt.

The Role of Videotapes

Section 146 of the YCJA requires that the statement of a young person be taken either by videotape or in writing. With L.T.H., the statement was taken by videotape.

As we shall see, the videotape allowed the Court to see the demeanour of the constable. By that, we mean the Court could see some of the indicia as to whether the constable intended to communicate with L.T.H. and if he succeeded in that regard.

The videotape allowed the Court to see that the constable apparently intended not to make eye contact with L.T.H. Further, it allowed the Court to see that the constable rushed the waiver questions. (If the waiver were based solely on the written statement, there would be no indication that the waiver questions were rushed.)

The videotape indicated that L.T.H. did not seem take the police interview seriously. This, in turn, allowed the Court to infer that, as a young offender, he was all the more in need of the advice of a lawyer and/or an adult. With more pointed and sensitive police questioning — especially after having been given some warning by L.T.H.’s mother concerning her son’s learning difficulties — there might have been greater awareness of how much more was required to ascertain whether there had been any knowing waiver by L.T.H.

The Supreme Court Decides

L.T.H. v. The Queen was appealed to the Supreme Court of Canada. A seven-member panel of the Court heard and decided upon the matter. All members of the panel agreed with the result, though three of the justices disagreed with the test that led to that result.

For all the justices, the issue to decide upon was not one of “mere technicality” (see Tibbetts 2008). Justice Fish, who spoke for the Court majority, quoted the statement of principles in the YCJA. He wrote:

Section 3(b) of the YCJA … provides that the criminal justice system for young persons must be separate from that of adults and emphasize the following: … (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

The procedural rights set out in section 146 represent one instance of the enhanced protection Parliament has seen fit to provide for young persons. The relevant parts of section 146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (1) the statement was voluntary (section 146(2)(a)); (2) the person who took the statement “clearly explained to the young person, in language appropriate to his or her age and understanding,” the young person’s right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview) (section 146(2)(b)); and (3) the young person was given a reasonable opportunity to exercise those rights (section 146(2)(c)).

Finally, section 146(4) provides that young persons, subject to certain conditions, can waive their right to consult counsel and an adult before making the statement and can also waive the right to have counsel and the adult present when the statement is made.

There is purpose to the procedural protections of the YCJA. Justice Fish recited the Court’s view of Parliament’s reasons for enacting section 146 of the YCJA. He wrote:

This Court has consistently held that the rationale for section 146, and its predecessor (the Young Offenders Act), lies in Parliament’s recognition that young persons generally do not understand their legal rights as well as adults, are less likely to assert those rights in the face of a confrontation with a person in authority and are more susceptible to the pressures of interrogation.… Given the purpose of the provision, it would be inconsistent to find that the statutory requirements of section 146 will be complied with whenever a clearly worded form is read to a young person.

Even before the enactment of the YCJA and its predecessor, trial courts recognized that statements made by young persons should be treated differently than statements made by adults. In The Queen v. Yensen, [1961] Ontario Reports 703 (High Court), for example, McRuer (Chief Judge High Court) held that the interrogating officer must “demonstrate to the Court that the child did understand the caution as a result of careful explanation and pointing out to the child the consequences that may flow from making the statement.”

Recognizing Reality

At the same time, Justice Fish said that the trial court should not turn its head away from reality. He wrote:

The requirement of understanding and appreciation applies to all young persons, including those who are no strangers to the criminal justice system. Section 146(2)(b) incorporates principles of fairness that must be applied uniformly to all without regard to the characteristics of the particular young person.

This does not mean that experience in the criminal justice system is irrelevant to the inquiry as to the young person’s understanding. An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding.

Police officers, in determining the appropriate language to use in explaining a young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

In effect, the police are required to take the individual measure of the young person. Generalities alone will not do.

The Basis for the Majority Test

It was the view of the majority in L.T.H. v. The Queen that the test of beyond a reasonable doubt set out in section 146 reflected both the common law and the requirements of section 10 of the Charter. This is how Justice Fish stated the matter:

Section 146 gives statutory expression to common law rules and constitutional rights that apply to adults and to young persons alike. It provides, for example, 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. And it reaffirms the right to counsel enshrined in section 10 of the Canadian Charter of Rights and Freedoms.

Parliament has recognized in this way that the right to counsel and the right to silence are intimately related. And 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. Parliament has in this way underscored the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons, who 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.

Accordingly, section 146 provides that statements made by young persons are inadmissible against them unless the persons who took them “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 and it raises two questions that, again, are intimately related.

The first is whether the Crown must prove not only that the necessary explanation was given in appropriate and understandable language, but also that it was in fact understood by the young person who made the statement. The second is whether compliance with the informational requirement must be proved by the Crown beyond a reasonable doubt, or only on a balance of probabilities.

Because of their interdependence … I would answer both questions together. In my view, the Crown’s evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under section 146 of the YCJA. A mere probability of compliance is incompatible with the object and scheme of section 146, read as a whole. Compliance must be established beyond a reasonable doubt.

Finally, section 146 provides that young persons, subject to certain conditions, can waive their right under that section to consult with counsel and an adult relative before making a statement and their right to have counsel and the relative present when the statement is made. As we shall see, an unbroken line of authority, beginning with Korponay v. Attorney General of Canada, [1982] 1 Supreme Court of Canada Reports 41, establishes that a waiver must be established by “clear and unequivocal [evidence] that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.” …

In this case, the trial judge was not satisfied that the Crown discharged its burden under section 146 of the YCJA. She therefore found the appellant’s statement inadmissible and ultimately entered an acquittal. The Court of Appeal disagreed. Justice Fish would have allowed the appeal and restored the acquittal at trial.

Recitation of Rights: An Appropriate Indication of Understanding?

Police arrested fourteen-year-old R.B. on a charge of car theft. They had carefully reviewed the Court’s decision in L.T.H. v. The Queen. The police chief and the Crown met and decided that the best way to determine if there had been a proper, lawful waiver was to have the accused, R.B., recite back the waiver provisions in the police waiver form. He did so.

However, such recitation are not fully acceptable within the meaning of section 146 of the YCJA. Justice Fish, in L.T.H. v. The Queen, referring to the trial court decision in that case, wrote:

I take care not to be understood to require police officers, as the trial judge apparently did in this case, to ask young persons in every case to “recite back” or “explain back” their rights.

In some instances, this may well demonstrate that the explanation was both appropriate and sufficient. And it may tend to show that the rights waived were in fact understood — which is of course essential to the validity of the waiver. But “reciting back” or “explaining back” is not transformed by its evident utility into a legal requirement under section 146.

CHALLENGE QUESTION

A Role for Standardized Forms

Q: If police used a standardized form that asked the necessary questions to determine whether an arrested youth intends to waive the right to counsel and/or having an appropriate adult attend police questioning and the taking of any statement, would the youth’s answer be useful in determining whether there has been waiver within the meaning of section 146 of the YCJA?

The Court majority in L.T.H. v. The Queen clearly held that police should make individualized judgment. This does not rule out the use of standardized forms. Rather, Justice Fish, speaking for the Court majority, said that such forms might be useful as a framework for interrogation. He wrote:

The reading of a standardized form will not normally suffice in itself to establish the sufficiency of the caution required by section 146(2)(b). Persons in authority must, in addition, acquire some insight into the level of comprehension of the young person concerned, since the mandatory explanation must be appropriate to the age and understanding of that young person. In the words of the Manitoba Court of Appeal in The Queen v. B.S.M. (1995), 100 Manitoba Reports (2d series) 151:

The simple reading of an appropriate waiver form to an accused young person will not generally constitute a clear explanation of his rights or of the consequences of signing a waiver. What will constitute a clear explanation will depend on the facts of a particular case. I would suggest that the mere reading of a waiver form accompanied by the repeated question ‘Do you understand?’ would normally fall short of satisfying the statutory requirements. Parliament has expressly stated that young people require more than the offering of information. They require not just explanations, but clear explanations that they are able to understand.…

Properly crafted and scrupulously applied, standardized forms nonetheless provide a useful framework for the appropriate interrogation of young detainees.…

In short, adherence to standardized forms can facilitate, but will not always constitute, compliance with section 146(2)(b). Compliance is a matter of substance, not form. The trial court must be satisfied, upon considering all of the evidence, that the young person’s rights were in fact explained clearly and comprehensibly by the person in authority.

The Charter and the YCJA

The Charter is part of the Constitution of Canada. Young people are covered by the rights granted under the Charter. Included in such rights are those related to police questioning. Section 10(b) of the Charter provides, “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.…”

The Charter sets the minimum requirements relating to the right to counsel. There is nothing in the Charter that prohibits Parliament from enlarging the rights afforded. And that is just what Parliament has done through section 146 of the YCJA.

What role, then, does the Charter play in interpreting and applying section 146 of the YCJA? The answer, in part, comes through the opinion of Justice Fish, speaking for the Court majority in L.T.H. v. The Queen.

Section 146 is not to be given a narrow reading. It is not to be construed as any other law. Rather, it is to be interpreted in a broad “purposive” way to achieve the legislative goal designed to protect those deemed “vulnerable” — the young.

Differences

So it is that the Court majority differed from the partial dissent of Justice Rothstein (concurred in by Justices Deschamps and Charron). Justice Rothstein would have applied common law rules of interpretation that would have placed a lesser burden on the trial judge in making findings of fact. The test he would have used to determine the acceptability of such trial court findings would have been the preponderance of the evidence.

Justice Rothstein wrote:

I have read the reasons of Justice Fish. He says that the Crown’s evidentiary burden will be discharged by evidence that the person to whom the statement was made has, before the statement is made, clearly explained to the young person, in language appropriate to his or her age and understanding, his or her rights under section 146(2)(b) of the YCJA. Evidence of actual understanding is not required. I agree. I also agree with him that the young person’s previous experience in the youth criminal justice system may be evidence that the caution was explained in language appropriate to the young person’s understanding.

As to the second issue, I agree with Fish J. that the Crown must prove beyond a reasonable doubt that the statement made by the young person was voluntary. I differ with him, however, on the standard of proof applicable to whether there was compliance by the person in authority with the informational and waiver requirements of section 146 of the YCJA. Fish J. says the standard is proof beyond a reasonable doubt. In my respectful view, the standard is proof on a balance of probabilities.…

I do agree that Parliament specifically sought to endow young persons with enhanced procedural protections in the form of the statutorily based protections in section 146 in recognition of the presumption of reduced moral sophistication and maturity of young persons. Parliament did not say, however, that the standard of proof for compliance with the informational and waiver requirements is beyond a reasonable doubt. To the contrary, Parliament stated in section 146(1) of the YCJA that the common law rule relating to the admissibility of evidence is to apply — namely, that all preliminary findings of fact relating to the use of evidence, other than voluntariness, must be determined on the balance of probabilities.

The requirements of section 146 are substantially broader than those under the Canadian Charter of Rights and Freedoms. A young person must be advised of the right to silence and warned of the potential use of any statement against him or her, as well as of the right to consult with counsel and a parent and to have those persons present while a statement is made (section 146(2)(b) of the YCJA). If any of these requirements are not satisfied, the statement will automatically be inadmissible (section 146(2) of the YCJA). In contrast, an adult only has to be informed of the reason for arrest and the right to retain counsel (section 10(a) and (b) of the Charter). Police may question an adult who has retained counsel in the absence of that legal adviser, unless the accused asks for counsel to be present. “Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (The Queen v. Hebert, [1990] 2 Supreme Court of Canada Reports 151, at p. 184, and quoted with approval in Singh, at para. 46). In the case of young persons, however, any statement made by the young person is required to be made in the presence of counsel and any other person requested by the young person, unless the young person desires otherwise (section 146(2)(b)(iv) of the YCJA).

It is by affording young persons the additional protections expressed in section 146 of the YCJA that Parliament satisfied its objective of recognizing the reduced sophistication and maturity of young persons. There is nothing in the words of section 146 that expresses or implies a standard of proof of beyond a reasonable doubt for preliminary determinations of fact. To the contrary, section 146 explicitly incorporates the applicable common law standard of proof with respect to the admissibility of evidence, namely, proof on a balance of probabilities for preliminary findings of fact.

The Court majority, however, imposed a more rigid test: The findings of the trial judge must be sustained beyond a reasonable doubt. This conclusion, said Justice Fish, better allowed the purpose of the YCJA to be carried forward. And that purpose overrode whatever might have been the common law rules of interpretation.

YOU BE THE JUDGE

Looking Like a Suspect

The Facts

Janet Soames, a police officer for the town of Britby, was a veteran with fifteen years of service. Much of that time had been spent patrolling downtown public housing developments where, as it happened, youth gangs were prevalent. For several weeks, she had watched one person in particular. He was a newcomer to the area who went by the name of Jamie Y. He was tall and muscular, and appeared to be about eighteen years old.

She was interested in him because he seemed to regularly associate with much younger youths, who appeared to be about twelve to fourteen years old. Further, Jamie not only had taken a leadership role in what the constable saw as an emerging gang, but the “games” played seem inordinately aggressive.

Constable Soames introduced herself to Jamie, and she had a number of conversations with him. She described his attitude toward her as “polite, but with a sneering undertone.” She asked him his age, and he responded, “I am old enough to know that I don’t have to give you that information.” With that, he walked away, while his friends, Constable Soames said, “looked on admiringly.”

Not long after that incident, a local variety store reported that the purse of an elderly customer who was leaving the store had been snatched by a young person, tall, and about eighteen years old. The description generally seemed to match that of Jamie.

The day after receiving the report, Constable Soames arrested Jamie on suspicion that he was the one who had grabbed the elderly woman’s purse. At the police station, she again asked Jamie his age. He angrily said, “Treat me like an adult. I don’t need a lawyer, or anyone else. I know how to deal with cops.”

Constable Soames said that she didn’t want to “take any chances” concerning whether Jamie was covered by the YCJA. Moreover, both she and her chief wanted to “get this case resolved quickly.” There was some fear of a possible rash of petty robberies from newly formed youth gangs.

For reasons unknown to the police, Jamie’s school had misplaced records of his home address and the identities of his parents. Still, Constable Soames, on the off-chance that Jamie might be a youth covered by the YCJA, gave him the opportunity to have a lawyer and/or his parents (or any other adult) present during his interrogation and any statement resulting from such questioning. Jamie, refusing to give his age, clearly and angrily refused the offer.

Jamie was questioned aggressively but fairly. He admitted that he was “on the watch” for “possible suckers, easy prey.” But he denied that he had snatched the purse of the elderly victim. “I don’t pick on old people,” he said.

A statement reflecting Jamie’s responses to police questioning was completed. Jamie read and signed it, along with a waiver stating that he did not want a lawyer or an adult present during the police questioning.

Later, Jamie was presented in a line-up for identification. The victim identified him as the person who had snatched her purse. Jamie was charged, and only at his preliminary hearing did it become known that he was fifteen years old.

At that point, Jamie claimed, through court-appointed counsel, that the waiver he gave police was not valid and, therefore, all that followed from the identification to the preliminary hearing was invalid.

The Issue

Did the Crown have to give Jamie any further opportunity for a lawyer and/or adult to have been present at the time of his detention?

Points to Consider

 Section 10(b) of the Charter provides that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

 Section 146 of the YCJA gives an arrested or detained youth the right to waive the right to a lawyer or adult representation.

 No intimidation nor threats were used by police in questioning Jamie.

 Section 146(2) of the YCJA provides, “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 the statement was voluntary.”

Discussion

There is a strong possibility that the statement, itself, will be rejected by the court. The reason: section 146 goes on to put some rather specific content into what constitutes a “voluntary” statement — one that amounts to a waiver of the right to lawyer, and/or the right to have a parent or another appropriate adult present during any questioning and/or taking of any statement. And it is questionable whether Constable Soames met those conditions.

1 It is true that section 146 does allow a young person covered by its terms to waive the right to counsel and/or the presence of an adult in any police questioning. However, section 146(b)(ii) requires the police before taking a statement to inform the young person that he is under no obligation to make a statement. Constable Soames did not inform Jamie that he did not have to make a statement.

2 It is also true that that Constable Soames made an effort to find Jamie’s parents. Section 146(8)(b) allows the trial judge to accept any statement made by a young person if the police officer (or “other person in authority”) made reasonable inquiries as to the young person’s age and had reasonable grounds for believing that person was eighteen years old or older.

Here, in part, the question is whether reasonable efforts were made to determine Jamie’s age. In the final analysis, that is a question of fact for the judge to determine. Remember that Constable Soames was not sure of Jamie’s age. When she first encountered him, he was associating with young teenagers who appeared to be twelve to fourteen years old.

In any event, even if Constable Soames had reason to believe that Jamie was eighteen, there remained the failure of the police to inform Jamie that he didn’t have to make any statement. This right to be silent, while it is included in YCJA, also emanates from the Charter of Rights and Freedoms. (More will be said of this right in the “You Be the Judge: The Case of the ‘Trick’.”)

The Spontaneous Statement

Let’s change the facts somewhat. Suppose that at the time Constable Soames arrested Jamie, he had said, “I know why you’re arresting me. It’s about that old lady’s bag. Well, guess what? I did it! So, what are you going to do about it?”

Constable Soames did not have time to caution Jamie. She didn’t have time to tell Jamie that he had a right to counsel or a parent or an adult’s advice. He had the right to remain silent.

Section 146 of the YCJA would not prohibit Constable Soames from testifying at Jamie’s trial as to what was said at the time of arrest. Section 146(3) of the YCJA relates to oral statements. It provides: “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.” Bear in mind, however, that it is the Crown that carries the burden of proof in demonstrating that Constable Soames did not have reasonable time to tell Jamie of his right to a lawyer and/or an adult to advise him.

YOU BE THE JUDGE

The Case of the “Trick”

Here our concern is not so much with the YCJA as with the Charter.

The Facts

Sally, age seventeen, was arrested and charged with theft. The police were aware that she was a young person within the meaning of the YCJA. They afforded her the right to counsel and to reach her parents and/or an appropriate adult and to consult with them before any questioning or before any statement was taken. Further, Sally was told that she did not have to give a statement.

Sally, through her parents, reached and spoke with a lawyer; she also spoke with her parents and another adult (a close friend of the family). The police then asked her if she was ready to make a statement. Her answer was a clear and strong “no.” She didn’t want to make any statement to the police. She said, “I’ll take my chances in court.”

Investigating police officers believed, however, not only that Sally had committed the alleged theft, but that she also was deeply involved in a youth gang. With their superior’s approval, they put Sally in a detention room with an officer in disguise as a suspect. The officer looked like a teenager.

The officer’s assignment was to get Sally to talk. She was successful. Sally made a number of highly incriminating statements not only about the alleged theft, but also about her activities with a youth gang.

At Sally’s trial on the charge of theft, the formerly disguised officer was called to testify. Her evidence was central to the Crown’s prosecution. Sally’s lawyer moved to strike such testimony and, because it was so incriminating, to have the charge against Sally dismissed.

The Issue

Are Sally’s statements to the undercover police officer protected?

Points to Consider

 The undercover police officer acted on instructions from her superior.

 The YCJA provisions relating to the right to counsel and advice of an adult, including parents, were satisfied. The undercover agent took no statement from Sally. Rather, she listened and reported what Sally said.

 Section 7 of the Charter provides, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

 Section 10 of the Charter provides, “Everyone has the right on arrest or detention … (b) to retain and instruct counsel without delay and to be informed of that right.”

 Section 24(2) of the Charter provides, “Where in proceedings [such as those before a youth court involving the charge of theft] a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Discussion

The testimony of the undercover agent likely will be rejected by the court. And, since that testimony is central to the prosecution, the charge against Sally probably would be dismissed.

It is true that the YCJA provides in section 146(2)(b)(i) the following: “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 the young person is under no obligation to make a statement.”

Here, however, we are not dealing with a statement, as such, but rather with a conversation with an undercover agent. Further, the rights being asserted by Sally are those under the Charter, not statute.

The start-point in the discussion of this case is not the YCJA. In a broad sense, on the facts as given, the terms of that law have been satisfied, at least insofar as the right to consult with a lawyer, parents, and/or an adult. Sally refused to give a statement to the police, and they did not press her on that matter.

For the Court, the question is rather whether the Charter affords a constitutional right to be silent.

The Charter and the rights granted under it apply to everyone — including young persons.

The Right to Be Silent

The exercise in “You Be the Judge: The Case of the ‘Trick’” was built on the case of The Queen v. Hebert [1990] 2 Supreme Court of Canada Reports 151. While the facts in this case related to an adult male, the same reasoning would apply to a young person. The Court denied the Crown the use of the statements made to the undercover agent. It upheld the right of the detained person to remain silent.

Then Justice McLachlin (now chief justice) spoke for the Court majority. She stated:

The Charter, through section 7, seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand, section 7 seeks to provide to a person involved in the judicial process protection against unfair use by the state of its superior resources. On the other hand, it maintains to the state the power to deprive a person of life, liberty or security of the person provided it respects fundamental principles of justice.

The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute — in the first case because the state has used its superior power against the individual, in the second because the state’s legitimate interest in law enforcement has been frustrated without proper justification.

The right to silence conferred by section 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But, if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect’s will and negate his or her choice.

The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scope of the [Charter] right must extend to exclude tricks that would effectively deprive the suspect of his choice. To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordance with the purpose of the Charter.

Charter provisions related to the right to silence of a detained person under section 7 suggest that the right must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak with authorities or to remain silent. A lesser protection would be inconsistent not only with the implications of the right to counsel and the right against self-incrimination affirmed by the Charter, but with the underlying philosophy and purpose of the procedural guarantees the Charter enshrines.

The Remedy

What remedy should the Court impose for the Crown’s violation of the accused’s right to be silent? (Bear in mind, if there were a violation of the YCJA as to the improper taking of a young person’s statement by a person in authority — such as the police — the Act clearly allows the youth court judge to refuse its use in the criminal proceeding.)

Section 24(2) of the Charter allows a court to deny the use of the police officer’s testimony where there has been a violation of the Charter right to silence and where receiving such evidence would bring the administration of justice into disrepute. Justice McLachlin, again speaking for the Court majority, ruled that it would be highly prejudicial to the accused to allow the police officer’s narration of what was said to be used in evidence. She stated:

I am of the view that the evidence sought to be adduced in this case would render the trial unfair. I should not be taken as suggesting that violation of the accused’s right to silence under section 7 automatically means that the evidence must be excluded under section 24(2). I would not wish to rule out the possibility that there may be circumstances in which a statement might be received where the suspect has not been accorded a full choice in the sense of having decided, after full observance of all rights, to make a statement voluntarily.

But where, as here, an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick [emphasis added] practised by the authorities, and where the resultant statement is the only evidence against him, one must surely conclude that reception of such evidence would render the trial unfair. The accused would be deprived of his/her presumption of innocence and would be placed in a position of having to take the stand if he/she wished to counter the damaging effect of the confession. The accused’s conviction if obtained would rest almost entirely on his own evidence against himself, obtained by a trick in violation of the Charter.

I am also satisfied that the Charter violation was a serious one. The conduct of the police was willful and deliberate. They intentionally set out on a course to undermine the [accused’s] right to silence notwithstanding his expressed assertion of that right, by having the undercover police officer engage him in conversation. It is said the police acted in good faith.… However, ignorance of the effect of the Charter does not preclude application of section 24(2) of the Charter.…

The effect of the exclusion [of the undercover officer’s testimony] in this case is serious. It would result in an acquittal, since virtually the only evidence was his statement to the undercover policeman.

Balancing these factors, I arrive at the conclusion that the test of section 24(2) is met. As the [case] authorities … amply demonstrate, it has long been felt inappropriate that an accused should be required to betray himself. Where virtually the only evidence against him is such betrayal, the effect is that the accused is required to secure his own conviction. That is contrary to the notions of justice fundamental to our system of law and calculated, in my opinion, to bring the administration of justice into disrepute.

CHALLENGE QUESTION

The Jailhouse Stool Pigeon

Q: Will the court receive the evidence of the “jailhouse” informant over a defendant’s objection as to her Charter right to remain silent?

Suppose we have the same facts as in “You Be the Judge: The Case of the ‘Trick’, ” but with this difference: The police place the accused in a detention room with another person charged with a serious offence. That person has a long criminal record, and she thinks there is a way to get the Crown to “go easy” on her. Unknown to the police and the Crown, she gets information from Sally — enough information so that if her testimony were accepted, there is little doubt that Sally would be convicted. In the parlance of the criminal world, this person is known as a “jailhouse stool pigeon.”