Statements by young persons under the Youth Criminal Justice Act

Today’s decision in R. v. L.T.H., 2008 SCC 49 clarifies the rules regarding statement taken from young persons.

The accused young person was charged with dangerous driving causing bodily harm. Upon his arrest, the police read the young person a form advising him of his right to retain and instruct counsel, to consult a parent or an adult relative in private, and to have a lawyer and adult present while a statement was taken. The young person said he understood. The police also read him a waiver of rights form, which he signed. Following a voir dire, the Youth Justice Court judge ruled that the young person’s videotaped statement was inadmissible. She ruled that the Crown had to prove beyond a reasonable doubt that the statement was voluntary and that the requirements of s. 146 of the Youth Criminal Justice Act (“YCJA”) relating to the taking of statements given by young persons to authority figures had been met. The judge was not convinced that the young person fully understood his rights and options before giving his statement. The Court of Appeal allowed the appeal, set aside the verdict of acquittal and ordered a new trial.

The Supreme Court of Canada allowed the appeal.

The procedural rights set out in s. 146 represent one instance of the enhanced protection Parliament has seen fit to provide for young persons. The relevant parts of s. 146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (i) the statement was voluntary (s. 146(2)(a)); (ii) the person who took it “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) (s. 146(2)(b)); and (iii) the young person was given a reasonable opportunity to exercise those rights (s. 146(2)(c). Finally, s. 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.

The test for compliance with s. 146(2)(b) is objective. It does not require the Crown to prove that a young person in fact understood the rights and options explained to them. That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular young person being questioned. An individualized, objective approach must take into account the level of sophistication of the young person and other personal characteristics relevant to their 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.

All of the factors listed in s. 146(2) have been determined by Parliament to be appropriate preconditions to the admissibility of a statement by a young person and all must be proved beyond a reasonable doubt.

Where a trial judge is not satisfied that the young person understood his or her right to consult counsel and a parent and have those people present during the statement, or, is not satisfied that the young person appreciated the consequences of waiving those rights, the statement should not be admitted. [

Adopting a single standard of proof for compliance with each component of s. 146 offers significant advantages over a fragmented approach. It is consistent, moreover, with the relevant principles of statutory interpretation — in particular, the presumption that legislation is internally consistent and coherent. The provisions of the YCJA should be read harmoniously. In accordance with the presumption of coherence, s. 146 must be interpreted in light of the YCJA’s declaration of principles (s. 3). Those principles emphasize fairness and proportionality consistent with young persons’ higher levels of dependency and lower levels of maturity and the related need for greater procedural protections. Section 146, in its entirety, is aimed at fulfilling one of the objectives of the legislation — to offer enhanced protection to young persons and ensure they are treated fairly. In practical terms, adopting a single standard ensures that the trial judge’s mind is properly directed to this task.

The trial judge was therefore bound to find the statements inadmissible if she was not satisfied beyond a reasonable doubt that the young person’s rights were explained to him in language appropriate to his understanding or if she had a reasonable doubt whether the young person understood his right to counsel and therefore could validly waive it. It is clear from her reasons that she was left with a reasonable doubt in both respects.