A Recent Decision from the Supreme Court
At the end of August 2008, the Supreme Court released the decision Regina v. L.T.H. 1This case addresses the standard of proof needed by the Crown, to introduce a statement of a young person, made to a person in authority, pursuant to subsection 146 of the Youth Criminal Justice Act, (the “YCJA”)
L.T. H. was charged with Dangerous Driving Causing Bodily Harm, following a police chase. He was taken into custody, and given several opportunities to consult a lawyer, which he declined. 2 About twelve (12) hours after arrest, he was interviewed by a police officer.3 Prior to the interview, a Young Offender Statement Form was reviewed. L.T.H. He stated he understood his rights, but did not wish to call a lawyer, a parent or other person, or have any of these adults present during the interview. 4
During the reading of the form, the youth interrupted and stated that he would not answer all of the questions. During a videotaped interview, an inculpatory statement was given by the youth, which was the basis of the Crown’s case.5 At trial, the trial judge found that the youth, who had a learning disability, as testified to by his mother, did not understand his rights. There was doubt as to whether the informational portion of section 146 YCJA had been followed. The youth’s video statement was excluded, despite a signed waiver form. The Crown appealed the acquittal, and a new trial was ordered. On further appeal to the Supreme Court, the acquittal was restored.
The standard required for obtaining a youth statement is qualitatively different from a corresponding adult statement, in part to acknowledge the developmental challenges of a young person and the impact of authority figures, on the making of a statement. Section 146 of the YCJA states that the general law relating to the admissibility of statements applies in (1). Further, criteria to be met: such as a clear explanation to the young person “in language appropriate to his or her age and understanding” in relation to making a statement,is noted in subsection (2)(b), or a right to consult counsel a parent or another person (2)(b)(iv), and that they are under no obligation to make a statement (2)(b)(i).
Fish J, writing for the four person majority, states that for the prosecution to succeed with adducing a statement, proof must be put before the court, that the information contained in section 146 YCJA, was given, in an age appropriate way, taking into account the youth’s personal characteristics (such as education level, language, familiarity with the criminal justice system 6) but also that it was in fact understood (emphasis in original) by the young person. If the Crown can indicate, beyond reasonable doubt, that the section 146 information had been provided to the young person, an inference can be made, in absence of evidence to the contrary, that the young person did in fact understand his or her rights.7
This case is a must read, for two reasons. First, for the proposition that a standardized form used for the purpose of a young person providing a statement by waiving their right to silence, may often fall short of meeting the requirements of section 146 of the YCJA. 8 This case puts police departments on notice, that an opinion has to be held by the police officer, about the capacity of the young person to understand their rights. It is clear that if the rights have been explained to the young person, as opposed to just merely reading the form, it is then presumed that the youth understood his rights and validly waived them.
Second, this case clearly states that the standard of proof for this section is beyond a reasonable doubt. Although, YCJA does not indicate the standard of proof required for this section, a single standard is more advantageous 9 in fulfilling the declaration of principles of the YCJA as a whole, and ensuring that this section offering enhanced protection, is complied with. This standard is not deemed onerous, as it can be met quite easily upon sufficient proof.Adherence to the requirements of section 146 of the YCJA is not for the rare occasions when the admission of the evidence may itself have a conclusive effect with respect to guilt, 10 but for all statements of a young person.
1 2008 S.C.C. 49
2 Paragraph 10
3 Paragraph 11
4 Paragraph 11-12
5 Paragraph 13-14
6 Paragraphs 23, 30
7 Paragraph 8,
8 Paragraph 27–28
9 Paragraph 47
10 Paragraph 58