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Chapter 5
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