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.