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