Section 146 is not to be given a narrow reading. It is not to be construed as any other law. Rather, it is to be interpreted in a broad “purposive” way to achieve the legislative goal designed to protect those deemed “vulnerable” — the young.
Differences
So it is that the Court majority differed from the partial dissent of Justice Rothstein (concurred in by Justices Deschamps and Charron). Justice Rothstein would have applied common law rules of interpretation that would have placed a lesser burden on the trial judge in making findings of fact. The test he would have used to determine the acceptability of such trial court findings would have been the preponderance of the evidence.
Justice Rothstein wrote:
I have read the reasons of Justice Fish. He says that the Crown’s evidentiary burden will be discharged by evidence that the person to whom the statement was made has, before the statement is made, clearly explained to the young person, in language appropriate to his or her age and understanding, his or her rights under section 146(2)(b) of the YCJA. Evidence of actual understanding is not required. I agree. I also agree with him that the young person’s previous experience in the youth criminal justice system may be evidence that the caution was explained in language appropriate to the young person’s understanding.
As to the second issue, I agree with Fish J. that the Crown must prove beyond a reasonable doubt that the statement made by the young person was voluntary. I differ with him, however, on the standard of proof applicable to whether there was compliance by the person in authority with the informational and waiver requirements of section 146 of the YCJA. Fish J. says the standard is proof beyond a reasonable doubt. In my respectful view, the standard is proof on a balance of probabilities.…
I do agree that Parliament specifically sought to endow young persons with enhanced procedural protections in the form of the statutorily based protections in section 146 in recognition of the presumption of reduced moral sophistication and maturity of young persons. Parliament did not say, however, that the standard of proof for compliance with the informational and waiver requirements is beyond a reasonable doubt. To the contrary, Parliament stated in section 146(1) of the YCJA that the common law rule relating to the admissibility of evidence is to apply — namely, that all preliminary findings of fact relating to the use of evidence, other than voluntariness, must be determined on the balance of probabilities.
The requirements of section 146 are substantially broader than those under the Canadian Charter of Rights and Freedoms. A young person must be advised of the right to silence and warned of the potential use of any statement against him or her, as well as of the right to consult with counsel and a parent and to have those persons present while a statement is made (section 146(2)(b) of the YCJA). If any of these requirements are not satisfied, the statement will automatically be inadmissible (section 146(2) of the YCJA). In contrast, an adult only has to be informed of the reason for arrest and the right to retain counsel (section 10(a) and (b) of the Charter). Police may question an adult who has retained counsel in the absence of that legal adviser, unless the accused asks for counsel to be present. “Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (The Queen v. Hebert, [1990] 2 Supreme Court of Canada Reports 151, at p. 184, and quoted with approval in Singh, at para. 46). In the case of young persons, however, any statement made by the young person is required to be made in the presence of counsel and any other person requested by the young person, unless the young person desires otherwise (section 146(2)(b)(iv) of the YCJA).
It is by affording young persons the additional protections expressed in section 146 of the YCJA that Parliament satisfied its objective of recognizing the reduced sophistication and maturity of young persons. There is nothing in the words of section 146 that expresses or implies a standard of proof of beyond a reasonable doubt for preliminary determinations of fact. To the contrary, section 146 explicitly incorporates the applicable common law standard of proof with respect to the admissibility of evidence, namely, proof on a balance of probabilities for preliminary findings of fact.
The Court majority, however, imposed a more rigid test: The findings of the trial judge must be sustained beyond a reasonable doubt. This conclusion, said Justice Fish, better allowed the purpose of the YCJA to be carried forward. And that purpose overrode whatever might have been the common law rules of interpretation.
YOU BE THE JUDGE
Looking Like a Suspect
The Facts
Janet Soames, a police officer for the town of Britby, was a veteran with fifteen years of service. Much of that time had been spent patrolling downtown public housing developments where, as it happened, youth gangs were prevalent. For several weeks, she had watched one person in particular. He was a newcomer to the area who went by the name of Jamie Y. He was tall and muscular, and appeared to be about eighteen years old.
She was interested in him because he seemed to regularly associate with much younger youths, who appeared to be about twelve to fourteen years old. Further, Jamie not only had taken a leadership role in what the constable saw as an emerging gang, but the “games” played seem inordinately aggressive.
Constable Soames introduced herself to Jamie, and she had a number of conversations with him. She described his attitude toward her as “polite, but with a sneering undertone.” She asked him his age, and he responded, “I am old enough to know that I don’t have to give you that information.” With that, he walked away, while his friends, Constable Soames said, “looked on admiringly.”
Not long after that incident, a local variety store reported that the purse of an elderly customer who was leaving the store had been snatched by a young person, tall, and about eighteen years old. The description generally seemed to match that of Jamie.
The day after receiving the report, Constable Soames arrested Jamie on suspicion that he was the one who had grabbed the elderly woman’s purse. At the police station, she again asked Jamie his age. He angrily said, “Treat me like an adult. I don’t need a lawyer, or anyone else. I know how to deal with cops.”
Constable Soames said that she didn’t want to “take any chances” concerning whether Jamie was covered by the YCJA. Moreover, both she and her chief wanted to “get this case resolved quickly.” There was some fear of a possible rash of petty robberies from newly formed youth gangs.
For reasons unknown to the police, Jamie’s school had misplaced records of his home address and the identities of his parents. Still, Constable Soames, on the off-chance that Jamie might be a youth covered by the YCJA, gave him the opportunity to have a lawyer and/or his parents (or any other adult) present during his interrogation and any statement resulting from such questioning. Jamie, refusing to give his age, clearly and angrily refused the offer.
Jamie was questioned aggressively but fairly. He admitted that he was “on the watch” for “possible suckers, easy prey.” But he denied that he had snatched the purse of the elderly victim. “I don’t pick on old people,” he said.
A statement reflecting Jamie’s responses to police questioning was completed. Jamie read and signed it, along with a waiver stating that he did not want a lawyer or an adult present during the police questioning.
Later, Jamie was presented in a line-up for identification. The victim identified him as the person who had snatched her purse. Jamie was charged, and only at his preliminary hearing did it become known that he was fifteen years old.
At that point, Jamie claimed, through court-appointed counsel, that the waiver he gave police was not valid and, therefore, all that followed from the identification to the preliminary hearing was invalid.
The Issue
Did the Crown have to give Jamie any further opportunity for a lawyer and/or adult to have been present at the time of his detention?
Points to Consider
Section 10(b) of the Charter provides that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”