No intimidation nor threats were used by police in questioning Jamie.
Section 146(2) of the YCJA provides, “No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless the statement was voluntary.”
Discussion
There is a strong possibility that the statement, itself, will be rejected by the court. The reason: section 146 goes on to put some rather specific content into what constitutes a “voluntary” statement — one that amounts to a waiver of the right to lawyer, and/or the right to have a parent or another appropriate adult present during any questioning and/or taking of any statement. And it is questionable whether Constable Soames met those conditions.
1 It is true that section 146 does allow a young person covered by its terms to waive the right to counsel and/or the presence of an adult in any police questioning. However, section 146(b)(ii) requires the police before taking a statement to inform the young person that he is under no obligation to make a statement. Constable Soames did not inform Jamie that he did not have to make a statement.
2 It is also true that that Constable Soames made an effort to find Jamie’s parents. Section 146(8)(b) allows the trial judge to accept any statement made by a young person if the police officer (or “other person in authority”) made reasonable inquiries as to the young person’s age and had reasonable grounds for believing that person was eighteen years old or older.
Here, in part, the question is whether reasonable efforts were made to determine Jamie’s age. In the final analysis, that is a question of fact for the judge to determine. Remember that Constable Soames was not sure of Jamie’s age. When she first encountered him, he was associating with young teenagers who appeared to be twelve to fourteen years old.
In any event, even if Constable Soames had reason to believe that Jamie was eighteen, there remained the failure of the police to inform Jamie that he didn’t have to make any statement. This right to be silent, while it is included in YCJA, also emanates from the Charter of Rights and Freedoms. (More will be said of this right in the “You Be the Judge: The Case of the ‘Trick’.”)
The Spontaneous Statement
Let’s change the facts somewhat. Suppose that at the time Constable Soames arrested Jamie, he had said, “I know why you’re arresting me. It’s about that old lady’s bag. Well, guess what? I did it! So, what are you going to do about it?”
Constable Soames did not have time to caution Jamie. She didn’t have time to tell Jamie that he had a right to counsel or a parent or an adult’s advice. He had the right to remain silent.
Section 146 of the YCJA would not prohibit Constable Soames from testifying at Jamie’s trial as to what was said at the time of arrest. Section 146(3) of the YCJA relates to oral statements. It provides: “The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.” Bear in mind, however, that it is the Crown that carries the burden of proof in demonstrating that Constable Soames did not have reasonable time to tell Jamie of his right to a lawyer and/or an adult to advise him.
YOU BE THE JUDGE
The Case of the “Trick”
Here our concern is not so much with the YCJA as with the Charter.
The Facts
Sally, age seventeen, was arrested and charged with theft. The police were aware that she was a young person within the meaning of the YCJA. They afforded her the right to counsel and to reach her parents and/or an appropriate adult and to consult with them before any questioning or before any statement was taken. Further, Sally was told that she did not have to give a statement.
Sally, through her parents, reached and spoke with a lawyer; she also spoke with her parents and another adult (a close friend of the family). The police then asked her if she was ready to make a statement. Her answer was a clear and strong “no.” She didn’t want to make any statement to the police. She said, “I’ll take my chances in court.”
Investigating police officers believed, however, not only that Sally had committed the alleged theft, but that she also was deeply involved in a youth gang. With their superior’s approval, they put Sally in a detention room with an officer in disguise as a suspect. The officer looked like a teenager.
The officer’s assignment was to get Sally to talk. She was successful. Sally made a number of highly incriminating statements not only about the alleged theft, but also about her activities with a youth gang.
At Sally’s trial on the charge of theft, the formerly disguised officer was called to testify. Her evidence was central to the Crown’s prosecution. Sally’s lawyer moved to strike such testimony and, because it was so incriminating, to have the charge against Sally dismissed.
The Issue
Are Sally’s statements to the undercover police officer protected?
Points to Consider
The undercover police officer acted on instructions from her superior.
The YCJA provisions relating to the right to counsel and advice of an adult, including parents, were satisfied. The undercover agent took no statement from Sally. Rather, she listened and reported what Sally said.
Section 7 of the Charter provides, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Section 10 of the Charter provides, “Everyone has the right on arrest or detention … (b) to retain and instruct counsel without delay and to be informed of that right.”
Section 24(2) of the Charter provides, “Where in proceedings [such as those before a youth court involving the charge of theft] a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
Discussion
The testimony of the undercover agent likely will be rejected by the court. And, since that testimony is central to the prosecution, the charge against Sally probably would be dismissed.
It is true that the YCJA provides in section 146(2)(b)(i) the following: “the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that the young person is under no obligation to make a statement.”
Here, however, we are not dealing with a statement, as such, but rather with a conversation with an undercover agent. Further, the rights being asserted by Sally are those under the Charter, not statute.
The start-point in the discussion of this case is not the YCJA. In a broad sense, on the facts as given, the terms of that law have been satisfied, at least insofar as the right to consult with a lawyer, parents, and/or an adult. Sally refused to give a statement to the police, and they did not press her on that matter.
For the Court, the question is rather whether the Charter affords a constitutional right to be silent.
The Charter and the rights granted under it apply to everyone — including young persons.
The Right to Be Silent
The exercise in “You Be the Judge: The Case of the ‘Trick’” was built on the case of