R v LTH: Protecting Youths from Waiving Their Rights

In addition to the safeguards available to adult detainees, section 146 of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA] imposes certain requirements that must be met in order for a statement made by a young person in custody to be admissible against him or her in trial. Specifically, (1) the statement must be voluntary, (2) the person taking the statement must “clearly explain to the young person, in language appropriate to his or her age and understanding,” his or her right to silence and right to consult counsel and another appropriate adult, and (3) the youth must be given a reasonable opportunity to exercise those rights.

There were two questions before the Supreme Court of Canada (“SCC”) in R v LTH, [2008] 2 SCR 739. First, whether the Crown must prove that the explanation of the rights conferred by s. 146 was given to a detained youth in appropriate and understandable language, and also that it was in fact understood by the young person. Secondly, the court considered whether compliance with s. 146 must be proved on a balance of probabilities or beyond a reasonable doubt. The facts and procedural history of this case were previously discussed here.

In the judgment released last Thursday, the SCC held unanimously with regards to the first issue that the test to be applied is an objective one. As long as the person taking the statement “took reasonable steps to ensure that the young person … understood his or her rights under s. 146 of the YCJA” [para 6; emphasis added], the informational duty imposed by the legislation is discharged.

However, the SCC split 4-3 on the more contentious second issue, (related to the appropriate burden for establishing compliance with s. 146 of the YCJA). The majority, per Fish J., found that compliance must be established beyond a reasonable doubt. The minority, by contrast, in a rather strongly worded judgment authored by Rothstein J. argued that the onus for establishing compliance with s. 146 ought to be on a balance of probabilities. Interestingly, the split in this case is identical to the majority (minus Justice Binnie) and the dissent (minus Justice Bastarache) in R v DB, [2008] 2 SCR 3.

It appears at first glance that the objective test to prove that the explanation was given in appropriate and understandable language is unhelpfully vague. While the police officer need not ensure that the youth does in fact understand the explanation regarding his or her rights, Fish J. writes that the police officer must, prior to the explanation, acquire some knowledge into the youth’s level of understanding. Simply reading a form, no matter how clearly worded, is not enough. He is quick to note, however, that it would not be necessary to have the young person to recite back or explain back their rights in every case.

So what exactly would constitute “reasonable efforts” by the police officer? In paragraph 23, Fish refers to R v CG, [1986] OJ No 1698, a judgment from an Ontario Family Court:

. . . persons in authority taking statements must learn something about the educational level of the child, the language and vocabulary skills of the child, his faculties of understanding, his emotional state at the time. These inquiries do not call for the intervention of a psychologist, or a telephone call to the school teacher, or even to a parent. But they do require enough conversation with the young person, to permit the officer to determine how many phrases must be explained and to what extent he must use ordinary or street language or even slang to be sure the child understands what is being said. [emphasis added]

Looking at this section of the judgment as a whole, then, the reading of a clearly worded form to the youth may be sufficient to meet the standard if the police officer conversed with the youth for the purpose of gauging his or her level of understanding and determined that the youth would understand his or her rights clearly from reading the form.

The difference in opinion with regards to the standard of proof to be met seems to arise from the fact that the judges are approaching the question from different perspectives. While Fish J. is setting a “high” standard, consistent with that which is required to establish a valid waiver, as well as on the basis that “[t]he provisions of the YCJA should be read harmoniously” [para. 47], Rothstein J. perceives the issue being the admissibility of evidence: “beyond the confessions rule, there has never been a case where proof beyond a reasonable doubt has been found to be required as a precondition to admission of evidence” [paras 79 and 83; emphasis in original].

The majority’s reasons for setting the standard of proof beyond a reasonable doubt seem a little weak against the strict legal reasoning in Justice Rothstein’s strongly voiced judgment. It must be appreciated, however, that the majority is trying to do their best to protect the rights of young persons, which seems particularly important now, with the current government’s “tough on crime” approach to criminal justice.