LTH v Her Majesty the Queen: A Forecast
A decision to be rendered today by the Supreme Court of Canada may help clarify another vague area of the law as it pertains to youth justice. The decision impacts police procedures when it comes to explaining a detained young person’s rights and waiver thereof, before any statement they make is admissible. The issues presented by R v LTH, 2006 NSCA 112 regard section 146(2)(b) and 146(4) of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA], reproduced below. Some of the questions in issue, as highlighted by an intervening party, Justice for Children and Youth, include:
(1) What was the intention of Parliament regarding s.146 of the YCJA?
(2) Is it a subjective or objective test for adequacy under s. 146(2)(b)? (nature of the legal test).
(3) What is the standard of proof for compliance under s.146 of the YCJA?
Facts and Procedural History
LTH was apprehended following a police chase. He was arrested for dangerous driving and causing bodily harm, contrary to s. 249 (3) of the Criminal Code, RSC 1985, c C-46. When charged, LTH was 15 years old and as such, was regarded as a young person under s. 2(1) of the YCJA. Upon being read his rights from the young offender statement form, he waived his rights to consult with a lawyer or a parent, adult relative or an appropriate adult, or to have one present when giving the statements. LTH signed the waiver form and answered to the officer’s questions. A voir dire was held to determine the admissibility of his statements and the Youth Justice Court judge ruled the statement inadmissible. LTH’s mother gave evidence that her son had a learning disorder and that she had informed the police officers of that fact before questioning.
On appeal, the verdict was set aside and a new trial ordered. The Nova Scotia Court of Appeal judges found that the Youth Justice Court judge committed several errors of law in finding that the provisions of s.146 of the YCJA were not met. The errors relate to the nature of the legal test for compliance and the standard of proof. This conclusion was reached by way of a literal reading of the provisions as reproduced here:
146. When statements are admissible
(2) 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
(a) the statement was voluntary
(b) 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
(i) the young person is under no obligation to make a statement,
(ii) any statement made by the young person may be used as evidence in proceedings against him or her,
(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult
(i) with counsel, and
(ii) with a parent or, in the absence of a parent, an adult relative, or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and
(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver
(a) must be recorded on video tape or audio tape; or
(b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.
Nature of the Legal Test
The justices of the Nova Scotia Court of Appeal determined that the judge erred in finding a requirement for the Crown to prove beyond a reasonable doubt that the young person actually understood the rights afforded to him under s.146(2)(b). This, they say, goes beyond the legislative intent. “Rather, what was intended was an inquiry pertaining to the clarity of the explanation. This would take into account, among other things, the practices and methods of the person ‘in authority’ in obtaining the statement, and the basis for his conclusion that the explanation of his or her rights was clear and appropriate for the particular young person to whom it was given” (para 25). However, the appeal justices determined that if this test was meant to apply to the waiver provisions in s.146 (4), then the Youth Justice Court judge was correct. The legislation, after all, stipulates a more rigorous investigation to waivers of such rights. The waiver must be either recorded or be in writing and should include a statement signed by the young person that certifies their comprehension of the rights waived.
Standard of Proof
When it came to determining the standard of proof for s.146(2)(b), the Nova Scotia Court of Appeal justices agreed with the Youth Justice Court judge in identifying and applying the standard of proof beyond a reasonable doubt. This is a result of noting the common law language in the text of the provision as it relates to voluntariness and admissibility of evidence. However, this threshold was deemed too high for s.146 (4), contrary to the findings by the Youth Justice Court judge. The justices applied and followed R v Young (1997), 34 OR (3d) 177 (ONCA) and R v MWF, 2004 BCCA 425 in placing the onus on the Crown to establish waiver on a balance of probabilities.
Missing from this decision is any appreciation of the impact of cognitive and learning disabilities on the protections afforded by s.146 of the YCJA. An intervening party, Justice for Children and Youth, provided submissions that favor a more proactive role by the police to ensure understanding of the young person’s rights. The intervener is of the view that “[p]olice officers must engage young people during the explanation of their rights because people afflicted with learning disabilities use pseudo-sophisticated language, even when they do not understand the nature of what is being explained to them.”
In case of waiver, the intervening party recommends that the explanation by the police “should involve asking the accused to explain in his own words the roles of police officers and lawyers and the nature of the rights he is waiving” [Factum at para 23]. In cases where the apprehended young person suffers from a learning disability, “it is the duty of the officer to ensure that the young person has received special assistance from a lawyer or another trusted person, in order to ensure that his rights are protected.”
The intervening party provides a resourceful document that could be put to good use by the Supreme Court of Canada. Their factum however, does not fully engage the legal questions with an appreciation to the difference between s.146 (2) (b) and s.146 (4), something that the Nova Scotia Court of Appeal justices reprimanded the Youth Justice Court judge for not doing. Nevertheless, this approach might clue us in to how the Supreme Court of Canada will decide in this case; perhaps the court will choose not to distinguish the two provisions of the Act as starkly as did the Court of Appeal. Interpreting the nature of the legal test and the standard of proof in s. 146 uniformly (as a whole) could better serve youth justice, by providing a similar subjective reading (legal test) and an analagous high standard of proof. In so doing, the Supreme Court of Canada would interpret s.146 of the YCJA in a holistic matter, in keeping with the spirit of the act that emerged to enhance the protections of young people faced with an intimidating and complicated Criminal Justice System. That, may might just have been the intent of parliament.