Arrest, Detention, and Questioning of Young Persons

• Author: Brock Jones/Sarah Leece/Mary Birdsell/Emma Rhodes
• Pages: 21-49

21

I. Introduction ............................................. 

II. Who Is a “Young Person”? .................................. 

III. Access to Counsel ........................................ 

IV. Notice to a Parent ........................................ 

V. Youth Statements ......................................... 

A. YCJA Section : An Overview......................... 

B. Persons in Authority.................................. 

C. Upon Arrest or Detention, or Where Reasonable Grounds

ExisttoBelieve the Young Person Committed an Oence.... 

D. When Should an Ocer Have “Reasonable Grounds for

Believing the Young Person Has Committed an Oence”? ... 

E. What Information Should the Police Convey to a

Young Person upon Arrest or Detention?................. 

F. Voluntariness ....................................... 

G. Requirements of Section () ........................ 

H. Waiver............................................. 

I. Technical Irregularities ................................ 

J. Duress ............................................ 

K. Privilege: Parent to Child .............................. 

L. Spontaneous Utterances .............................. 

M. Derived Confessions Rule ............................. 

VI. Considerations for Crown Prosecutors andDefence Counsel ...... 

A. Primary Considerations for Crown Prosecutors and

DefenceCounsel .................................... 

B. Additional Considerations for Defence Counsel............ 

Appendix .: Adult and Youth Protections .................... 

Appendix .: YCJA Statement Voir Dire Checklist .............. 

Arrest,

Detention,and

Questioning of

Young Persons

2

© 2024 Emond Montgomery Publications. All Rights Reserved.

22 Prosecuting and Defending Youth Criminal Justice Cases

I. Introduction

When a young person is arrested by the police and charged with a criminal oence,

many questions arise. Can police ocers handcu the young person and take them

into custody? What rights do they have? Can the young person call their parents?

Do the parents have a right to know what has happened? Are they allowed to see

their child at the police station? Can the young person be interrogated without their

parents or a lawyer being present? Will the results of the interrogation be admissible

evidence at their trial?

The answers to these questions are not always clear or straightforward. This chap-

ter aims to remove some of the confusion about the rights of young persons who have

been formally arrested or detained by the police and the law surrounding the admis-

sibility of statements given by a young person while detained.

The Youth Criminal Justice Act1 contains specific provisions that are designed to pro-

vide protections to young persons who are arrested or charged with a criminal oence.

As we reviewed in Chapter 1, The Principles and Philosophy of the Youth Criminal

Justice Act, section 3(1)(b) of the YCJA requires that the youth criminal justice sys-

tem must be “separate from that of adults” and based on the “principle of diminished

moral blameworthiness or culpability.” It must emphasize the “greater dependency of

young persons and their reduced level of maturity” and provide “enhanced procedural

protection” to ensure that their “rights… are protected.”2 These rights are to be “lib-

erally construed.”3 Each of these principles applies to the rights that must be aorded

to young people when they are questioned, detained, or arrested.

II. Who Is a “Young Person”?

As noted earlier, the YCJA defines a “young person” as a “person who is or, in the

absence of evidence to the contrary, appears to be twelve years old or older, but less than

eighteen years old.”4 Once a person reaches the age of 12 in Canada, they can be arrested,

detained, and charged by the police for criminal law purposes.5 Various statutory and

constitutional rights apply to young persons who find themselves in police custody.

Some of the rights that apply to young persons upon arrest or detention are substan-

tively very dierent from the rights that apply to adults. We will make a point of high-

lighting those dierences, and readers are advised to pay particular attention to what

distinguishes the rights of young persons from adults and why those dierences matter.

1 SC 2002, c 1 [YCJA].

2 YC JA, ss3(1)(b)(ii), (iii).

3 YCJA, s3(2).

4 YC JA, s2(1).

5 There is no criminal responsibility for children under 12 years of age, and if a child commits an

oence for which they would be charged were it not for their age, the child will be dealt with

under provincial child protection laws.

© 2024 Emond Montgomery Publications. All Rights Reserved.