Enhancing the enhancements? Section 146 of the Youth Criminal Justice Act and the Supreme Court of Canada: a comment on R. v. L.T.H.

• Author: Wilson, Larry C.

The Youth Criminal Justice Act provides significant enhanced protections for young persons in conflict with the criminal justice system. In one area where young persons are particularly vulnerable, giving statements to police, section 146 of the YCJA provides much greater protection to young persons than that given to adults under the Charter of Rights and Freedoms. Unlike an adult, a young person must be advised of the right to silence. A young person must also be warned of the potential use of any statement made to the police or other persons in authori ty. He or she must be advised of the right to consult with counsel and a parent and to have those persons present when a statement is made. If any of these requirements are not met the statement will automatically be inadmissible. In contrast an adult only has to be informed of the reason for arrest and the right to retain and instruct counsel. The recent decision of R. v. L. T.H. provided the Supreme Court of Canada the opportunity to examine the enhanced protections provided by section 146 in the context of the larger debate over the restriction or expansion of differential treatment for young offenders. In this comment the author argues that while the Court has restated its commitment to some enhanced protection for young offenders it has failed to fully embrace the underlying philosophy of the legislation.

La Loi sur le systeme de justice penale pour les adoles cents ameliore sensiblement la protection des jeunes ayant des demeles avec le systeme de justice penale. En matiere des declarations a la police, domaine oU les jeunes sont particulierement vulnerables, l'article 146 de cette loi les protege mieux que la Charte des droits et libertes ne protege les adultes. Contrairement a l'adulte, il faut avertir l'adolescent ou l'adolescente de son droit au silence, de l'utilisation possible contre lui ou elle de toute declaration de sa part faite a la police ou a une personne en autorite; enfin de son droit de consulter un avocat ou une avocate et un parent et de faire sa declaration en leur presence. Si l'une ou l'autre de ces exigences n'est pas respectee, la declaration est d'emblee inadmissible. Il suffit, par contre, d'informer l'adulte des raisons de son arrestation ainsi que de son droit de retenir les services d'un avocat nu d'une avocate et de lui donner un mandat. Dans l'affaire recente R. c. L.T.H., la Cour supreme du Canada a pu examiner les nouvelles protections prevues a l'article 146 dans le contexte plus large du debat concernant la restriction ou le developpement du traitement different des jeunes contrevenants. Dans ce commentaire, on soutient que si la Cour reformule son engagement a ameliorer les protections offertes aux jeunes contrevenants a certains egards, les juges n'adherent pas pleinement a la philosophie sous-jacente de cette loi.

Table of Contents I. INTRODUCTION II. FACTS III. JUDICIAL HISTORY IV. THE SUPREME COURT DECISION V. COMMENT I. INTRODUCTION

Viewed narrowly, the recent decision of R. v. L.T.H. (1) is concerned with nothing more than the admissibility of a statement given to police by a young person in the context of a particular fact pattern and the legislative mandates of the Youth Criminal Justice Act. (2) In a broader context, the decision offers an important contribution as part of the ongoing debate over Canada's evolving approach to criminal conduct by young people. While there is a sometimes grudging acceptance of the need to treat children and adults differently, the focus now seems to have shifted to the question of how much enhanced protection is required. Government and large segments, perhaps even a majority, of the population are increasingly attracted to the proposition that the legislation needs to be "toughened up." Attempts to restrict access to reduced penalties and publication bans provide examples. (3) At the same time, the Supreme Court of Canada has shown a marked determination to resist this trend as it restates, reinforces and, arguably, expands the notion of differential treatment for young offenders. The decision of L.T.H. is a clear demonstration of that commitment.

2. FACTS

   The case began in August 2004 when the young person was apprehended following a police chase. L.T.H. was arrested, read his rights and taken to the Cole Harbour RCMP detachment around 5:00 a.m. He was asked several times if he wanted to contact a lawyer and he said no. The police also called his home several times without success. At 7:00 a.m., he was taken to the Dartmouth police station where he slept for several hours. When he awoke he was transferred again, this time to Halifax where he arrived at 5:30 p.m. At the Halifax station, a videotaped interview was conducted. In that interview, L.T.H. was advised several times that he had a right to consult with a lawyer, a parent or another appropriate adult. He was asked if he understood and he answered "Yes" each time. He also stated that he did not want to call a lawyer or talk to a lawyer in private. Similarly, he said he did not want to contact a parent or other adult. The police read the waiver of rights form to him and after L.T.H. initialled and signed the form, the police continued their questioning. L.T.H. provided an inculpatory statement that subsequently formed the basis of the charge of dangerous driving causing bodily harm, contrary to section 249(3) of the Criminal Code. (4) It is interesting to note that the videotape was viewed in its entirety by the judges at the Supreme Court of Canada. (5) In the subsequent voir dire the mother of the young person testified that her son had a learning disorder which limited his verbal, comprehension and writing skills. She stated that she had provided this information to a police officer at the Dartmouth station prior to the boy being transferred to Halifax. She also testified that on previous occasions, when her son had been interviewed by the police, she had been present and her son had sought her assistance to explain the questions asked by his interrogator. (6)

3. JUDICIAL HISTORY

   At trial, (7) Justice Williams of the Nova Scotia Youth Justice Court held a voir dire to determine the admissibility of the videotaped statement given to police at the Halifax police station. The Court held that the burden was on the Crown to prove "beyond a reasonable doubt" both (a) that the statement was voluntary, and (b) that the requirements of section 146 of the YCJA were met as they relate to the taking of statements given by young persons to persons in authority. (8) In particular, the Court focused on section 146(2)(b) of the YCJA which provides that prior to taking a statement, a police officer must clearly explain the young person's rights to the young person in language appropriate to his or her age and understanding, and section 146(4) which provides that a young person may waive his or her rights, but any such waiver must be recorded or 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. One of the rights specifically identified is round in section 146(2)(b)(iii) which provides that before a statement is taken, a young person must be given a reasonable opportunity to consult with counsel and a parent or other adult.

   Justice Williams found there was no inducement to make the statement and no evidence of oppression. She also found that neither a learning disability nor alcohol consumption had placed the young person below a minimal level of awareness and, accordingly, he had an operating mind. These findings, and her conclusion that there was no evidence of police trickery in this case, resulted in her being satisfied, beyond a reasonable doubt, that the statement was voluntary. However, the statement was ruled inadmissible because Justice Williams was not convinced, beyond a reasonable doubt, that there had been compliance with the requirements of section 146. In her view, the legislation "presupposes that the young person clearly understands what it means to waive his/her rights and what are the ramifications of such a decision."...