R. v. L.T.H.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Citation: (2008), 268 N.S.R.(2d) 200 (SCC),2008 SCC 49
• Date: 11 September 2008

R. v. L.T.H. (2008), 268 N.S.R.(2d) 200 (SCC);

    857 A.P.R. 200

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.S.R.(2d) TBEd. SE.039

L.T.H. (appellant) v. Her Majesty The Queen (respondent) and Justice for Children and Youth (intervenor)

(31763; 2008 SCC 49; 2008 CSC 49)

Indexed As: R. v. L.T.H.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

September 11, 2008.

Summary:

The 15 year old youth was charged with dangerous driving causing bodily harm. The Crown's case relied heavily on a videotaped statement given to police. Following a voir dire, the trial judge ruled the statement inadmissible, finding that while the statement was voluntary, she was not satisfied that the youth fully understood his rights before giving a statement. The trial judge held that when an officer explained a youth's rights and obtained a waiver, the officer was required to have the youth explain back, in his own words, what those rights meant and the consequences of waiving those rights. The Crown appealed.

The Nova Scotia Court of Appeal, in a judgment reported (2006), 248 N.S.R.(2d) 285; 789 A.P.R. 285, allowed the appeal, set aside the acquittal and ordered a new trial. The youth appealed.

The Supreme Court of Canada allowed the appeal, set aside the order directing a new trial, and restored the acquittal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 8714

Young offenders - General principles - Right to counsel - Under s. 146(2)(b) of the Youth Criminal Justice Act a youth's statement was inadmissible unless authorities "clearly explained to the young person, in language appropriate to his or her age and understanding" the rights afforded by s. 146(2)(b) (informational requirement) - The Supreme Court of Canada held that the informational requirement must be proved beyond a reasonable doubt - The Crown's evidentiary burden would be discharged "by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights. ... the test for compliance with the informational component is objective. It does not require the Crown to prove that a young person in fact understood the rights and options explained to that young person ..." - Where the informational requirement was satisfied, "the trial judge will be ... expected ... to infer in the absence of evidence to the contrary, that the young person in fact understood his or her rights" - Section 146(2)(b) "requires persons in authority to make reasonable efforts to ensure that the young detainee to be questioned is capable of understanding the explanation of the rights being given. ... Without some knowledge of the young person's level of understanding, the officer will be unable to demonstrate that the explanation was tailored to the capabilities of the young person concerned." - Police were not required to have young persons "recite back" or "explain back" their rights - Although such a procedure may demonstrate the explanation of rights was appropriate and sufficient, it was not legally required - Reading a standard form to a youth would not normally, by itself, meet the requirements of s. 146(2)(b) - The court stated that "police officers must form an opinion as to the level of understanding of the [young person]. A failure, as in this case, to make any inquiry in this regard will generally prove fatal to the admissibility of the statement, since the Crown must demonstrate that the explanation given was appropriately tailored to the particular young person" - The requirement of understanding and appreciation applied to all young persons, including those with prior experience with the criminal justice system - Whether the Crown discharged its burden respecting the informational requirement beyond a reasonable doubt was essentially a question of fact and should be overturned only for palpable and overriding error - See paragraphs 1 to 55.

Criminal Law - Topic 8714.3

Young offenders - General principles - Right to consultation with or presence of parent or adult - [See Criminal Law - Topic 8714 and first Criminal Law - Topic 8719 ].

Criminal Law - Topic 8719

Young offenders - General principles - Procedure - Waiver of statutory rights - A 15 year old youth with experience dealing with police was charged with dangerous driving causing bodily harm - After the police repeatedly explained the youth's rights to him, he acknowledged understanding his rights and signed a waiver form before giving a statement  - The Supreme Court of Canada stated that "s. 146 provides that young persons, subject to certain conditions, can waive their right under that section to consult with counsel and an adult relative before making a statement and their right to have counsel and the relative present when the statement is made. ... waiver must be established by 'clear and unequivocal [evidence] that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process' ... Manifestly, where Parliament has specifically sought to endow young persons with enhanced procedural protections, this high standard has not been satisfied if the court is left with a reasonable doubt whether the requirements set out in Korponay ... have been met." - The court stated that "even where voluntariness has been established beyond a reasonable doubt (as the trial judge found in this case), the statement must be excluded where the youth has not had his or her rights clearly explained in appropriate language or where waiver has not been established" - See paragraphs 7, 63.

Criminal Law - Topic 8719

Young offenders - General principles - Procedure - Waiver of statutory rights - A 15 year old youth with experience dealing with police was charged with dangerous driving causing bodily harm - After the police repeatedly explained the youth's rights to him, he acknowledged understanding his rights and signed a waiver form before giving a statement - The process was videotaped - The youth had a learning disability and no effort was made to inquire into his level of understanding - The officer read from a standard form, pausing only for affirmative responses to the question "do you understand" - The trial judge ruled the statement inadmissible - Although satisfied that the waiver was voluntary, the judge was not satisfied that the police adequately explained the youth's rights to him as required by s. 146(2)(b) of the Youth Criminal Justice Act - The judge doubted that the youth clearly understood his rights - Absent compliance with the informational requirements of s. 146(2)(b), the waiver was invalid - The Supreme Court of Canada held that the trial judge's ruling on admissibility was supported by the record and entitled to deference - Absent palpable and overriding error, the Court of Appeal erred in overturning the trial judge's decision - See paragraphs 1 to 55.

Cases Noticed:

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 7].

R. v. C.G., 1986 CarswellOnt 1556 (Prov. Ct.), refd to. [para. 23].

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48, refd to. [para. 24].

R. v. J.T.J., Jr., [1990] 2 S.C.R. 755; 112 N.R. 321; 70 Man.R.(2d) 81, refd to. [para. 24].

R. v. Yensen, [1961] O.R. 703 (H.C.), refd to. [para. 25].

A, Re, [1975] 5 W.W.R. 425 (Alta. S.C.), refd to. [para. 25].

R. v. B.S.M. (1995), 100 Man.R.(2d) 151; 91 W.A.C. 151 (C.A.), refd to. [para. 27].

R. v. S.S. (2007), 222 C.C.C.(3d) 545; 2007 ONCA 481, refd to. [para. 28].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 35].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 41].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 41].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 41].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 41].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 41].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 45].

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81, refd to. [para. 45].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 55].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 55].

Stein Estate et al. v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para.55].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 58].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 60].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 70].

Ibrahim v. R., [1914] A.C. 599 (P.C.), refd to. [para. 72].

Prosko v. R. (1922), 63 S.C.R. 226, refd to. [para. 72].

Boudreau v. R., [1949] S.C.R. 262, refd to. [para. 72].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 72].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 80].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 80].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 225; 275 W.A.C. 225; 2002 SCC 58, refd to. [para. 80].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 15 C.R.(5th) 359 (C.A.), affd. [1999] 3 S.C.R. 866; 250 N.R. 98; 129 O.A.C. 283, refd to. [para. 80].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 87].

R. v. Stewart, [1977] 2 S.C.R. 748; 12 N.R. 201; 1 A.R. 455, refd to. [para. 87].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 94].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 98].

R. v. Young (M.R.) (1997), 101 O.A.C. 81; 116 C.C.C.(3d) 350 (C.A.), refd to. [para. 98].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 98].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 98].

Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1; 2002 SCC 23, refd to. [para. 98].

Chamberlain et al. v. Board of Education of School District No. 36 (Surrey), [2002] 4 S.C.R. 710; 299 N.R. 1; 175 B.C.A.C. 161; 289 W.A.C. 161; 2002 SCC 86, refd to. [para. 98].

R. v. Hamelin (E.O.) (2001), 297 A.R. 201; 2001 ABQB 742, refd to. [para. 98].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 146 [Appendix].

Authors and Works Noticed:

Bala, Nicholas, Youth Criminal Justice Law (2003), p. 220 [para. 21].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), p. 19 [paras. 76, 80].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 168 [para. 47].

Counsel:

Shawna Y. Hoyte and Marie-France Major, for the appellant;

William D. Delaney and Peter P. Rosinski, for the respondent;

Cheryl Milne and Gary Magee, for the intervenor.

Solicitors of Record:

Dalhousie Legal Aid Service, Halifax, Nova Scotia, for the appellant;

Public Prosecution Service, Halifax, Nova Scotia, for the respondent;

Justice for Children and Youth, Toronto, Ontario, for the intervenor.

This appeal was heard on February 25, 2008, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On September 11, 2008, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Fish, J. (McLachlin, C.J.C., LeBel and Abella, JJ., concurring) - see paragraphs 1 to 64;

Rothstein, J. (Deschamps and Charron, JJ., concurring) - see paragraphs 65 to 103.