Youths benefit from enhanced procedural protections during police interrogations due to their heightened vulnerability relative to adults. Justice Fish, speaking for a majority of the Supreme Court of Canada in R. v. L.T.H., [2008] 2 S.C.R. 739, at para. 24, states as follows:

This Court has consistently held that the rationale for (enhanced statutory protections for youths during police questioning) lies in Parliament’s recognition that young persons generally do not understand their legal rights as well as adults, are less likely to assert those rights in the face of a confrontation with a person in authority and are more susceptible to the pressures of interrogation (R. v. I. (L.R.) and T. (E.)[1993] 4 S.C.R. 504, at p. 522; and R. v. J. (J.T.)[1990] 2 S.C.R. 755)…

If the state wants to use a youth's statement to a person in authority at trial, the prosecution must first satisfy the trial judge in a separate hearing (a voir dire - a trial within a trial) that the police complied with the onerous requirements of section 146 of the Youth Criminal Justice Act. As Justice Fish summarizes neatly at para. 18 in L.T.H.:

…The relevant parts of s. 146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (1) the statement was voluntary (s. 146(2)(a)); (2) the person who took it "clearly explained to the young person, in language … appropriate to his or her age and understanding" the young person's right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview) (s. 146(2)(b)); and (3) the young person was given a reasonable opportunity to exercise those rights (s. 146(2)(c)). Finally, s. 146(4) provides that young persons, subject to certain conditions, can waive their right to consult counsel and an adult before making the statement and can also waive the right to have counsel and the adult present when the statement is made. 

The Prosecution’s Standard of Proof

The Court in L.T.H. affirmed that the prosecution must prove beyond a reasonable doubt that the state complied with each of the requirements of section 146(2) (para. 32). 

The Court also affirmed that the prosecution must prove the validity of any waiver of these rights beyond a reasonable doubt (para. 39). As Justice Fish states at para. 40:

Like adults, young people can waive their right to counsel. They may also waive their unique right to have counsel and an adult present during the making of a statement. However, as in the adult context, a waiver will be valid only if the judge is satisfied that it is premised on a true understanding of the rights involved and the consequences of giving them up. [Emphasis added]

For greater clarity, Justice Fish states at para. 48:

… If the trial judge is satisfied, beyond a reasonable doubt, that the rights and options of the young person were in fact explained in the manner required by s. 146, a presumption will arise that the young person in fact understood those rights … and the effect of waiving them. Trial judges will therefore be expected to draw that inference in the absence of evidence to the contrary. [Emphasis in original]

Pursuant to s. 146(4), any valid waiver by young persons of their rights under s. 146(2)(c) or (d) must also be: (a) 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.

The Test for Compliance with the Informational Component in s. 146(2)(b) 

The Supreme Court affirms in L.T.H. that the prosecution needs to prove that the police clearly explained the young person’s rights in language that was appropriate for that particular youth. As Justice Fish states at para. 21:

…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 pursuant to s. 146(2)(b). That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular youth being questioned (N. Bala, Youth Criminal Justice Law (2003), at p. 220).

Justice Fish goes on to clarify at para. 30 that:

…An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person's understanding. Police officers, in determining the appropriate language to use in explaining a young person's rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

With respect to a state official’s reasonable efforts to tailor their language to the individual youth, Justice Fish adopts the following language at para. 23:

... 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.

Section 56 [of the Young Offenders Act, the predecessor to s. 146 YCJA] will require evidence on a voir dire from the person(s) in authority that he had a reasonable basis for forming an opinion as to the "age and understanding" of a young person. [Emphasis in original; paras. 29 and 34.]

With respect to the use of standardized forms to assist an officer in explaining a young person’s rights, Justice Fish states at para. 28:

… adherence to standardized forms can facilitate, but will not always constitute, compliance with s. 146(2)(b). Compliance is a matter of substance, not form. The trial court must be satisfied, upon considering all of the evidence, that the young person's rights were in fact explained clearly and comprehensibly by the person in authority. [Emphasis in original]

The court also clarified that there is no legal requirement under s. 146 to have an officer ask young persons to “recite back” or “explain back” their rights (para. 26). That said, the Court notes that there is utility in this approach as “this may well demonstrate that the explanation was both appropriate and sufficient” (para. 26).

Other considerations:

  • Section 146 (3) provides for an exemption from the requirements set out in paragraphs (2)(b) to (d) "in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements". 
  • Section 146 (6) is a saving provision that allows a judge to forgive errors in compliance with the requirements of s. 146(2) if the errors constitute mere technical irregularities.
  • The full text of section 146(2) of the Youth Criminal Justice Act states:

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.


< Back