Rights of juveniles after being arrested

Years ago during the 1990s, I received a phone call at one in the morning from a neighbour. She said that the police were arresting her ten-year-old daughter for questioning with respect to the breaking of one of the arms of a newborn baby that was in the care of the family at the request of Children’s Aid. I will state right from the beginning that it was later established by the police that she didn’t break the arm of the baby and that the police finally concluded that it could not be established as how the baby broke her arm. They thought perhaps the baby fell to the floor when she was on the sofa playing with a rattle.

This paper is not whether or not the girl broke her arm but the manner in which she and other children are questioned by the police at police stations.

In this case about the ten-year-old girl, I spoke to one of the two police officers who was making the arrest and asked them why they were taking the girl to the police station at one in the morning. His reply was and I quote; “Because we are on duty at this particular time of the night.”

The girl was taken to the station and placed in a small room to be questioned. The questioning was also being videotaped. The girl and the police officer who was questioning her were the only persons in the room. There was a social worker in another room who was watching the questioning via closed circuit television.
Let me state right now that the questioning at that ungodly hour of a ten-year-old child is most improper but what was worse; the parents who were at the station were refused the opportunity to be present in the room with their child during the interrogation.

The law in Canada is quite clear. No child or youth under the age of eighteen can be questioned without a parent or a lawyer present. These two police officers broke the law. I made a phone call to a police official and an hour later; these two officers were removed from the case and disciplined. The police department assigned a trained female investigator who had years of experience working with children. Later, she apologized to the girl and her parents on behalf of the police department.

The law at that time with respect to the interrogation of juveniles in police stations was that the young person must be given a reasonable opportunity to consult with a parent and/or a lawyer prior to the taking of any statement. ‘Consult’ means far more than a telephone call, or a ‘talk to’. A young person is entitled to privacy, face to face conversation, quality advice, and reasonable time. A young person may consult both a parent and a lawyer, on the telephone or in person, as the child or adolescent wishes. Any person so consulted, must be present during the taking of the oral, handwritten, typed, or videotaped confession. The new legislation Youth Criminal Justice Act in Canada gives the children and adolescents the same rights.

On August 8, 2004, an accused young person in Canada was charged with dangerous driving causing bodily harm. Upon his arrest, the police asked him whether he understood his rights. The young person said that he did. He said he did not wish to call a lawyer or to talk to a lawyer in private. Likewise, he answered “no” when asked if he wanted to consult in private with a parent or another appropriate adult, or to have them present while giving a statement or while being questioned. The police also read him a waiver of rights form, which he signed. In other words, he chose to be questioned by the police without anyone being present who would protect his interest during the interrogation. He gave his statement and part of what he then told the police clearly showed that he was guilty of the crime he was charged with.

The young person interrupted the reading of the form at one point and stated that he was not going to answer all of the questions asked of him. The officer told him that the questions did not relate to the incident and were only “do you understand?” questions. Constable Carlisle then finished reading the form. After the appellant initialed and signed the waiver of rights, the officer proceeded to question him with respect to his driving.

When the matter went to trial, it had been established to the trial judge’s satisfaction that the accused had a learning disorder and didn’t fully understand the consequences of his decision to waive his rights. The trial judge ruled that whatever the accused had told the police, it could not be used against him at his trial and because of that ruling, the charge against him was dismissed.

The crown (prosecutor) appealed and the Court of Appeal came to the same conclusion as the trial judge. The matter finally ended up before the Supreme Court of Canada. On September 8, 2008, that court made its decision and it was in favour of the young person.

The court said that a relevant part in the Youth Criminal Justice Act provides that no statement by a young person to a person in authority will be admissible in evidence against that young person unless the person who took it clearly explained to the young person, in a language appropriate to his or her age and understanding as to what his rights are.

The test for compliance the pertinent section is objective. It does not require the Crown to prove that a young person in fact understood the rights and options explained to them. That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular young person being questioned. An individualized, objective approach must take into account the level of sophistication of the young person and other personal characteristics that are relevant to a young person’s understanding. Police officers, in determining what is the appropriate language to use in explaining young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities, previous experience with the criminal justice system, their education and of course, their ages.

Where a trial judge is not satisfied that the young person understood his or her right to consult counsel and a parent and the right to have those people present during the statement, or, is not satisfied that the young person appreciated the consequences of waiving those rights, the statement should not be admitted.

I should point out, that in some provinces in Canada, the police are obligated to give the suspects the telephone number of Legal Aid lawyers who are on duty, no matter what the hour, so that the lawyers can advise the suspects of their rights in a manner that the suspects clearly understand.

The issue of whether a detained youth has received a clear explanation of his rights and options, and whether he has understood those rights to the extent necessary for an effective waiver, are essentially questions of fact.

No arrested suspect in Canada, be the suspect an adult or a young person, is under any legal obligation whatsoever to give to the police any particulars of a crime they are suspected of having committed. The Canadian Charter of Rights guarantees all suspects that right.

Now obviously, it is the police investigator’s interests to get confessions from suspects but they cannot use the confessions as evidence in a trial if the suspect has not been properly advised by the police as to their rights.

Most adults (unless they are uneducated, or don’t understand English or French) will recognize the rights given to them but this doesn’t necessarily mean that young people will.

I should add that English and French are Canada’s two official languages and everyone in Canada is entitled to have their trial in English or French.

For a court to hold otherwise, would create a hierarchy of Charter rights that are contrary to the principle established by the courts.

Young persons, even more so than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of a crime and this can influence the outcome of their trials.

The Canadian parliament when drafting up the Youth Criminal Justice Act, underscored the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons, who on account of their age and relative unsophistication, are presumed to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.

Accordingly, the current Act provides that statements made by young persons are inadmissible against them unless the persons who took them clearly explained to the young person, in language appropriate to his or her age and understanding, what his or her rights are. This didn’t happen in the case involving the young person accused of dangerous driving causing bodily harm.

As a result of the Supreme Court of Canada ruling, the Crown must prove not only that the necessary explanation was given in appropriate and understandable language, but also that it was in fact understood by the young person who made the statement to the police interrogator. Further, the Crown must satisfy the court beyond a reasonable doubt, or on a balance of probabilities, that the police interrogators have fulfilled the obligations as set down by the Supreme Court.

If the crown cannot meet the criteria, then anything said to the police interrogators by the accused young person cannot be submitted as evidence at the trial of the young person.

I should point out that the principle enunciated by the Supreme Court of Canada will also apply to adult suspects if a trial judge is satisfied that the suspect truly didn’t understand his or her rights because of a lack of education or an understanding of the English or French language or is suffering from a mental disease.

Obviously, young persons, subject to certain conditions, can waive their rights after consulting with a lawyer and/or an adult relative before making a statement. However, if they choose to waive that right, they have the right to have the lawyer and the relative present when the statement is made to make sure that the questioning is done properly.

This exacting standard should not be taken to impose on the Crown, such a burden, that it cannot properly be expected to discharge. Where compliance with the informational component is established beyond a reasonable doubt, the trial judge will be entitled — and, indeed, expected — to infer, in the absence of evidence to the contrary, that the young person in fact understood his or her rights.

In my opinion, police should not even ask a young person they have arrested if he or she is waiving his or her rights until they have spoken to the young person’s parents or guardian. To do otherwise, is to unfairly put at risk, the young person’s rights.