EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, September 12, 2008

You Can't Do That In Interrogation: Supreme Court Of Canada Announces New Standard For Youth Interrogation

In its judgment yesterday in R. v. L.T.H., 2008 SCC 49, the Supreme Court of Canada announced an interesting new standard for determining whether youths understand what they are doing when they waive their right to counsel and right to remain silent.  In L.T.H., 15 year-old L.T.H., was arrested after a police chase, taken into custody, and asked, several times, whether he wished to contact counsel, but he declined.  Finally, approximately 12 hours after the arrest, L.T.H. was brought to the Halifax police station and interviewed by Constable Jeffrey Carlisle, who reviewed a young offender statement form with L.T.H.  Asked by the officer whether he understood his rights, L.T.H. said "yes" and said that he did not wish to call a lawyer or 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.

L.T.H. also 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, however, that the questions did not relate to the incident and were only "do you understand?" questions. Constable Carlisle then finished reading the form, whereupon L.T.H. initialled and signed the waiver of rights; then, in response to questioning, he provided an inculpatory videotaped statement that subsequently formed the basis of the Crown’s case against him, in which he was charged with dangerous driving causing bodily harm.

At trial, the trial judge excluded the videotaped statement from evidence based upon (1) the testimony of L.T.H.'s mother that her son had a learning disability, (2) the fact that Constable Carlisle used a rapid pace in navigating the waiver form, used a monotone voice, and had a lack of eye contact with L.T.H., and (3) the fact that L.T.H. 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.  Thereafter, the Crown called no further evidence and the charge was dismissed.

The Crown subsequently appealed this ruling, which might have merely led to a Supreme Court judgment very much limited to the facts of L.T.H.'s case.  Instead, the Court adopted to me what seems to me to a new standard for youth interrogations.  The Court noted that under s. 146 of the Youth Criminal Act, 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”  It then found that it was presented with two questions: 

     "The first is whether 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.  The second is whether compliance with the informational requirement must be proved by the Crown beyond a reasonable doubt, or only on a balance of probabilities."

The majority then concluded, that:

     "Because of their interdependence, and for other reasons to be later explained, I would answer both questions together.  In my view, the Crown’s evidentiary burden will 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 under s. 146 of the YCJA.  A mere probability of compliance  is incompatible with the object and scheme of s. 146, read as a whole.  Compliance must be established beyond a reasonable doubt." 

This seems like a fairly rigorous standard for the Crown to meet (but one with which I agree), and it is one which was not met in L.T.H.  And it will certainly be interesting to see how Canadian courts apply the standard in future cases.



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