I. INTRODUCTION 1 II. S. 146 OF THE YCJA 1 III. PRINCIPLES EMERGING FROM R. V. L.T.H. 3 A. BURDEN OF PROOF 4

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1 TABLE OF CONTENTS Page I. INTRODUCTION 1 II. S. 146 OF THE YCJA 1 III. PRINCIPLES EMERGING FROM R. V. L.T.H. 3 A. BURDEN OF PROOF 4 B. 146(2)(b): A CLEAR EXPLANATION IN APPROPRIATE LANGUAGE 4 C. 146(4): WAIVER 5 D. STANDARD OF REVIEW 6 E. GENERAL PRINCIPLES 6 IV. OTHER ISSUES ARISING UNDER S A. S. 146(5): TECHNICAL IRREGULARITY 7 B. WAVIER AND FULL EXTENT OF JEOPARDY 8 C. TIMING OF WAIVER 8 D. FACILITATING RIGHTS TO COUNSEL OR PARENT 9 E. CONTINUATION OF STATEMENTS 10 F. 146(2): REASONABLE GROUNDS 11 G. S. 146(2): PERSON IN AUTHORITY 12 H. 146(3): SPONTANEOUS UTTERANCES 12 I. USE TO BE MADE OF STATEMENT NOT A FACTOR 15 J. ADAPTATION OF COMMON LAW 15 K. QUALITY OF VIDEO 15 V. RELATED PROVISIONS OF THE YCJA 15 VI. CONCLUSION 17

2 TABLE OF CASES R. v. B.(S.M.), 2005 CarswellAlta 1772 (Alta. Q.B.) R. v. C.G., 1986 CarswellOnt 1556 (Prov. Ct. (Fam. Div.)) R. v. C.L.M., 200 SKQB 118 R. v. C.(M.), 2006 CarswellAlta 115 (Alta. Prov. Ct.) R. v. C.R.M., 1997 QBCA 37 (Sask. Q.B.) R. v. D.P.W SKPC 54 R. v. D.P.W SKPC 95 R. v. F.(E.), 2006 CarswellOnt 3741 (Ont. C.J.) R. v. F.N., 2008 CarswellOnt 3499 (Ont. C.J.) R. v. G.(V.), 2007 CarswellAlta 451 (Alta. P.C.) R. v. J.(J.T.), 1990 CarswellMan 220 (SCC) R. v. L.(K.) 2005 CarswellOnt 3284 (Ont. C.J.) R. v. L.T.H., 2008 SCC 49 R. v. N.(Y.), 2005 CarswellOnt 9151 (Ont. C.J.) R. v. S.(J.), 2008 CarswellOnt 5888 (Ont. S.C.J.) R. v. S.(S.), 2007 CarswellOnt 4152 (Ont. C.A.) R. v. T.(D.D.), 2008 CarswellAlta 887 (Alta. Q.B.) R. v. W.(J.), 1996 CarswellOnt 3149 (Ont. C.A.) R. v. W.(M.B.), 2006 CarswellAlta 635 (Alta. Prov. Ct.) R. v. W.(T.), 2005 CarswellOnt 3002 (Ont. C.J.) R. v. Young, 2008 SKQB 82 R. v. Z.(V.), 2004 CarswellOnt 1242 (Ont. C.J.)

3 Admissibility of Statements under s. 146 of the YCJA I. INTRODUCTION 1. An informal poll of Saskatchewan Legal Aid lawyers makes it abundantly clear that if you are dealing with a youth in criminal court, in the vast majority of cases you will also be dealing with a statement that the youth has given to the police. The recent Supreme Court of Canada decision in R. v. L.T.H. makes this an opportune time to review the law in respect of admissibility of statements made by young people under the YCJA. In this paper I will provide an overview of the Supreme Court decision and canvas other aspects of s. 146 of the YCJA that the courts have considered. II. S. 146 OF THE YCJA 2. The starting point for an analysis of the admissibility of a young person s statement against him or her is s. 146 of the YCJA. S. 146 is a fairly long section. It covers a lot of ground with respect to youth statements and is worth a couple of reads. With my apologies to the trees, I will set it out here: 146. (1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons. (2) 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;

4 - 2 - (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. (3) The requirements set out in paragraphs (2)(b) to (d) do not apply 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. (4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver (a) must be 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. (5) When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them. (6) When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected. (7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority. (8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver, (a) the young person held himself or herself to be eighteen years old or older; (b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and (c) in all other circumstances the statement or waiver would otherwise be admissible. (9) For the purpose of this section, a person consulted under paragraph (2)(c) is, in the absence of evidence to the contrary, deemed not to be a person in authority.

5 This provision is virtually identical to s. 56 of the Young Offenders Act. The differences are that s. 146 specifies that it only applies to statements made by young people who are less than eighteen years old; s. 146(4)(a) permits a waiver to be recorded on audio tape, not just on video tape or in writing; and s. 146 has added the provision in 146(5) and (6) that a judge may admit statements notwithstanding technical irregularities in the application of s III. PRINCIPLES EMERGING FROM R. V. L.T.H. 4. R. v. L.T.H. is the leading Supreme Court case on the admissibility of youth statements. In that case, L.T.H. gave a statement to police after having his rights read to him from a form. He answered yes when asked if he understood his rights. He did not want to call a lawyer and answered no when asked if he wanted to consult with an adult or have an adult present. L.T.H. signed and initialled the waiver of rights. The statement, including the waiver was videotaped. 5. The trial judge found that the statement was voluntary but she excluded the statement on the basis that the Crown had not proved L.T.H. understood his rights or the consequences of waiving them beyond a reasonable doubt. The Nova Scotia Court of Appeal ordered a new trial on the basis that the waiver only had to be proved on a balance of probabilities. 6. Justice Fish wrote the judgment of the 4-3 majority. He considered the burden of proof, the requirement of a clear explanation, waiver, and the standard of review. In doing so, he reiterated some important principles with respect to procedural fairness vis a vis young people. A. BURDEN OF PROOF 7. In L.T.H., the Supreme Court of Canada held that just as the Crown is required to prove voluntariness beyond a reasonable doubt, it is also required to prove compliance with s. 146 beyond a reasonable doubt. Where the Crown is arguing that a young person waived one of his or her rights, valid waiver must also be proven beyond a reasonable doubt.

6 The court noted that s. 146 is a statutory expression [of] common law rules and constitutional rights that apply to adults and to young persons alike. (para 2) It also sets out additional requirements that must be satisfied in order for statements made by young persons to be admissible against them at their trials. (para 3.) 9. Thus the common law cases regarding voluntariness and operating mind with respect to all statements apply equally to statements made by young people. In addition to the common law requirements for admissibility, compliance with s. 146 is a distinct requirement of admissibility. Even where voluntariness has been established beyond a reasonable doubt...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. (para. 63) 10. Fish J. underscored the notion that the voluntariness requirement of the confessions rule is linked not only to reliability, but also to respect for an individual s freedom of will. (para 37) This was a factor in requiring the same burden of proof for compliance with s B. 146(2)(b): A CLEAR EXPLANATION IN APPROPRIATE LANGUAGE 11. In L.T.H., the question arose whether the Crown had to prove not only that the explanation of the accused s rights was done clearly, but in fact that the accused understood the explanation. The Supreme Court stopped short of requiring proof of understanding but placed a duty on the question to make reasonable efforts to ensure that the young detainee to be questioned is capable of understanding the explanation of the rights being given. (para 22) 12. The Court adopted the summary of reasonable efforts set out in R. v. C.G., 1986 CarswellOnt 1556 which stipulated that persons in authority taking statements must learn something about the language and vocabulary skills, faculties of understanding educational level and emotional state of the child. These efforts can generally be achieved by speaking with the child. 13. The Supreme Court held that having the young person explain back his or her understanding of the rights is not a requirement but could well serve to show that the young person s rights were understood. Simply reading a standardized form without more will not usually satisfy the requirements of s. 146.

7 In R. v. L.(K.), the Ontario Court of Justice considered whether officers had done the At the very least, the uniformed officers should have had K.L-T. articulate his understanding of his rights to determine if further clarification was necessary. (para 225) In R. v. F. (N.), the Ontario Court of Justice described an approach asking the accused to explain back her understanding as commendable. (para 18) It would seem that although having a young person explain is not an official requirement, it may well be a practical one. C. 146(4): WAIVER 15. In L.T.H., the Supreme Court reiterated that the standard for waiver of the right to counsel is very high. (para 41). An important part of assessing the validity of the waiver is an understanding of the rights involved and the consequences of giving them up. (para 40). A clear and unequivocal waiver is thus essential, but not sufficient: it must be accompanied by a proper understanding of the purpose the right was meant to serve and an appreciation of the consequences of declining its protection. (para 43) 16. It appears that although the test for a clear explanation under 146(2)(b) is objective, for a waiver to be valid, the Crown must prove beyond a reasonable doubt that the young person subjectively understood his or her rights and the consequences of waiving them. Where a trial judge is not satisfied that the young person understood his or her right to consult counsel and a parent and 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. (para 46). 17. Arguably, it should now be difficult for the Crown to argue that the young person understood the consequences of waiving his or her rights. Short of the police officer saying if you talk I could charge you, if you don t you can go free and nothing will happen to you it seems unlikely that the Crown would be able to meet this burden. Unfortunately Justice Fish goes on to considerably undercut this high standard by adding that 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. (para 48, emphasis in original)

8 - 6 - D. STANDARD OF REVIEW 18. While not a central feature of the judgment, it is important to note that the Supreme Court held that the same deferential standard of review applies to an analysis of s. 146 as to a finding of voluntariness, as both are essentially findings of fact. [A] finding of voluntariness should only be overturned for some palpable and overriding error which affected [the trial judge s] assessment of the facts...the same is true for findings made pursuant to s (para 55, emphasis in the original) E. GENERAL PRINCIPLES 19. In a continuing effort to see young people treated more fairly by the criminal justice system, the Supreme Court once again reviewed some of the general principles that are to apply with respect to young people and procedural fairness. They are as follows: a. [P]rocedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators. (para 3) b. 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. (para 24) c. No matter what the bravado and braggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority. (para 33, citing R. v. J. (J.T.)) d. young persons should not lightly be found to have relinquished this enhanced level of protection they were found by Parliament to require.

9 - 7 - IV. OTHER ISSUES ARISING UNDER S. 146 A. S. 146(5) & (6): TECHNICAL IRREGULARITY 20. So far it appears that courts have been limiting the saving provisions of ss. 146(5) and (6) to true technical irregularities and not situations where the substantive failure by the authorities was arguably minor. In R. v. S.(S.), the Ontario Court of Appeal upheld the exclusion of a statement in part because the officer had told the S.S. he had the right to have a parent or lawyer present rather than telling the young person a parent or lawyer had to be present unless S.S. didn t want them there. The Court held that there was an important difference between a right and a requirement, and that since S.S. was deprived of a substantial informational component, the breach could not be considered a technical irregularity. 21. In R. v. Z.(V.), the Ontario Court of Justice held that the officer advising the youth that his statement could be used in evidence rather than in evidence against him was not a technical irregularity. The court referred to two experienced police officers pitted against a 15-year-old youth. Given this obvious mismatch of experience and personal resources, the court was not convinced that the officers had complied with their obligation to explain the provisions in a way that would have been clearly understood by the accused. (para 25) 22. The Ontario Court of Justice also considered technical irregularity in R. v. N.(Y.) and R. v. F.(E.). In those cases the breaches were more numerous and significant and the Court again declined to sweep them aside as technical irregularities. B. WAIVER AND FULL EXTENT OF JEOPARDY 23. Two cases from the Ontario Court of Justice have considered the common law requirement that in order for there to be a valid waiver of a right an accused person must understand his or her jeopardy with respect to young people. In R. v. L.(K.) the court held that the police must make sure that the young person understands clearly what he is being investigated for so that he can make a fully informed decision about

10 - 8 - all of his rights and whether to waive them. Where there is a change in jeopardy, the police are obliged to advise the young person of that fact and apprise him of his rights again. If a waiver has already been obtained, the police must go over the waiver again in light of the new charges. (para 202) 24. R. v. F.(E.), the Court held that for an accused to be made aware of the possible consequences of a waiver, he or she must be informed of the possibility of an adult sentence if the offences under investigation give rise to that possibility. (para 75) C. TIMING OF WAIVER 25. If an accused youth wishes to speak to an adult relative or lawyer, that must be done before he or she waives the right to have such a person present. It was impossible for K.L.-T. to make an informed decision about option 4 at the time he signed the Waiver Form, since he had not yet consulted with either a lawyer or his foster mother at that point. The police had a duty to revisit that option with K.L.-T. after he consulted with both Duty Counsel and his foster mother. (R. v. L.(K.) para 186) D. FACILITATING RIGHTS TO COUNSEL OR PARENT 26. The failure of the police to tell an accused youth how and when they would give effect to his initial choice to have a lawyer present was a factor in the Alberta Court of Queen s Bench finding that a waiver was not valid. (R. v. B.(S.M.) para 115) 27. In R. v. D.P.W., 2008 SKPC 95, the Saskatchewan Provincial Court held that where a young person was wavering on whether or not to call a lawyer, merely repeating the right to counsel was not sufficient for the officer to discharge his duty. Rather, the accused should have been given as much available information and time, alone as appropriate to come to a decision as to whom or whether a lawyer should be contacted. (para 24) Further, the police officer should have provided the accused with a list of counsel and the yellow pages. 28. This case was decided with reference to s. 10(b) of the Charter, however it would seem that the principles are equally applicable to s. 146.

11 In R. v. C.L.M., the Saskatchewan Court of Queen s Bench excluded a statement given by the young accused after police had tried unsuccessfully to contact her mother. After several attempts to contact a family member, the police officers told the accused they could reach anyone and said it was her choice to talk to them then or later. The young person then gave a statement. 30. The court held that compliance with s. 52 of the YOA had to be considered objectively. It is not sufficient that the police in good faith believe that their efforts constitute reasonable compliance. (para 3) The court noted that although the young person began speaking with police, she at no point waived her right to consult an adult or to have an adult present. E. CONTINUATION OF STATEMENTS 31. A caution will generally need to be repeated where a statement is continued from one setting to another either at a different time, in a different place or with a different officer. In R. v. J.(J.T.) the Supreme Court held that [t]here can be no question that if the police wished by their continued questioning to obtain a statement from J.T.J., then he should have been advised once again of his right to have either his cousin or lawyer present. 32. In R. v. W. (M.B.), the young person was held overnight. She was given her rights by one officer, and the next day a different officer spoke with her without repeating her rights. The Alberta Provincial Court excluded the statement, finding there is a clear and unambiguous requirement in s. 146 that the rights have to be given by the person to whom the statement is made. 33. The Court went on to reject the Crown s argument that the questioning, 14 hours later, was a continuation of the first interview. 34. In R. v. T.(D.D.), the Alberta Court of Queen s Bench noted that the issue of continuation is fact specific. Where there is a significant break, change of venue, or change of interrogator, the subcomponent interviews will almost always be treated as a new statements, each requiring a separate caution and waiver. (para 81) In that case however, the court found that the break in the interview was short and explainable, the

12 location and the interrogator remain the same, and there is a logical tie between the two subcomponent interviews. The rights and cautions did therefore not have to be repeated. (paras 81-82). 35. R. v. W.(T.), considered a slightly different set of circumstances. In that case a police officer spoke with the accused without properly informing him of his rights, then proceeded to get the same statement on video, with a proper caution. The Ontario Court of Justice did not accept the argument that the statements were separate. It held that [t]he two statements cannot be separated but must be treated as one continuous statement made before s. 146 was properly complied with. (para 37) The court held that to hold otherwise would render s. 146 meaningless. F. 146(2): REASONABLE GROUNDS 36. The Ontario Court of Justice considered the phrase reasonable grounds in R. v. F.(E.). In that case the police were aware that E.F. was present at a fight on the street in which a man was stabbed in the back. The court noted that the YCJA refers to reasonable grounds and not reasonable and probable grounds and that some cases treat the phrases interchangeably. The Court went on to consider the vast body of common law in relation to reasonable and probable grounds and other similar phrases. 37. The Court held that because of the enhanced procedural protections provided to young people, [p]olice officers who interview young persons must liberally construe s. 146 (including whether they have reasonable grounds to believe that an offence has been committed). (para 49, emphasis in original). 38. In that case the Court held that even though the officer didn t have reasonable grounds to charge E.F. with the stabbing, he was aware that E.F. was chargeable at the very least on the offence of causing a disturbance by fighting. E.F. was therefore entitled to be given his rights under s In R. v. T.(D.D.), the young person was arrested for shoplifting and while detained advised she was a witness to a homicide. She was later implicated in the homicide and the Crown sought to have her statement admitted.

13 The Alberta Court of Queen s Bench held that young persons that hold themselves out to be witnesses should be treated as witnesses until a) a young person is arrested or detained for the specific investigation that is being investigated, or b) that reasonable grounds exist to believe the young person is involved in the offence being investigated. (para 50) The court emphasized that the ruling was restricted to the facts of that case. G. S. 146(2): PERSON IN AUTHORITY 41. The Saskatchewan Court of Queen s Bench considered who is a person in authority in R. v. Young. In that case a teacher confronted the accused about his driving, which she had witnessed earlier. The court reviewed the case law on person in authority and determined that while a teacher can be a person in authority, in this case she was not. 42. Part of the problem in that case was that the unrepresented young person did not raise any concerns about the statement with the court and no evidence was called as to whether or not the young person subjectively felt the teacher to be a person in authority. (para 12) H. 146(3): SPONTANEOUS UTTERANCES 43. A number of cases have considered the exception provided in 146(3) for spontaneous statements. In R. v. W. (J.), the Ontario Court of Appeal considered the predecessor section in the YOA. In that case, the Ontario Court of Appeal held that an external stimulus need not be a question or directive from a person in authority. The mere presence of that authority in certain circumstances could be considered a stimulus giving rise to an unnatural response or reaction. (para 8) 44. In that case, the court excluded a comment blurted out by a 14 year old when two uniformed policemen drove up to him in a patrol car a 2 a.m. in an industrial neighbourhood. 45. In R. v. D.P.W., 2008 SKPC 54, the Saskatchewan Provincial Court identified W.(J.) as the bench mark authority on spontaneous utterances.(para 7) In that case the accused made a comment in response to an officer confronting him with evidence that he had been involved in a hit and run.

14 The court held that whether the evidence had been put to D.P.W. as a statement or whether the officer had directly asked D.P.W. about his involvement was moot. Even if the officer s version were to have been proven, it would still be in the Court s view an external stimulus. (para 11) 47. The court held that since the utterance was made after D.P.W. was confronted by a scenario, [t]he utterances that ensued in the circumstances could not be said to be proceeding or acting entirely from natural impulse and therefore could not be construed as spontaneous. (para 11) 48. The court further stated that the officer, when faced with the accused s youthful appearance and given the youth s driver s licence, should have turned his mind to the young person s age and cautioned him appropriately. 49. In R. v. C.R.M., the Saskatchewan Court of Queen s Bench similarly excluded a statement made by a young person. In that case the police pulled the young person over, smelled alcohol, and asked the young person if he had been drinking. The young person said yes, which then formed the reasonable grounds for a roadside screening device. 50. The court reviewed the provisions of s. 56 of the YOA and held that [t]he application of these sections admit of no exception. Because the statement was made in response to a question before the police officer had given the young person his rights, s. 56 was not complied with and the statement was excluded. 51. In R. v. G.(V.), the Alberta Provincial Court considered the purpose of the exception. The Judge held that The exception can not be based on the concept of fairness because a statement does not become more informed or less naive just because it is spontaneous. (para 12) 52. The court concluded that the exception made sense only when a statement is so reliable or free of external influences from authority that the probative value of the statement...overcomes the objective of fairness that s. 146 enshrines. (para 14) For that reason, [s]ince the exception assumes that the youth is stripped of the protections otherwise intended, the onus on the Crown must surely be high to establish an absence of influence, (para 15)

15 In that case, the accused made a statement taking blame for everything after she and her boyfriend had been arrested at gunpoint. The court considered the reliability of the statement in light of the young person s expressed feelings for her boyfriend. 54. The court also considered the fact that the comment had come in response to an unrelated question from the officer, as she was giving the young person her rights. The officer had not made a note of exactly what was said. The court was concerned that the officer made no note of the statement in question nor of the surrounding circumstances at the time. I do not disbelieve the officer but the precise words or actions that may have precipitated the accused s statement are critical in this inquiry and the officer is left, after the fact, to reconstruct from memory. (para 31) 55. In R. v. N.(Y.), and R. v. L.(K.) the Ontario Court of Justice went the other way. In N.(Y.), four officers went to the young persons home to arrest him. The young person answered the door. His mother was in the house holding an infant and was described as screaming at the young person. The officer told the young person what he was under arrest for and the young person replied that he stole the credit card but didn t do the home invasion. In that case the court held that since the statement was not in response to a question, it was a spontaneous utterance. 56. In L.(K.), the accused was arrested at gunpoint, read his rights in the police cruiser, and after being in the police cruiser for a few minutes and saying nothing the accused made a comment. The court admitted the statement, finding that the arrest at gunpoint was unrelated, there was no atmosphere of oppression in the police cruiser and the fact that the officer didn t write down the exact comment went to reliability, not admissibility. The Crown conceded that the accused s response to the officer s follow up question was inadmissible. 57. In R. v. S.(J.), the Ontario Court of Justice refused to admit statements as spontaneous where the accused had been held in custody for over 24 hours at the time he made them. If the police have adequate time to advise a young person of his or her rights but fail to do so, and the young person then makes a spontaneous utterance, the police cannot rely on s. 146(3) to avoid the consequences of their failure to comply with the section. (para 44)

16 I. USE TO BE MADE OF STATEMENT NOT A FACTOR 58. The fact that the Crown is seeking to introduce the statement only for the purpose of cross-examination does not change the test for admissibility. (R. v. F.(N.), R. v. S.(J.)). 59. In R. v. F.(E.) the Ontario Court of Justice held that a statement that does not comply with s. 146 cannot be admitted as part of the actus reus of an offence, i.e. obstruction of justice. (para 106) J. ADAPTATION OF COMMON LAW 60. So far it does not appear that the common law with respect to statements is applied differently to young people. In R.v. F.(E.) the Ontario Court of Justice held that [i]t is unnecessary to expand the intended definition of operating mind beyond capacity issues in order to protect young persons. (para 103) 61. However, in R.v. C.(M.), the Alberta Provincial Court suggests that lying is less acceptable when the police are interrogating a young person. K. QUALITY OF VIDEO 62. In R. v. L.(K.) the court considered a video recording with a few inaudible portions and found that it was a reliable enough record to be assessed in relation to s In future cases, however, poor audibility issues may well affect the admissibility of statements where the Court cannot be satisfied as to what was said by either party. (para 92) V. RELATED PROVISIONS OF THE YCJA 63. When considering the admissibility of youth statements, the application of s. 146 of the YCJA must be considered with the declaration of principle in mind. Section 3 of the YCJA provides as follows:

17 (1) The following principles apply in this Act:... (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:... (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,... (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,... (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. Act to be liberally construed (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). emphasis added. 64. As well, s. 25 provides enhanced rights to counsel for young people: 25. (1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person. (2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel emphasis added.

18 Thus young people must be advised of their right to counsel upon detention, and must be permitted to contact their lawyer at any time. 66. There is one further provision in the YCJA that deals with youth statements. S. 147 deals with statements made during the course of an assessment pursuant to s. 34 (medical or psychological assessments). Such statements will generally be inadmissible at trial, but there are 12 enumerated exceptions to that rule. Of those exceptions, notable ones are that statements made during the preparation of a s. 34 report will be admissible for sentencing, fitness or NCR hearings, to challenge the young person s credibility in any proceeding and against the young person in perjury proceedings. VI. CONCLUSION 67. The admissibility of statements made by young people is a bit of a vast area. It is important for counsel to be aware of the high standard placed on police who are seeking to obtain incriminating statements from young people.