"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Sunday, January 25, 2009

The Challenged Youth v. The Criminal Justice System

What (if any) are the duties on the police when dealing with a youth suspected of committing a crime?

What if that youth happens to face some less obvious intellectual challenges?

The Youth Criminal Justice Act provides that before a statement made by a young person can be used as evidence in court the Crown must prove that the police clearly explained to him or her that
  1. the statement could be used against them,
  2. that they are under no obligation to make a statement,
  3. they have the right to consult a lawyer and
  4. that any statement they make must be in the presence of a lawyer or another adult (usually a parent) unless the youth desires otherwise.
In order for a waiver to be valid, these rights must have been clearly explained.
~ ~ ~ ~ ~ ~ ~ ~ ~
This past autumn the Supreme Court of Canada restored the acquittal of a Nova Scotia learning disabled teen charged with dangerous driving causing bodily harm.

Despite the youth having 39 prior convictions, on a variety of offences, since age 12, the youth court judge, viewing his videotaped statement, was not convinced the youth properly understood and waived his rights and ruled the statement inadmissible, resulting in an acquittal.

The SCC upheld the acquittal, clarifying that police must not only advise a young person of the rights set out above but also ascertain that they actually understand those rights and, perhaps most importantly from our point of view, when determining what language to use in explaining these rights, the police must make an effort to become aware of complicating factors, such as a learning disability or any previous experiences with the criminal justice system.

Although the boy’s mother had told police of the teen's learning disability, the youth court found that the officer read him his rights in a rapid monotone, not making eye contact, asking only if the boy understood – to which he answered "yes" – but without attempting to gauge the level of that understanding. The mother said that on previous brushes with the law, her son had relied on her to explain what was happening and that he likely didn’t want to betray his confusion.

It was these facts; namely
  • the officer’s rapid pace in navigating the waiver form;
  • the lack of eye contact with the youth;
  • the officer’s monotone voice;
  • the lack of evidence, apart from his affirmative reply to repeated questions of “do you understand?”, that the youth actually understood his rights; and
  • the lack of effort on the officer's part to establish the youth's level of understanding
that caused the youth court judge to be left in a state of doubt as to whether the youth really understood the importance of the questions and the answers he was giving.

On a bottom line level this SCC decision means that the police are going to have to work harder to ensure that all the youth they deal with understand their rights and what it means to give up such rights. It isn't going to be enough just to read them a script and ask if they understand. Rather, they will have to ask questions about the individual circumstances of each youth (and then tailor their speaking so as to meet that youth's level understanding) before taking his or her statement.

Meaning that the justice system, and in particular the police, as the system's front line actors, must accommodate all youth, including those with disabilities.

But could this case stand for even more than that?

Interestingly enough, the headnote (a summary of the decision placed at the beginning of the decision by the editors of legal report series) reads as follows:
The test for compliance with s. 146(2)(b) 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 relevant to their 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. [21] [30] [Emphasis added]
And yet, I submit that, while technically accurate, that is not entirely the end of the story.

Let's take a closer a look and examine some of the relevant portions of the actual Court decision, staring with para 21:
21 In my view, 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).

22 A purposive interpretation of s. 146(2)(b) makes clear that it 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. This follows from the clear wording of the section: The explanation must be provided in language appropriate to the particular young person’s age and understanding. 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.
. . . .

30 This does not mean that experience in the criminal justice system is irrelevant to the inquiry as to the young person’s understanding. 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. [Emphasis added]
Up until this point the court was talking about the requirements on the police which must be met before a statement made by a young person can be used as evidence in court.

As set out above, prior to advising a youth that
  1. the statement could be used against them,
  2. hat they are under no obligation to make a statement,
  3. they have the right to consult a lawyer and
  4. that any statement they make must be in the presence of a lawyer or another adult (usually a parent) unless the youth desires otherwise
the police must make an individualized enquiry, so that they can explain to these rights in a language and at a level that the youth will be able to understand.

And with respect to who has the burden of proof as to whether or not that has occurred, the court goes on to say:
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.
Which means that as long as the Crown proves that the police took an individualized approach to this particular youth, made a reasonable effort to become aware of significant factors such as learning disabilities and previous experience with the criminal justice system, and tailored their language accordingly in explaining to the youth their rights, the court will presume that the youth understood their rights.

But the key point is to be found in that last sentence above.
Trial judges will therefore be expected to draw that inference in the absence of evidence to the contrary.
This is a legal expression which has the effect of shifting the evidentiary burden (the burden of who is responsible to prove something, the Crown or the defence) from the Crown to the defence. Which means that a judge will presume that the youth understood his rights unless the youth, himself or through his counsel, offers some evidence to prove otherwise.

In other words, unless the defence offers some evidence to show otherwise, the court will conclude that the youth understood his rights, provided that the police undertook the individualized enquiry as set out above. So although it's true that the court's decision "does not require the Crown to prove that a young person in fact understood the rights and options explained to them", it does leave it open for the young person to come back and assert that even though the police met the requirements of sec. 146(2), making an effort to explain their rights to them in language they could understand, he or she did not, in fact, understand their rights.

Which evidence (that the youth did not, in fact, understand their rights) should be highly relevant in a situation where the Crown asserts that the accused youth chose to waive their rights.
Waiver of right to consult

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.
With regard to a youth waiving their rights, the Court went on to state:
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. 43 . . . . 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.
. . . . .

46 Parliament has considered it right and necessary to afford young persons rights and procedural safeguards which they alone enjoy. Young persons should not lightly be found to have relinquished this enhanced level of protection they were found by Parliament to require. 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.
Which appears to say that even though the police may have satisfied the court that they met their requirements under sec. 146 (2) of the Youth Criminal Justice Act, a youth will always have the option of proving, at at least attempting to prove, that despite the officer's best efforts to explain their rights to them in a manner they could understand, the youth did not, in fact, understand.

And since there can be no valid waiver of rights unless the youth actually understands those rights, despite appearances to the contrary, a youth who has not understood those rights cannot waive them.

In the words of the court:
52 The trial judge was bound to find the statements inadmissible if she was not satisfied beyond a reasonable doubt that L.T.H.’s rights were explained to him in language appropriate to his understanding or if she had a reasonable doubt whether L.T.H. understood his right to counsel and therefore could validly waive it. It is clear from her reasons that she was left with a reasonable doubt in both respects.

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