|This page was last substantively updated or reviewed January 2015. (Rev. # 85204)|
Section 146 of the Youth Criminal Justice Act governs the admission of statements by young accused persons to persons in authority. It provides enchanced protections against the admission of statements of young persons at trial.
This section intends to recognize that "young person’s 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."
Section 146 of the YCJA requires that before a confession can be admissible, the judge must be satisfied beyond a reasonable doubt that:
- the statement was voluntary (146(2)(a))
- 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 (s. 146(2)(b))
- right to silence;
- right to counsel and have them present; and
- right to contact an appropriate adult and have them present during the interview;
- the young person was given a reasonable opportunity to exercise those rights (146(2)(c))
- Standard of Proof
The necessary standard of proof that is required for the Crown to admit a statement is one of beyond a reasonable doubt. This standard applies equally to proof of a waiver of the young person's right to counsel.
- Consequence of Satisfying the Requirements
Where the requirements of s. 146 are satisfied there is a presumption that the young person understood his rights, including his right to counsel, and has voluntarily waived them.
- Specific Situations
An admission made by an accused while being transported in the sheriff's van and overheard by a sheriff is admissible without needing to comply to s. 56 of the YOA.
R v LTH, 2008 SCC 49 (CanLII),  2 SCR 739, per Fish J, at para 24
- LTH, ibid., at para 18
LTH, supra, at para 32
LTH, supra, at para 40
- LTH, supra, 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.")
- R v AD, 2003 BCCA 106 (CanLII), 173 CCC (3d) 177, per Finch CJ
The "clearly explain" requirement under s. 146(2)(b) is based on an objective standard that is individualized to the particular person. Judges must take into account the young person's level of sophistication and other relevant personal characteristics. This requires that the officers make efforts to determine the existence of personal characteristics that may affect their comprehension.
The Crown does not need to prove actual understanding or knowledge by the young person.
Without "some knowledge" on the part of the police officer of the level of comprehension "the officer will be unable to demonstrate that the explanation was tailored to the capabilities of the young person concerned."
The use of a standardized form can help facilitate comprehension but does not guarantee compliance with the comprehension requirement of s. 146(2)(b).
There is no legal requirement that the officer must ask the young person to "recite back" or "explain back" their rights as they have come to understand them. However, the use of this method "may well demonstrate that the explanation was both appropriate and sufficient."
- LTH, ibid., at para 22 (police officer “must ... acquire some insight into the level of comprehension of the young person concerned")
- LTH, ibid., at para 21
LTH, ibid., at para 22
LTH, supra, 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.")
LTH, supra, at para 26
LTH, supra, at para 26
Persons in Authority
- Standard of Proof
The Crown has the burden of proving that there was waiver beyond a reasonable doubt.
- LTH, supra, 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.")