Confessions by Young Persons
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.
General law on admissibility of statements to apply
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.
When statements are admissible
(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;
- (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.
Marginal note:Exception in certain cases for oral statements
(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) to (9)]
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 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.
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)
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
Parent, etc., not a person in authority
(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.
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.
Waiver of right to consult
(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.
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.")
Admissibility of statements
(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.
Statements made under duress are inadmissible
(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.
Misrepresentation of Age
Misrepresentation of age
(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.