The September 1998 resolution is:
Resolved that Parliament should amend s. 56 of the Young Offenders Act to permit judicial discretion to admit voluntary statements where to do so would not bring the administration of justice into disrepute.
The Department of Justice, Policy Section is considering such legislation:
"Consistent with the recommendation of the Standing Committee, the new youth justice statute will allow for judicial discretion to determine whether voluntary statements could be admitted into evidence, where to do so would not bring the administration of justice into disrepute." See A Strategy for the Renewal of Youth Justice. See also the pamphlet Canada's Youth Justice Renewal Strategy which proposes: "reducing the legal and administrative complexities associated with the admissibility of voluntary statements by young offenders to police."
The John Howard Society of Alberta's response can be found at: http://www.acjnet.org/docs/renyjhs.html#REC14
Perspective of Defence Counsel:
In 1984 the child welfare model of juvenile justice embodied in the Juvenile Delinquents Act was replaced by a criminal law model. The Young Offenders Act applied Criminal Code offences and procedure to young persons.
Implicit in the application of ordinary criminal law was the notion that young persons must be able to meaningfully participate in the criminal law investigation and trial process. Young persons ought to have the same rights as adults to silence and counsel if principles of fundamental justice are to be maintained.
In the United States Miranda warnings advise an accused person that 1. He or she has the right to remain silent 2. Statements may be used against him or her in Court 3. He or she has the right to a lawyer prior to and during interrogation and 4. A public defender will be appointed if he or she is unable to financially obtain counsel. American authors including Grisso, Melton, Robin, and Saunders (see bibliography) have expressed concerns that juveniles do not understand these warnings and all too frequently waive their rights for the wrong reasons.
At common law no confession made by an accused to a person in authority is admissible unless voluntary, emanating from a conscious mind and will (Horvath). This rule is confirmed for young persons in s. 56 of the Y.O.A.
The Canadian Charter of Rights and Freedoms s. 10(b) guarantees all individuals, the right to retain and instruct counsel without delay and includes the right to be informed of that right and to consult with 24 hour duty counsel (Brydges) prior to the making of any statement. A Canadian study (Abramovitch et al. 1993) has shown that young persons were generally quite poor at paraphrasing the s. 10(b) right to counsel and in particular had difficulties with the meaning of "right", "retain", "instruct", and "counsel". The Brydges caution used at the time was also misunderstood.
Section 56(2) of the Young Offenders Act aims to alleviate some of the difficulties faced by young persons in understanding and meaningfully making use of their rights that are so essential to fairness in the Canadian criminal justice system. Police officers must clearly explain each of the four components: 1. Right to silence 2. Use of statements in Court 3. Right to consult with parent and lawyer prior to interrogation, and 4. Child's right to participation of parent and lawyer during interrogation. Mr. Justice Cory of the Supreme Court of Canada has stated that these protections are necessary because:
"A young person is usually far more easily impressed and influenced by authoritarian figures. 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; certainly they would not appreciate the nature of their rights to the same extent as would most adults." (R. v. J.(J.T.))
The Abramovitch et al. Canadian study has shown that young persons have difficulty understanding their right to consult with parents and lawyer prior to interrogation. They have difficulty separating the real purpose of the consultation (getting advice about their right to silence, their right to counsel, and the adversarial nature of the process) from their fear of revealing the alleged misbehaviour to their parents.
Young persons frequently do not understand that questioning will follow the warnings given and that the purpose of the consultation relates to the impending questioning. The above-mentioned study found that dependent on age, between 40% and 76% of subjects understood that questioning would follow a written waiver.
Young persons generally have no experience whatsoever in retaining a lawyer. They tend to have no idea whatever of what a lawyer is and the role which a lawyer can play prior to interrogation, advising the young person, and preventing the police from doing or asking anything improper.
It is our experience as criminal law lawyers that young persons are easily convinced that the nice police officer interviewing them will be gentler in response to the allegations than a parent will be. In some case the adolescent may see a s. 56(4) waiver as permission to the police not to report the allegation to the parent.
The right of a young person to have parent and lawyer present during interrogation is not well understood by young persons, police officers, and even many lawyers. It is our experience that police officers frequently tell parents that they may not say anything during the interrogation and that if they do so they will be charged with obstructing justice. In the Canadian study mentioned above, only 38.3% of the subjects thought that a parent could speak during questioning.
The most important finding of the Abramovitch Canadian study was that most of those who understood the basic meaning of a s. 56(4) waiver refused to sign and that most of those who did not understand were willing to sign. The relationship between understanding and signing was highly significant statistically.
If the Young Offenders Act is to continue as a criminal law statute rather than a child welfare law then justice demands that the provisions in the Act which guarantee that a young person can fully participate in the process be carefully preserved. In many ways section 56 and the related s. 11 are the keystone provisions of the Act. Without them there is not much point in having a separate Youth Court system.
Attempts to modify s. 56, such as those made in 1995, permitting video waivers to replace written waivers or the new proposals should only be implemented after very careful study. The previous amendment was made without such consideration and after a promise to the Criminal Lawyers Association that such a change would not be made. The Justice Ministry should engage psychologists and other researchers to conduct additional studies respecting the extent to which young persons are able to cope with interrogation techniques.
Police procedures, standard cautions, and warnings vary not only from province to province but also from city to city. The Abramovitch study had a profound impact on Peel Police cautions and warnings. Litigation and co-operation between Crown and defence have also contributed to improved cautions and waivers.
An amendment which permits the introduction of statements taken in contravention of s. 56 would do nothing to encourage police officers to comply with these very necessary provisions. My experience has been that many police officers and their supervisory staff do not understand s. 56 and so their procedures and standard cautions and warnings have not been implemented properly. Many defence counsel have found ourselves litigating issues related to the adequacy of "waivers" which fail to distinguish "telephone call" from "consult in private" or "having a parent present now" from "having a parent participate in the interrogation". Police Departments need to be encouraged to deal with s. 56 as it is and to implement its requirements. Just because a particular police service is not complying with the Act does not mean that the legislation is inadequate.
There is little or no empirical evidence to establish that there are young persons in Canada who have successfully evaded findings of guilt after proper understanding of their rights simply because of "technical" difficulties. There are, however, many young persons who have been acquitted because young persons were not properly advised of their rights under s. 56(2). That is as it should be in a fair criminal justice system.
The option of permitting the introduction of a statement taken in contravention of s. 56(2) where it "would be in the interests of justice to do so" would be a contradiction in terms. The Supreme Court of Canada has consistently held that the denial of the right to counsel in s. 10(b) of the Charter and the obtaining of prejudicial evidence as a result thereof goes right to the issue of fundamental justice under s. 7.
The option of permitting the introduction of a statement taken in contravention of s. 56(2) where it "would be in the interests of justice to do so" would result in significantly more Youth Court litigation with longer voir dires. Our Court system is currently under great stresses of volume of caseload.
The option of permitting the introduction of a statement taken in contravention of s. 56(2) where it "where to do so would not bring the administration of justice into disrepute" would put an unfair burden on the defence. The young person would consistently need to call expert evidence to establish lack of comprehension and prejudice. This would result in increased cost for parents and the Legal Aid systems.
Abramovitch, R., Higgins-Biss, K., and Biss, S., Young persons' comprehension of waivers in criminal proceedings., Canadian Journal of Criminology, July 1993. 309-322.
Brydges v. The Queen  1 S.C.R. 190
Campbell, Sarah F. (1976). Piaget_Sampler:_An_Introduction_to Jean_Piaget_Through_His_Own_Words. New York: John Wiley and Sons, Inc.
Clarkson v. The Queen  1 S.C.R. 383
Demetriou, Andreas, and Charitides, Leonidas. (1986). The adolescent's construction of procedural justice as a function of age, formal thought, and sex. International_Journal_of_Psychology, 21, 333-353.
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Grisso, Thomas. (1986). Evaluating_Competencies:_Forensic Assessments_and_Instruments. New York: Plenum Press.
Grisso, Thomas. (1980). Juveniles' capacities to waive Miranda rights: an empirical analysis. California_Law_Review, 68, 1134-1166.
Grisso, Thomas. Juveniles consent in delinquency proceedings. (1983) In Melton, G.B., Koocher, G.P., and Saks, M.J. (Eds.). Children's_Competence_to_Consent.. New York: Plenum Press.
Grisso, Thomas. (1981). Juveniles'_Waiver_of_Rights:__Legal__and Psychological_Competence. New York: Plenum Press.
Grisso, Thomas, and Manoogian, Sam. (1980). Juveniles' comprehension of Miranda warnings. In Lipsitt, P.D. & Sales, B.D. (Eds.). New_Directions_in_Psycholegal_Research. New York: Van Nostrand Reinhold.
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Horvath v. The Queen  2 S.C.R. 376
Inbau, Fred E., and Reid, John E. (1967). Criminal__Interrogation and_Confessions. Baltimore: The Williams & Wilkins Company.
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Melton, Gary B. (1983). Child_Advocacy:_Psychological_Issues__and Interventions. New York: Plenum Press.
Melton, Gary B. (1983). Toward "personhood" for adolescents: autonomy and privacy as values in public policy. American__Psychologist,39, 99-103.
Melton, Gary B. (1981). Psycholegal issues in juveniles' competency to waive their rights. Journal of Clinical Child Psychology, Winter, 59-62.
Melton, Gary B. Children's rights: Where are the children? American_Journal_of_Orthopsychiatry, 52(3), 530-538.
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Regina_v._M.A.M., (1986), 32 C.C.C. (3d) 566 (B.C. C.A.)
Robin, Gerald. (1982). Juvenile interrogation and confessions. Journal_of_Police_Science_and_Administration, 10(2), 224-228.
R. v. J. (J.T.),  3 W.W.R. 481 (Man. C.A.), (1990) 59 C.C.C. (3d) 1 (S.C.C.)
R. v. T.(E.) (1993), 86 C.C.C. (3d) 289 (S.C.C.)
Saunders, LaVell E. (1981). Ignorance of the law among teenagers: Is it a barrier to the exertion of their rights as citizens? Adolescence, 16(63), 711-726.
Saywitz, Karen J. (1988). Children's conceptions of the legal system: "Court is a place to play basketball". In Ceci, S.J., Ross, D.F., & Toglia, M.P. (Eds.). Perspectives_on_Children's_Testimony. New York: Springer Verlag.
Tapp, June L. (1969). Psychology and the law: the dilemma. Psychology_Today,_2(9), 16-22.
Tapp, June L. (1970). A child's garden of law and order. Psychology_Today,_4(7), 29-31, 62-64.
Torney, Judith V. Socialization of attitudes toward the legal system. Journal_of_Social_Issues, 27(2), 137-154.
Weithorn, Lois A., and Campbell, Susan B. The competency of children and adolescents to make informed treatment decisions. Child_Development, 53, 1589-1598.
Friedman, Lawrence M. (1971). The idea of right as a social and legal concept. Journal_of_Social Issues, 27(2), 189-198.
Lewis, Catherine C. (1981). How adolescents approach decisions: Changes over grades seven to twelve and policy implications. Child_Development, 52, 538-544.
See also the references at: http://www.acjnet.org/docs/renyjhs.html#REF
Stephen R. Biss, Barrister & Solicitor
470 Hensall Circle, Suite 303
905-273-3322 or 1-877-273-3322
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