Taking Statements from Youth

Last updated: 2012.12.03
Henry Waldock

Principles

When taking statements from a detained person who is under 18, provide the youth with the rights an adult would get, as well as the steps required by s.146 of the Youth Criminal Justice Act:

Explain in language appropriate to the youth the rights below:

• no obligation to make a statement
• statement may be used as evidence in proceedings against the youth
• youth may consult with counsel and/or a parent or another adult (but not coaccused)
• youth gets a “reasonable opportunity to consult”
• if the youth consults with an adult, the officer must allow that person to attend the interview, unless the youth wants the adult excluded
• The youth may waive the rights to advice and presence of counsel and/or parent/adult, but only in writing or recorded on tape or videotape.

To give a legally effective waiver to these rights, the suspect must understand the rights he waived.  In order to prove that the youth understood, we need evidence of that comprehension.  L.T.H. 2008 SCC 49.  Therefore, after explaining each right, you should ask the youth what they understand this to mean.  If he doesn't "get it", then you need to explain.

Spontaneous statements made by the youth before the peace officer can arrange the access noted above are admissible. s.146(2) See also E.T. v. The Queen 86 CCC (3d) 289 (1993 SCC).

B.C. courts think that s.146 applies in all detentions, even a roadside stop where an officer is attempting to form grounds for a breath demand.  R.T.B. 2009 BCSC 581.  Ontario disagrees: R. v. P.D., 2009 CanLII 18220 (ON S.C.).

Ontario courts disapprove of unrecorded conversation with youth. M.D., 2012 ONCA 841 Turn on your recording device early, and keep it on.

Investigative Suggestions

When preparing to take a statement from a youthful suspect, turn on a recording device as soon as possible, and keep it on. This will record your efforts to comply with s.146, and any waivers the youth gives.

When investigating a youth whose 18^th birthday will arrive soon, you might consider waiting until after that happy day. These rights expire when the youth turns 18. R. v. Z. (D.A.) 1992 SCC

Investigative Traps

If you thought you took a statement from an adult, but it turned out to be a youth, the judge may admit the statement anyway, if you conducted reasonable inquiries, or if the youth pretended to be an adult. Therefore, with youngish suspects, ask how old they are, right up front.

Many versions of the waiver form, and indeed a previous version of this webpage, suggest that the suspect has the "right" to have an adult present during the interview.  But the Ontario Court of Appeal says this isn't correct.  Actually, the officer has the "obligation" to bring the adult into the interview unless the youth wants the adult out.  R. v. S.S. 2007 ONCA 481.

The form is not just a "waiver form". Although it includes explicit waivers that the youth may give, its legal purpose goes beyond that.   It also provides the youth with the information required by the YCJA.  R. v. E.A.D.M., 2007 MBCA 158.  If yours is called "Youth Waiver Form", I suggest that you change its title to "Youth Rights", and refer to it in that language.

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