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PAGE 4 NEWS September 22, 2008 • Law times SCC: disabled teen didn't understand rights BY GLENN KAUTH Law Times he didn't understand what he was doing when he waived his rights to talk to a lawyer or a parent will likely lead to better education of police about the law, says the head of the Crimi- nal Lawyers' Association. "I think what you will see, and A what's to be hoped, is better police education about how to obtain informed voluntary waivers," says Toronto defence lawyer and CLA president Frank Addario. The comments come after the courts ruled recently that a Nova Scotia youth accused of dangerous driving causing bodily harm may not have been fully aware of what he was do- ing when he signed a waiver of rights form during a police in- terview on Aug. 8, 2004. While under questioning at a Halifax police station by Const. Jeffrey Carlisle, the 15-year-old youth, identified only as L.T.H., said he didn't want to consult a lawyer, talk to a parent or have someone present in the room. He then signed a waiver of rights, after which he allegedly made a con- fession that the Crown subse- quently relied on for its case. But at his original trial, the youth's mother testified that her son had a learning disability, and therefore had previously relied on her to explain questions to him during other police inter- rogations. Nevertheless, despite Supreme Court of Canada ruling acquit- ting a youth who claims claims that she explained this to an officer before the inter- view, police still proceeded with the questioning. As a result, the original trial judge ruled the youth's state- ment wasn't voluntary and acquitted him of the charge. The lower-court judge based the decision on provisions in the Youth Criminal Justice Act, which dictate that the courts cannot admit state- ments made by youth un- less investigators "clearly ex- plained to the young person, in language appropriate to his or her age and understanding, the specific rights" to counsel and to consult another adult, such as a parent. In L.T.H.'s case, police propriate 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 dis- abilities and previous experi- ence with the criminal justice system," Fish wrote in his judgment for the majority. The ruling is significant for clearly didn't meet that test, argues Shawna Hoyte, a law- yer with the Dalhousie Le- gal Aid Service who argued for the defendant. "This one stood out because the young person had a learning disabil- ity," Hoyte tells Law Times. In particular, Hoyte was concerned that the police officer took just 13 minutes to read the 11-page waiver — which included ques- tions of the youth — to L.T.H. "You can imagine how quick- ly the officer went through the form," she says. "There is just no way that he's able to com- prehend the questions that he's being asked. This one stood out for that reason." In L.T.H.'s case, it was his own mother who brought for- ward concerns about the inter- view. The Supreme Court rul- 'I think what you will see, and what's to be hoped, is better police education about how to obtain informed volun- tary waivers,' says Frank Addario. ing, in fact, notes that besides reading the form quickly, the officer made little eye contact with the accused and spoke in a monotone voice. "The trial judge found that the comple- tion of the form amounted to a mere formality," wrote Supreme Court Justice Morris Fish, who added that the officer did noth- ing to ensure L.T.H. understood his rights beyond asking him whether he did. "An individualized approach must take into account the level of sophistication of the young detainee and other personal char- acteristics relevant to the young person's understanding. Police officers, in determining the ap- its affirmation that youth are especially vulnerable to intimi- dation while under questioning by police. "It's right to put the onus on police," he says, adding that while officers had for years been reluctant to adhere to special provisions written into youth criminal laws, "police have been complying more." Nevertheless, while the Supreme Court decision is clear that officers have to take special care when ques- tioning youth with disabili- ties, it doesn't necessarily re- quire the Crown to prove that the accused did in fact under- stand their rights. For police, that means they merely have to make "reasonable efforts" to do so, according to the court. "I take care not to be under- stood to require police officers, as the trial judge apparently did in this case, to ask young persons in every case to 'recite back' or 'explain back' their rights," Fish wrote. "In some instances, this may well demonstrate that the explanation was both appropriate and sufficient. And it may tend to show that the rights waived were in fact understood — which is of course essential to the validity jobsinlaw Careers Chief Deputy General Counsel Strategic Business Development Manager Few Canadian companies can boast the longevity enjoyed by Canada Law Book. 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Get it listed for free on the Law Times/Canadian Lawyer Calendar of Events. Send your information to moves@clbmedia.ca 9/19/08 9:34:54 AM of the waiver. But 'reciting back' or 'explaining back' is not trans- formed by its evident utility into a legal requirement . . ." Hoyte, meanwhile, says that the acquittal, which came after the Nova Scotia Court of Ap- peal ruled L.T.H.'s statements were admissible and ordered a new trial, comes as a relief to both the accused, who is now 19, and his mother. She adds that although the recent ruling dealt with L.T.H.'s learning disability, it will also apply to all youth. "They are not adults, so their levels of maturity are not the same as adults," she says, noting police will likely have to talk to youth about their ability to understand by asking questions, for example, about their age and grade. As well, Crown prosecutors will have some responsibility to educate police about the ruling and its implications for their work. Hoyte also expects de- fence lawyers will increasingly raise the issue as a defence. In issuing the ruling, all seven Supreme Court judges involved in the case agreed to acquit L.T.H. They differed, however, on the evidentiary burden the Crown must meet in proving police met the re- quirement to clearly inform youth about their rights. The four judges for the majority ac- cepted that a prosecutor must do so beyond a reasonable doubt, while the three dissent- ing judges ruled the Crown merely has to make its case on a balance of probabilities. LT

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