SUPREME COURT OF CANADA

Citation: R. v. L.T.H., [2008] 2 S.C.R. 739, 2008 SCC 49

Date: 20080911

Docket: 31763

Between:

L.T.H.

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Justice for Children and Youth

Intervener

Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 64)

Partially Concurring Reasons:

(paras. 65 to 103)

Fish J. (McLachlin C.J. and LeBel and Abella JJ. concurring)

Rothstein J. (Deschamps and Charron JJ. concurring)

R. v. L.T.H., [2008] 2 S.C.R. 739, 2008 SCC 49

L.T.H. Appellant

v.

Her Majesty The Queen Respondent

and

Justice for Children and Youth Intervener

Indexed as: R. v. L.T.H.

Neutral citation: 2008 SCC 49.

File No.: 31763.

2008: February 25; 2008: September 11.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for nova scotia

Criminal law — Young persons — Evidence — Admissibility of statements — Waiver of rights — Whether Crown must prove not only that necessary explanation given in appropriate and understandable language, but also that young person understood — Whether must be proven by Crown beyond reasonable doubt — Youth Criminal Justice Act, S.C. 2002, c. 1, s. 146.

The accused young person was charged with dangerous driving causing bodily harm. Upon his arrest, the police read the young person a form advising him of his right to retain and instruct counsel, to consult a parent or an adult relative in private, and to have a lawyer and adult present while a statement was taken. The young person said he understood. The police also read him a waiver of rights form, which he signed. Following a voir dire, the Youth Justice Court judge ruled that the young person’s videotaped statement was inadmissible. She ruled that the Crown had to prove beyond a reasonable doubt that the statement was voluntary and that the requirements of s. 146 of the Youth Criminal Justice Act (“YCJA”) relating to the taking of statements given by young persons to authority figures had been met. The judge was not convinced that the young person fully understood his rights and options before giving his statement. The Court of Appeal set aside the verdict of acquittal and ordered a new trial.

Held: The appeal should be allowed.

Per McLachlin C.J. and LeBel, Fish and Abella JJ.: The procedural rights set out in s. 146 represent one instance of the enhanced protection Parliament has seen fit to provide for young persons. The relevant parts of s. 146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (i) the statement was voluntary (s. 146(2)(a)); (ii) 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 right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview) (s. 146(2)(b)); and (iii) the young person was given a reasonable opportunity to exercise those rights (s. 146(2)(c)). Finally, s. 146(4) provides that young persons, subject to certain conditions, can waive their right to consult counsel and an adult before making the statement and can also waive the right to have counsel and the adult present when the statement is made. [18]

The test for compliance with s. 146(2)(b) is objective. It does not require the Crown to prove that a young person in fact understood the rights and options explained to them. That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular young person being questioned. An individualized, objective approach must take into account the level of sophistication of the young person and other personal characteristics relevant to their understanding. Police officers, in determining the appropriate 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 disabilities and previous experience with the criminal justice system. [21] [30]

All of the factors listed in s. 146(2) have been determined by Parliament to be appropriate preconditions to the admissibility of a statement by a young person and all must be proved beyond a reasonable doubt. [34]

Where a trial judge is not satisfied that the young person understood his or her right to consult counsel and a parent and have those people present during the statement, or, is not satisfied that the young person appreciated the consequences of waiving those rights, the statement should not be admitted. [46]

Adopting a single standard of proof for compliance with each component of s. 146 offers significant advantages over a fragmented approach. It is consistent, moreover, with the relevant principles of statutory interpretation — in particular, the presumption that legislation is internally consistent and coherent. The provisions of the YCJA should be read harmoniously. In accordance with the presumption of coherence, s. 146 must be interpreted in light of the YCJA’s declaration of principles (s. 3). Those principles emphasize fairness and proportionality consistent with young persons’ higher levels of dependency and lower levels of maturity and the related need for greater procedural protections. Section 146, in its entirety, is aimed at fulfilling one of the objectives of the legislation — to offer enhanced protection to young persons and ensure they are treated fairly. In practical terms, adopting a single standard ensures that the trial judge’s mind is properly directed to this task. [47]

The trial judge was therefore bound to find the statements inadmissible if she was not satisfied beyond a reasonable doubt that the young person’s rights were explained to him in language appropriate to his understanding or if she had a reasonable doubt whether the young person understood his right to counsel and therefore could validly waive it. It is clear from her reasons that she was left with a reasonable doubt in both respects. [52]

The issue of whether a detained youth has received a clear explanation of his rights and options, and whether he has understood those rights to the extent necessary for an effective waiver, are essentially questions of fact. Here, the trial judge’s finding is supported by the record and is entitled to deference. There is no reason to interfere with her ruling on the admissibility of the statement. [55‑56]

Per Deschamps, Charron and Rothstein JJ.: The common law standard of proof, with respect to preliminary questions pertaining to the admissibility of evidence, is proof on the balance of probabilities. Imposing a reasonable doubt standard in s. 146(2)(b) and (4) would create an inconsistency between these provisions and all other common law preconditions relating to the admissibility of evidence. In the context of waiver of a right guaranteed by the Canadian Charter of Rights and Freedoms, including the right to counsel, the well‑established standard is proof on a balance of probabilities. To hold otherwise would create a hierarchy of Charter rights contrary to the principle established by this Court. A reasonable doubt standard would be contrary to s. 146(1) in view of the express direction in s. 146(1) that the common law relating to the admissibility of statements applies to the informational and waiver requirements. This Court ought not read in a statutory requirement that Parliament did not include and that is inconsistent with the necessary implication of other terms Parliament did use. For these reasons, the standard of proof for compliance with the informational and waiver requirements in s. 146 is proof on a balance of probabilities. [98‑100]

It would appear from the trial judge’s reasons that, even if she had properly applied a balance of probabilities standard to compliance by the police with s. 146, her findings of non‑compliance would not have changed. Absent some palpable and overriding error which affected her assessment of the facts, her findings should not be overturned. [101‑102]

Cases Cited

By Fish J.

Referred to: Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41; R. v. C.G., 1986 CarswellOnt 1556; R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504; R. v. J. (J.T.), 1990 CanLII 85 (SCC), [1990] 2 S.C.R. 755; R. v. Yensen, 1961 CanLII 160 (ON SC), [1961] O.R. 703; Re A., 1975 CanLII 246 (AB SCTD), [1975] 5 W.W.R. 425; R. v. B.S.M. (1995), 1995 CanLII 16403 (MB CA), 100 Man. R. (2d) 151; R. v. S. (S.) (2007), 222 C.C.C. (3d) 545, 2007 ONCA 481; R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339; R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653.

By Rothstein J.

Referred to: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653; R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339; Ibrahim v. The King, [1914] A.C. 599; Prosko v. The King (1922), 1922 CanLII 584 (SCC), 63 S.C.R. 226; Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262; Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640; R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72; R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58; R. v. Terceira (1998), 1998 CanLII 2174 (ON CA), 15 C.R. (5th) 359, aff’d 1999 CanLII 645 (SCC), [1999] 3 S.C.R. 866; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; Stewart v. The Queen, 1976 CanLII 202 (SCC), [1977] 2 S.C.R. 748; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151; Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951; R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529; R. v. Young (1997), 1997 CanLII 1455 (ON CA), 116 C.C.C. (3d) 350; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157; Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23; Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86; R. v. Hamelin (2001), 297 A.R. 201, 2001 ABQB 742; Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254; Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 10, 11(b), 14, 24(2).

Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 3, 146.

Authors Cited

Bala, Nicholas. Youth Criminal Justice Law. Toronto: Irwin Law, 2003.

Paciocco, David M., and Lee Stuesser. The Law of Evidence, 4th ed. Toronto: Irwin Law, 2005.

Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.

APPEAL from a judgment of the Nova Scotia Court of Appeal (Cromwell, Oland and Hamilton JJ.A.) (2006), 248 N.S.R. (2d) 285, 789 A.P.R. 285, 213 C.C.C. (3d) 1, [2006] N.S.J. No. 409 (QL), 2006 CarswellNS 459, 2006 NSCA 112, setting aside the accused’s acquittal on charges of dangerous driving causing bodily harm. Appeal allowed.

Shawna Y. Hoyte and Marie‑France Major, for the appellant.

William D. Delaney and Peter P. Rosinski, for the respondent.

Cheryl Milne and Gary Magee, for the intervener.

The judgment of McLachlin C.J. and LeBel, Fish and Abella JJ. was delivered by

Fish J. —

I

[1] Young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate. Parliament has for that reason provided them by statute with a complementary set of enhanced procedural safeguards in s. 146 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), which governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences.

[2] Section 146 gives statutory expression to common law rules and constitutional rights that apply to adults and to young persons alike. It provides, for example, that no statement by a young person to a person in authority will be admissible in evidence against that young person unless it is voluntary. And it reaffirms the right to counsel enshrined in s. 10 of the Canadian Charter of Rights and Freedoms.

[3] Parliament has recognized in this way that the right to counsel and the right to silence are intimately related. And that relationship is underscored in s. 146 by the additional requirements that must be satisfied in order for statements made by young persons to be admissible against them at their trials. Parliament has in this way underscored the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.

[4] Accordingly, s. 146 provides that statements made by young persons are inadmissible against them unless the persons who took them “clearly explained to the young person, in language appropriate to his or her age and understanding”, the specific rights conferred by s. 146. This condition of admissibility has been referred to as the “informational requirement” of s. 146 and it raises two questions that, again, are intimately related.

[5] The first is whether the Crown must prove not only that the necessary explanation was given in appropriate and understandable language, but also that it was in fact understood by the young person who made the statement. The second is whether compliance with the informational requirement must be proved by the Crown beyond a reasonable doubt, or only on a balance of probabilities.

[6] Because of their interdependence, and for other reasons to be later explained, I would answer both questions together. In my view, the Crown’s evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under s. 146 YCJA. A mere probability of compliance is incompatible with the object and scheme of s. 146, read as a whole. Compliance must be established beyond a reasonable doubt.

[7] Finally, s. 146 provides that young persons, subject to certain conditions, can waive their right under that section to consult with counsel and an adult relative before making a statement and their right to have counsel and the relative present when the statement is made. As we shall see, an unbroken line of authority, beginning with Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41, establishes that a waiver must be established by “clear and unequivocal [evidence] that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process” (p. 49 (emphasis deleted)). Manifestly, where Parliament has specifically sought to endow young persons with enhanced procedural protections, this high standard has not been satisfied if the court is left with a reasonable doubt whether the requirements set out in Korponay and subsequently reaffirmed, have been met.

[8] I hasten to add, however, that this exacting standard should not be taken to impose on the Crown a burden that it cannot properly be expected to discharge. Where compliance with the informational component is established beyond a reasonable doubt, the trial judge will be entitled — and, indeed, expected — to infer, in the absence of evidence to the contrary, that the young person in fact understood his or her rights under s. 146.

[9] In this case, the trial judge was not satisfied that the Crown discharged its burden under s. 146 YCJA. She therefore found the appellant’s statement inadmissible and ultimately entered an acquittal. The Court of Appeal disagreed. For the foregoing reasons, and the reasons that follow, I would allow the appeal and restore the appellant’s acquittal at trial.

II

[10] The appellant, L.T.H., was arrested after a police chase in the early morning hours of August 8, 2004. He was taken into custody and asked, several times, whether he wished to contact counsel. He declined.

[11] L.T.H. was taken to the Cole Harbour RCMP detachment at approximately 5:00 a.m. Several hours later, he was taken to the Dartmouth police station where he slept for a few hours. Approximately 12 hours after the arrest, L.T.H. was brought to the Halifax police station and interviewed by Constable Jeffrey Carlisle.

[12] In the interview room, Constable Carlisle reviewed a young offender statement form with L.T.H. Asked by the officer whether he understood his rights, L.T.H. said “yes”. He said he did not wish to call a lawyer or to talk to a lawyer in private. Likewise, he answered “no” when asked if he wanted to consult in private with a parent or another appropriate adult, or to have them present while giving a statement or while being questioned.

[13] The appellant interrupted the reading of the form at one point and stated that he was not going to answer all of the questions asked of him. The officer told him that the questions did not relate to the incident and were only “do you understand?” questions. Constable Carlisle then finished reading the form. After the appellant initialled and signed the waiver of rights, the officer proceeded to interview him. L.T.H. provided an inculpatory statement that subsequently formed the basis of the Crown’s case against him. The interview with L.T.H. was videotaped by the police and, at the invitation of counsel for the parties, we have viewed and listened to that videotape.

[14] The appellant’s mother testified on the voir dire. She stated that her son had a learning disorder, and that she had told this to a police officer at the Dartmouth police station, before the appellant was taken by the police to Halifax and questioned there. She also testified that on other occasions, when she had been with her son during police questioning, he would rely on her to explain the questions. The appellant did not testify.

[15] Following the voir dire, the trial judge ruled that the videotaped statement of L.T.H. was inadmissible ((2005), 236 N.S.R. (2d) 180, 2005 NSPC 36). She was satisfied that the statement was voluntary, but not convinced beyond a reasonable doubt that the statutory requirements of ss. 146(2)(b) and 146(4) had been met. In particular, she was not convinced that L.T.H. understood his rights and the consequences of waiving them. The Crown called no further evidence and the charge was dismissed.

[16] The Nova Scotia Court of Appeal allowed the Crown’s appeal, set aside the acquittal and ordered a new trial ((2006), 248 N.S.R. (2d) 285, 2006 NSCA 112). It found that, while the Crown must prove beyond a reasonable doubt that the young person was provided with a clear and appropriate explanation of his or her rights and options as set out in s. 146(2)(b), the Crown does not need to prove that the young person in fact understood those rights. The Court of Appeal acknowledged that subjective understanding is a precondition for valid waiver pursuant to s. 146(4). It found, however, that the Crown must prove waiver on a balance of probabilities rather than beyond a reasonable doubt.

III

[17] Section 3 YCJA contains a declaration of principles. In relevant part, it provides:

(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

[18] The procedural rights set out in s. 146 represent one instance of the enhanced protection Parliament has seen fit to provide for young persons. The relevant parts of s. 146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (1) the statement was voluntary (s. 146(2)(a)); (2) 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 right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview) (s. 146(2)(b)); and (3) the young person was given a reasonable opportunity to exercise those rights (s. 146(2)(c)). Finally, s. 146(4) provides that young persons, subject to certain conditions, can waive their right to consult counsel and an adult before making the statement and can also waive the right to have counsel and the adult present when the statement is made. The full text of the section is attached as an Appendix.

IV

[19] The trial judge appears to have concluded that compliance with s. 146(2)(b) — the informational component — requires the judge to be satisfied that the young person in fact understood the rights and options explained to him pursuant to that section. The Court of Appeal held, on the contrary, that the Crown need only prove that the person in authority clearly explained the young person’s rights in appropriate language.

[20] Both parties have characterized the trial judge’s approach as a “subjective” test for determining the adequacy of the required caution. The test adopted by the Court of Appeal, they agree, is “objective” instead.

[21] In my view, the test for compliance with the informational component is objective. It does not require the Crown to prove that a young person in fact understood the rights and options explained to that young person pursuant to s. 146(2)(b). That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular youth being questioned (N. Bala, Youth Criminal Justice Law (2003), at p. 220).

[22] A purposive interpretation of s. 146(2)(b) makes clear that it requires persons in authority to make reasonable efforts to ensure that the young detainee to be questioned is capable of understanding the explanation of the rights being given. This follows from the clear wording of the section: The explanation must be provided in language appropriate to the particular young person’s age and understanding. Without some knowledge of the young person’s level of understanding, the officer will be unable to demonstrate that the explanation was tailored to the capabilities of the young person concerned.

[23] The kind of reasonable efforts that must be made by police officers were ably summarized in R. v. C.G., 1986 CarswellOnt 1556 (Prov. Ct. (Fam. Div.)):

. . . persons in authority taking statements must learn something about the educational level of the child, the language and vocabulary skills of the child, his faculties of understanding, his emotional state at the time. These inquiries do not call for the intervention of a psychologist, or a telephone call to the school teacher, or even to a parent. But they do require enough conversation with the young person, to permit the officer to determine how many phrases must be explained and to what extent he must use ordinary or street language or even slang to be sure the child understands what is being said.

Section 56 [of the Young Offenders Act, the predecessor to s. 146 YCJA] will require evidence on a voir dire from the person(s) in authority that he had a reasonable basis for forming an opinion as to the “age and understanding” of a young person. [Emphasis in original; paras. 29 and 34.]

[24] This Court has consistently held that the rationale for s. 146, and its predecessor, lies in Parliament’s recognition that young persons 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 (R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at p. 522; and R. v. J. (J.T.), 1990 CanLII 85 (SCC), [1990] 2 S.C.R. 755). Given the purpose of the provision, it would be inconsistent to find that the statutory requirements of s. 146 will be complied with whenever a clearly worded form is read to a young person.

[25] Even before the enactment of the YCJA and its predecessor, trial courts recognized that statements made by young persons should be treated differently than statements made by adults. In R. v. Yensen, 1961 CanLII 160 (ON SC), [1961] O.R. 703 (H.C.), for example, McRuer C.J.H.C. held that the interrogating officer must “demonstrate to the Court that the child did understand the caution as a result of careful explanation and pointing out to the child the consequences that may flow from making the statement” (p. 711). See also: Re A., 1975 CanLII 246 (AB SCTD), [1975] 5 W.W.R. 425 (Alta. S.C.).

[26] I take care not to be understood 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. 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 of the waiver. But “reciting back” or “explaining back” is not transformed by its evident utility into a legal requirement under s. 146.

[27] The reading of a standardized form will not normally suffice in itself to establish the sufficiency of the caution required by s. 146(2)(b). Persons in authority must, in addition, acquire some insight into the level of comprehension of the young person concerned, since the mandatory explanation must be appropriate to the age and understanding of that young person. In the words of the Manitoba Court of Appeal in R. v. B.S.M. (1995), 1995 CanLII 16403 (MB CA), 100 Man. R. (2d) 151:

The simple reading of an appropriate waiver form to an accused young person will not generally constitute a clear explanation of his rights or of the consequences of signing a waiver. What will constitute a clear explanation will depend on the facts of a particular case. I would suggest that the mere reading of a waiver form accompanied by the repeated question “do you understand?” would normally fall short of satisfying the statutory requirements. Parliament has expressly stated that young people require more than the offering of information. They require not just explanations, but clear explanations that they are able to understand. [para. 9]

[28] Properly crafted and scrupulously applied, standardized forms nonetheless provide a useful framework for the appropriate interrogation of young detainees. This point was well made by the Ontario Court of Appeal in R. v. S. (S.) (2007), 222 C.C.C. (3d) 545, 2007 ONCA 481, at para. 37:

It is apparent that a uniform form that correctly addresses all of the procedural protections would facilitate uniform compliance with s. 146(2) and, more importantly, would ensure that a young person had his or her rights, and the obligations of the police, clearly explained.

In short, 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. As Sopinka J. explained in I. (L.R.):

. . . the purpose of the requirement that the explanation prescribed by s. 56 precede the making of the statement is to ensure that the young person does not relinquish the right to silence except in the exercise of free will in the context of a full understanding and appreciation of his or her rights. [Emphasis added; p. 528.]

[29] The requirement of understanding and appreciation applies to all young persons, including those who are no strangers to the criminal justice system. Section 146(2)(b) incorporates principles of fairness that must “be applied uniformly to all without regard to the characteristics of the particular young person” (J. (J.T.), at p. 768).

[30] This does not mean that experience in the criminal justice system is irrelevant to the inquiry as to the young person’s understanding. An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding. Police officers, in determining the appropriate 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 disabilities and previous experience with the criminal justice system.

V

[31] The YCJA does not establish the standard of proof the Crown must meet in demonstrating compliance with s. 146. In this case, the trial judge held that the burden rested with the Crown to prove beyond a reasonable doubt that L.T.H. fully understood the rights and options that he waived before providing a statement to police. The Court of Appeal agreed with the trial judge that compliance with s. 146(2)(b) must be proved beyond a reasonable doubt. Unlike the trial judge, however, it held that the onus is on the Crown to establish waiver on a balance of probabilities.

[32] In my view, the standard of proof beyond a reasonable doubt should instead be applied throughout. This standard is most consistent with the purposes of the provision, the common law in relation to the admissibility of statements, and the high standard the Court has consistently required to prove valid waiver.

[33] In enacting the YCJA, and specifically the statutory requirements set out in s. 146, Parliament created a statutory scheme which addresses the reduced capacity of young people to understand their rights and their increased disposition to answer questions put to them by persons in authority. As Cory J. explained in J. (J.T.), at p. 766, Parliament has “recognized the problems and difficulties that beset young people when confronted with authority”:

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. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons in authority. A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure. [pp. 766-67]

[34] For this reason, Parliament has required that admissible statements must not only be voluntary but, in addition, be preceded by a clear explanation of the young person’s rights. All of the factors listed in s. 146(2) have been determined by Parliament to be appropriate preconditions to the admissibility of a statement by a young person and all must be proved beyond a reasonable doubt.

[35] Section 146(2)(a) provides that a statement will be inadmissible unless it is voluntary. At common law, it is well established that the Crown must prove voluntariness beyond a reasonable doubt (see, for example, R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48, at para. 25).

[36] By codifying the requirement of voluntariness in s. 146(2)(a), Parliament should also be taken to have incorporated the associated burden of proof. Indeed, it is not in dispute that the governing standard of persuasion for voluntariness pursuant to s. 146(2)(a) is proof beyond a reasonable doubt. The Crown argues that the reasonable doubt standard, however, should not apply to proof of compliance with s. 146(2)(b), since this provision is directed at enhancing a young person’s right to silence and to counsel, and (unlike voluntariness) is not strongly linked to the reliability of the statement. Similarly, Justice Rothstein finds that voluntariness is “different from all other preconditions” because it alone always casts doubt on the reliability of a statement made by a young person to a person in authority (para. 79).

[37] With respect, I am not persuaded by these arguments. While the primary concern of voluntariness may be with reliability, the expanded notion of the confessions rule articulated in Singh is concerned as well with respect for an individual’s freedom of will. As Charron J. explained, the confessions rule “clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities” (para. 35).

[38] Moreover, like the confessions rule, the informational requirements set out in s. 146(2)(b) are indeed meant to ensure the reliability of a statement. In particular, the requirements are aimed at preventing false confessions by young people inclined to make a statement in order to end the pressure of interrogation or to please an authority figure (J. (J.T.), at pp. 766-67) and at ensuring that any statement given manifests the exercise of free will (I. (L.R.), at p. 528). And, as with voluntariness, the Crown bears the onus of proving beyond a reasonable doubt that the statutory requirements have been met. In regard to voluntariness, the “mere presence of a doubt as to the exercise of the detainee’s free will in making the statement will suffice to ground a remedy” (Singh, at para. 38). In the context of s. 146(2) YCJA, doubt may well arise in the evaluation of the voluntariness of the statement or the adequacy of the statutorily mandated caution. A doubt in regard to either precondition provides a sufficient basis for excluding the statement.

[39] With respect to the standard of proof for waiver, reasonable doubt is likewise appropriate. This standard best harmonizes with the elements necessary to establish a valid waiver.

[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.

[41] This Court has repeatedly reaffirmed the test for valid waiver of the Charter right to counsel under s. 10(b) and has indicated that the standard required for such a waiver is very high (see, for example, R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236; Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; and R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869). According to Lamer C.J., “a person who waives a right must know what he or she is giving up if the waiver is to be valid” (Prosper, at p. 275, citing R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173).

[42] This unbroken line of authority begins with Korponay, where the Court held that the validity of a waiver of a statutory right is

dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. [Emphasis in original; p. 49.]

[43] This passage was cited with approval by Wilson J. in Clarkson, at pp. 394-95, in the context of waiver of a Charter right. She found as well that “any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right” (p. 396). A clear and unequivocal waiver is thus essential, but not sufficient: it must be accompanied by a proper understanding of the purpose the right was meant to serve and an appreciation of the consequences of declining its protection.

[44] We are not concerned in this case with the exclusion of otherwise admissible evidence, as, for example, on an application by the accused under ss. 10(b) and 24(2) of the Charter. On the contrary, our concern is with the admissibility, at the Crown’s behest, of incriminating evidence which Parliament has subjected to mandatory conditions set out in s. 146 YCJA.

[45] The Crown has failed to persuade me that a requirement of proof beyond a reasonable doubt represents an anomalous departure from the Court’s established jurisprudence. It is true that in the context of the s. 11(b) Charter right to a trial within a reasonable time and the s. 14 right to an interpreter, the Court has said, without discussion, that the Crown bears the burden of proving waiver on a balance of probabilities (see R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, and R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951). Nothing in either judgment provides any rationale for the adoption in the present context of that standard.

[46] Parliament has considered it right and necessary to afford young persons rights and procedural safeguards which they alone enjoy. Young persons should not lightly be found to have relinquished this enhanced level of protection they were found by Parliament to require. Where a trial judge is not satisfied that the young person understood his or her right to consult counsel and a parent and to have those people present during the statement, or, is not satisfied that the young person appreciated the consequences of waiving those rights, the statement should not be admitted.

[47] Adopting a single standard of proof for compliance with each component of s. 146 offers significant advantages over a fragmented approach. It is consistent, moreover, with the relevant principles of statutory interpretation — in particular, the presumption that legislation is internally consistent and coherent. As R. Sullivan explains, the provisions of a statute are

presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal.

(Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 168)

The provisions of the YCJA should be read harmoniously. In accordance with the presumption of coherence, s. 146 must be interpreted in light of the YCJA’s declaration of principles (s. 3). Those principles emphasize fairness and proportionality consistent with young persons’ higher levels of dependency and lower levels of maturity and the related need for greater procedural protections. Section 146, in its entirety, is aimed at fulfilling one of the objectives of the legislation — to offer enhanced protection to young persons and ensure they are treated fairly. In practical terms, adopting a single standard ensures that the trial judge’s mind is properly directed to this task.

[48] The Crown contends that requiring proof of actual understanding on the normal criminal standard will prove elusive. This is a reasonable but ultimately unwarranted concern. I am not persuaded that imposing a uniform burden of proof under s. 146 places an unduly onerous burden on the Crown. 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.

[49] It should be remembered as well that, in virtue of s. 146(5) and (6), youth court judges may admit statements affected by technical irregularities, provided they are satisfied beyond a reasonable doubt that the substantive requirements of s. 146 have been met.

VI

[50] The trial judge (at paras. 12 and 16) appears to have considered that proof of subjective understanding was necessary to establish compliance with s. 146(2)(b). With respect, as earlier explained, I think it unnecessary to establish by affirmative evidence that the young person in fact understood the explanation required by that provision. Nor, would I impose, as the trial judge apparently did, an additional mandatory requirement that police officers ask young persons to “explain back” their rights. The Crown has failed to persuade me, however, that absent these findings there is a reasonable possibility that the trial judge’s ruling on admissibility would have been different.

[51] The trial judge did not err in finding that police officers must form an opinion as to the level of understanding of the accused. A failure, as in this case, to make any inquiry in this regard will generally prove fatal to the admissibility of the statement, since the Crown must demonstrate that the explanation given was appropriately tailored to the particular young person. Moreover, the trial judge was not satisfied that L.T.H. clearly understood his rights and the ramifications of waiving them before doing so.

[52] The trial judge was bound to find the statements inadmissible if she was not satisfied beyond a reasonable doubt that L.T.H.’s rights were explained to him in language appropriate to his understanding or if she had a reasonable doubt whether L.T.H. understood his right to counsel and therefore could validly waive it. It is clear from her reasons that she was left with a reasonable doubt in both respects.

[53] In concluding that the Crown had not discharged its burden in this case, the trial judge noted the officer’s rapid pace in navigating the waiver form, the lack of eye contact with L.T.H. and the officer’s monotone voice. She noted that there was no evidence, apart from his affirmative reply to repeated questions of “do you understand?”, that L.T.H. understood his rights and the officer made no effort to establish his level of understanding. The trial judge made particular reference to L.T.H.’s comment, midway through the reading of the form, to the effect that he was not going to answer all of the questions being asked of him. This led her to wonder whether he really understood the importance of the questions and the answers he was giving (para. 35).

[54] The trial judge found that the completion of the form amounted to a mere formality. This, and evidence she heard as to the appellant’s learning disability, caused her to have “grave concerns” about whether L.T.H. understood his rights. On this basis, she ruled that the statement of the appellant was inadmissible pursuant to s. 146. She was entitled to do so.

[55] Like voluntariness, the issue of whether a detained youth has received a clear explanation of his rights and options, and whether he has understood those rights to the extent necessary for an effective waiver, are essentially questions of fact. In R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, at para. 71, the Court held that a finding of voluntariness “should only be overturned for ‘some palpable and overriding error which affected [the trial judge’s] assessment of the facts’: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz)”. The same is true for findings made pursuant to s. 146.

[56] In my view, the trial judge’s finding on the issue of compliance with s. 146 is supported by the record and is entitled to deference. I therefore see no reason to interfere with her ruling on the admissibility of the statement.

VII

[57] I conclude with three observations concerning the reasons of Rothstein J.

[58] First, there is a recognized exception to the general rule that preliminary findings of fact may be determined on a balance of probabilities. Proof beyond a reasonable doubt will be required instead “in those certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt” (R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 71). The appellant’s incriminating statement to the police clearly falls within that recognized exception. And that is the evidence in issue here. Indeed, as I mentioned earlier, our concern is with the admissibility of a statement that formed the basis of the Crown’s case against the appellant.

[59] Justice Rothstein cites (at para. 83) the passage in Arp that sets out the exception to which I have just referred. For ease of reference, I reproduce the relevant part of that passage here:

. . . the general rule that preliminary findings of fact may be determined on a balance of probabilities is departed from in those certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt. For example, where the Crown adduces a statement of the accused made to a person in authority, the trial judge must be satisfied beyond a reasonable doubt of the voluntariness of the statement. That evidence may of itself, if accepted as true, provide conclusive proof of guilt. Since doubt about the statement’s voluntariness also casts doubt on its reliability, proof beyond a reasonable doubt is warranted. [Emphasis added; para. 71.]

Justice Rothstein and I part company in only one important regard. If Justice Cory considered that the voluntariness of a statement to a person in authority was the only occasion requiring proof beyond a reasonable doubt, he would not have characterized it as an example of the occasions that do; likewise, since Justice Cory characterized voluntariness as an example, he cannot have meant that voluntariness is the only matter requiring proof beyond a reasonable doubt, as contended by Justice Rothstein. With respect, moreover, I see nothing anywhere else in Arp to suggest that the voluntariness of a statement to a person in authority is the only matter requiring proof beyond a reasonable doubt — and not merely an example, as indicated by Justice Cory in the passage cited by my colleague. The contrary appears to be true.

[60] Second, in none of the decisions relied on by my colleague has a court admitted a statement made by an accused to a person in authority where the court was left with a reasonable doubt as to whether the requirements for admissibility had been met. R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, cited by my colleague in this regard, did not involve a statement made by an accused to a person in authority.

[61] I can see no reason to adopt a standard less onerous than the common law imposes where Parliament, as in s. 146 YCJA, has expressly subjected the admissibility of a statement made by a young person to a person in authority not only to the requirement of voluntariness, but to additional conditions as well.

[62] Third, Justice Rothstein rests his divergent conclusion, at least in part, on an apparent misapprehension of my reasons. He understands me to have adopted the standard of proof beyond a reasonable doubt because the informational and waiver requirements go to the voluntariness of the statement. With respect, I am unable to find anything in my reasons to that effect.

[63] My reasons, and indeed the wording of s. 146, make clear that compliance with the informational component and the establishment of waiver are not simply “two factors which are to be considered and weighed by the judge, together with other relevant factors, in deciding whether the statement was made voluntarily” (Rothstein J., at para. 90). They are distinct and independent requirements of admissibility. Even where voluntariness has been established beyond a reasonable doubt (as the trial judge found in this case), the statement must be excluded where the youth has not had his or her rights clearly explained in appropriate language or where waiver has not been established.

VIII

[64] For all of these reasons, I would allow the appeal, set aside the order for a new trial and restore the appellant’s acquittal.

The reasons of Deschamps, Charron and Rothstein JJ. were delivered by

Rothstein J. —

I. Introduction

[65] Section 146 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences. The relevant provisions are contained in the Appendix of Justice Fish’s reasons.

[66] Two issues are raised in this appeal. The first is whether the Crown must prove that in taking a statement, the person in authority not only clearly explained to the young person, in language appropriate to his or her age and understanding, his or her rights conferred by s. 146(2)(b) YCJA, but also, that it was in fact understood by the young person who made the statement. The second is whether compliance with the informational and waiver requirements of s. 146(2)(b) and (4) must be proven by the Crown beyond a reasonable doubt or on a balance of probabilities.

[67] I have read the reasons of Justice Fish. He says that the Crown’s evidentiary burden will be discharged by evidence that the person to whom the statement was made has, before the statement is made, clearly explained to the young person, in language appropriate to his or her age and understanding, his or her rights under s. 146(2)(b) YCJA. Evidence of actual understanding is not required. I agree. I also agree with him that the young person’s previous experience in the youth criminal justice system may be evidence that the caution was explained in language appropriate to the young person’s understanding.

[68] As to the second issue, I agree with Fish J. that the Crown must prove beyond a reasonable doubt that the statement made by the young person was voluntary. I differ with him, however, on the standard of proof applicable to whether there was compliance by the person in authority with the informational and waiver requirements of s. 146 YCJA. Fish J. says the standard is proof beyond a reasonable doubt. In my respectful view, the standard is proof on a balance of probabilities.

II. Analysis

(1) Common Law Standard of Proof for Preliminary Questions of Fact

[69] The YCJA does not expressly provide a standard of proof for compliance with s. 146. However, s. 146(1) states:

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.

Fish J. and I agree that the “law” referred to in s. 146(1) is common law. Where we differ is in what the common law requires.

[70] The common law rule relating to the admissibility of evidence is that the party seeking to admit the evidence must establish on the balance of probabilities preliminary matters governing the use of that evidence: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 668, R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, at pp. 947-48, and R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 70.

[71] In Evans, the type of evidence at issue was an admission by the accused in the form of hearsay. This Court held that, before admitting the evidence, the Crown had to establish on a balance of probabilities the precondition that the statement was made by the accused. Sopinka J., writing for a majority of the Court, stated at p. 668:

This Court has affirmed that preliminary questions of fact by the trier of fact may be decided on a balance of probabilities. . . .

. . . If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt.

[72] Only one exception to proof on a balance of probabilities for preliminary questions of fact governing the use of evidence has been recognized by this Court: the confessions rule. The definitive statement of the confessions rule came in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609:

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

This Court adopted the “Ibrahim rule” in Prosko v. The King (1922), 1922 CanLII 584 (SCC), 63 S.C.R. 226, and subsequently applied it in cases like Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262, and Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640.

[73] As it now stands, the common law confessions rule “requires proof beyond a reasonable doubt of the voluntariness of any statement obtained from an accused by a person in authority before it may be admitted in evidence” (R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48, at para. 29).

[74] As indicated by Iacobucci J. in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, at para. 32, the rule is directed against the danger of false confessions. Involuntary confessions are more likely to be unreliable. It is because doubt about the statement’s voluntariness also casts doubt on its reliability that proof beyond a reasonable doubt is warranted.

In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721:

Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation. . . . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. . . .

All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.

(Per Iacobucci J., in Oickle, at para. 33)

[75] In the case of statements made by young persons, the Crown must prove beyond a reasonable doubt the statement’s voluntariness as statutorily required under s. 146(2)(a) YCJA.

[76] Beyond the well-established confessions rule, there have been no other cases where proof beyond a reasonable doubt has been required by this Court or by any other court as a precondition to admission of evidence, including statements of an accused made to a person of authority (see D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 19).

[77] In the case of a statement made by a young person to a person of authority, a precondition to the admissibility of the statement is compliance with the informational requirement as set out in s. 146(2)(b) YCJA. Applying the common law principle, compliance with that preliminary determination must be proven by the Crown on a balance of probabilities.

[78] For this reason, I cannot agree with Fish J. that proof beyond a reasonable doubt applied throughout s. 146 is the standard most consistent with the common law in relation to the admissibility of statements (Fish J.’s reasons, at para. 32).

[79] In particular, I cannot agree with him that just because an incriminating statement is made to a person in authority, all preconditions to its admissibility must be established beyond a reasonable doubt (Fish J.’s reasons, at paras. 58 and 61). The confessions rule is solely directed to the question of the voluntariness of the statement and not to other preconditions to its admissibility. As I have explained throughout my reasons, beyond the confessions rule, there has never been a case where proof beyond a reasonable doubt has been found to be required as a precondition to admission of evidence. The precondition of voluntariness is different from all other preconditions to admissibility since doubt about the statement’s voluntariness always casts doubt on its reliability. The same cannot be said about the informational and waiver preconditions of s. 146(2)(b) and (4). It is quite possible for an explanation that was not adequately tailored to the age and understanding of the young person to not cast any doubt about the statement’s reliability. In the rare case where an aspect of the informational and waiver requirements does cast a doubt about the reliability of a statement, the Crown will still be required to prove voluntariness beyond a reasonable doubt ensuring that a statement that was not given voluntarily would not be admissible.

[80] The common law rule that all preliminary matters governing the use of evidence must be established on the balance of probabilities has been consistently applied even in cases where the evidence is crucial to a finding of guilt. It has been applied to preconditions of admissibility of various types of evidence such as hearsay, post-offence conduct, expert and similar fact evidence: Arp, at para. 48; Evans, at pp. 667-68; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 49; R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, at para. 55; R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58, at para. 41; R. v. Terceira (1998), 1998 CanLII 2174 (ON CA), 15 C.R. (5th) 359 (Ont. C.A.) (aff’d 1999 CanLII 645 (SCC), [1999] 3 S.C.R. 866), at para. 46.

Indeed, even where the Crown leads devastating opinion evidence that the suspect DNA and the DNA of the accused have identical characteristics leading to overwhelming odds that the suspect DNA belonged to the accused, the preconditions to the admission of the opinion evidence need be established only on the balance of probabilities. [Footnote omitted.]

(Paciocco and Stuesser, at p. 19)

[81] Even in cases where evidence is an admission by the accused, this Court has held that the preconditions to the admission of the inculpatory statement must be established on the balance of probabilities. See for example Evans, where the type of evidence at issue was an admission by the accused in the form of hearsay. Although Evans did not involve a statement made by an accused specifically to a person in authority, as pointed out by Fish J. at para. 60 of his reasons, the statement was nevertheless an inculpatory admission by the accused and crucial to a finding of guilt.

[82] Fish J. does not cite any cases in which proof beyond a reasonable doubt has been applied to statutory preconditions to admissibility. However, numerous decisions relate to common law preconditions to the admissibility of evidence. In all these cases, this Court (as well as other courts) has consistently required that the common law preconditions to the admissibility of evidence be established on a balance of probabilities. There is no logical distinction between common law and statutory preconditions that would support different standards of proof for each. Whether statutory or common law, both types of preconditions are requirements for admissibility of evidence and they are subject to the same standard of proof, namely that of the balance of probabilities.

[83] Fish J. does cite Arp in support of his conclusion that “[t]he appellant’s incriminating statement to the police clearly falls within that recognized exception [of requiring proof beyond a reasonable doubt]” (Fish J.’s reasons, at para. 58). He seems to be interpreting the reasons of Cory J. in Arp as suggesting that the confessions rule should no longer be the only occasion requiring proof beyond a reasonable doubt. Cory J. did use the words “in those certainly rare occasions when admission of the evidence may itself have a conclusive effect with respect to guilt” (Arp, at para. 71). However, I think it would be wrong to interpret this non‑specific and narrow phrase reference as opening the door to a broad new category of exceptions to the common law standard of proof with respect to preliminary questions of fact. Such an interpretation would not adhere to the consistent jurisprudence of this Court that, beyond the confessions rule, there has never been a case where proof beyond a reasonable doubt has been found to be required as a precondition to admission of evidence.

[84] Because the common law standard of proof with respect to preliminary questions of fact governing the use of evidence is one of balance of probabilities, I cannot agree with Fish J. that proof beyond a reasonable doubt applied throughout s. 146 is the standard most consistent with the common law in relation to the informational and waiver requirements of s. 146(2)(b) and (4) (Fish J.’s reasons, at para. 32).

(2) Evidentiary Approach to Matters Preliminary to the Question of Voluntariness

[85] As discussed above, the informational and waiver requirements are examined on a preliminary basis when determining whether the statutory requirements of s. 146 YCJA have been complied with. Independent from that examination, the informational and waiver requirements are also relied on as part of a constellation of facts in assessing the voluntary nature of the statement.

[86] Fish J. holds at para. 38:

. . . like the confessions rule, the informational requirements set out in s. 146(2)(b) are indeed meant to ensure the reliability of a statement. In particular, the requirements are aimed at preventing false confessions by young people . . . and at ensuring that any statement given manifests the exercise of free will . . . And, as with voluntariness, the Crown bears the onus of proving beyond a reasonable doubt that the statutory requirements have been met.

Fish J. seems to be inferring that simply because the informational and waiver requirements are concerned with some of the same issues as is the requirement of voluntariness, compliance by the person in authority with the informational and waiver requirements of s. 146(2)(b) and (4) should be subject to the standard of beyond a reasonable doubt as it would apply to the ultimate issue of the voluntary nature of the statement.

[87] I cannot agree with this proposition. Fish J. is collapsing the two distinct and separate uses that are to be made of the informational and waiver requirements, on the one hand, at the preliminary stage as statutory preconditions to admissibility, and, on the other hand, when relied on to determine the voluntary nature of the statement. With respect to the use made of the informational and waiver requirements when determining the voluntary nature of the statement, it is well established that the criminal standard of proof beyond a reasonable doubt is to be applied only to the ultimate issue and not to the weighing of individual pieces of evidence that go to that ultimate determination (R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 354-60, Stewart v. The Queen, 1976 CanLII 202 (SCC), [1977] 2 S.C.R. 748, at pp. 759‑61, and White, at para. 42).

[88] Findings relating to the voluntary nature of a confession, like those relating to guilt, should not be broken down in relation to individual pieces or categories of evidence (Stewart, at pp. 759‑61; Morin, at pp. 354-60; White, at para. 42). In Morin, Sopinka J., writing for the majority, stated at p. 359:

The authorities reviewed above are clear that the jury is not to examine the evidence piecemeal by reference to the criminal standard. Otherwise, there is virtually no guidance in previous cases as to what legal rules, if any, apply to the process of weighing the evidence. Attempts to formulate such rules have been frowned upon.

All individual items of evidence take on their full significance and probative value only in the context of the other evidence in the case. The significance of each item of evidence is necessarily shaped by the others.

[89] As a result, it is the voluntariness of the statement itself which must be established beyond a reasonable doubt, not the individual facts upon which this conclusion is based. The Crown may rely on a constellation of facts in order to prove voluntariness. As noted in Boudreau, at p. 267, quoted with approval in Singh, at para. 31: “All the surrounding circumstances must be investigated and, if upon their review the Court is not satisfied of the voluntary nature of the admission, the statement will be rejected.” To be relied upon as proof of voluntariness, the Crown need not prove each underlying fact beyond a reasonable doubt as a prerequisite to a finding of voluntariness itself.

[90] This Court has stated common circumstances that can vitiate the voluntariness of a confession: threats or promises, oppression, lack of operating mind and other police trickery (Oickle, at paras. 47‑71). Evidence of compliance with the informational and waiver requirements are two factors which are to be considered and weighed by the judge, together with other relevant factors, in deciding whether the statement was made voluntarily. Evaluated in a piecemeal fashion, they may not allow a judge to conclude whether the statement was voluntary. However, in conjunction with all the other relevant circumstances, they may assist in determining whether a reasonable doubt exists with respect to the voluntariness of the statement.

[91] Accordingly, even though compliance with the informational and waiver requirements are factors considered in determining the voluntary nature of the statement, that does not have the effect of modifying the evidentiary threshold required by criminal law — namely, that all the evidence, when considered together, must give rise to proof beyond a reasonable doubt. However, the enquiry as to compliance with the statutory preliminary matters in s. 146(2)(b) and (4) is separate and is to be decided, as other preliminary matters, on a standard of proof on a balance of probabilities.

(3) Object and Scheme of Section 146 YCJA

[92] Fish J. says that proof beyond a reasonable doubt of the informational and waiver requirements is the standard most compatible with the object and scheme of s. 146 read as a whole (Fish J.’s reasons, at para. 6). I am unable to agree.

[93] I do agree that Parliament specifically sought to endow young persons with enhanced procedural protections in the form of the statutorily based protections in s. 146 in recognition of the presumption of reduced moral sophistication and maturity of young persons. Parliament did not say, however, that the standard of proof for compliance with the informational and waiver requirements is beyond a reasonable doubt. To the contrary, Parliament stated in s. 146(1) YCJA that the common law rule relating to the admissibility of evidence is to apply — namely, that all preliminary findings of fact relating to the use of evidence, other than voluntariness, must be determined on the balance of probabilities.

[94] The requirements of s. 146 are substantially broader than those under the Canadian Charter of Rights and Freedoms. A young person must be advised of the right to silence and warned of the potential use of any statement against him or her, as well as of the right to consult with counsel and a parent and to have those persons present while a statement is made (s. 146(2)(b) YCJA). If any of these requirements are not satisfied, the statement will automatically be inadmissible (s. 146(2) YCJA). In contrast, an adult only has to be informed of the reason for arrest and the right to retain counsel (s. 10(a) and (b) of the Charter). Police may question an adult who has retained counsel in the absence of that legal adviser, unless the accused asks for counsel to be present. “Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 184, and quoted with approval in Singh, at para. 46). In the case of young persons, however, any statement made by the young person is required to be made in the presence of counsel and any other person requested by the young person, unless the young person desires otherwise (s. 146(2)(b)(iv) YCJA).

[95] It is by affording young persons the additional protections expressed in s. 146 YCJA that Parliament satisfied its objective of recognizing the reduced sophistication and maturity of young persons. There is nothing in the words of s. 146 that expresses or implies a standard of proof of beyond a reasonable doubt for preliminary determinations of fact. To the contrary, s. 146 explicitly incorporates the applicable common law standard of proof with respect to the admissibility of evidence, namely, proof on a balance of probabilities for preliminary findings of fact.

(4) Waiver Requirement

[96] With respect to the waiver requirement, Fish J. says that since the Court has repeatedly indicated that the standard required for a valid waiver of the Charter right to counsel under s. 10(b) is high, it must follow that the standard of proof for a valid waiver under s. 146(4) YCJA is “very high” and therefore one of proof beyond a reasonable doubt (Fish J.’s reasons, at para. 41).

[97] In the context of waivers of Charter‑based rights, there is no authority that equates the term “high” with a standard of proof beyond a reasonable doubt. Rather, reference to a high standard refers to the requirement of clarity of the explanation of the rights being waived, not to a high burden of proof. As stated by Lamer J. (as he then was) in Korponay v. Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41, at p. 49, the validity of a waiver of a procedural right for the holder’s benefit, including a Charter right, “is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect” (emphasis deleted). See also Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at pp. 394-95. The use of the term “high” and “clear and unequivocal” does not however mean proof beyond a reasonable doubt.

[98] Further, in the context of waiver of a Charter right, the well-established standard is proof on a balance of probabilities (R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at p. 1229, and R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at p. 998. See also: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 546, and R. v. Young (1997), 1997 CanLII 1455 (ON CA), 116 C.C.C. (3d) 350 (Ont. C.A.), at para. 11). While these cases considered Charter rights other than the right to counsel, it follows that the same standard would apply to waiver of the right to counsel. To hold otherwise would create a hierarchy of Charter rights contrary to the principle established by this Court in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 877. See also: M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, at para. 100, Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23, at para. 51, and Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86, at para. 126. Further, there is also jurisprudence directly recognizing that the standard applicable for waiver of the right to counsel is one of balance of probabilities: R. v. Hamelin (2001), 297 A.R. 201, 2001 ABQB 742, at paras. 69‑72.

(5) Consistency With Common Law

[99] Finally, Fish J. states that “[a]dopting a single standard of proof for compliance with each component of s. 146 offers significant advantages over a fragmented approach. It is consistent, moreover, with the relevant principles of statutory interpretation — in particular, the presumption that legislation is internally consistent and coherent” (para. 47). Although this approach might seem at first glance to promote consistency, it in fact generates inconsistency in the law applicable to the admissibility of evidence as it now stands in Canada. As I have endeavoured to show, the common law standard of proof, with respect to preliminary questions pertaining to the admissibility of evidence, is proof on the balance of probabilities. Imposing a reasonable doubt standard in s. 146(2)(b) and (4) would create an inconsistency between these provisions and all other common law preconditions relating to the admissibility of evidence. This would be contrary to s. 146(1) in view of the express direction in s. 146(1) that the common law relating to the admissibility of statements applies to the informational and waiver requirements. This Court ought not read in a statutory requirement that Parliament did not include and that is inconsistent with the necessary implication of other terms Parliament did use.

III. Disposition

[100] For these reasons, I am of the view that the standard of proof for compliance with the informational and waiver requirements in s. 146 is proof on a balance of probabilities.

[101] I agree with Fish J. that the issue of whether a detained youth has received a clear explanation of his rights pursuant to s. 146(2)(b) YCJA and whether he has waived those rights in accordance with s. 146(4) are questions of fact. If a trial court properly considers all the relevant circumstances, then its finding should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at p. 279 (emphasis deleted) (quoting Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802, at p. 808).

[102] In the present case, the trial judge expressed “grave concerns” about whether L.T.H. understood his rights. Having accepted evidence of a learning disability, she stated that “[o]ther than an affirmative reply to the questions ‘do you understand?’ there is no other evidence that in fact [L.T.H.] fully and clearly understood his rights” and “[L.T.H.]’s comment, midway through the reading of the form, to the effect that he was not going to answer all of the questions being asked of him, leads me to wonder whether he really understood the importance of the questions being asked and the answers he was giving” (paras. 35 and 37). It would appear from her reasons that, even if she had properly applied a balance of probabilities standard to compliance by the police with s. 146, her findings of non-compliance would not have changed.

[103] Like Fish J., I would allow the appeal, set aside the order for a new trial and restore the acquittal.

APPENDIX

Youth Criminal Justice Act, S.C. 2002, c. 1

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.

(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.

(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) 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.

(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.

(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.

(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.

(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.

(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.

Appeal allowed.

Solicitor for the appellant: Dalhousie Legal Aid Service, Halifax.

Solicitor for the respondent: Public Prosecution Service, Halifax.

Solicitor for the intervener: Justice for Children and Youth, Toronto.