Statements and Confessions

I have won a lot of trials by almost always contesting confessions and statements given by young persons to police. Phone me at 905-273-3322 for more information.

Section146 of the YCJA provides special rules for confessions and statements by young persons. You can read that section of the YCJA below. However, the starting point for any consideration of admissibility of a statement by an accused, adult or young person, is the common law of voluntariness. 

 

There is a basic rule of criminal law that confessions by an accused during torture are not admissible against him or her. It would not be fair for the Court to hear such evidence. The common law (historical judge-made) rule is usually described as "voluntariness". Did the police offer you an "inducement" or make a "threat" that caused your confession to not be voluntary? The law on this suibject has changed a lot in the last few years. Read a case in the Supreme Court of Canada called Oickle. Here's an excerpt from the headnote of that case:

 

"The police may often offer some kind of inducement to the suspect to obtain a confession.  This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about the voluntariness of the confession. An important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.  Oppressive conditions and circumstances  clearly also have the potential to produce an involuntary confession.  In assessing oppression, courts should consider whether a suspect was deprived of food, clothing, water, sleep, or medical attention; was denied access to counsel; was confronted with fabricated evidence; or was questioned aggressively for a prolonged period of time.  The operating mind doctrine only requires that the accused knows what he is saying and that it may be used to his detriment.  Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule.  The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible.  Lastly, the police use of trickery to obtain a confession must also be considered in determining whether a confession is voluntary or not.  This doctrine is a distinct inquiry.  While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system.  There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.  In such cases, the confessions should be excluded."

 

"In sum, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.  Voluntariness is the touchstone of the confessions rule and a useful term to describe the various rationales underlying the rule.  If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it.  Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions.  If the trial judge properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for some palpable and overriding error which affected the trial judge’s assessment of the facts."

 

Read a Research Paper respecting the propensity of young persons to Waive their Rights

 

 

Here are some excerpts from the YCJA that every young person and his or her parent should read and understand:​

 

General law on admissibility of statements to apply
  •  (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.

  • Marginal note:When statements are admissible

    (2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

    • (a) the statement was voluntary;

    • (b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that

      • (i) the young person is under no obligation to make a statement,

      • (ii) any statement made by the young person may be used as evidence in proceedings against him or her,

      • (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

      • (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

    • (c) the young person has, before the statement was made, been given a reasonable opportunity to consult

      • (i) with counsel, and

      • (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and

    • (d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

  • Marginal note:Exception in certain cases for oral statements

    (3) The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

  • Marginal note:Waiver of right to consult

    (4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver

    • (a) must be recorded on video tape or audio tape; or

    • (b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

  • Marginal note:Waiver of right to consult

    (5) When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.

  • Marginal note:Admissibility of statements

    (6) When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.

  • Marginal note:Statements made under duress are inadmissible

    (7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.

  • Marginal note:Misrepresentation of age

    (8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver,

    • (a) the young person held himself or herself to be eighteen years old or older;

    • (b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and

    • (c) in all other circumstances the statement or waiver would otherwise be admissible.

  • Marginal note:Parent, etc., not a person in authority

    (9) For the purpose of this section, a person consulted under paragraph (2)(c) is, in the absence of evidence to the contrary, deemed not to be a person in authority.

 

 

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Contact us for an initial consultation.

Stephen R. Biss

Barrister & Solicitor

303-470 Hensall Circle

Mississauga, ON

L5A 3V4

905-273-3322

biss@lawyers.ca

Youth Courts We Cover

We represent young persons at all GTA Youth Court Courthouses including Brampton, Milton, Orangeville, Guelph, and Toronto.

​© Copyright 2018 Stephen R. Biss, Barrister & Solicitor

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