Is a statement made by a young offender to his aunt in the presence of a police officer in their home in violation of s. 146 of the Young Offenders’ Charter of Justice?

In R v. A.A. [2003] O.J. No. 5653, a spontaneous utterance was made by a youth to his aunt in the presence of police officers in their apartment. He was being arrested and was in the custody of the police. His statement was found to be inadmissible because the police had not advised him of his rights under s. 146 of the YCJA, and because that conversation should be afforded the same protection as a consultation between a young offender and his counsel. That the exchange took place in Somali, a language none of the police officers present could understand, did not affect its inadmissibility.

In R v. D.D.T. (2004) ABPC 66, the issue concerned whether the police, in the midst of taking a statement from a youth, have an obligation to advise him or her of the presence of a parent at the police station such that the youth can decide whether or not to have that parent present. There, a parent had arrived and was demanding to see the youth, but the police refused to interrupt the statement that was underway. It was decided that the failure of the police to inform the youth of the parent's presence prior to the obtaining of a statement from him, and the failure to provide the youth with a reasonable opportunity to consult with the parent both breached s. 146 of the YCJA. Thus, the youth's waiver was found to be ineffective and his statement inadmissible.

In R v. V.Z. [2004] O.J. No. 1307, the admissibility of a statement obtained by a youth was determined by reference to s. 56 of the Young Offenders Act. However, at paragraph 12, Spence J. noted that his decision would have been the same if it had been decided under the YCJA. The issue was the level of understanding of the youth in relation to giving a statement and waiving his rights. The court found that the police had failed to give any alternate or a simplified language explanation of certain portions of the waiver form used, and failed to conduct an inquiry into his level of understanding. In particular, the police failed to inform the youth that any statements he gave could be used in evidence against him. The court found that these omissions were not "technical irregularities" of the sort contemplated by Section 146 (5) and (6) of the YCJA. The waiver and the statements were excluded.

In R v. D.R.B. [2004] B.C.P.C. 0144, an arrested youth attempted to contact counsel of choice but was unable to do so. The police knew this, but proceeded to take a statement. The court found that this did not give the youth a reasonable opportunity to contact other counsel and breached his Section 10(b) rights under the Charter. The continuing ambivalence of the youth as to whether or not he wished to give a statement or whether he wished to consult counsel prior to doing so, or have counsel present during the course of giving a statement, was found not to be sufficient to relieve the police of their obligation to ensure he had a reasonable opportunity to consult counsel.