When Sav says, “I want to remain silent,” his right to say this comes from the Canadian Charter of Rights and Freedoms. Sections 7 to 14 of the Charter set out rights that protect us in our dealings with the justice system. What are those rights?
The Stuff Your Mom Warned You About
What happens in cases where a youth makes an admission of guilt without understanding the consequences of what he or she is doing?
Read the following case outline. Describe how the rights of a youth are protected in this situation.
R. v. G.F.D., B.A.S. and P.J.B. 2006 BCPC 02
A youth, Barbara, was accused of a crime. She was 13 years of age at the time. She had a legal guardian, Dee, whom she thinks of as a mother.
One night when Barbara was late in arriving home, Dee telephoned the cell phone of Barbara’s friend. Barbara’s friend said that the police were talking to Barbara and her and another girl about a fight in the park.
Dee became concerned and headed to the park to find out what was going on.
As a result of this incident, Dee decided to call the police herself and report the three girls’ involvement in the fight. She gave the names of the girls to the police.
Your Rights in a Car
When can police search you and your possessions? Prepare a short summary of the facts. Find out more: Rights Talk BC Civil Liberties Association.
Mimi in Custody
What happens in court if a youth makes a statement to police that was not voluntary? Consider the following case and summarize the reasons for the judge’s conclusions.
R. v. A.A.,  O.J. No. 5137
This case involved a 15-year-old young person charged with criminal negligence causing bodily harm after a steel rod was thrown from a ninth floor balcony. The rod, believed to be part of a shopping cart, struck a five-year-old girl on the ground below, puncturing her skull and seriously injuring her. After a brief investigation, the police questioned the accused who then admitted throwing the rod from the balcony.
The youth's lawyer asked the court to exclude the youth's statement, as well as evidence that was seized by the police as a result of the statement, claiming that the statement was not made voluntarily.
The young people who were alleged to be involved were questioned in the home where at least one of them lived. No parent or other adult was present, and it does not appear that the youth were advised of a right to counsel. The accused youth in particular was taken into a bedroom and sat down on the edge of the bed. A police officer sat on either side, as the questioning continued. The youth was not told that he was free to leave at any time. No adult was informed of what was going on and the accused was not informed of his rights under the Youth Criminal Justice Act (YCJA). A broken shopping cart was seized and taken into evidence.
The judge held that the Crown failed to prove that the statement was voluntary, noting “profoundly oppressive circumstances.” The judge held that the accused had been detained, noting that all the surrounding circumstances needed to be taken into account.
Referring to the accused, the judge noted that he was a 15-year-old youth who was born in Somalia and had only been in Canada for one month. The judge went on to say, “Police officers have entered the home where he lives and pretty much taken it over. He is being questioned by two of them cut off from his brother and any adult support. He would perceive himself as a prisoner and in my view [was] deliberately made to believe that he was.”
The judge noted that in order to give up a right you must first be aware of the right and understand the consequences of giving it up. Under section 146(2) of the YCJA, the statement was excluded from evidence. The judge also ruled that the entry to the apartment was unlawful and excluded the evidence of the seized shopping cart under section 24(2) of the Canadian Charter of Rights and Freedoms.
This case study was excerpted from: The YCJA: One Year Later. To locate the publication online, go to www.plea.org.
Lily on Trial – Special Consideration in Sentencing
Prepare a brief report on the Gladue decision. R. v. Gladue,  1 S.C.R. 688. In this decision the Supreme Court of Canada sets out the parameters of section 718.2(e) of the Criminal Code regarding the sentencing of offenders, and in particular, Aboriginal offenders.
In this decision, the Supreme Court of Canada noted that many Aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. These factors contribute to a higher incidence of crime and incarceration.
After reviewing the statistics and studies conducted on incarceration rates for Aboriginal people, the court said:
“These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic over-representation of Aboriginal people within both the Canadian prison population and the criminal justice system reveals a sad and pressing problem.”
The court also said:
“The unbalanced ratio of imprisonment for Aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for Aboriginal people. It arises also from bias against Aboriginal people and from an unfortunate institutional approach that is more included to refuse bail and impose more and longer prison terms for Aboriginal offenders.”
Aboriginal offenders are, as a result of these factors, more adversely affected by incarceration and less likely to be “rehabilitated.” Moreover, jail is often culturally inappropriate and discrimination against Aboriginal people also occurs in prison.
A judge who sentences an aboriginal offender must give attention to these factors. The judge must consider whether more restorative sentencing principles would both serve to prevent crime and be the best way for individual and social healing to take place.
At the Border
Complete the following chart about when records are destroyed.
- Lily’s offence was arson.
- Damien’s offence was assault causing bodily harm.
These are both indictable offences.
- When will Lily’s record be destroyed?
- When will Damien’s record be destroyed?
Disposition (sentence) and offence
Time (record remains open/can be disclosed)
Clean period required?
If you are found guilty of an indictable offence during the “clean” period, then you must have a further 5-year “clean period” before your record for the previous offence will be closed.
Use the Handout 3: When Youth Records are Destroyed, to provide information about when records are destroyed.
Find out about the offences under the Criminal Code of Canada. The Code is available online from several sources, including the Department of Justice Canada. For assault with a weapon or causing bodily harm (Damien’s offence), look in Part VIII – Offences Against the Person. The relevant sections are:
- 267. Everyone who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
For arson (Lily’s offence), look in Part XI– Wilful and Forbidden Acts.
- 434. Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.