Youth in Conflict W6 - Lecture notes Week 6 PDF

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Youth in Conflict with the Law October 9th, 2018 Extrajudicial Measures, Charging, Arrest and Interviewing Police Procedures Arrest, questioning, and detention of young persons is governed by:  The Canadian Charter of Rights and Freedoms  The Criminal Code  The Youth Criminal Justice Act  The evidence acts and case law Detention and Arrest: A Suspect’s Age  Under the YCJA, special provisions are in place for handling suspects and witnesses who are under the age of 18  Abiding by these specific rights and safeguards is important throughout the process in order to ensure that the case can proceed through the criminal justice system Detention and Arrest: Physical and Psychological Detention of Young Suspects  Detention occurs from the moment police officer stops someone  Detention includes psychological restraint if someone believes that they are not free to go  The usual Charter rights pertaining to arrest and detention apply to youths – the right to understand the reasons for the arrest and the right to retain and instruct counsel  Provisions outlined in the YCJA apply to youth on arrest: o To explain the accused’s rights in age-appropriate language o To arrange for detention, separate from adults o To contact the parents immediately Pre-Arrest Questioning and Statements  When a suspect looks to be 25 years or younger, police should proceed as if they are dealing with a young person until actual age can be established  Youth being questioned by police should be informed of rights as soon as possible to avoid any spontaneous statements that may be incriminating  Arrest occurs when an “officer assumes control over the movement of a person by some demand or direction” Searches and Charter Rights at the Time of Arrest  Where a suspect is being searched without a warrant it is important that voluntary consent is clearly established  This is particularly important when the suspect is a youth because the officer must establish that the suspect clearly understand (again, in age-appropriate language) that anything found during the search could be used for prosecuting the individual The Role of Parents

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A parent must be contacted when a young person is arrested Youth can consult with counsel and a parent (or another appropriate adult if the parent is absent) A meeting between an arrested youth and a parent must be arranged as soon as possible, and parents must be notified in writing of youth court hearings even if the youth is not detained after arrest

Admissibility of Youth Statements  Youth perceive the criminal justice system differently than do adults o Youth often perceive guilt and innocence as based on fact rather than on a legal understanding of the need to prove guilt in court o Youth are more likely than adults to believe that something might be gained by being open and cooperative with investigators  The onus is on prosecution to prove that police compiled with youth rights at arrest and detention regarding statements and the retention of counsel  Failure to up hold the rights of a youth could render the statement inadmissible  Statements may be oral, written or videotaped  The youth’s age must be established as at least 12 years and less than 18 years  Statements must be made to a peace officer or any other person “who is in law, a person in authority”  Statements must be taken on the arrest or detention of the person, or in circumstances where there are reasonable grounds for believing that the youth has committed an offence Suspect Age and Validity of Waivers of Rights  When making an arrest, police officers must use a higher threshold with youth than with adults in establishing that the person being arrested understands his or her rights  A youth’s decision to waive the right to silence must be recorded and signed by the youth  Research indicates that many youths do not understand the form or that signing the form will be followed by police questioning  Waiving the right to consult a lawyer and parents should e allowed only if an officer is clear that a youth understands why such consultation would be in his or her best interests. Person in Authority  Rules pertaining to statements apply to situations in which a youth makes a statement to an agent of the criminal justice system  Statements must meet the legal definition of “voluntary” o Freely given o Made after being made aware of rights o Made by competent, sane youth capable of appreciating consequences of the statement o Not in response to a promised favour or threat o Made in the absence of oppression or intimidation

Extrajudicial Measure and Sanctions  Extrajudicial measure and sanctions are alternatives to the formal justice system that must be considered when dealing with youth  Police officers have significant discretion where laying charges is concerned and, even with sufficient evidence to charge, an officer may choose extrajudicial measures  Police must consider: o Taking no further action o Warning the young person o Administering a caution o Referring the youth to a community program Extrajudicial Measures  The most significant factors that influence police not to charge are the seriousness of the offence, the youth’s prior contacts with police, and the youth attitude  In general, police attitudes toward the use of extrajudicial measures is positive and research suggests that these measures may be playing a role in reduced recidivism rates for youth  Recent amendments through the Safe Streets and Communities Act now require police to keep records of warnings and cautions Extrajudicial Sanctions  Extrajudicial sanctions are more onerous than extrajudicial measures and are administered by the Crown  Extrajudicial sanctions must: o Be seen as a meaningful consequence that addresses the interests of society o Be sufficient evidence to proceed with the prosecution o Follow the youth accepting responsibility for the offence o Not to be used as evidence of a youth in a criminal proceeding unless the youth fails to complete the sanction  Extrajudicial sanctions may: o Be administered either pre- or post-charge o Be considered in later court proceedings as indicative of a pattern of offending...