SR Vol 27 No 3, July 2009 - Nova Scotia Barristers' Society

eyond a reasonable doubt or beyond a balance of probabilities? The
Court of Appeal didn’t really make a decision on that, so it opened the
door for the Supreme Court of Canada to hear it,” Hoyte explains.
In a 4-3 decision last November, the high court ruled that the
statement was inadmissible because the officers didn’t do enough to
safeguard the boy’s rights.
“Police officers, in determining the appropriate language to use in
explaining a young person’s rights, must make a reasonable effort to
become aware of significant factors, such as learning disabilities and
previous experience with the criminal justice system,” the decision
stated.
Since then, Hoyte says she’s received calls from lawyers across the
country commending her on the case. She has also heard from
local police authorities saying they’re aware of the Supreme Court’s
ruling and will be reviewing their procedures for dealing with young
people.
But Deputy Chief Chris McNeil of Halifax Regional Police says
nothing has really changed in the past six months.
“The decision probably has forced us to dig deeper, but I can’t make
them psychologists,” McNeil says of his officers.
For years, he adds, police in Nova Scotia have used one of the most
comprehensive youth statement forms in the country. The six-page
document includes 24 questions that must be read aloud to the young
person, who in turn acknowledges whether he or she understands.
If anything, McNeil says, the decision muddies the waters even
more because of the discrepancies between the different levels of the
courts.
“You are supposed to sort out what the provincial court saw one way,
what the appeal court saw another way and what the Supreme Court
saw in a 4-3 split,” he says.
“It may be that the bar is so high now that the officers will simply
have to do the best they can and then leave that to the courts.”
The problem, the deputy chief insists, can be traced back to the
“overly complicated” Youth Criminal Justice Act, which he claims
doesn’t do enough to protect society.
He says the legislation has always made it difficult to take statements
from young people and have them admitted in court.
“It’s just a skill,” McNeil says. “We have to say how much is enough
and that’s a very difficult and fine line to say.”
But it’s a fine line that police officers across the country are going
to have to define if they want these statements to stand up, Hoyte
stresses.
“It is about awareness,” she says. “It is about making certain that
police authorities use the proper procedures when it comes to young
people.”
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