In this case, the Alberta Court of Appeal considers whether a young accused, who is not aware of the charge being laid against him, can give a fully informed waiver of the right to consult with counsel and a parent, adult relative or other appropriate adult chosen by the accused. In addition, the court clarifies the relationship between section 146 of the Youth Criminal Justice Act (“YCJA”) and the Charter. The court unanimously held that a waiver under section 146 of the YCJA is not valid unless an accused understands the charges against him.
The accused had been arrested for a break and enter and breach of probation. The police obtained further information implicating the accused in the dangerous driving of stolen vehicles. A detective took the young accused through a form designed to explain his rights under section 146 of the YCJA; the accused signed the form thereby waiving his right to consult. After the form was signed, he was told that he was being charged with possession of stolen property and dangerous driving.
With respect to the relationship between section 146 of the YCJA and the Charter, the court held that the two analyses have much in common, but they are not the same. The trial judge must first determine whether the requirements of section 146 of the YCJA have been satisfied; the onus of establishing a valid waiver beyond a reasonable doubt rests with the Crown. If the requirements are satisfied, the trial judge must go on to consider whether there has been a section 10 Charter breach that should attract a section 24 remedy. The accused bears the burden of establishing a section 10 Charter violation.
In this case, the court was of the view that the accused “was taken through a very important part of the process without knowing the charges against him, and this… taints the entire process.” The court held that a young accused could not give a fully informed waiver under section 146 of the YCJA without knowing the charges against him. It also stated that the standard for a valid waiver of the right to counsel is very high. In the result, the Crown’s appeal was dismissed.
The accused had been arrested for a break and enter and breach of probation. The police obtained further information implicating the accused in the dangerous driving of stolen vehicles. A detective took the young accused through a form designed to explain his rights under section 146 of the YCJA; the accused signed the form thereby waiving his right to consult. After the form was signed, he was told that he was being charged with possession of stolen property and dangerous driving.
With respect to the relationship between section 146 of the YCJA and the Charter, the court held that the two analyses have much in common, but they are not the same. The trial judge must first determine whether the requirements of section 146 of the YCJA have been satisfied; the onus of establishing a valid waiver beyond a reasonable doubt rests with the Crown. If the requirements are satisfied, the trial judge must go on to consider whether there has been a section 10 Charter breach that should attract a section 24 remedy. The accused bears the burden of establishing a section 10 Charter violation.
In this case, the court was of the view that the accused “was taken through a very important part of the process without knowing the charges against him, and this… taints the entire process.” The court held that a young accused could not give a fully informed waiver under section 146 of the YCJA without knowing the charges against him. It also stated that the standard for a valid waiver of the right to counsel is very high. In the result, the Crown’s appeal was dismissed.
Brandon Walker
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