Release: Kimberly D. Hyslop and Matthew B. Day submit papers at 2015 DCAO / CCLA conference
Kimberly D. Hyslop submitted her paper “Kids Say the Darndest Thins: Why Statements of Youth Accused Should Rarely Be Ruled Admissible” to the “10 Under 10” panel at the 27th DCAO / CCLA Criminal Law Conference:
Pursuant to section 146(2), no oral or written statement made by a young person to a peace officer or to any other person who is, in law, a person in authority is admissible unless certain criteria are met. This protection applies to young persons who are under arrest or detention, or where the person has reasonable grounds for believing that the young person has committed an offence. One limit, however, is that police are not required to comply with section 146 when questioning youth in the course of an impaired driving investigation and obtaining grounds to make the roadside screening device demand (R. v. P.D.,  O.J. No. 1594 (S.C.J.) at para. 30).
A review of section 146 of the YCJA as well as the cases dealing with the section supports the position that statements made by young persons to police should rarely be admitted into evidence. Unfortunately the same is not necessarily true for statements made to other persons, like principals and teachers.
Matthew B. Day also submitted his paper “The ‘common sense’ / ‘natural consequences’ inference” to the “10 Under 10” panel:
8. The major premise of the inference – that a sane and sober person usually desires or foresees the natural and probable consequences of their conduct – is accepted at common law and is unassailable. However, as a matter of logic, the “natural consequences” inference is not available if the trier of fact cannot find either or both of the minor premises – either (a) that the defendant could be fairly compared to other people (e.g. to “reasonable” or “sane and sober” people) or (b) that the prohibited consequence was a natural consequence of the impugned conduct.
9. The jurisprudence recognizes that numerous factors may undermine the first minor premise – in other words, factors that tend to show that it would not be fair to compare the defendant to other people at the time that he or she engaged in the impugned conduct. These factors may include matters that would otherwise constitute a positive defence (e.g. intoxication, provocation, or mental disorder), regardless of whether that positive defence was independently successful.
The papers are available to fellow lawyers for continuing professional development.