First off, I am happy to announce that McElroy Law was the recipient of a 'Clawbie' Canadian Law Blog Award for Best New Blog. You can see the other recipients at www.clawbies.ca. Thanks to everyone who has read and provided support over the last few months. Happy New Year!
Like many others, I started watching the Netflix documentary "Making a Murderer" over the holidays. The 10 part series covers the case of Steven Avery, a Wisconsin man who was wrongfully convicted of a sexual assault after 18 years in prison, only to later face an accusation of murder. While there are countless reasons to be frustrated by the investigation and prosecution of these cases, I was particularly shocked by the treatment of Avery's nephew, Brendan Dassey. I am hopeful that this sort of situation wouldn't happen in Canada, given our Youth Criminal Justice Act (YCJA) and the procedures that are in place in how we treat young people. Now, I am not familiar with Wisconsin law and do not know if the police simply disregarded any similar laws in their state. However, here are the safeguards that exist in Canada to protect young people in the criminal justice system.
Parental involvement: Brendan gave his statement to investigators without any parent or guardian being present. Under the YCJA, the police are required to notify a young person's parent, and they can be present for any questioning if the youth wants them to be. Under s. 146(2) of the YCJA, it states that a statement will not be admissible (i.e. used in court) unless a young person has the opportunity to consult with their parent or an adult relative, and given a reasonable opportunity to have that person present for the statement. Adults do not have the right to have another person present, but the YCJA provides different safeguards.
Rights to counsel: Normally, when a person is detained by the police or are in jeopardy of being charged with an offence, they are given the opportunity to call a lawyer and get legal advice. As far as we saw in Brendan's case, there was no opportunity given to him to consult with a lawyer. (Granted, the lawyer that he did end up getting did not act in his best interests, but that is another story.) The YCJA has a specific section about right to counsel (s. 25), where it states that a young person the right to retain and instruct counsel at any stage of the proceedings against him or her. Even more, the young person also has the right to have a lawyer present, a right that is not afforded to adults. All in all, the YCJA places a special emphasis here on making sure that a young person has the ability to contact a lawyer and get the legal advice that they need. In Brendan's case, he barely seemed to register that he was in any kind of legal trouble, as he asked the officer how long he might be, worried that he had a project due in school that afternoon.
Admissibility of statements: Even if young person refuses the opportunity to consult a parent or a lawyer, under the YCJA, the police have other obligations in order to ensure that a statement that they get is going to be admissible in court. Specifically, under s. 146, they need to had been given the opportunity to consult a lawyer or a parent, they need to explain to the young person, in language that is appropriate to his or her age or understanding, that they are under no obligation to make a statement, that a statement can be used against them in a court proceeding. If these warnings are not given, then a statement cannot be relied on in court. Any explanations to this effect were definitely missing from Brendan Dassey's interrogation, where again he had no ideal of the legal jeopardy that he was facing.
Again, if we were to transplant this investigation to Ontario or any other Canadian province or territory, I would certainly hope that the situation that Brendan faced would have a markedly different outcome given the protection that he would receive under our Youth Criminal Justice Act.