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A RIGHT TO UNDERSTANDING


November 4, 2015
By Brent Snook

1076 words – MR

A RIGHT TO UNDERSTANDING

Implications for dealing with young offenders

by Meagan McCardle, Zak Keeping, & John C. House

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The Supreme Court of Canada ruling in the case of <R. v. L.T.H., [2008] 2 SCR 739> has significant implications for police officers who interview youth accused of committing an offence. It’s ramifications for police practice have yet to be fully addressed.

The case involved the arrest of L.T.H., a young person brought to a police station for questioning in relation to a police pursuit. As part of a videotaped interview procedure, the officer read a legal waiver to L.T.H., who acknowledged that he understood and proceeded to waive his rights. L.T.H. initialled and signed the form, and provided an inculpatory statement during the subsequent interview.

The Crown intended to introduce the videotaped statement as evidence. At voir dire, however, the Court heard evidence that L.T.H. had a learning disorder. The trial judge was not satisfied that the statement was voluntary because she was unconvinced L.T.H. understood his rights and the consequences of waiving them. The statement was ruled inadmissible. The Crown called no further evidence, and the case was dismissed.

Subsequently, the Nova Scotia Court of Appeal ruled against the trial judge, and ultimately the Supreme Court of Canada affirmed the trial judge’s decision.

In enacting the Youth Criminal Justice Act (YCJA), Parliament acknowledged that young persons are a vulnerable population who require extra-judicial legal protections. Waiver forms were implemented to provide a standardized approach to delivering rights, thereby ensuring that youth would be provided with all the required elements of their legal rights.

Police officers were mandated to ensure that delivery met the test of the “informational requirement,” which dictate that rights must be clearly explained to young persons in language appropriate to their age and understanding. The Crown must prove not only that the rights were delivered in appropriate and understandable language, but that they were understood.

An analysis of waiver forms being used by Canadian police organizations revealed that they are not standardized. The forms are lengthy, contain complex sentences, require a relatively high level of reading ability and contain difficult to understand words. <1>

The forms are typically four to six pages in length and can range from 200 to more than 1,100 words. The majority contain at least one section with more than 75 words, which exceeds the recommended amount of information that a person can process in working memory.

In addition, the vast majority contain at least one section that reaches post-secondary complexity. All the waivers contain at least one section that has sentence structure more complex than what is typically found in a financial accounting textbook. In sum, as the waiver forms are currently written, many sections are more complex than the police cautions delivered to adults.

What then has been the effect of waiver forms on young persons’ comprehension of interrogation rights? In a nutshell, research has shown that existing waiver forms are complex and youth comprehension of their rights is low. It is estimated that young persons comprehend only approximately 40 per cent of their rights.

The seemingly sound proposition that waiver forms would comply with the mandate of the YCJA has failed to be supported empirically. In addition, young persons almost always say “yes” when asked “Do you understand your rights?” – indicating that a simple yes/no question is insufficient for measuring comprehension. They also had many misconceptions about their interrogation rights. For example, many believed they had to answer all of the questions asked by a police officer.

To avoid the type of problems that led to the ruling in L.T.H., it is imperative that a standardized approach be taken. Statements made by young persons to police interviewers are only admissible if their rights are clearly explained in age-appropriate language. Increasing comprehension levels of their rights will require simplifying the language and structure of waiver forms.

Research has shown that reducing the complexity leads to higher levels of comprehension.<2> For example, avoiding complex terms and legal jargon (e.g., duty counsel, proceedings), shortening the overall length of the form (i.e., only including information regarding the key legal rights), building in redundancy (i.e., repeating the content of each sentence in a slightly different manner), and building in an explicit retrieval aid (i.e., listing the amount of rights contained in the form and notifying people before each right was mentioned) led to marked increases in comprehension. Specifically, when these changes were made, comprehension levels increased to 80 per cent.

<<< REFERENCES >>>

<1> Eastwood, J., Snook, B., & Luther, K. (2015) Measuring the reading complexity and oral comprehension of Canadian youth waiver forms. Crime and Delinquency, 61, 798-828. Doi: 10.1177/0011128712453689

<2> Eastwoord, J., Snook, B., & Luther, K., Ibid.

BIO

Meagan McCardle is an undergraduate student (B.Sc. (Hons)) in Psychology at Memorial University of Newfoundland. Meagan’s work considers police interactions with youth, primarily in interrogative settings. Contact: mim745@mun.ca

Zak Keeping is an M.Sc. Candidate in Experimental Psychology at Memorial. His research on ethical interviewing focuses on increasing information provision in investigative settings. Contact: zkeeping@mun.ca

John C. House MOM, MSc, MLitt is a former superintendent in charge of CID with the Royal Newfoundland Constabulary. He is currently associated with the Psychology and Law Lab at Memorial. Contact: jhouse@mun.ca

SIDEBAR

Video to explain rights to youth

The Psychology and Law Lab at Memorial University has commenced a project supported by the Social Sciences and Humanities Research Council of Canada that explores ways to improve young persons’ comprehension of legal rights.

One ongoing development involves the creation of an “interrogation safety instruction video” (much like the safety videos seen on airplanes). In other words, research has shown that providing information to people in both visual and auditory formats increases comprehension of instructions beyond audio or visual alone.

It’s hoped this instructional video will increase both the standardization of the process, while using technology to improve how well young persons understand their legal rights.

Over the course of the project, we intend to present test variations of delivery methods and assess the level of comprehension achieved. We anticipate that this will assist in identifying the best model to ensure the highest level of comprehension.

We believe that this research may have significant implications for police practice and the administration of justice in Canada. We invite practitioners to contact us for more information, to discuss the project or to become involved in pilot research. Contact: youthwaiverproject@gmail.com .


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