section 487.07(5)

INTRODUCTION AND BRIEF DESCRIPTION

Young persons can waive their rights under subsection 4 but must do so on audio/video or in writing with a signed statement acknowledging their understanding of the waiver.

SECTION WORDING

487.07(5) A young person may waive his or her rights under subsection (4) but any such waiver (a) must be recorded on audio tape or video tape or otherwise; or (b) must be made in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

EXPLANATION

Section 487.07(5) of the Criminal Code of Canada permits a young person to waive his or her rights under subsection (4). The provision aims to protect the rights of young people who may be implicated in a criminal investigation or charged with an offence, particularly in instances where they lack the maturity to make informed decisions. Subsection (4) provides a young person with certain rights, including the right to consult with a lawyer, the right to have a parent, guardian, or other adult present during questioning, and the right to remain silent. To waive these rights, a young person must either make a recording of the waiver or put it in writing, and include a statement that they have been informed of the right being waived. The recording can be conducted on audio or video tape, or by any other means that ensure that there is an accurate and complete record of the waiver. Alternatively, the young person can provide a signed written statement indicating their informed decision to waive their rights. This provision is critical in ensuring that young people understand the implications of their actions and decisions during an investigation or legal proceedings. It also ensures that there is a record of the waiver that can be used as evidence in court. As such, it promotes transparency and accountability in the criminal justice system and helps to safeguard the rights and well-being of young people.

COMMENTARY

Section 487.07(5) of the Criminal Code of Canada deals with the waiver of rights by young persons who have been arrested or detained by the police. The purpose of this provision of the law is to ensure that young persons are fully informed of their rights when they are held in custody and to protect them from any abuse of power by the authorities. Under this provision, a young person may choose to waive their rights under subsection (4) of the Criminal Code, which includes the right to a lawyer, the right to remain silent, and the right to be informed of the reason for their detention. However, such a waiver must either be recorded on an audio or video tape or in writing, and it must contain a statement signed by the young person that they have been informed of the right being waived. This is an important provision of the law because it ensures that young persons who may not fully understand their legal rights are not coerced into waiving them. The requirement for a signed statement also serves to protect the young person and the police officers by creating a clear record of the waiver that can be used in court if there are any disputes about the legality of the detention or the waiver. The use of audio or video recording to document the waiver is particularly important because it provides a clear and objective record of what was said and done at the time of the waiver. This can be crucial in cases where there may be later disputes about the validity of the waiver or the conduct of the police officers. The recording can be used to show that the young person was fully informed of their rights and that the waiver was made voluntarily and without coercion. The requirement for a written statement signed by the young person is also important because it ensures that the young person understands the rights they are waiving and that they are making the waiver voluntarily. The written statement can be used as evidence in court to show that the young person was fully informed of their rights and understood the consequences of waiving them. Overall, the provision in Section 487.07(5) of the Criminal Code of Canada serves an important purpose in protecting the rights of young persons who are held in custody by the police. By requiring any waiver of rights to be either recorded on audio or video tape or in writing and signed by the young person, the provision ensures that the young person is fully informed of their rights and protected from any abuse of power by the authorities.

STRATEGY

Section 487.07(5) of the Criminal Code of Canada outlines the process by which a young person may waive their rights, as stipulated in subsection (4) of the same section. The youth justice system in Canada recognizes that young people have different needs, capacities, and vulnerabilities than adults, and as such, they are entitled to certain protections and rights. However, in some circumstances, a young person may choose to waive these rights, which can have significant implications for their case and their future. Therefore, it is essential to consider several strategic considerations when dealing with this section of the Criminal Code. One of the first considerations is whether it is in the best interests of the young person to waive their rights. As mentioned, young people are especially vulnerable to coercion, manipulation, and undue pressure. They may not fully understand the legal consequences of their actions or the potential long-term effects of their decisions. Therefore, before considering a waiver of rights, it is crucial to ensure that the young person fully comprehends what they are giving up and why they are doing it. This may involve providing legal or other support, such as counseling or advocacy, to help the young person make an informed decision. Another strategic consideration is the nature and seriousness of the offense. Waiving rights may be more appropriate in cases where the offense is relatively minor or where the evidence against the young person is overwhelming. However, in cases where the offense is more severe, or there is significant doubt or ambiguity about the evidence, it may be advisable to retain the right to a fair trial and other legal rights. In such cases, it may be prudent to seek the advice of legal counsel or other experts to determine the best course of action. The circumstances surrounding the waiver are also essential considerations. For example, if the young person's waiver was made under duress or coercion, the validity of the waiver may be questioned, and legal remedies may be available. Therefore, it is imperative to ensure that the waiver is made voluntarily, with full knowledge and consent of the young person. Finally, the method of the waiver is critical. As stipulated in subsection (5) of the Criminal Code, the waiver must be recorded on audio tape, video tape, or in writing, and contain a statement signed by the young person. This requirement is intended to ensure that the waiver is clear, unambiguous, and reliable. Therefore, it is important to follow these procedural requirements carefully and to retain records of the waiver in case they are called into question later in the proceedings. Given the complex and sensitive nature of youth justice, several strategies can be employed to navigate section 487.07(5) of the Criminal Code effectively. First, it is important to obtain legal and other expert advice before considering a waiver of rights. This may involve engaging a lawyer, a social worker, or other professionals who are experienced in dealing with youth justice issues. Second, it may be helpful to involve the young person's family or other supportive adults in the process, as they may have valuable insights into the young person's needs and capacities. Lastly, it is essential to maintain open lines of communication with the young person and to ensure that their rights and interests are respected throughout the process. By following these strategies, practitioners can ensure that youth justice proceedings are conducted in a fair, transparent, and respectful manner that protects the rights and welfare of young people.