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Criminal Lawyers' Association (CLA) Submissions Respecting Proposed Youth Criminal Justice Act

by Carol Letman 


The Criminal Lawyers Association has reviewed Bill C-3, the proposed Youth Criminal Justice Act and would like to take this opportunity to submit brief comments to the Committee presently considering the Bill.

To begin with, the Association applauds the efforts made to recognize the challenges posed by youth crime in our changing society.  This is being pursued through an enormous piece of legislation that attempts to deal with both the special needs of young persons and societys need for accountability, particularly with respect to violent offences.

The increased focus on the use of extra-judicial measures, together with parts of the legislation aimed at decreasing the reliance on custodial dispositions, reflects the fact that many so-called youth crimes are minor in nature and are better addressed by community-based solutions rather than by criminal sanctions.

There are however, some areas of the Act that do give concern and are likely to give rise to challenges through the courts.  The Association proposes herein to focus on two of the most troubling areas.


These increased demands will occur in at least two ways, firstly, by increased demand on the adult courts to try additional young persons who fall into the doubly-expanded presumptive category, and secondly, by necessitating additional court time to arrive at the judicial determination that an offence constitutes a serious violent offence.

The definition portion of the Act offers open-ended definitions of violent offender and serious violent offender.  Further, the procedure to determine that an offence is a serious violent offence as put forward under section 41(8), has been left extremely vague, with no direction to the presiding justice as to the process, standards, factors or elements to consider in making the determination.

In light of the potential future ramifications, such determinations are likely to be seriously challenged, particularly if no clear distinction is drawn between bodily harm and serious bodily harm.

Further, given the propensity in many jurisdictions to charge assault causing bodily harm where the bodily harm may be just past the transient and trifling level, a very real concern exists that setting either definition too low, will lead to a rash of young persons before the adult courts because of prior findings of guilt for assault causing bodily harm.

Further the question of substantial risk, also gives concern, as that could be applied (presumably) to any threatening charge or any driving charge.  The presumptive nature of these proceedings makes the process largely dependent on the young person making application, effectively shifting the burden to the young person to satisfy the court why he or she should be treated as a young person.


The provisions regarding the admissibility of statements made by young persons have been re-written in a fashion which raises serious questions, and serious challenges to the courts.

The safeguards enacted in section 56 of the Young Offenders Act, have been incorporated into section 145, but they are largely made meaningless by the inclusion of subsections (5) and (6).  These sections allow judicial discretion to admit any statement taken, not taken in compliance with the procedural safeguards where to do so would not bring the administration of justice into disrepute.

It is of great concern to this Association that section 56 be tampered with at all.  That section was seen as a critical element in protecting the rights of young people, particularly to have legal advice and to have a parent or adult with them in dealing with the police.

This is a special worry in light of a growing body of research in both Canada and the U.S. that suggests that young people do not always understand their rights and do not appreciate how to exercise them.  The circumstances of a statement being taken may fit the traditional definition of voluntary, ie. no obvious promise of favour, threat, no physical force, yet not be the product of an informed mind, fully appreciating of the right to have legal advice, or to have an adult present and of the right to remain silent.

To permit judicial discretion to overlook the waiver or compliance with the requirements to fully explain the right to remain silent or fully consult a lawyer or adult runs the risk of setting up a system where the young person must prove he or she did not waive their rights or did not understand them.

It is difficult to imagine how, the young persons right as defined in section 56 will survive, once non-compliance can be overlooked.

This proposal is perceived as the thin edge of the wedge aimed at doing away with the safeguards that made the Young Offenders Act a distinctive piece of legislation recognizing the unique needs of young persons.

At a time when the adult courts continue to be faced with Charter applications under section 10, the existing section 56 protocol places the burden of compliance on the authorities, thus limiting the Charter applications in this area in Youth Court.

The amendments in section 145, may well open the door to these challenges in the youth justice court.


In conclusion, the Criminal Lawyers Association credits the architects of the new Youth Criminal Justice Act for their efforts in developing a comprehensive code for youth justice in Canada.

The emphasis on extra-judicial measures and the focus on standards and options in determining the use of custody are clearly of significant benefit in dealing with the vast majority of young persons who come in conflict with the law.

While we all recognize that violence among young people must be dealt with in a fashion which protects society, yet encourages rehabilitation, the efforts to categorize and punish serious violent offences raise serious questions, likely leading to increased challenges for all participants in the justice system.

The same can be said for the proposals to significantly alter the safeguards provided to young persons in dealing with admissions to persons in authority.

Our young people are the cornerstone of the future and clearly merit careful consideration for all parties involved in the justice system.

The Young Offenders Act was a significant first step in attempting to deal with a complex problem.

It is clear that careful consideration must be paid to the next steps.

Brainwashing Children - Divorce - Family Law

W5 TV Show on Parental Alienation

TV Show about Parental Alienation

W5 investigates: Children on the frontlines of divorce

November 7, 2009

The world of divorce is scary for any child. But when a divorce becomes especially toxic, children can become the target of an unrelenting crusade by one parent to destroy the child's relationship with the other. Experts call it parental alienation.

Mothers Who Kill Their Own Children


Affair led to mother murdering her own kids

Days after buying another woman Valentine's Day flowers, a Sydney father came home to find a trail of blood leading him to the bodies of his two young children lying next to their mother, a court has been told.

Australian Associated Press
Aug 24 2009

The woman had given the couple's three-year-old daughter and four-year-old son rat poison and an unidentified pink liquid before smothering them and killing them, court papers said.

She then tried to take her own life, the NSW Supreme Court was told.

Doctors agree the mother, from Canley Heights in Sydney's west, was suffering from "major depression" when she poisoned her children on February 19 last year.

She has pleaded not guilty to the two murders by reason of mental illness.

As her judge-alone trial began, the mother's lawyer told Justice Clifton Hoeben his client didn't think life was worth living after learning about her husband's affair.

American Psychological Association

American Psychological Association
Dating Violence Statistics in the United States

Nearly one in 10 girls and one in 20 boys say they have been raped or experienced some other form of abusive violence on a date, according to a study released Sunday at the annual meeting of the American Psychological Association.

Associated Press logo

Woman convicted of killing 3 kids after custody battle


HELSINKI, Finland - A court in Finland has convicted a woman of murdering her three young children and has given her a life sentence.

The Espoo District Court says Thai-born Yu-Hsiu Fu was found guilty of strangling her 8-year-old twin daughters and 1-year-old son in her home.

She tried to kill herself afterward.

The verdict on Tuesday says the 41-year-old woman was found to be of sound mind at the time of the murders.

Court papers show the murders were preceded by a bitter custody battle with her Finnish husband who was living separately from her at the time of the murders.

A life sentence in Finland mean convicts usually serve at least 11 years in prison.

Canadian Press - New Brunswick woman ruled responsible in burning of baby's body

New Brunswick woman ruled responsible in burning of baby's body

ST. STEPHEN, N.B. - A New Brunswick judge says a woman who burned and dismembered her newborn son is criminally responsible for her actions.

Becky Sue Morrow earlier pleaded guilty to offering an indignity to a dead body and disposing of a newborn with the intent of concealing a delivery.

Judge David Walker ruled Friday that the 27-year-old woman may have been suffering from a mental disorder when she delivered the baby but that that was not the case when the baby's body was burned and its remains hidden.

It is not known if the baby was alive at the time of birth.

At a hearing last month, the court heard contrasting reports from the two psychiatrists. One said Ms. Morrow was in a "disassociated" mental state when the crime occurred. The other said she clearly planned her actions and understood the consequences.