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

by Carol Letman 

OVERVIEW

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.

PRESUMPTIVE OFFENCES AND ADULT SENTENCES/TRANSFERS

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.

STATEMENTS AND WAIVERS

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.

SUMMARY

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.