Difference between revisions of "Criminal Offences under the Youth Criminal Justice Act (2:III)"

== G. Court Process ==

The procedure for compelling a young person to attend court is generally the same as that for adults as set out in the ''CC''. A Police Officer may release a young person on either an Appearance Notice or a Promise to Appear (and Undertaking). These documents will indicate a time, date and location for the Young Person’s first appearance in Court. If the Information is not laid prior to this first appearance the Appearance Notice or the Promise to Appear will be rendered a nullity. The Undertaking, however, will continue in force as long as the charges are before the Court.

The Ontario Court of Appeal in ''R v Oliveira'', 2009 ONCA 219 held that a Promise to Appear and an Undertaking serve two distinct and separate purposes.  The Court went on to explain that the purpose of the Promise to Appear is to secure the initial attendance of the Accused in Court. The Undertaking, in contrast, constitutes a promise by the Accused to comply with certain conditions in exchange for his release from custody pending the resolution of the charges.  

Alternatively, and after an Information has been laid, a young person will be compelled to Court by either a Summons or a Warrant.  A Warrant is issued where:

*Crown Counsel is either seeking the Detention of the young person or conditions of release for the young person, or

*the whereabouts of the young person are unknown.

#*been charged with a serious offence (as defined in s 2 ''YCJA''), or

A young person may be placed in the care of a responsible person instead of being held in custody if a youth justice court is satisfied that:

#the young person would otherwise be detained in custody; and

#the person is willing and able to take care of and exercise control over the young person; and

#the young person is willing to be placed in the care of that person.

 

A person who agrees to care for a young person under section 31(3) adopts a very serious responsibility.  Wilful failure to comply with the terms of the care order may result in the  responsible person being charged with an offence punishable with up to two years imprisonment (s 139).

After a guilty plea is entered a youth justice court judge may order the preparation of:  

#a pre-sentence report (s. 40); or  

#a medical, psychiatric and/or psychological report (s. 34).

 

The judge may also convene a section 19 Conference. Where a not guilty plea is entered a Trial Date is set.

The trial process is the same for young persons as it is for adults.

The law relating to the admissibility of statements made by adult accused persons to persons in authority also applies to youths (s 146(1)).  There are, however, specific provisions that ensure a young person both understands the consequences of making such a statement and is given the opportunity to seek and/or consult counsel (s 146(2)). The right to counsel may be waived but must be done so either by a signed written statement or a recorded statement (s 146(4) and (5)). A judge may rule inadmissible any statement given by a young person if satisfied that it was given under duress (s 46(7)). Voluntary statements can be admitted into evidence, even where there has been a technical irregularity in complying with a young person’s statutory protection, provided that the youth justice court is satisfied that the admission of the statement would not offend the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and that their rights are protected (s 146(6)).

In ''R v AD'', 2010 BCSC 1715, the statement of the 15-year-old accused was found inadmissible for non-compliance with s 146(2)(d) of the ''YCJA''. In that case, Justice Stromberg-Stein notes that “[i]nforming a young person they are ''entitled'' to have a lawyer or third party with whom they have consulted present, rather than phrasing this as a ''requirement'', is ‘deficient’ and ‘not completely accurate’, as s 146 draws an important distinction between the rights of the young person and the requirements placed upon the police.”<ref>''R v AD'', 2010 BCSC 1715, BCJ No 2418, at para 24.</ref> In that case, counsel for the accused was out of town and unable to immediately come to the police station where the accused was detained. Although the police informed A.D. of his right to have his lawyer present during the interview, it was clear that they were going to interview him that same day, regardless of his lawyer’s availability.

The ''YCJA'' does not specify the standard of proof the Crown must meet to show compliance with s 146. In ''R v LTH'', 2008 SCC 49 at paragraph 6,the  Supreme Court of Canada stated each component of s 146 must be proved beyond a reasonable doubt. If a young person has been interviewed,  Crown  must  prove  the  person  taking  the young  person’s  statement  took reasonable steps to ensure the young person understood her or his rights.<ref>''R v LTH'', 2008 SCC 49, 2 SCR 739, at para 6.</ref> Simply reading a standardized form will likely not fulfill the caution requirement of s 146(2)(b). The person in authority  must  make  reasonable  efforts  to  determine the  level  of  comprehension  of  the specific young person to ensure their explanation is appropriate.  

In ''R v LTH'', the majority of the Court found the police officer, when reading the accused his rights, failed to take into account  that  the accused had a learning disability, and as a result found the statement inadmissible. In ''R v LTH'', the Court also notes that Crown Counsel does not have to prove the young person actually understood the rights explained to them. If the judge is satisfied, beyond a reasonable doubt, that the young person’s rights and options were explained as required by s 146, the judge may infer the young person understood those rights and the consequences of waiving them. The burden then shifts to the defence to point to evidence showing the young person did not in fact understand his or her rights or the consequences of waiving those rights. <ref>''R v LTH'', 2008 SCC 49, 2 SCR 739, at para 48. </ref>