Procedure for Young Accused
General Principles
- Jurisdiction of YCJA
The Youth justice court has exclusive jurisdiction over offences allegedly committed by a young person. (s.14(1))
- Interpretation of YCJA
Interpretation of the YCJA must be subject to the principles set out in s. 3 of the YCJA. The provisions must be interpreted liberally.[1]
- ↑ s. 3(2)
History
The Juvenile Deliquents Act was the first legislation dealing with offenders under the age of 18. This Act was in effect between 1908 to 1984.
Between 1984 and 2003, the Young Offenders Act was the governing legislation.
- see also List of Legislative Amendments for history of the YCJA and previous Acts.
Application of Criminal Code
- Application of Criminal Code
140 Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons.
- Sections of Criminal Code applicable
141 (1) Except to the extent that they are inconsistent with or excluded by this Act, section 16 (defence of mental disorder) and Part XX.1 (mental disorder) of the Criminal Code apply, with any modifications that the circumstances require, in respect of proceedings under this Act in relation to offences alleged to have been committed by young persons.
- Notice and copies to counsel and parents
(2) For the purposes of subsection (1),
- (a) wherever in Part XX.1 (mental disorder) of the Criminal Code a reference is made to a copy to be sent or otherwise given to an accused or a party to the proceedings, the reference shall be read as including a reference to a copy to be sent or otherwise given to
- (i) any counsel representing the young person,
- (ii) a parent of the young person who is in attendance at the proceedings against the young person, and
- (iii) a parent of the young person not in attendance at the proceedings who is, in the opinion of the youth justice court or Review Board, taking an active interest in the proceedings; and
- (b) wherever in Part XX.1 (mental disorder) of the Criminal Code a reference is made to notice to be given to an accused or a party to proceedings, the reference shall be read as including a reference to notice to be given to a parent of the young person and any counsel representing the young person.
- Proceedings not invalid
(3) Subject to subsection (4), failure to give a notice referred to in paragraph (2)(b) to a parent of a young person does not affect the validity of proceedings under this Act.
- Exception
(4) Failure to give a notice referred to in paragraph (2)(b) to a parent of a young person in any case renders invalid any subsequent proceedings under this Act relating to the case unless
- (a) a parent of the young person attends at the court or Review Board with the young person; or
- (b) a youth justice court judge or Review Board before whom proceedings are held against the young person
- (i) adjourns the proceedings and orders that the notice be given in the manner and to the persons that the judge or Review Board directs, or
- (ii) dispenses with the notice if the youth justice court or Review Board is of the opinion that, having regard to the circumstances, the notice may be dispensed with.
(5) [Repealed, 2005, c. 22, s. 63]
- Considerations of court or Review Board making a disposition
(6) Before making or reviewing a disposition in respect of a young person under Part XX.1 (mental disorder) of the Criminal Code, a youth justice court or Review Board shall consider the age and special needs of the young person and any representations or submissions made by a parent of the young person.
(7) to (9) [Repealed, 2005, c. 22, s. 63]
- Prima facie case to be made every year
(10) For the purpose of applying subsection 672.33(1) (fitness to stand trial) of the Criminal Code to proceedings under this Act in relation to an offence alleged to have been committed by a young person, wherever in that subsection a reference is made to two years, there shall be substituted a reference to one year.
- Designation of hospitals for young persons
(11) A reference in Part XX.1 (mental disorder) of the Criminal Code to a hospital in a province shall be construed as a reference to a hospital designated by the Minister of Health for the province for the custody, treatment or assessment of young persons.
- Definition of Review Board
(12) In this section, Review Board has the meaning assigned by section 672.1 [mental disorder definitions] of the Criminal Code.
2002, c. 1, s. 141; 2005, c. 22, s. 63.
- Part XXVII and summary conviction trial provisions of Criminal Code to apply
142 (1) Subject to this section and except to the extent that they are inconsistent with this Act, the provisions of Part XXVII (summary conviction offences) of the Criminal Code, and any other provisions of that Act that apply in respect of summary conviction offences and relate to trial proceedings, apply to proceedings under this Act
- (a) in respect of an order under section 83.3 (recognizance — terrorist activity), 810 (recognizance — fear of injury or damage), 810.01 (recognizance — fear of certain offences), 810.011 (recognizance — fear of terrorism offence), 810.02 (recognizance — fear of forced marriage or marriage under age of 16 years) or 810.2 (recognizance — fear of serious personal injury offence) of that Act or an offence under section 811 (breach of recognizance) of that Act;
- (b) in respect of a summary conviction offence; and
- (c) in respect of an indictable offence as if it were defined in the enactment creating it as a summary conviction offence.
- Indictable offences
(2) For greater certainty and despite subsection (1) or any other provision of this Act, an indictable offence committed by a young person is, for the purposes of this Act or any other Act of Parliament, an indictable offence.
- Attendance of young person
(3) Section 650 of the Criminal Code applies in respect of proceedings under this Act, whether the proceedings relate to an indictable offence or an offence punishable on summary conviction.
- Limitation period
(4) In proceedings under this Act, subsection 786(2) of the Criminal Code does not apply in respect of an indictable offence.
- Costs
(5) Section 809 [costs before summary conviction court] of the Criminal Code does not apply in respect of proceedings under this Act.
2002, c. 1, s. 142; 2015, c. 20, ss. 33, 36, c. 29, s. 15.
[annotation(s) added]
Screening Charges
The Attorney General is authorized to implement a program that pre-screen charges before any charges can be laid.
- Consent to Prosecute
- Pre-charge screening
23 (1) The Attorney General may establish a program of pre-charge screening that sets out the circumstances in which the consent of the Attorney General must be obtained before a young person is charged with an offence.
- Pre-charge screening program
(2) Any program of pre-charge screening of young persons that is established under an Act of the legislature of a province or by a directive of a provincial government, and that is in place before the coming into force of this section, is deemed to be a program of pre-charge screening for the purposes of subsection (1).
Charges
- Counts charged in information
143 Indictable offences and offences punishable on summary conviction may under this Act be charged in the same information or indictment and tried jointly.
Election
- Election — adult sentence
67 (1) The youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if
- (a) [Repealed, 2012, c. 1, s. 178]
- (b) the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence for an offence committed after the young person has attained the age of fourteen years;
- (c) the young person is charged with having committed first or second degree murder within the meaning of section 231 of the Criminal Code before the young person has attained the age of fourteen years; or
- (d) the person to whom section 16 (status of accused uncertain) applies is charged with having, after attaining the age of fourteen years, committed an offence for which an adult would be entitled to an election under section 536 of the Criminal Code, or over which a superior court of criminal jurisdiction would have exclusive jurisdiction under section 469 of that Act.
(3) [see election in Territories] ...
2002, c. 1, s. 67, c. 13, s. 91; 2012, c. 1, s. 178.
- Wording of Election
67...
- Wording of election
(2) The youth justice court shall put the young person to his or her election in the following words:
- You have the option to elect to be tried by a youth justice court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
- Multiple Accused
67...
- Mode of trial where co-accused are young persons
(5) When two or more young persons who are charged with the same offence, who are jointly charged in the same information or indictment or in respect of whom the Attorney General seeks joinder of counts that are set out in separate informations or indictments are put to their election, then, unless all of them elect or re-elect or are deemed to have elected, as the case may be, the same mode of trial, the youth justice court judge (a) may decline to record any election, re-election or deemed election for trial by a youth justice court judge without a jury, a judge without a jury or, in Nunavut, a judge of the Nunavut Court Justice without a jury; and (b) if the judge declines to do so, shall hold a preliminary inquiry, if requested to do so by one of the parties, unless a preliminary inquiry has been held prior to the election, re-election or deemed election.
67...
- Attorney General may require trial by jury
(6) The Attorney General may, even if a young person elects under subsection (1) or (3) to be tried by a youth justice court judge without a jury or a judge without a jury, require the young person to be tried by a court composed of a judge and jury.
Option of Preliminary Inquiry
67...
- Preliminary inquiry
(7) When a young person elects to be tried by a judge without a jury, or elects or is deemed to have elected to be tried by a court composed of a judge and jury, the youth justice court referred to in subsection 13(1) shall, on the request of the young person or the prosecutor made at that time or within the period fixed by rules of court made under section 17 or 155 or, if there are no such rules, by the youth justice court judge, conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be conducted
- (a) before a judge without a jury or a court composed of a judge and jury, as the case may be; or
- (b) in Nunavut, before a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be.
- Preliminary inquiry if two or more accused
(7.1) If two or more young persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (7), a preliminary inquiry must be held with respect to all of them.
- When no request for preliminary inquiry
(7.2) If no request for a preliminary inquiry is made under subsection (7), the youth justice court shall fix the date for the trial or the date on which the young person must appear in the trial court to have the date fixed.
- Preliminary inquiry provisions of Criminal Code
(8) The preliminary inquiry shall be conducted in accordance with the provisions of Part XVIII (procedure on preliminary inquiry) of the Criminal Code, except to the extent that they are inconsistent with this Act.
- Parts XIX and XX of Criminal Code
(9) Proceedings under this Act before a judge without a jury or a court composed of a judge and jury or, in Nunavut, a judge of the Nunavut Court of Justice acting as a youth justice court, with or without a jury, as the case may be, shall be conducted in accordance with the provisions of Parts XIX (indictable offences — trial without jury) and XX (procedure in jury trials and general provisions) of the Criminal Code, with any modifications that the circumstances require, except that
- (a) the provisions of this Act respecting the protection of privacy of young persons prevail over the provisions of the Criminal Code; and
- (b) the young person is entitled to be represented in court by counsel if the young person is removed from court in accordance with subsection 650(2) [accused presence – exception] of the Criminal Code.
2002, c. 1, s. 67, c. 13, s. 91; 2012, c. 1, s. 178.
s. 64(1), (2) and 67 (6), (9), s. 13(2),(3)
Order Parents to Attend
- Order requiring attendance of parent
27 (1) If a parent does not attend proceedings held before a youth justice court in respect of a young person, the court may, if in its opinion the presence of the parent is necessary or in the best interests of the young person, by order in writing require the parent to attend at any stage of the proceedings.
- No order in ticket proceedings
(2) Subsection (1) does not apply in proceedings commenced by filing a ticket under the Contraventions Act.
- Service of order
(3) A copy of the order shall be served by a peace officer or by a person designated by a youth justice court by delivering it personally to the parent to whom it is directed, unless the youth justice court authorizes service by confirmed delivery service.
- Failure to attend
(4) A parent who is ordered to attend a youth justice court under subsection (1) and who fails without reasonable excuse, the proof of which lies on the parent, to comply with the order
- (a) is guilty of contempt of court;
- (b) may be dealt with summarily by the court; and
- (c) is liable to the punishment provided for in the Criminal Code for a summary conviction offence.
- Warrant to arrest parent
(5) If a parent who is ordered to attend a youth justice court under subsection (1) does not attend when required by the order or fails to remain in attendance as required and it is proved that a copy of the order was served on the parent, a youth justice court may issue a warrant to compel the attendance of the parent.
Subpoena
- Issue of subpoena
144 (1) If a person is required to attend to give evidence before a youth justice court, the subpoena directed to that person may be issued by a youth justice court judge, whether or not the person whose attendance is required is within the same province as the youth justice court.
- Service of subpoena
(2) A subpoena issued by a youth justice court and directed to a person who is not within the same province as the youth justice court shall be served personally on the person to whom it is directed.
Warrants
Case Conferences
Evidence
- Admissions
149 (1) A party to any proceedings under this Act may admit any relevant fact or matter for the purpose of dispensing with proof of it, including any fact or matter the admissibility of which depends on a ruling of law or of mixed law and fact.
- Other party may adduce evidence
(2) Nothing in this section precludes a party to a proceeding from adducing evidence to prove a fact or matter admitted by another party.
- Material evidence
150 Any evidence material to proceedings under this Act that would not but for this section be admissible in evidence may, with the consent of the parties to the proceedings and if the young person is represented by counsel, be given in such proceedings.
- Evidence of a child or young person
151 The evidence of a child or a young person may be taken in proceedings under this Act only after the youth justice court judge or the justice in the proceedings has (a) if the witness is a child, instructed the child as to the duty to speak the truth and the consequences of failing to do so; and (b) if the witness is a young person and the judge or justice considers it necessary, instructed the young person as to the duty to speak the truth and the consequences of failing to do so.
- Proof of service
152 (1) For the purposes of this Act, service of any document may be proved by oral evidence given under oath by, or by the affidavit or statutory declaration of, the person claiming to have personally served it or sent it by confirmed delivery service.
- Proof of signature and official character unnecessary
(2) If proof of service of any document is offered by affidavit or statutory declaration, it is not necessary to prove the signature or official character of the person making or taking the affidavit or declaration, if the official character of that person appears on the face of the affidavit or declaration.
- Seal not required
153 It is not necessary to the validity of any information, indictment, summons, warrant, minute, sentence, conviction, order or other process or document laid, issued, filed or entered in any proceedings under this Act that any seal be attached or affixed to it.
Proof of Age
- Testimony of a parent
148 (1) In any proceedings under this Act, the testimony of a parent as to the age of a person of whom he or she is a parent is admissible as evidence of the age of that person.
- Evidence of age by certificate or record
(2) In any proceedings under this Act,
- (a) a birth or baptismal certificate or a copy of it purporting to be certified under the hand of the person in whose custody those records are held is evidence of the age of the person named in the certificate or copy; and
- (b) an entry or record of an incorporated society that has had the control or care of the person alleged to have committed the offence in respect of which the proceedings are taken at or about the time the person came to Canada is evidence of the age of that person, if the entry or record was made before the time when the offence is alleged to have been committed.
- Other evidence
(3) In the absence of any certificate, copy, entry or record mentioned in subsection (2), or in corroboration of that certificate, copy, entry or record, the youth justice court may receive and act on any other information relating to age that it considers reliable.
- When age may be inferred
(4) In any proceedings under this Act, the youth justice court may draw inferences as to the age of a person from the person’s appearance or from statements made by the person in direct examination or cross-examination.
Guilty Plea
- Adjudication
- When young person pleads guilty
36 (1) If a young person pleads guilty to an offence charged against the young person and the youth justice court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence.
- When young person pleads not guilty
(2) If a young person charged with an offence pleads not guilty to the offence or pleads guilty but the youth justice court is not satisfied that the facts support the charge, the court shall proceed with the trial and shall, after considering the matter, find the young person guilty or not guilty or make an order dismissing the charge, as the case may be.
Reason for Sentence
- Reasons for the sentence
48 When a youth justice court imposes a youth sentence, it shall state its reasons for the sentence in the record of the case and shall, on request, give or cause to be given a copy of the sentence and the reasons for the sentence to
- (a) the young person, the young person’s counsel, a parent of the young person, the provincial director and the prosecutor; and
- (b) in the case of a committal to custody under paragraph 42(2)(n), (o), (q) or (r), the review board.
Order of Committal
- Warrant of committal
49 (1) When a young person is committed to custody, the youth justice court shall issue or cause to be issued a warrant of committal.
- Custody during transfer
(2) A young person who is committed to custody may, in the course of being transferred from custody to the court or from the court to custody, be held under the supervision and control of a peace officer or in any place of temporary detention referred to in subsection 30(1) that the provincial director may specify.
- Subsection 30(3) applies
(3) Subsection 30(3) (detention separate from adults) applies, with any modifications that the circumstances require, in respect of a person held in a place of temporary detention under subsection (2).