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by David Harris

 

 
A LAYPERSON'S GUIDE TO THE YOUNG OFFENDERS ACT AND THE YOUTH CRIMINAL JUSTICE ACT

The Young Offenders Act was proclaimed into law in Canada on April 2, 1984. It replaced the Juvenile Delinquents Act, which had been in place for the previous 75 years. The YOA (as it has been called as a result of our love for acronyms) brought about significant changes from that previous legislation. Many were considered controversial right from the beginning and the critics started complaining even before it was officially proclaimed. One group thought that it was too harsh and created a new "Criminal Code for Kids". Others said it was too lenient and allowed young people to avoid responsibility for their actions.

Little has changed in that regard, despite amendments to the YOA over the past 15 years. The criticism continues from both sides with many looking back almost nostalgically to the time of the Juvenile Delinquents Act. In this web page, I propose to examine that earlier Act, and then go on to discuss various aspects of the YOA. Needless to say, emphasis will be placed on those areas that have generated criticism or controversy. Comments will also be made about the new Youth Criminal Justice Act, which was proclaimed in force on April 1, 2003. 

Readers should be cautioned that the YOA/YCJA is complicated and cannot be explained fully in the space available here. This is intended to provide general information only and should not be construed as formal legal advice. It should also be noted that I am referring to the law as it exists in the Province of Ontario in Canada. Anyone who has been charged with an offence or who requires further information for any reason should consult a lawyer directly. As I stated above the following is intended to provide general information only and not to replace formal legal advice from a lawyer retained to consider your particular case.

TABLE OF CONTENTS

 



JUVENILE DELINQUENTS ACT

The JDA was a mixture of both criminal law and child welfare ("child protection" in some provinces) law. It was a reaction to the perceived harshness of earlier laws that treated children who broke the law just like adult offenders.

During the 17th and 18th centuries, the fundamental aim in criminal jurisprudence was not reformation but punishment. This applied equally to children and there were numerous reported decisions about young children who were hanged. By the late 19th century, reformers, who were incensed by the harshness of this, clamored for change. They sought to protect and redeem those who they saw to be the victims of vicious environments, unfortunate heredity and cruel treatment at the hands of parents and employers. Juvenile court reform was only a part of a larger social movement to clear slum tenements, to enact and enforce humane factory laws, to ameliorate prison conditions and save future generations from misery, pauperism and crime. As a result of the work of these reformers, legislators introduced laws, which would treat young criminals by civil process.

The JDA was one of these laws and its very language illustrates its intent.

Young people were referred to as children. They committed delinquencies rather than offences, and they were then called juvenile delinquents rather than criminals or offenders. A young person who ran afoul of the law was to be "dealt with, not as an offender, but as one in a condition of delinquency and therefor requiring help and guidance and proper supervision". The Act stated further that " the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which would given by his parents, and that as far as practicable every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child, and one needing aid, encouragement, help and assistance".

Similarly, juveniles were not convicted of offences. They were "Adjudged" to have committed a delinquency or to be a juvenile delinquent. They were then dealt with, rather than sentenced. At that point they might be committed to an industrial school (rather than imprisoned or sent to jail), or committed to the care and custody of a probation officer (rather than simply being placed on probation).

In some cases, these distinctions were quite appropriate. Unlike the YOA, which allows young people to be prosecuted only for crimes, the JDA included that and more. For example, the violation of any provincial statute or of any municipal by-law could lead to a finding of delinquency. Truancy constituted a delinquency. So did "sexual immorality or any similar form of vice". Rather than dealing only with criminal offences, the JDA also addressed child welfare (child protection) issues. This was reflected in the sentencing section as well. This permitted a juvenile court judge to "commit the child to the charge of any children's aid society" where the child might then be dealt with under the provincial child welfare law.

Since proceedings under the JDA were not really "criminal" in nature, Juvenile Court trials were allowed to be "as informal as the circumstances would permit". In addition, no proceedings were to be set aside "because of any informality or irregularity where it appeared that the disposition of the case was in the best interests of the child". 

These provisions allowed the rules of evidence to be relaxed in Juvenile Court, and young people were often deprived of rights that would have been observed in the case of an adult charged with the same offence. This situation was radically altered when the YOA became the law in Canada.


GENERAL PRINCIPLES - YOUNG OFFENDERS ACT/YOUTH CRIMINAL JUSTICE ACT 

Under the YOA youths are prosecuted only for crimes. They are expected to be responsible for their actions. After reaching their twelfth birthday, they are called young persons and if they are found guilty of a crime, they are called offenders, albeit young ones. 

Some early critics of the YOA complained about this, calling the act a Criminal Code for kids. They objected to the "new" approach that abandoned the child welfare tenets of the JDA. 

The Declaration of Principle at the beginning of the YOA recognizes that the prevention of crime, including that committed by young persons, is essential to the long-term protection of society. Further to that, while young persons should not always be held accountable to the same degree as adults, those "who commit offences should nonetheless bear responsibility for their contraventions". Young persons who commit offences are recognized as having special needs and as requiring guidance and assistance, along with supervision, discipline and control. The rehabilitation of young offenders is stressed as the best way to provide for the protection of society. So, while giving consideration to the state of dependency and level of development and maturity possessed by any particular young offender, the YOA treats them all as being responsible for their crimes. 

While young people cannot be prosecuted for non-criminal matters under the YOA, neither can "an order of custodyƉbe used as a substitute for appropriate child protection, health and other social measures" in cases where a young person has been found guilty of a criminal offence. 

Along with these new responsibilities, the YOA gave young people a number of rights. Suddenly they had most of the rights, which adults had always possessed, plus a few more that applied to them alone. These rights will be discussed in more detail in a later chapter. 

The Youth Criminal Justice Act will not change the current situation in this regard. It too is criminal law rather than child welfare legislation and trials under that Act will also be conducted as criminal trials.


MINIMUM AGE 

The YOA only applies to those who are twelve years of age or older as of the time that the offence is alleged to have occurred. 

Any offender younger than that is to be dealt with under provincial child welfare legislation. The assumption there will be that any child who commits serious offences, or even less serious ones if they occur on a regular basis, is not getting proper guidance and supervision at home and should be subjected to some degree of supervision by a Children's Aid Society. In the most serious cases, the child may well be taken from the parent(s) and placed in foster care. 

There are many who disagree with this approach. They believe that 10 and 11 year-olds should be covered by the YOA too. 

We see very few 12 and 13 year-old offenders in Youth Court. Presumably, there would be even fewer 10 and 11 year-old children if they were also included. 

The JDA did not specify a minimum age. The Criminal Code however specified that no one under seven was to be prosecuted for a criminal offence, and no person between seven and fourteen could be convicted "unless he was competent to know the nature and consequences of his conduct and to appreciate that it was wrong".

 The JDA did prohibit committing anyone under twelve years of age to an industrial school unless "an attempt has been made to reform such child in his own home or in a foster home or in the charge of a children's aid society" unless "the best interests of the child and the welfare of the community require such commitment". 

It should also be noted that the possible sentences permitted by the JDA included placing a child in "a suitable family home or a foster home" or committing him to the charge of a children's aid society". These options are presently available under Ontario's child welfare law, the Child and Family Services Act. 

Those who believe in a consistent approach throughout our laws should note that, at present, the Criminal Code provides that a child under 14 years of age is legally incapable of consenting to participation in any sexual acts. Many, in fact, believe that the minimum age for this is too low. It can certainly be argued that if a 13 year-old is neither mature enough nor responsible enough to decide that, then an 11 year-old cannot be mature enough to be held legally responsible for committing a crime. 

It is unlikely that the debate about the minimum age will not be resolved in the near future. Part of the problem is that whatever age we choose, it is really an arbitrary decision. We need to have a cut-off somewhere, and we simply cannot all agree on where that should be. 

The proposed new Youth Criminal Justice Act will not change the age of criminal responsibility from 12.


MAXIMUM AGE 

The YOA applies to those who have committed an offence before reaching their eighteenth birthday. This has been the law in all provinces in Canada since April 1, 1985. During the twelve months between April 2, 1984 and April 1, 1985 the age varied from province to province just like it did under the Juvenile Delinquents Act. 

Under the JDA, one could be prosecuted as an adult in criminal court after turning 16 in Ontario and five other provinces. At one point Alberta prosecuted sixteen-year-old boys as adults but girls were juveniles until turning 18. Eventually 16 became the operative age for both boys and girls. In British Columbia, the age was 17. In Newfoundland it was also 17 under provincial legislation. (A provincial statute providing for the establishment of a juvenile court was in operation when Newfoundland became part of Canada, and under the terms of union that Act remained in force.) One remained a juvenile until turning 18 in Manitoba and Quebec. 

When the JDA was law and 16 and 17 year-old offenders were prosecuted in adult courts in Ontario, they received special treatment. The courts developed special sentencing rules, which were peculiar to youthful offenders. These rules were incorporated to keep these youths away from older, more experienced criminals in jail and thereby avoid providing them with the wrong kind of education. 

Much criticism of the YOA is directed to the maximum age. Many believe that 16 and 17 year-old youths who break the law should be treated as adults. It should be noted however that we do not treat this group as adults for most other purposes. 

One must be only 16 to get a driver's license in Ontario, but the graduated license system in effect here almost guarantees that one will be 18 before being fully licensed. In addition, there has always been vocal support for the notion of raising the minimum driving age. (Many European countries already have a higher minimum age both for driving and for criminal responsibility.) 

One must be 18 in order to vote or to enter into binding contracts. 

One must be 18 in order to commence or defend a lawsuit without the assistance of a litigation guardian. 

One must be 19 in order to buy alcohol or cigarettes. 

Clearly we do not believe that 17 year-olds are either mature enough or responsible enough to be treated as adults in these areas. Neither should most of them be treated the same as adults in the criminal courts. Admittedly there are some occasions where the maturity of the offender and the severity of the offence committed combine to justify treating a young person in the same way as we treat an adult. In those cases, the Crown may apply to have that individual transferred to adult court. 

The Youth Criminal Justice Act does not change the upper age for young people involved in criminal proceedings.


TRANSFER TO ADULT COURT 

There are some occasions where the maturity of the offender and the severity of the offence committed combine to justify treating a young person in the same way as we treat an adult. In those cases, the Crown may apply to have that individual transferred to adult court. 

Under the Juvenile Delinquents Act, anyone who was 14 years of age or older and was charged with an indictable offence could be transferred to adult court only in exceptional circumstances. The JDA itself limited transfers to circumstances where "the good of the child and the interest of the community demand it". The Ontario Court of Appeal interpreted this to mean that a transfer should be ordered only where the crime was of a most serious nature and the child and his record supported no other solution. Unless the Crown met this rather tough onus, the case proceeded in Juvenile Court. Needless to say, few cases were transferred, especially in Ontario where 16 and 17 year olds were considered to be adults under that Act. Transfers were somewhat more common in provinces where 16 and 17 year olds were generally treated as juveniles. 

Little changed at first following enactment of the Young Offenders Act. However, over time the rules were relaxed to make it easier to transfer young people to adult court. Now, while there is a burden on the Crown to persuade the court that transfer to ordinary court is appropriate, the onus is not regarded as a heavy one. The question is whether the judge is satisfied, after weighing and balancing all the relevant considerations that the charges should be dealt with in adult court. In addition, 16 and 17 year olds charged with murder, attempt murder, manslaughter or aggravated sexual assault are presumed to be dealt with in adult court unless the young person satisfies the youth court judge that the case should proceed in youth court. This shift in onus means that many more, if not most, of these cases are dealt with in adult court. 

The new Youth Criminal Justice Act could change the law even more. It allows for a youth court judge to impose an adult sentence on a young person rather than transfer him to adult court. 

It lowers the age for youths who are presumed to receive an adult sentence for serious offences (murder, attempt murder, manslaughter and aggravated sexual assault) so as to include 14 and 15 year olds. 

It expands the list of presumptive offences to include a new category of offenders who show a pattern of serious violent behaviour. This has been called the "three strike rule" in that the third time a young person is convicted of a serious violent offence, he is presumed to be given an adult sentence. Unfortunately this rule is unduly complicated. It is not clear what constitutes a serious violent offence. In addition, the court has to go through an extra procedure to have a judge rule on each case, including strikes one and two. Finally, the Crown has a discretion whether to even ask that this label be applied. This could therefor become another item to be plea-bargained away in certain cases. I do not think that these provisions will succeed in making it easier to punish young offenders with adult sentences. On the contrary, it appears that they will be just as difficult to apply as the existing law.


ALTERNATIVE MEASURES / EXTRAJUDICIAL MEASURES 

Diversion and alternative measures are becoming used much more frequently for people who are caught committing minor criminal offences but the programs are not well understood by most people. 

Diversion refers to a program that attempts to divert minor charges out of the formal court process and deal with them more informally within the community. Alternative measures is the name used for diversion under the Young Offenders Act. 

Why should we bother with these programs at all? Can't the courts deal with these cases? 

The simple answer is "no!" 

The courts cannot handle all of these more minor matters in a cost-efficient way. Also, studies have shown that a large majority (more than 75 per cent) of first offenders do not come back into the criminal justice system no matter how they are dealt with. Diversion then, is an attempt to deal with these cases in a cost-effective manner, allowing the offenders an opportunity to avoid a criminal record while still insuring the public is protected against further crime. 

What is diversion? Years ago, it was limited to a police officer giving an offender a stern lecture and letting them go with a warning not to offend again. Now, diversion will vary depending on an offender's age and the offence charged. One thing that all programs have in common is the requirement that there be sufficient evidence to proceed with prosecution of the offence, and that the offender accept responsibility, in writing, for the offence. With young offenders, the parents are always involved. 

Halton Regional Police run a Youth Justice Program where young offenders are diverted out of the court system. This not only reduces the workload in court, but it also reduces police time spent processing and investigating offenders. 

Depending upon the seriousness of the offence, sanctions may range from a formal caution to participation in a three-month contract with terms specific to the offence and to the young person. This can be similar to being on probation and may include a curfew, restitution, a research paper or community service work. Failure to live up to the contract terms may result in the youth being charged with the original offence. 

There is also an Alternative Measures Program for young people run through the court itself. Applicants are screened and must be approved. Restitution and an apology are priorities here. Other possible sanctions include community service, charitable donations or an essay on what effects the offence has had, not only on the offender but also on everyone else in the community. This program can take anywhere from one to three months, depending on the case. 

For anyone (young person or adult) charged with possession of a small amount of marihuana, there is a separate program that requires that those offenders who are approved by the drug prosecutor must find a community service placement and perform anywhere from 20-l00 hours of volunteer work. 

The purpose of all of these programs is to provide an effective alternative to the court process. While formal charges are withdrawn against all who complete their program, this not a way for an offender to get off. In fact, in some cases, the diversion sanction may be more onerous than that imposed in court. In any event, for practical reasons, these programs will be with us for some time yet.


PARENTAL RESPONSIBILITY 

The Young Offenders Act provides that parents have responsibility for the care of their children and that young persons should only be removed from the care of the home when necessary. 

Parents are recognized as having an important role to play in youth court proceedings. They must be informed of any charges against their children and notified of the date and place of the court hearing. They are entitled to be present in court and to advise the judge of their concerns. Most judges will inquire whether any parents are present before dealing with a matter in court. In addition, they will usually seek input from the parents before sentencing a youth.

 Parents are not, however responsible for the illegal acts of their children. Responsibility for illegal conduct is placed on the young offender alone. 

This marked a change from the Juvenile Delinquents Act which allowed a parent to be ordered to pay a fine, or damages or costs if the court was "satisfied that the parent or guardian had conduced to the commission of the offence by neglecting to exercise due care of the child or otherwise". In addition, any adult could be charged with contributing to the delinquency of a juvenile. 

Some people complained that the lack of legal liability under the Young Offenders Act allowed some parents to abdicate responsibility for the acts of their children. This, in turn, set a bad example for the children themselves who never developed their own sense of responsibility. 

Recently, the Ontario government has reintroduced the concept of financial responsibility on the part of parents for property loss or damage intentionally caused by their children who are under 18 years of age. The Parental Responsibility Act came into effect on August 15, 2000 and allows those whose property has been intentionally damaged, destroyed or stolen by minors to bring a claim for up to $10,000 against parents in Small Claims Court. This amount includes all costs incurred by a victim such as lost wages or profits, car rental expenses, or any other expenses arising from the property damage or loss. 

This law should make it easier for victims to sue parents in Small Claims Court. Until now, most of the onus has been placed on the victims of crime to prove their case in court. Under the Parental Responsibility Act, victims need prove only that the defendants are the parents of the child who caused a specific amount of property damage or loss. In cases where the young offender has been found guilty of that property offence in Youth Court, the law also makes it easier for victims to use documents from that court to help prove their case. 

The burden then shifts to the young offender's parents to establish why they should not be found liable for their child's property offences. To do this, they must prove that the loss or damage was not caused intentionally, or that they exercised reasonable supervision of their child and made reasonable efforts to prevent the damage from happening. In deciding whether parents exercised reasonable supervision, judges are required to consider numerous factors including the age of the child, his mental and physical capacity, any psychological disorders and prior conduct. He or she should also consider whether the youth was under direct supervision by the parent at the time, or if other reasonable arrangements had been made for supervision. 

This law is supposed to be one of a series of actions taken by the Ontario government to reinforce such values as respect and responsibility in society. We can certainly hope that it will accomplish those goals. In the meantime, we will have to wait and see how the law works out in practice. For now, it is too early to say since no cases have yet made their way through the courts.


SENTENCES 

The general principles of sentencing are pretty much the same for both adults and young people. There are certain rules, which are different when young people are involved. The maximum sentences are definitely different. Finally, youth sentences are served in different facilities. We will look at each of these issues separately in this section. 

A. General Principles of sentencing 

The protection of society is the primary goal of the court when sentencing either an adult or a young offender. This of course would best be accomplished if that offender, and others like him, stopped committing crimes. The sentencing judge's task is to find a way to make this happen. 

Most first offenders do not come back to court. Many learn their lesson simply by being charged and brought into the criminal justice system. The judge doesn't have to do much, if anything with this group. It is certainly not necessary to send them to jail. A fine or probation will usually be more than enough. 

It is the repeat offenders who make the judge's job a difficult one. Should he try to rehabilitate them or to deter them or should he simply separate them from society? In Youth Court, rehabilitation takes priority. In reaching the final decision however, the sentencing judge must take into account the particular details and circumstances of both the crime and the criminal, compare them to previous decisions, consider the relevant principles and then impose the punishment that is appropriate for that particular case. 

Some offenders have specific problems that need to be addressed if they are to avoid future crimes. Some abuse alcohol or other drugs. Others have emotional or psychological problems. Many simply lack basic life skills and are unable to cope in modern society. There is much that can be done to help rehabilitate these people. Alcoholics can be placed in programs either in jail or as part of a probation order. They can be ordered not to drink and encouraged to attend AA. Probation officers can provide supervision and support within the community. Similarly, counselling can be provided for those with emotional or psychological problems and educational programs may be made available to those lacking sufficient life skills. None of this however, guarantees success because all of these programs will be useless unless the offender chooses to take advantage of them. Many do so willingly. Others do not. 

The judge may try to deter an offender by imposing a sentence harsh enough that it exceeds any advantages that came from his offence. The idea is that before committing another crime the offender will weigh that penalty against any benefits and choose not to reoffend. In theory, others should also be deterred by such sentences. In practice, however not all offenders consider the potential consequences of their acts. If they did, our courts would not be so busy. Potential deterrent dispositions for young people include secure custody (the youth version of jail), open custody (generally served in a group home), fines, restrictive probation orders and community service orders. 

Those offenders who will not be rehabilitated or deterred may simply be separated from society by putting them in custody. They may not learn anything from this but they cannot commit further offences while they are there. In all cases the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The judge must consider certain aggravating or mitigating circumstances. Finally, the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. 

The Criminal Code requires judges to consider "all available sanctions other than imprisonment that are reasonable in the circumstances". In addition, "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate". Recently Parliament introduced conditional sentences, allowing some offenders to serve their jail sentences in the community. These are not available under the YOA but it also contains provisions requiring judges to consider all other alternatives before resorting to custody. The new Youth Criminal Justice Act goes even further in this direction. 

Clearly, in most cases, jail is to be the sentence of last resort for adults and young people alike. 

Some crimes however are so odious that denunciation becomes the primary goal in sentencing. The sentence then is intended to express society's abhorrence for that particular crime. 

While these general principles are applicable to both adult and young offenders, there are differences between those two groups. One difference is in the maximum sentences, which may be imposed on young people 

B. Maximum sentences under the YOA / YCJA

The YOA says that a young person cannot receive a sentence that is longer than the maximum sentence that could be given to an adult for the same offence. That does not mean that a youth cannot get a longer sentence than an adult. Few offenders (adult or youth) are given maximum sentences and a youth with a bad record could well get a longer sentence than an adult first offender. 

In addition, adults are automatically entitled to remission (credit for good behaviour) reducing their sentence by one-third. They are also eligible for parole after serving one-third and an application to the parole board is automatically processed on any sentence of six months or more. Young offenders do not get remission and they are not eligible for parole. To reduce a youth sentence the young offender must apply for a review of disposition by the judge who originally sentenced him. A review is not mandatory until the young offender has been in custody for at least six months. 

The maximum sentences under the YOA generally exceed the sentences actually given to adults even without considering remission. So let's look at the maximum sentences for young offenders. 

(i) Murder 

When the YOA first became law, the maximum youth sentence for any murder was three years. It became easier to transfer such serious cases to adult court where a youth faced exactly the same penalties as an adult. These provisions received much public criticism and over time they too were amended. 

At present, a youth who commits first-degree murder can receive a youth sentence of up to 10 years. Six years is spent in custody with the remainder spent under conditional supervision in the community. Before his release into the community, the young person must be brought back before the sentencing judge who will then set the conditions of release. 

If, at that time, the judge is satisfied that the youth is likely to cause serious harm if released, the judge can order he serve the whole sentence in custody. 

Most first-degree murder cases are transferred to adult court. There the sentence for a young person is life imprisonment with no parole for at least 10 years. An adult convicted of that offence would have to wait 25 years before being eligible for parole. 

The maximum youth sentence for second-degree murder is seven years with four of those in custody and the remainder under conditional supervision in the community. As in first-degree murder cases, the sentencing judge must review the case and set the conditions before a youth is released into the community. If the judge is satisfied that the youth is likely to cause serious harm if released, the judge can order he serve the whole sentence in custody. 

If a young offender breaches any of the conditions of his release, he can be returned to custody pending a hearing before a judge. The judge can then either release the young offender or order that he remain in custody for a further period, not to exceed the remainder of his disposition. 

Most second-degree murder cases are also transferred to adult court. Youths guilty of that offence receive an automatic life sentence. The judge decides the parole eligibility minimum, which could be anywhere from five to seven years. An adult convicted of second-degree murder would have to serve between ten and 25 years before being eligible for parole. 

The increased maximum penalty for murder has required certain procedural changes in the Youth Court. Now, young people tried for murder in Youth Court are entitled to have a preliminary hearing and then be tried by a jury. (The Criminal Code and the Charter of Rights both guarantee everyone the right to trial by jury when the maximum sentence is 5 years or more.) When the maximum sentence was only three years, a murder trial in Youth Court was before a judge without a jury and there was no preliminary hearing. 

Under the Juvenile Delinquents Act, the maximum sentence for a youth tried in Juvenile Court would have been committal to a training school until his twenty-first birthday. That maximum was the same for both first and second-degree murder. When a juvenile was transferred to regular court, however, he became subject to the same penalties as an adult. At one time this included capital punishment. 

For example, as of June 14, 1959, Stephen Truscott was an ordinary 14-year-old, living anonymously in Clinton, Ontario. That status changed the next day, when he was accused of raping and murdering his 12-year-old classmate, Lynn Harper. His case was transferred to adult court, where he was tried and convicted. He then became the youngest person ever to be sentenced to hang in Canada. All this happened within a few months of Lynn Harper's death. 

Truscott's sentence was later commuted to one of life imprisonment. He served ten years in youth facilities and at Millhaven Penitentiary before he was paroled. He then changed his name and returned to an anonymous life, this time in Guelph. That anonymity ended just recently when he appeared on CBC's The Fifth Estate to again declare his innocence. 

Stephen Truscott was exceptional in that his case became well known, not only at that time, but also to later generations. Most of the few young people who have committed murder have remained unknown to anyone outside their own community. 

(ii) Offences punishable by life imprisonment 

A young person who commits an offence, other than murder, for which an adult could be sentenced to life imprisonment, faces a maximum sentence of three years. This sentence can include secure custody, open custody, probation or any combination thereof. The total combined sentence cannot however exceed three years. 

The offences which fall into this category include attempt murder, conspiracy to commit murder, accessory after the fact to murder, manslaughter, criminal negligence causing death, aggravated sexual assault, kidnapping, robbery, and break and enter a residence. 

Where a young person is transferred to regular court for one of these offences, he becomes liable to exactly the same penalties as an adult. 

(iii) All other indictable offences 

The maximum sentence for these offences is two years of secure custody, open custody, probation, or any combination thereof. If there are multiple such offences, the maximum combined sentence becomes three years. 

Again, where a young person is transferred to regular court for one of these offences, he becomes liable to exactly the same penalties as an adult. 

If a young person commits a further offence while serving a previous disposition, the sentence for the new offence may be served consecutively to the previous disposition and the combined duration of these sentences may exceed the maximums that would otherwise apply. 

(iv) Summary conviction offences 

In cases where the Crown Attorney elects to proceed summarily, the maximum sentence will range from 6 months to 18 months. The maximum here is exactly the same as for an adult. 

A young person may actually face a longer maximum sentence for these offences because the Crown will often elect to proceed summarily against an adult in order to avoid a preliminary hearing and a jury trial. A young person does not have a right to these, even when the Crown proceeds by indictment on any charge other than murder. There is therefore less pressure on the Crown to proceed summarily against young people in Youth Court. 

Summary conviction matters cannot be transferred to adult court.


9. RIGHTS OF YOUNG PERSONS 

In general young people have the same rights as everyone else. There are some exceptions to this but by and large an examination of the rights of young people must start with a review of the rights possessed by all of us. 

For example, "Everyone has the right not to be arbitrarily detained or imprisoned." This section of the Charter of Rights means that police cannot just stop someone without a valid legal reason. Usually the officer must have reasonable cause, based on objectively discernible facts, to suspect that the detainee has been involved in some illegal activity. Police are, however, authorized to stop motor vehicles and question their drivers for many different reasons. These laws have been held by the courts to be reasonable limits on a driver's rights.

 "Everyone has the right on arrest or detention to be informed promptly of the reasons therefor and to retain and instruct counsel without delay and to be informed of that right." In other words, the police officer must tell you why you have been stopped. In addition, if the officer is proceeding beyond a general investigation, he or she must inform you of your right to speak to a lawyer. You must also be informed of the availability of a 24-hour duty counsel who can provide telephone advice at any time to anyone who cannot reach his or her own lawyer. 

If you indicate that you want to speak to a lawyer, the police are then obligated to provide you with a reasonable opportunity to do so. In addition, they must refrain from attempting to obtain evidence from you until you have actually spoken to a lawyer. Until then, they cannot ask you to answer questions or to take any tests including a Breathalyzer test. They can, however, require you to take a roadside breath test under certain circumstances. 

You are not limited to just one phone call. You are entitled to a reasonable opportunity to speak to the lawyer of your choice. In some cases, however, you may have to settle for duty counsel. The most common reason for this will be the requirement that breath tests be taken within two hours of the driving. 

You should always assume that there is a reason why the police have told you that you have the right to talk to a lawyer. So you should talk to one whenever you are given the chance. 

Everyone has the right to remain silent and not incriminate himself. The existence of this right may well be the most important information that a lawyer will give you following your arrest. It is then up to you to follow this advice and to not answer police questions that are put to you later. While you have the right to remain silent, they still have the right to ask their questions and you must decide whether to answer or not. 

The right to remain silent does not include a right to lie. Lying to the police could lead to a separate charge of obstruction. 

If police question a person without advising him of his rights, any statements obtained from him will likely be excluded from evidence in any trial. In addition, the statement will not be admitted unless the prosecution can prove it was made voluntarily. It must be shown that there were neither threats nor inducements made in order to obtain the statement. 

There are further rules governing the taking of statements from young persons who are under 18 years of age. The Young Offenders Act requires police to tell a young person that he or she is under no obligation to give a statement and that any statement given by him may be used as evidence in court proceedings. The young person has the right to consult counsel, a parent or some other adult. In fact, any statement obtained from a young person is required to be made in the presence of the adult consulted unless the young person desires otherwise. This right can only be waived in writing or on video. The current practice of Halton Police is to have a waiver signed during a videotaped interview. 

These extra safeguards for young people are apparently based on a belief that young people cannot necessarily make the same decisions as adults. Certainly, at home, many parents press their children to confess to such a degree that it may seem better for the child to confess to something whether he has done it or not ("I will still love you no matter what you've done but don't tell me you didn't do it"). This attitude can carry over to the police station. 

I know many police officers who do not subscribe to the above philosophy. I also know a large percentage of my youth clients choose to waive their rights without speaking to either a parent or lawyer. Most then go on to make some sort of statement to the police. It has been my experience that adults are much more likely to exercise their rights to speak to counsel and to remain silent. 

The new Youth Criminal Justice Act will allow a judge to admit a statement despite the absence of a proper waiver, if the judge is satisfied that the admission of the statement will not bring the administration of justice into disrepute. We will have to wait and see how the judges will interpret that provision once it becomes law. 

These changes will likely satisfy neither side of the debate. Those who believe that there are valid reasons for the safeguards requiring signed or videotaped waivers will still argue that the police should be made to follow the rules and there should be no exceptions to that. Otherwise the rules become uncertain and ultimately meaningless. 

If, on the other hand, the protection is not important, then we do not need special safeguards at all and they should simply be removed. Both the current and proposed law provides that a youth who pretends to be 18 or older when dealing with the police will not be entitled to these special rights. The law does not allow one to benefit from a lie in these circumstances.

Young people may have special rights when they are being questioned by police, but they are in no different position than adults when it comes to police searches. In fact, in some circumstances, such as searches in schools, they may have fewer rights than adults.

 "Everyone has the right to be secure against unreasonable search and seizure." This right pretty well disappears once you have been arrested. Police officers have the power to search a person as an incident to a lawful arrest and to seize anything in his possession or immediate surroundings to guarantee the safety of police and the accused, to prevent his escape, or to provide evidence against him. This may, in certain circumstances, allow them to search a motor vehicle but a warrant will probably be required before searching the arrested person's residence. 

The Supreme Court of Canada considered the question of school searches in a case from Nova Scotia. There, a vice principal had heard from students the 13-year-old accused was selling drugs in the school and would be carrying drugs at a school dance. The vice-principal called the R.C.M.P. to attend and then asked the accused to accompany him to his office. 

He then questioned the boy until the police officer arrived. The officer advised the boy the vice-principal was going to search him. A plastic bag containing a small amount of marihuana was found and the boy was charged with possession. 

The Supreme Court assumed for purposes of the case that schools constitute part of government and that the vice-principal was acting as an agent of the police. Accordingly, the Charter of Rights applied to his actions. They found however, the search was not unreasonable and the marihuana was not excluded from evidence during the trial.

 The Charter of Rights provides that "everyone has the right to be secure against unreasonable search and seizure". What is considered to be unreasonable in a particular case will be determined largely by the degree of privacy that any individual might reasonably expect to have in those circumstances. 

While a student does have a reasonable expectation of privacy over his person, a student's reasonable expectation of privacy is significantly diminished in a school setting. While warrantless searches are normally considered to be unreasonable, a more flexible and lenient approach is required in schools. 

A school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline, and that a search of a student will uncover evidence of that infraction. The reasonable grounds may include information received from one or more credible students or from the teacher or principal's own observations. 

As a result of this decision, students in school have lost a number of rights that they enjoy when not in school and a student's expectation of privacy is greatly reduced. 

At the same time, teachers and principals have been given a great deal of deference regarding the information they act on, its reasonableness and the credibility of any source. They now have broad powers to search both students and their lockers. 

This decision should not, however, be taken as authority to strip-search students. As a teacher and vice principal at a high school in southwestern Ontario learned recently, students still have some expectation of privacy, even in a school setting and such invasive proceedings as these will be seen to be an unreasonable invasion of the student's rights. 

The Supreme Court noted that schools have a duty to foster the respect of their students for the constitutional rights of all members of society and that learning respect for rights should be part of the education of students. Further, values are best taught by example and those values may be undermined if students' rights are ignored by those in authority.


10. RECORDS AND IDENTIFICATION OF YOUNG PEOPLE

Many myths abound about the Young Offenders Act. One of the most common myths is that a Youth Court record is destroyed when the young person turns 18. Like most myths, this is not correct. So let's take a look at what is reality here. 

Young people who are found guilty of a criminal offence are treated differently. First of all, they are not convicted but merely found guilty. This distinction may not appear to be important, but it allows a young person to answer "no" when asked if he or she has been "convicted" of a criminal offence. In most circumstances, that is all that can be asked. 

Once the disposition imposed on a young person has been completed, he is deemed not to have even been found guilty of the offence except for certain purposes involving the courts, the police or a parole board. In other words, once the fine is paid or the custody and probation is over, the young person is no longer guilty of an offence for most purposes. 

The record itself is to be destroyed if the young person stays out of trouble for 3 years after completing the sentence for a summary conviction offence (a less serious offence) or after 5 years in the case of an indictable offence (the more serious ones). If further Youth Court offences are committed during this period, the date for destruction is pushed back to three or five years depending on the seriousness of the new offence) following the last matter. If the young person becomes an adult and commits a further crime during this period, the rules applicable to adult records will apply to all offences. This would cause the record to remain for the rest of that person's life unless a pardon was sought and obtained. 

Records relating to a finding of guilt for first degree murder, second degree murder, attempted murder, manslaughter and aggravated sexual assault may be kept indefinitely in a special records repository. The fingerprints of those guilty of those offences may similarly be kept indefinitely in a special fingerprints repository. 

The records of young people who have been transferred to adult court are treated as adult records. 

Not everyone may access Youth Court records. These may be released only to those specified under the Young Offenders Act. For example, the YOA specifically provides that a record may be made available for inspection to the victim of the offence to which the record relates. It is an offence to disclose these records to anyone not listed in the YOA. 

It is also an offence to identify a young person as having been charged with an offence. A court order may be obtained where publication of the name will assist the police in apprehending a dangerous individual. Similarly school officials may be informed of a young person's identity to ensure the safety of staff and students. The court may also authorize disclosure to others where the young person poses a risk of serious harm to those persons and the disclosure of the information is relevant to the avoidance of that risk. 

Critics regularly complain about the provision for anonymity under the Young Offenders Act. They feel that it allows young offenders to avoid public acceptance responsibility for their crimes. Supporters of the YOA counter that a young person should not be publicly branded as a criminal for a youthful indiscretion. Personally, I am not a die-hard supporter of not publishing offenders' names. I am uncertain as to the benefits that flow from it. However, we should not delude ourselves into thinking that we would be much safer if we, the public, could all be told the names of young offenders. Usually, those closest to the case, that is, those in the young person's own community, know who the young person is without his name ever being publicized in the media. In addition, adult offenders go through the courts, serve their sentences and are released. Some of them may also offend again. The news media could publish the names of these offenders, but in most cases they don't. They don't because it isn't news. It is an everyday event. As a result, these people go through the system and return anonymously to the community without anything near the outrage expressed regarding young offenders. 

The Young Offenders Act also protects the identities of young victims and witnesses. There is, quite properly, no disagreement with these provisions. 

The new Youth Criminal Justice Act makes very few changes in this area. It would appear that under the new legislation, a young person may be identified if he is charged with a presumptive offence, whether he ends up receiving an adult sentence or a youth sentence. In addition a young person may after turning 18 publish or cause to be published information that would identify him as having been dealt with under the act whether as an accused, a witness or a victim. Other than these provisions, the law will remain pretty much the same.


11. WHAT SHOULD YOU DO IF YOU OR YOUR CHILD HAS TO GO TO YOUTH COURT? 

1. Take the matter seriously. Depending on circumstances, this could follow you for the rest of your life if you are found guilty. The Canadian Police Information Computer (CPIC) could maintain records of it for from a year to a lifetime. As I have described above, a youth record does not automatically disappear when you turn 18. 

2. See a lawyer. The law is complex and you need competent representation. Find out your rights and determine whether you have a viable defence. Only a lawyer can tell you this. Speak to one who can properly handle your case. If you decide to fight the charge, hire a lawyer to represent you in court. Criminal charges against either adults or young people are too complicated for you to defend on your own; no matter how much information you obtain ahead of time. You should also remember that all lawyers are not created equal. The practice of law has become more and more specialized. The lawyer who did your house deal cannot be expected to also keep up on the latest developments in criminal law and the YOA/YCJA. You should, however feel free to ask previous lawyers for their suggestion as to whom you might retain to defend you. 

3. Your choice of lawyer should not be based on the amount of the fee alone. The Province has almost unlimited resources when it comes to your case. You need to hire a qualified lawyer who has experience in defending these cases and pay him a fee that will allow him to put sufficient time and effort into your case to counter the prosecution. Lawyers must earn enough in the time they spend on your case in order to cover their expenses and make a living wage. If you go too low, your lawyer will not be able to put in the time necessary to protect you. Look for a reasonable, predictable fee, not the lowest. Often, you do get just what you pay for. Do discuss fees before hiring a lawyer. In my practice, I will tell you what your case will cost, usually at the first meeting.