Legal Representation of Children (Youth Criminal Justice Act Y.C.J.A.)

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1 Legal Representation of Children (Youth Criminal Justice Act Y.C.J.A.) Dominique Trahan, lawyer Presentation at the Conference Making Children s Rights Work: National and International Perspectives Montreal, November 18 20, 2004

2 Making Children s Rights Work: National and International Perspectives Montreal, November 18 20, 2004 Legal Representation of Children (Youth Criminal Justice Act Y.C.J.A.) INTRODUCTION First, I would like to thank Mr. Jean-François Noël and Ms Céline Giroux for giving me the opportunity to speak to you. I hope that you will be inclined to do the same once I have finished. Knowing that you are from various fields that are closely or remotely involved with today s subject matter, allow me to begin with some of the more technical information to give everyone a better understanding, after which I will present a few scenarios to illustrate the different aspects of a lawyer s work. In Quebec, young people accused of a criminal offence are governed by the new federal legislation (in effect since April 1, 2003) YCJA and the Canadian Criminal Code. This new legislation lists the principles of application the objectives sought and the procedure to follow relative to the matter. This is a departure from common criminal law (applicable to adults) which is governed by the Criminal Code, legislation where, among others, the definition of the majority of criminal offenses is found. The YCJA defines a young person, under section 2, as: " Definition " 2.(1) The definitions in this subsection apply in this Act.. «adolescent» "young person " "a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act." This definition shows that the Youth Justice Court has jurisdiction if, at the time of the offence in question, the accused is between 12 and 18 years old less a day. The YCJA provides, under section 25, the right to counsel and is in conformance to subparagraph 40(2)(b)(ii) of the agreement. 2

3 "Right to counsel" Arresting officer to advise young person of right to counsel Justice, youth justice court or review board to advise young person of right to counsel "25.(1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person. (2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel. (3) When a young person is not represented by counsel a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to sentencing, b) at a hearing held under section 71 (hearing -- adult sentences), c) at trial, d) at any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision), e) at a review of a youth sentence held before a youth justice court under this Act, or f) at a review of the level of custody under section 87, Trial, hearing or review before youth justice court or review board (4) When a young person at trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth justice court before which the hearing, trial or review is held or the review board before which the review is held a) shall, if there is a legal aid program or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, may, and on the request of the young person shall, direct that the young person be represented by counsel. Appointment of counsel Release hearing before justice (5) When a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person. (6) When a young person, at a hearing referred to in paragraph (3)(a) that is held before a justice who is not a youth justice court judge, wishes to obtain counsel but is unable to do so, the justice shall 3

4 a) if there is a legal aid program or an assistance program available in the province where the hearing is held, (i) refer the young person to that program for the appointment of counsel, or (ii) refer the matter to a youth justice court to be dealt with in accordance with paragraph (4)(a) or (b); or b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, refer the matter without delay to a youth justice court to be dealt with in accordance with paragraph (4)(b). Young person may be assisted by adult Counsel independent of parents Statement of right to counsel (7) When a young person is not represented by counsel at trial or at a hearing or review referred to in subsection (3), the justice before whom or the youth justice court or review board before which the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the justice, court or review board considers to be suitable. (8) If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of the parent. (9) A statement that a young person has the right to be represented by counsel shall be included in a) any appearance notice or summons issued to the young person; b) any warrant to arrest the young person; c) any promise to appear given by the young person; d) any undertaking or recognizance entered into before an officer in charge by the young person; e) any notice given to the young person in relation to any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision); or f) any notice of a review of a youth sentence given to the young person. Recovery of costs of counsel (10) Nothing in this Act prevents the lieutenant governor in council of a province or his or her delegate from establishing a program to authorize the recovery of the costs of a young person's counsel from the young person or the parents of the young person. The costs may be recovered only after the proceedings are completed and the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed. 4

5 Exception for persons over the age of twenty (11) Subsections (4) to (9) do not apply to a person who is alleged to have committed an offence while a young person, if the person has attained the age of twenty years at the time of his or her first appearance before a youth justice court in respect of the offence; however, this does not restrict any rights that a person has under the law applicable to adults." This is an adversarial system and the burden of proof lies with the State (represented by the Attorney General s prosecutors) to show beyond any reasonable doubt that the accused is guilty. THE NATURE OF THE LAWYER S MANDATE Young people, between the ages of 12 and 17 inclusive, are deemed able to take responsibility for their criminal actions. They have the right to legal representation and, to this end, are deemed able to appoint a lawyer. The lawyer acts according to a conventional mandate. He informs, counsels, represents and defends his client to the best of his knowledge while bound by the lawyer-client privilege. In Quebec, the Legal Aid Act entitles young people with a legal problem to a lawyer, free of charge, providing their income meets with the financial admissibility criteria for legal aid. Of course, most are eligible. Therefore, young people are represented by permanent salaried legal aid lawyers or, as per the specified choice, by a private lawyer who accepts the legal aid mandate payable according to the pre-established rates. If a young offender is ineligible he is represented by a private lawyer at a cost agreed upon by the youth and/or his parents and the lawyer. INDEPENDENCE OF COUNSEL The YCJA stipulates that it is the young offender who retains the right to representation; he is the one receiving counsel because he is the accused. Subsection 8 of section 25 gives the court the power, if it finds a conflict of interest between the youth and his parents, to intervene in the selection of a lawyer. Quebec does not exercise the option that is offered by the federal government under subsection 25(10) to establish a program to recover counsel costs. DETERMINATION OF THE TERMS OF THE MANDATE 5

6 General Points Throughout my years in practice, I ve noticed that every time the matter of amending, repealing or replacing the Act was put forth, we could read or hear claims that it must be more strict. And this is also the case when serious crimes are committed and the accused are young people. Often, the media will get hold of the news and what we hear over the following days is adult crime adult sentence. And yet, when we first meet parents with their children, at the office or the detention centre, we are often asked: Why must he be fingerprinted? He is not a criminal. The mandate can therefore comprise the following components: information counsel representation defence Information The fingerprinting example (above) is a common occurrence when a young person is being charged. There is a multitude of situations where we are called upon to inform. So, in Montreal, it often happens that parents receive a formal notice from law firms representing department stores, requesting a payment of $200 or more after their child has been arrested for shoplifting by the store s security guards, on grounds that substantial damage was caused as a result of this offence. In practice, sometimes the claim is made on site, after the arrest. In most cases, the police are called in and the youth can return home while waiting to be summoned for the extrajudicial sanctions process, or to court for a shoplifting charge. Meanwhile, the parents receive the formal notice and call us to inquire about their obligation to pay and what would happen if they didn t pay. Many think that payment is a way to avoid a criminal lawsuit (shoplifting) (listed as an appendix is an example of a formal notice and an example of a response). Counsel During an arrest, according to the YCJA and the charter, young people are 6

7 entitled to be informed of the reasons for the arrest as well as their right to counsel without delay. There are phone services to help young people who exercise their right, 24 hours a day. When we answer these calls, sometimes, even before we are able to give them the information, they want to know when they will be freed. We inform them of their right to remain silent, their right to call their parents, to have them present or to have their lawyer present. Sometimes, within the judicial process, we can attempt to explain to the youth that, considering his drug use problem, for example, it would be to his advantage to accept drug abuse treatment; that we can recommend recognized centres; and in addition to proving that he can turn his life around, this step will help him for years to come. Representation With respect to non-judiciary mechanisms, while the young person s file is being reviewed by the youth worker, and before alternative methods of settling the case are presented to him, we may have to contact the social worker or the criminologist who is studying the situation, to assess the evidence or to explain that it was an isolated incident and that there is acknowledgement of this act. Often, intervening at this stage of the process can lead to discussions or negotiations with the Attorney General s prosecutor who will then convey the decisions to the youth worker (section 2). When young people are expelled from school after an event that has led to charges being laid (assault, taxing, drugs), lawyers can meet with the school authorities to try for a reconciliation in order to reintegrate the young person or to find another school. Defence The word defence used here refers to guiding you through the process. We work in an adversarial system and although most cases are settled with guilty pleas, there are situations where there is no possible ruling, and therefore the word DEFEND is used in its literal sense. Throughout the whole process, we must try to include the parents without jeopardizing our independence. For example: a young person arrives in court, is accused of breaking and entering a home and of theft. At our first meeting, the parents and their child announce: We want to plead guilty, he 7

8 has committed the act, we won t have to come back, he will accept the consequences, will conform with them and that will be the end of it. Very well, but there is some verifying to be done before pleading guilty. If we plead not guilty, it would not be lying to the court; we will obtain the list of stolen objects and we will then determine what you will plead guilty to. An actual case where a young person is accused of: 1. On or about November 27, 1998, at Montreal, in the district of Montreal, committed mischief by wilfully destroying or damaging property, the value of which exceeds $5,000.00, therefore committing the crime under section 430(1)(a)(3)(a) of the Canadian Criminal Code. 2. On or about November 27, 1998, at Montreal, in the district of Montreal, intentionally or recklessly caused damage by fire or explosion to property, knowing that or is reckless with respect to whether the property is inhabited or occupied, therefore committing the crime under section 433(a) of the Canadian Criminal Code. 3. On or about November 27, 1998, at Montreal, in the district of Montreal, intentionally or recklessly caused damage by fire or explosion to property that is not wholly owned by that person, therefore committing the crime under section 434 of the Canadian Criminal Code. 4. On or about November 27, 1998, at Montreal, in the district of Montreal, committed mischief by causing actual danger to life, therefore committing the crime under section 430(2) of the Canadian Criminal Code. Using this particular incidence, that caused damages in excess of $1 million, I will try to convey everything that a 120-second experience can entail for this young person, his family and the victims, in their daily lives as well as in the judicial process. A few weeks passed before the accused and his family contacted a lawyer for counselling, and it was then because they received a summons to appear in court. There were many police interrogations and inquiries from insurance companies, among others. Some 60 people were hastily evacuated and the city, which owned of the property, had to renovate the complex while young people temporarily lost their student jobs. Following a first meeting, there has been a lot of work to do since the police and the insurance companies are ahead of us. As a rule, their inquiry is finsihed. They have met with all the witnesses including the client s young friends who were present at the time of the fire. Other aspects of the information component apply here. We realize that it is 8

9 his first conversation with a lawyer. This young person and his parents are to be referred to a lawyer who will help them with the insurance claims. The lawyer will be their representative and meet with the insurance companies. In addition, the sequence of procedures must be explained to laymen. As for gathering information, we do not have a private investigator continuously working with us, so the parents and the young person are called upon. They must go back in time for the following meeting, and recount to me the series of events of the fateful evening; how and where the various interrogations took place; give the office authorization to consult school, medical or other records that may be pertinent; if possible, visit the site; meet with witnesses. For these parents who are cooperating as best they can, it is an exhausting ordeal; they carry on with their jobs, meet with their lawyer (insurance) and their son s. As for the young person, he is overcome with stress. He feels very bad about the extent of the possible penal (charge) and financial (cost of damages) consequences, of the disruption within the family and he regresses in school. The judicial process has barely begun. In October, the parties must schedule a hearing that will take place in January 2000 for five days. Between the court appearance (January 22, 1999) and October 1999, the Crown and the defence have discussed the file to complete the evidence and try to negotiate a settlement. During this time, the parents have suffered from depression and therapy was recommended to the young client. The lawyer must also complete his judicial research to support the theory of the case. During the trial, in January 2000, after all the explanations given along the way regarding the development of the case, taking into account the state of evidence, the young client has chosen not to testify. Our criminal law (adult and juvenile) does not compel the accused to testify. In order to make this decision, there were numerous discussions between the client, the parents and the lawyers (YCJA and civil), and this handling of the situation is not contrary to the various regulations and conventions. This is a difficult decision to make, particularly for a young person. Imagine running the risk of being sentenced without taking the opportunity to express yourself. This is not an easy concept to grasp for a young person. CONCLUSION Just as society and technology evolve, so does youth justice. It will always be subject to amendments to remain as contemporary as 9

10 possible with children s and young people s exposure to life, with what they expose us to, and with the life we hope to expose them to. To be a children s lawyer is fascinating and motivating. To paraphrase Judge St-Cyr of the Montreal Juvenile Court: In our field, defeat must not allow us to lose hope. To conclude, I have two requests for legislators and editors, knowing full well how difficult their wok is. 1- Bearing in mind that all intermediaries have the duty to inform, simpler legislation would be appreciated. 2- Member countries of the Convention must be cohesive. At times, sanction mechanisms pertaining to adult criminal law have been incorporated to specific laws for children, such as DNA sample collection orders. The goals are commendable. I would like to see this type of exercise matched with terms of enforcement that conform with the principles and objectives of the specific legislations. Dominique Trahan, lawyer *To lighten the text, certain words are used in the masculine form only. 10

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