Lesson 5: Youth Criminal Justice Act – Key Elements

Topic 1: Legal Rights of Youth

Introduction

Young people accused of a crime have extra protections under the law.

  • The right to remain silent
  • The right to know the reason for arrest
  • The right to retain legal counsel - youth are entitled to legal counsel at arrest, at trial and when a sanction is being used
  • The right to have an adult or parent present when being questioned by the police
  • Youth can also waive their rights under the Youth Criminal Justice Act (YCJA)

Did You Know?

  • The police may search a person or vehicle when they have seen an offence being committed, such as possession of illegal drugs
  • A youth charged with a criminal offence can always have a lawyer to represent him or her in court even though she or he cannot afford to pay one
  • If the police do not tell the youth about his or her rights, anything that youth says to the police will not be accepted as evidence in court

Where Do Our Rights Come From?

The Canadian Charter of Rights and Freedoms (Charter) is the law that sets out the rights and freedoms of every Canadian including youth. It includes legal rights in Section 25.

What Rights Do Youth Have When Stopped by the Police?

The police have the right to stop a youth if they have objective reasons to do so. Objective reasons are reasons based on facts. They are not based on a whim or desire. When police stop a youth, they usually ask the youth to give his or her name and address. If the youth is driving, they ask to see the driver’s licence and insurance. Asking for a name and address or a licence and insurance is not considered a "search."

What Does the Charter Say About Being Searched?

Section 8 of the Charter says: Everyone has the right to be secure against unreasonable search and seizure. This section guarantees a general right to be secure from unreasonable search. Police may search a person and their possessions if they have objective reasons to believe that the person may have committed a crime. In these cases, police must be able to prove in court that the search was reasonable. For example, it may be reasonably necessary in the circumstances for police to search a bag, especially if the police are concerned for their own safety.

What Rights Do Youth Have When They Are Arrested?

When a youth is arrested, the police must immediately tell the youth the reason(s) for the arrest, and inform the youth of:

  • The right to remain silent
  • The fact that everything the youth says may and will be held against him/her in any subsequent proceedings
  • The right to retain and instruct counsel (the right to have a lawyer)
  • The right to contact his/her parents or other appropriate adult
  • The possibility of contacting counsel when he/she arrives at the police station
  • The possibility of obtaining the assistance of counsel free of charge
  • The right to contact counsel and his/her parents (or appropriate adult) in private
  • The right to have the persons contacted present during any questioning by the police

How Must the Police Give This Information?

The police must give this information in language the youth understands. They must check that the youth understands his/her rights.

Can a Youth Waive (Give Up) His or Her Rights?

Youth can waive (give up) their rights under the YCJA. It is the decision of the youth whether or not to give up his or her rights.

Can a Youth be Photographed and Fingerprinted?
If a youth has been charged with a serious crime (an indictable offence) such as sexual assault, theft, robbery, aggravated assault or breaking and entering, the youth can be photographed and fingerprinted.

Can a Youth be Held in Custody While Waiting for a Trial?

The general rule is that if a youth cannot be sentenced to custody if found guilty of the offence with which he or she is charged, then there is a presumption that pre-trial detention is not necessary. Youth are not kept in custody while waiting for trial, unless a judge decides the detention is necessary to make sure that the youth will not continue to offend or repeat the offence, or that the youth will appear in court.

When Can Youth Call a Lawyer?

Youth have the right to a lawyer. The lawyer can be present at all of the youth’s dealings with the justice system. This includes:

  • When the youth is questioned on arrest.
  • When the youth is involved in an alternative (an extrajudicial sanction) to the formal court process.
  • Youth can always have a lawyer when they appear in court. The youth can get a lawyer through a legal aid program if one is available, or the judge will appoint a lawyer.
  • When the case goes to trial.

What Else do Youth Have the Right to?

Youth have the right to be dealt with in a timely manner. Youth who are charged with serious offences have the right to a trial in youth court to decide whether or not they are guilty before the judge considers an adult sentence.

What do Judges Need to Consider when Sentencing?
The measures taken against youth who are found guilty of committing crimes must reflect the seriousness of the offence. Judges must also take into account the needs of Aboriginal youth and youth with special requirements.

Does the Government pay for Everything?
A province can establish a program to recover costs from the young person or their parents after the proceedings are completed.

Summary

  • The police have the right to stop a youth and do a search if they have objective reasons
  • The police must advise a youth that has been arrested of his/her rights and make sure that the youth understands his/her rights
  • The rights to remain silent, to know the reason for the arrest, and to retain counsel are important protections for youth
  • Youth are generally entitled to have counsel and a parent or a responsible adult present when questioned by the police
  • Youth can waive their rights under the YCJA
  • Youth charged with an indictable offence can be fingerprinted and photographed
  • Youth are entitled to pre-trial release with the exception of public safety issues and failure to appear concerns
  • Youth are entitled to legal counsel at arrest, at trial and when an extra-judicial sanction is being used
  • Youth have the right to be dealt with in a timely manner
  • Youth have the right to a trial to determine guilt before an adult sentence is considered
  • Sentences should respond to the needs of Aboriginal youth and youth with special requirements
  • The province may set up a program to recover costs from the youth or his/her parents

Concerns For Parents

Parents might be afraid if the police call about their child but it is very important for parents to go to the police station or court to help the child. The police may speak quickly or use vocabulary parents don’t understand. If so they can ask for an interpreter. They can tell the police they need an interpreter to properly understand what is happening and to fulfill their responsibilities.

One of the things a parent can do to help their child is to help him or her find a lawyer if their child is being held at the police station or has been charged with an offence. It is important for their child to speak to a lawyer before he or she decides whether to make a statement to the police. This way their child can be sure he or she has all the information needed to make a decision. If their child decides to make a statement to the police, he or she has the right to have a parent or another adult and the lawyer there.

If their child is not a Canadian citizen, he or she should also talk to an immigration lawyer to find out what effect the criminal case might have on his or her immigration status. Their child should do this before deciding what to do in the criminal case. Parents also have to attend court to prove the age of their child at the beginning of the case.