Youth Criminal Justice

WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms

Canada’s Youth Criminal Justice Act expressly references the Convention on the Rights of the Child (CRC) and contains processes and a range of sentences to be imposed on young people 12-17 years of age to enhance their rights and protections. It also creates some offences. Canada’s Criminal Code and other criminal legislation such as the Controlled Drugs and Substances Act apply to young people unless their provisions are inconsistent with those in the Youth Criminal Justice Act.

International human rights instruments such as the CRC provide interpretive context for the Youth Criminal Justice Act, the Charter of Rights and Freedoms, and other Canadian law in youth criminal justice matters such as:

  • Prevention: The prevention of recidivism, addressing root causes of youth crime, and recognizing economic, social and cultural rights.
  • Diversion: Diversion away from the formal youth justice system, including arrest, prosecution and incarceration.
  • Sentencing: Reaction in proportion to offence; utilization of a variety of dispositions.
  • Custody, Detention, Incarceration: Special protection measures upon arrest and in pre-trial custody; no unlawful or arbitrary detention; incarceration to be used only as a last resort, and for the shortest possible time; ability to challenge detention; separation of youths from adult offenders.
  • Rehabilitation and Reintegration: Psychological recovery; reintegration into youth’s community and society generally.
  • Process: The right to be heard and have opinions given due weight in judicial proceedings; parental participation, confidentiality and privacy; legal representation; the right to have matters determined without delay, with regard to the special considerations of youths’ perceptions of time.
  • Dignity: gender issues; special care issues; avoidance of degrading treatment; connection with family.

Child and Youth Justice is closely linked to the Charter and if your matter involves an Indigenous child, additional considerations may apply (e.g. R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385).

International Law

The UN Convention on the Rights of the Child

All rights in the CRC are indivisible and interdependent. In the context of youth criminal justice, the following Articles may be considered most pertinent, but these should not be read in isolation from the other Articles in the CRC.

Article 37: The right to be free from degrading treatment and punishment, and to be free from arrest, detention and imprisonment unless as a last resort, and then only for the shortest possible amount of time. Upon deprivation of liberty the right: to be held separately from adults; to maintain contact with family; to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of liberty before a court, and to a prompt decision on any such action.

Article 40: The right to due process in the criminal justice system, with special considerations relating to provision of legal counsel, involvement of family, protection of privacy, expeditious proceedings, the importance of options for dealing with matters without recourse to formal judicial proceedings, and the availability of a variety of dispositions, and promotion of the youth’s reintegration into society.

Guiding Principles to the Convention (non-discrimination (Article 2), best interests of the child (Article 3), holistic development (Article 6), participation ((Article 12))

The UN Convention on the Rights of Persons with Disabilities

Article 12: Equal recognition before the law

Article 13: Access to justice

Article 14: Liberty and security of the person

Interpretative Sources

‘Soft law’ international human rights instruments

The following four ‘soft law’ international human rights instruments provide guidance on how to interpret the rights found in the CRC:

Federal Law

Provincial/Territorial Law

  • Youth Justice Acts– provincial legislation that governs process and sentencing for provincial and by law offences
  • Child and Youth Advocates – some regions may extend advocate’s role to youth involved in the justice system such as in Alberta where youth involved in the criminal justice system have access to the assistance of the Office of the Child and Youth Advocate: find out the status in your province or territory

Case Law

  • R. v. T.J.M. 2021 SCC 6 says that a superior court justice has jurisdiction to hear and decide an application for judicial interim release brought by a young person charged with an offence listed in s. 469 of the Criminal Code, and that jurisdiction is held concurrently with the judges of the designated youth court for the province.
  • R. v. K.J.M. 2019 SCC 55 says that while the youth system mandates timeliness in trials, it does not necessitate a constitutionally guaranteed cap that is different than the Jordan timelines as they apply to adults. The Jordan framework where a stay is sought below the caps can accommodate case specific analysis that incorporates special considerations for youth for at least five reasons.
    • First, because young persons have a different perception of time and less well‑developed memories than adults, their ability to appreciate the connection between actions and consequences is impaired. Whereas prolonged delays can obscure this connection and dilute the effectiveness of any disposition, timely intervention reinforces it.
    • Second, delay may have a greater psychological impact on a young person.
    • Third, the increased rapidity with which a young person’s memory fades may make it more difficult for him or her to recall past events, which may in turn impair his or her ability to make full answer and defence, a right which is protected by s. 7 of the Charter.
    • Fourth, adolescence is a time of rapid brain, cognitive, and psychosocial development. Where a prolonged delay separates the offending conduct from the corresponding punishment, the young person may experience a sense of unfairness, as his or her thoughts and behaviours may well have changed considerably since the offending conduct took place.
    • Fifth, society has an interest in seeing young persons rehabilitated and reintegrated into society as swiftly as possible. For all these reasons, youth matters should proceed expeditiously and in a timely manner.
  • R. v. L.T.H. 2008 SCC 49 says that with respect to statements, the Crown must establish waiver beyond a reasonable doubt; police must make reasonable efforts to tailor explanation to the level of a young person’s understanding.
  • R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25 says it is a constitutionally protected principle of fundamental justice that young people are entitled to presumption of diminished moral culpability. The Court’s reasons included:
    • Young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment because of their age
    • The legislative history leading to the YCJA supports the finding
    • The principle finds expression in Canada’s international commitments, in particular the CRC
    • The principle is fundamental to the operation of a fair legal system, and can be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person
    • The principle has been administered and applied to proceedings against young people for decades in this country
  • R. v.L. (D.O.), [1993] 4 S.C.R. 419 upheld the constitutionality of s. 715.1 of the Criminal Code permitting videotaped evidence of a child victim of sexual abuse using a contextual approach to statutory interpretation which examines the broader political, social and historical context. The provision responds to the dominance and power which adults, by virtue of their age, have over children makes participation in the criminal justice system less stressful and traumatic for young people and aids in the preservation of evidence and the discovery of truth.

Special Considerations

  • All youth charged with a criminal offence are entitled to counsel through Legal Aid, no matter their income.
  • If you act as counsel for the child be aware of law society rules that may affect your role but consider that they may be subject to interpretation in the same way other laws affecting children are interpreted (see the Toolkit’s Fundamentals and Legal Representation section).
  • Educate yourself about medical issues that can affect children such as Fetal Alcohol Spectrum Disorder (FASD) and other organic brain damage issues that impact on fitness, ability to enter a plea etc, and social issues such as the legacy of residential schools.

Practice Essentials

  • Adapt communication to the young person - do not assume the young person can read or is at a literacy level equivalent with grade level; all reports must be ‘translated’ by counsel to client, particularly psychological or psychiatric assessments; Young persons cannot effectively participate if he or she does not understand what is happening, although the young person will likely tell you they understand (have them tell you what something means to be certain).
  • Learn about and understand what it is like to be raised by child welfare instead of in a family environment - adapt your lens accordingly.
  • Tailor your analysis in youth court - it is different from adult court (e.g. a young person can elect to be tried by a provincial court judge for a homicide and this may be the best approach given the lengthy delay of having a preliminary hearing; youth court judges may be better for the sentencing phase).
  • Watch timelines - if your client will be 21 by the time he is sentenced on a homicide charge, an Intensive Rehabilitative Custody and Supervision (IRCS) sentence will not be available to him so watch your time lines! The IRCS is a contribution program with all provinces and territories for the delivery of specialized therapeutic programs and services for youth with mental health needs who are convicted of a serious violent offence.
  • Try to keep regular contact with the young person, especially if serving a lengthy custody sentence - young people may not realize they can apply to review a charge, or know whether their situation would make that review likely. Reviews do not have to be based on good conduct of the young person (though in practice that may be required).

Resources