Jurisdiction of the Youth Justice Court

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 145-183

145

A. YOUTH JUSTICE COURTS AND SERVICES

The Youth Criminal Justice Act specifies, in section 13(1), that each

province and territory has the responsibility to designate a court as its

youth justice court.1The Young Offenders Act had a similar provision,2

except that the term “youth court” was used under the old law. The

word “justice” was added to the definition of “youth court” in the YCJA

to give a sense that the court represents a relatively formal response to

youth offending and that, in this forum, the community can expect

fairness, accountability, and respect for victims. The YCJA consistently

refers to “youth justice courts” and this is the term that should be used

in formal documents. It seems inevitable, however, that justice system

professionals and the public will tend to use the simpler, shorter term

“youth court,” to refer to the court with special procedures and pow-

ers that deals with “young persons” as distinguished from “adult

JURISDICTION OF THE

YOUTH JUSTICE COURT

chapter 3

1Youth Criminal Justice Act, S.C. 2002, c. 1 (royal assent February 19, 2002, to

come into force April 1, 2003), often referred to in this book as the YCJA.

2Young Offenders Act, R.S.C 1985, c. Y-1,enacted as S.C. 1980–81–82–83, c. 110.

The Act was also amended in 1985 through An Act to amend the Young Offenders

Act, the Criminal Code, the Penitentiary Act, and the Prisons and Reformatories Act,

R.S.C. 1985 (2d Supp.), c. 24, in force September 1, 1986 and November 1,

1986, and in 1995 through An Act to amend the Young Offenders Act and the

Criminal Code, S.C. 1995, c. 19.

court.”3One may also hear the terms “young offenders’ court” and “YO

court” used, but these terms should be avoided, as they imply that all

youths who appear are guilty.4

One might expect that the “youth justice court” should be a “spe-

cial” court, with judges who have experience or educational qualifica-

tions to equip them for dealing with troubled youth, and having judges

with a distinctive philosophy, or at least with a physical locale that is

separate from the adult courts. In some places in Canada and elsewhere

in the world, the courts that deal with adolescent offenders have some

or all of these special characteristics, but under the YCJA the provinces

and territories have a great deal of discretion about the designation,

staffing, and resources of youth justice courts, with substantial varia-

tion in how these courts operate throughout the country.

Quebec established a specialized youth court under the YOA with

provincially appointed judges with jurisdiction over youth court pro-

ceedings, child protection, and adoption cases,5and which generally

sat in special courthouses separate from where adults appear. In com-

parison to judges in other provinces, youth court judges in Quebec

took an approach to young offenders that emphasized the limited

accountability and rehabilitation of adolescents, and that resulted in

lower rates of custody use than elsewhere in Canada. The approach of

judges in Quebec is broadly consistent with the institutional structures

adopted in that province, as the youth justice system is closely linked

to the child-welfare system. Quebec has a broad range of social policies

that are among the most supportive of children and youth in Canada.

146 Youth Criminal Justice law

3 The YOA,ibid., used the term “ordinary court” to refer to the court in which

adults were prosecuted, and to which the most serious cases involving young

persons might be transferred, though it was colloquially called “adult court.”

The YCJA, above note 1, has no explicit term for “adult” or “ordinary” court,

since there is no provision for transfer of charges to any other court. The YCJA

does, however, have references to the “superior court” deemed to be sitting as a

“youth justice court” for purposes of dealing with the most serious charges for

which a sentence of more than three years may be imposed (s. 13(3)).

4 There are of course also a range of other slang expressions used for “youth jus-

tice court” including “Kiddies Court,” which is sometimes used by police or

prosecutors as a derogatory allusion to the limited penalties, and “Juvie Court,”

probably owing to the influence of the American media where the term

“Juvenile Court” is commonly used. The term “Juvenile Court” used under

Canada’s Juvenile Delinquents Act, enacted as S.C. 1908, c. 40; subject to minor

amendments over the years, finally as Juvenile Delinquents Act, R.S.C. 1970, c.

J–3., until 1984.

5 Known technically as the Youth Division of the Court of Québec, and commonly

as the Youth Court (Tribunal de la Jeunesse), Courts of Justice Act, R.S.Q. c.

T–16, s. 83.

In most provinces and territories, jurisdiction for YCJA cases is to

be given to the judges of the provincial or territorial court who gener-

ally deal with adult criminal cases, although adult and youth cases will

generally be scheduled for hearings at different times. These judges are

appointees of the provincial or territorial government, and all have had

legal training. In some provinces, like Ontario, legislation requires a

minimum of ten years’ experience as a lawyer before being eligible for

appointment to the provincial court. The common practice of schedul-

ing youth and adult cases for different times or days facilitates trans-

port from youth detention facilities and appearances by professionals

who deal with youth, as well as reducing the possibilities for youth to

be influenced by adult offenders in such places as court waiting rooms.

The fact that judges with a responsibility for adult criminal cases deal

with cases under the YCJA means that these judges are familiar with the

substantive criminal law and evidentiary issues that arise in youth

cases, although there is a concern that some of these judges may not

take a very different approach with youths than they do with adults.

In some jurisdictions, such as Manitoba, under the YOA the primary

responsibility for youth cases was given to judges who also have juris-

diction over a range of family and domestic matters, such as child pro-

tection and spousal support. The rationale for this approach is that

these judges may be more understanding of the family problems faced

by many young offenders, and may be more familiar with the types of

community resources that are available to assist them. In some places in

Canada jurisdiction for YOA cases was given to the federally appointed

judges who deal with a broad jurisdiction over all family law issues,

including divorce and child protection. This more family-oriented

approach seems likely to continue under the YCJA in the jurisdictions

that took this approach under the previous Act, although even in these

jurisdictions the judges who sit on youth cases, especially outside of

major urban centres, may have a more diverse caseload that includes

adult criminal cases. In a number of jurisdictions, such as British

Columbia and the Yukon, the provincial or territorial court has respon-

sibility for both criminal and family cases. While as a matter of practice

some judges, especially in urban centres, may tend to deal more fre-

quently with some types of cases, there is no judicial specialization.

Ontario and Nova Scotia adopted a two-tier youth court model

when the YOA came into force in 1984. As was the practice under the

Juvenile Delinquents Act, twelve- to fifteen-year-olds continued to be

dealt with in Family Court, while sixteen- and seventeen-year-olds

appeared in the adult Criminal Division of the Provincial Court, albeit

with adult criminal court judges nominally sitting as youth court

Jurisdiction of the Youth Justice Court 147