Lawyers in the Youth Justice Process

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 318-352

318

A. THE IMPORTANCE OF LAWYERS IN A

DUE-PROCESS JUSTICE MODEL

The Canadian Charter of Rights and Freedoms1and the Youth Criminal

Justice Act are premised on a due process model of justice. Section

3(1)(d)(i) of the Act’s Declaration of Principle affirms that youths are to

have all of the legal rights afforded adults, as well as recognizing that

because of their immaturity, they require “special guarantees of their

rights and freedoms.”2In the due process model of justice, legally trained

professionals inevitably play a key role. Like the Young Offenders Act,3the

Youth Criminal Justice Act has provisions which are intended to ensure

that youths can have access to legal assistance at every stage of the youth

justice process. Lawyers are responsible for deciding how the case for the

prosecution and defence will be presented to the judge, another legally

trained professional. The lawyers also resolve a large number of cases

without significant judicial involvement. Crown prosecutors often have

LAWYERS IN THE

YOUTH JUSTICE

PROCESS

chapter 6

1 The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,

being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (referred to subse-

quently as the Charter).

2 The Youth 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.

S. 3, Declaration of Principle.

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

responsibility for deciding whether a young person will even go to youth

justice court or will be diverted to extrajudicial measures, as discussed in

Chapter 5. As discussed in Chapter 7, in practice, many of the cases dealt

with in youth justice court are resolved by means of a plea bargain nego-

tiated by the lawyers and only formally ratified by a judge.

While legally trained professionals now play a crucial role in soci-

ety’s response to adolescents who are alleged to have violated the law,

this is a relatively recent development. The role of lawyers in the youth

justice system continues to evoke controversy, as well as questions

whether the system has become excessively legalized. At the same time,

there are concerns that, while the YCJA in theory appears to ensure that

youths whose cases are dealt with in court will have access to legal assis-

tance, in practice many youths are either inadequately represented or

not represented at all. Most of the provisions of the YCJA that deal with

protection of legal rights and access to legal services for young people

are similar to those in the YOA. There is, however, a concern that some

provisions of the YCJA may make it less likely that youths will have

access to legal representation than was the case under the YOA. This

chapter describes how young persons are provided access to legal serv-

ices and considers some of the contentious issues related to the role and

effectiveness of both defence counsel and Crown prosecutors.

B. LAWYERS UNDER THE

JUVENILE

DELINQUENTS ACT

While Canada’s present youth justice legislation has provisions intend-

ed to ensure that young persons have access to legal representation, in

1908 the drafters of the Juvenile Delinquents Act contemplated an

explicit prohibition on the appearance of lawyers in juvenile court. In

the end, the drafters settled for an Act that made no mention of the

issue of legal representation but created a statutory regime that explic-

itly allowed for informality and precluded the reversal of a judicial

decision on the grounds of any “irregularity” as long as the disposition

of the case was in the “best interests of the child.”4The emphasis under

the Juvenile Delinquents Act was on having judges and the juvenile

court system making expeditious decisions to allow interventions that

would promote the best interests of delinquent youth. Throughout

Lawyers in the Youth Justice Process 319

4 The Juvenile Delinquents Act, 1908, S.C. 1908, c. 40, later Juvenile Delinquents

Act, R.S.C. 1970, c. J-3, s. 17.

much of the twentieth century, few juvenile court judges had legal

training and lawyers rarely appeared in that court.

In one 1958 Manitoba case, a lawyer appeared in juvenile court

with a fourteen-year-old youth charged with indecent assault and

requested an adjournment before entering a plea, so that the lawyer

could have time to investigate the circumstances of the alleged offence.

The juvenile court judge noted that the lawyer had not asked him for

permission to represent the youth. The judge suggested that the

lawyer’s presence was “gumming the works up and [would] . . . make

it considerably more difficult” for the juvenile. Further, the judge

threatened that, if there was going to be a not-guilty plea and a trial,

the juvenile might be transferred to adult court, which under the

Juvenile Delinquents Act the juvenile court judge could do on his own

motion without the request of the Crown. The lawyer withdrew from

the proceeding, and the juvenile was convicted. Although the convic-

tion was eventually overturned by the Supreme Court of Canada on

procedural grounds,5the comments of the juvenile court judge reflect-

ed an attitude held by many at that time, namely, that lawyers were

expected to play a very limited role in juvenile courts.

By the 1970s many of the judges in juvenile court were legally

trained and, as a result of provincial legal aid schemes being estab-

lished, more lawyers began appearing in juvenile court. In the United

States there was a growing recognition of the need to afford juveniles

due process of law. The 1966 Supreme Court decision in Kent v. United

States inaugurated the process of bringing constitutional considera-

tions into American juvenile courts, with Fortas J. observing:

While there can be no doubt of the original laudable purpose of juve-

nile courts, studies and critiques in recent years raise serious questions

as to whether actual performance measures well enough against theo-

retical purpose to make tolerable the immunity of the process from the

reach of constitutional guarantees applicable to adults. . . . [T]here

may be grounds for concern that the child receives the worst of both

worlds: that he gets neither the protections accorded to adults nor the

solicitous care and regenerative treatment postulated for children.6

320 Youth Criminal Justice law

5R. v. S.(G.), [1959] S.C.R. 638, rev’g (1958), 28 C.R. 100 (Man. C.A.). Although

Locke J. in the Supreme Court and Adamson J.A. in the Manitoba Court of

Appeal remarked on the “astonishing” attitude of the juvenile court judge

toward defence counsel, the majority of appellate judges declined to comment

on or were actually supportive of the approach of the trial judge to the presence

of defence counsel.

6Kent v. United States, 383 U.S. 541 at 555–56 (1966).