Lawyers in the Youth Justice Process

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 379-416

379

Chapter 6

LAWYERS IN THE

YOUTH JUSTICE

PROCESS

a. the IMpOrtaNCe OF LaWYerS IN a DUe

prOCeSS JUStICe MODeL

The Youth Criminal Justice Act is premised on a due process model of ju-

venile justice. The Preamble af f‌irms that young persons are ent itled to

all the protections of the Canadian Charter of Rights and Freedoms1 and

section 3(1)(d)(i) of the YCJA aff‌irms in the Act’s Declaration of Pr in-

ciple that youths charged with offences are to have all of the legal rights

afforded adults, as well as recognizing that because of their i mmatur-

ity, they require “special guarantees of their rights and freedoms.”2 In a

youth justice system that is premised on due process principles, legally

trained professionals inevitably play a key role. Like the Young Offenders

Act,3 the YCJA has provisions that are intended to provide youths access

to legal as sistance while involved in the youth court process. Lawyers

are responsible for deciding how the case for t he prosecution and de-

fence will be presented to the judge, another legally trained profession-

al. The lawyers also resolve a large number of cases without signif‌icant

1 The Canadian Char ter of Rights and Freedoms, Part I of the Consti tution Act, 1982,

being Schedule B t o the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

2 The Youth Criminal Justice Act, S.C. 2002, c. 1 (royal a ssent 19 February 2002, in

force as of 1 April 2003) [YCJA]. Section 3, Declaration of Pr inciple.

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

110 [YOA].

YOUTH CRIM INAL JUSTICE LAW380

judicial involvement. Crown prosec utors often have respon sibility 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, ma ny of the case s dealt with in

youth justice court are resolved by mea ns of a plea bargain, negotiated

by the lawyers and only ratif‌ied by a judge.

While legally trained professionals now play a c rucial role in so-

ciety’s response to adolescents who are alleged to have violated the

law, thi s development is relatively recent. The role of lawyers in the

youth justice system continues to evoke controversy, as well as ques-

tions about whether the system has become exces sively 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 ac-

cess to legal assistance, in practice many youths are either inadequately

represented or not represented at all. Most of the provisions of the YCJA

that deal w ith protection of legal rights and access to legal services for

young people are similar to those in the YOA. There is, however, a con-

cern that some provisions of the YCJA, recent judicial interpretations of

the legislation, and policy decisions by legal aid off‌icials are making it

more diff‌icult for youths to have access to legal representation.

This chapter disc usses how over the ye ars young persons involved

in the cr iminal justice system have been provided with acce ss to legal

services. It considers some of the contentious issue s 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 intended

to ensure that young persons have access to legal representation, in 1908

the drafters of the Juvenile Delinquents Act contemplat ed an ex plicit pro-

hibition on the appearance of lawyers in juvenile court. In the end, t he

drafters settled for an Act that made no mention of legal representation

but created a statutory regime that al lowed for informality and preclud-

ed the reversal of a judicial decision on the grounds of a ny “irregular-

ity,” as long as the disposition of t he case was in the “best interests of

th e c hi ld .”4 The empha sis under the JDA was on having judges and the

juvenile court system make expeditious decisions to allow interventions

4 The Juvenile Delinquents Ac t, enacted as S.C. 1908, c. 40, later Juvenile Delin-

quents Act, R. S.C. 1970, c. J-3, s. 17 [JDA].

Lawyers i n the Youth Justice Process 381

that would promote the best interests of delinquent youth. Throughout

the early part of the t wentieth century, few juvenile court judges had

legal training, and l awyers rarely appea red 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 re-

quested 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 h im for per-

mission to represent the youth. The judge suggested that the law yer’s

presence was “gumming the works up and [would] . . . m ake it con-

siderably more diff‌icult” for the juvenile. Further, the judge threatened

that, if there was going to be a not-guilty plea and a t rial, t he juvenile

might be transferred to adult cour t, which under the JDA 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 convict ion was eventua lly overtur ned by

the Supreme Court of Canada on procedural grounds,5 the comments

of t he juvenile court judge ref‌lected an attitude held by many in the

juvenile justice system at that t ime, namely, that lawyers should play a

limited role in those courts.

In the United States, the 1960s was the beginning of the civil rights

era, which included a growi ng recognition of the need to afford juven-

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

United States inaugurated t he process of br inging constitutional con-

siderations into US juvenile courts, with Fort as J. observing:

Whi le the re can b e no dou bt of th e orig inal lauda ble pur pose o f juven-

ile court s, studies and c ritiques in re cent years rai se serious quest ions

as to whether actual performance measures well enough against theor-

etical purpos e to make tolerable the immunit y of the process from the

reach of constitutional guarantee s applicable to adults . . . . [T]here

may be grounds for concern that the ch ild receives the worst of bot h

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

solicitous care and regener ative treatment post ulated for children.6

In 1967 in Re Gault the US Supreme Court ruled that, like an adult

facing a term of imprisonment, a juvenile facing a custodial disposition

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

Locke J. in the Supreme Cou rt and Adamson J.A. in the M anitoba Court of Ap-

peal rema rked on the “astonishing” attit ude of the juvenile court judge toward

defence counsel, t he majority of appellate judges dec lined to comment on or

were supportive of t he trial judge’s approach to the pres ence of defence counsel.

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