Representing a Young Person

• Author: Brock Jones/Sarah Leece/Mary Birdsell/Emma Rhodes
• Pages: 51-76

51

Representing a

Young Person

3

I. Introduction ............................................. 52

II. The Role of Defence Counsel ................................ 53

A. Duty to Report ...................................... 56

B. Decisions for the Client; Decisions for Counsel ........... 57

III. The Initial Interview ....................................... 59

A. Background Questions ............................... 60

B. Questions Regarding Arrest and Police Investigation ....... 63

C. Questioning ........................................ 63

IV. Parents and Guardians: How They Fit In ...................... 64

V. Applying for Legal Aid ..................................... 66

VI. YCJA Section 25(4) Orders ................................. 67

VII. Decision to Plead Guilty .................................... 68

Appendix 3.1: Availability of Legal Aid for Youth Criminal

Justice Proceedings ........................... 71

Appendix 3.2: Sample Direction and Authorization .............. 76

© 2024 Emond Montgomery Publications. All Rights Reserved.

52 Prosecuting and Defending Youth Criminal Justice Cases

I. Introduction

The role of a criminal defence lawyer for a young person requires a complex and chal-

lenging skill set. Counsel must have a commanding knowledge of criminal law and

procedure, and extensive courtroom skills. In addition, they must also know the intricacies

of the Youth Criminal Justice Act (YC JA), the needs and particular vulnerabilities of the

young persons they represent, and of their families, communities, and support networks.

The youth criminal justice system is distinct and unique from the adult criminal justice

system in law, in process, and in terms of approach to legal representation. Practice in this

area requires careful attention to the unique knowledge and skills required.

Lawyers who represent young people in criminal matters must also have an under-

standing of child and adolescent development in order to eectively advocate on their

behalf and understand their particular concerns. Counsel must be able to communi-

cate eectively with their client, and speak to them in language they can understand

(literally and metaphorically). Counsel must be able to appreciate a young person’s

level of maturity and assess whether or not they can present a sympathetic and com-

prehensive case to the Crown attorney’s oce. Attention to the client’s level of matu-

rity does not, however, derogate from the lawyer’s obligation to seek and follow their

client’s instructions, and ethically manage the conduct of the defence. The lawyer

must resist the urge to “parent” the youthful client.

Defence counsel must be able to engage and enlist the young person’s parent,

guardian, or supportive adults to assist with a strong defence of the case without

compromising the solicitor – client relationship with the young person. Navigating this

relationship can be dicult. This and other unique circumstances that may arise in

the representation of young people (including a possible “duty to report” under child

welfare legislation) will be discussed in this chapter.

Knowledge of mental health issues, education and learning issues, and available

resources is essential. The practices and protocols of local school boards and how they

will treat a student’s involvement with the criminal justice system must be understood.

Having contacts at community-based support programs will assist in drafting an appro-

priate plan of release for a bail court hearing and assessing an appropriate sentence or

alternative resolution for the matter. Articulating the potential collateral consequences

of a finding of guilt on the young person’s education, employment applications, volun-

teer opportunities, or immigration and travel concerns is imperative.

This chapter will provide counsel with an understanding of the role of criminal

defence counsel in youth justice court, guidance on how to prepare for and conduct

your first interview with a young person, instruction on how to involve parents or a

guardian, and tips on how to approach applications for legal aid certificates. It will

answer the following questions:

• What is the role of defence counsel in the youth criminal justice system?

• How should counsel prepare for the first interview?

© 2024 Emond Montgomery Publications. All Rights Reserved.