The Trial

• Author: Brock Jones/Sarah Leece/Mary Birdsell/Emma Rhodes
• Pages: 183-237

183

The Trial

9

I. Introduction ............................................. 184

II. Preparing the Young Person for Trial .......................... 185

III. Children as Witnesses ..................................... 186

IV. How to Ask Questions of a Child Witness ..................... 194

V. Co-Accused Parties as Crown Witnesses ...................... 199

VI. Common Forms of Evidence That Appear inYouthCases ......... 201

VII. Applying the Charter of Rights and Freedoms toYoungPeople .... 217

VIII. The Acquittal: Next Steps ................................... 235

Appendix 9.1: Sample Fingerprint and Photograph

Destruction Letter ........................................ 237

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184 Prosecuting and Defending Youth Criminal Justice Cases

I. Introduction

Youth court trials are in many respects very similar to adult criminal court trials. The

Crown always bears the burden of proof, having to establish the essential elements of

the oences before the court beyond a reasonable doubt. Defence counsel will chal-

lenge the credibility and reliability of Crown witnesses through cross-examination.

Motions to admit or exclude evidence are commonly argued. If there is a finding of

guilt, a sentencing hearing is convened.

And yet, there are also significant dierences. The Youth Criminal Justice Act1

maintains a criminal justice system for young people that is separate from the criminal

justice system for adults.2 The youth criminal justice system is based on a recogni-

tion that young persons are entitled to a presumption of diminished moral blamewor-

thiness and have heightened vulnerability when dealing with the justice system. As

noted by the Supreme Court of Canada, the YCJA furthermore favours rehabilitation,

reintegration, and fair and proportionate accountability that is consistent with a young

person’s reduced level of maturity;3 by contrast, the criminal justice system for adults

places a much greater emphasis on punishment.4

Preparing a young person for their trial can be a particularly challenging task.

Explaining how the proceedings will unfold and what to expect is crucial. If the young

person will be called to testify in their own defence, understanding how to give evi-

dence and respond to questions from Crown counsel in cross-examination involves

important ethical and strategic decisions.

Youth court trials are also far more likely than adult criminal trials to involve wit-

nesses who are themselves children or young persons. How the courts have assessed

the evidence of children and what statutory provisions govern the admissibility of

children’s evidence take on enhanced meaning in youth criminal proceedings.

Dierent rules of evidence may also apply. Some rules are explicit, such as those

noted in Chapter 2, Arrest, Detention, and Questioning of Young Persons. State-

ments given by young persons must be proved by the Crown to meet the statutory

requirements of the YCJA.5 Others may be more nuanced. For example, how youth

justice courts will determine the scope and extent of a young person’s rights under

the Charter and whether they have been infringed may dier from the analysis found

in adult criminal courts.

Finally, certain legal issues and forms of evidence tend to arise more frequently in

youth court proceedings given the way in which young persons live their daily lives.

1 SC 2002, c 1 [YCJA].

2 YCJA, s 3(1)(b).

3 YCJA, s 3(1)(b)(ii).

4 R v SJL, 2009 SCC 14 at paras 75-76.

5 See Chapter 2 for a detailed analysis of YCJA, s146.

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Chapter 9 The Trial 185

The lawfulness of a search on school property is far more likely to arise in youth

court matters, and so too may be the introduction of social media pages found on the

Internet or text messages on a smartphone that are alleged to form part of the case

for the prosecution.

This chapter will provide counsel with a step-by-step procedural guide on how to

prepare for and conduct a trial in youth criminal court. The following areas will be

addressed:

• How should counsel prepare their client for trial?

• How should child witnesses be questioned by counsel?

• How do the courts assess the evidence of children?

• What if the Crown calls the youth or adult co-accused as a witness?

• What common forms of evidence appear in youth criminal court trials, and

what rules of evidence are counsel expected to know?

• When will a young person’s statement to the police be admissible in evidence?

• Are there any special considerations when applying the Charter to young

persons?

• If their client is acquitted, what should counsel do next?

II. Preparing the Young Person for Trial

Although it may seem obvious to counsel, the first step in preparing a young person

for trial involves explaining to the client exactly what a trial is: explaining each step,

some of the terminology they will hear, and generally what the Crown will do and what

the defence plans to do at each stage. This will include explaining at the outset that

they will be arraigned, be asked how they will plead, and have the option of pleading

“guilty”6 or “not guilty.” Counsel should also explain that the Crown calls witnesses

first, and that counsel will have an opportunity to cross-examine them, and then after

the Crown’s case, the defence has the choice of whether or not to call witnesses.

Counsel should then explain that after witnesses testify, submissions are made, and

who will make submissions first depends, of course, on whether the defence tendered

evidence of their own. As is the case for adults, the decision as to whether or not the

young person will testify in their own defence is the young person’s choice alone.

Counsel can, and should, advise the young person on whether or not they should

testify and why counsel is of that opinion, and must describe the pros and cons of

testifying. Ultimately, that decision rests with the young person. Ifthe young person

intends to consult with another trusted adult, counsel may want to meet with the

young person and the adult together to ensure that counsel’s advice is understood.

This can be a delicate exercise because counsel need to ensure that confidentiality and

6 If the client decides to plead “guilty,” counsel must conduct an inquiry pursuant to the Crimi-

nal Code, s 606. This is discussed in Chapter 3, Representing a Young Person.

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