The Youth Justice Court Process

• Author: Nicholas Bala, Sanjeev Anand
• Pages: 433-491

433

Cha pter 7

THE YOUTH JUSTICE

COURT PROCESS

a. YOUth JUStICe COUrt prOCeeDINGS

1) Summary Proceedings and Jury Trials

Section 142 of the Youth Criminal Justice Act provides t hat proceeding s

in youth justice court are generally governed by the provisions of the

Criminal Code that are applicable to summ ary offences in adult court,

“except to the extent that these provisions are inconsistent with thi s

Ac t.” 1 Thus the fundamental rules and processes that apply in adult

proceedings also govern youth justice court. It is, for exa mple, not suf-

f‌icient for the Crown to prove that a youth is “probably guilty”; rather,

the ordinary criminal sta ndard of proof “beyond a reasonable doubt”

must be satisf‌ied.2 However, since proceedings are summar y, youth

justice court proceedings are in general less complex and more exped-

itious than those t hat are applicable to “indictable offences” in adult

court. For YCJA proceedings, there is usually no preliminary inquiry

and almost all trials are conducted by a judge alone.

1 See also ss. 140 –41 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (in force 1

April 2003) [YCJA]; s. 142 refers to Part X XVII of the Criminal Code, R.S.C. 1985,

c. C-46, ss. 785– 840, which govern summa ry proceedings.

2 R. v. M.B., [1997] B.C.J. No. 2184 (C.A.).

YOUTH CRIM INAL JUSTICE LAW434

In adopting a summar y procedure for youth justice court, the YCJA

continued the approach of the Young Offenders Act3 and the Juvenile

Delinquents Act,4 allowing for a more expeditious resolution of case s.

From the perspective of an adolescent, the youth justice court is likely

to feel like a very formal and unfamiliar environment. The resolution

of most cases without a jury, however, makes the court setting les s in-

timidating t han it might otherwise be. It has been held that the denial

of the right to a jury trial to young persons in the youth justice court

process does not violate the provisions of the Charter, which guarantee

equality (section 15) and the right to a jury tr ial to persons facing im-

prisonment of f‌ive years or more (section 11(f)).5

In R. v. L .(R .), the Ontario Court of Appeal upheld the provi sions

of the YOA that denied a youth the r ight to a jury trial. Wh ile an adult

facing the same indict able charges (including th ree for break and enter)

would have been entitled to the procedure for trial by i ndictment — in-

cluding a preliminary inquiry and a jur y — the adult would also face a

much greater possible maximum penalty. In rejecting the Charter chal-

lenge, the Court of Appeal emphasized t hat the maximum penalty in

youth court is three years, much less t han an adult would face for the

same offence. Justice Morden wrote:

[T]he Young Offenders Act i s intended to provide a comprehensive sys-

tem for dealing wit h young persons who are alleged to be i n conf‌lict

with the law wh ich is separate and dist inct from the adult crim inal

justice system. Wh ile the new system is more like t he adult system

than was t hat under the Juvenile Deli nquents Act, it nonetheless is a

different system. A s far as the after math of a f‌inding of gui lt is con-

cerned, the general t hrust of the Young Offenders Act is to provide for

less severe conseq uences than those relating t o an adult offender . . . .

the establish ment of the legal regime . . . for deali ng with young per-

sons, which is sepa rate and distinct from t he adult criminal ju stice

system, is of suff‌icient i mportance to warr ant the overriding of t he

equality r ight alleged to be infr inged in this proceed ing.6

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

s. 52 [YOA].

4 Juvenile Delinqu ents Act, enacted a s S.C. 1908, c. 40; subject to minor amendment s

over the years, f‌i nally as Juvenile Delinq uents Act, R.S.C. 1970, c. J-3 [JDA].

5 Canadian Charte r of Rights and Freedoms, being Schedule B of t he Constitution

Act, 1982, enacted as Canad a Act 1982 (U.K.), c. 11 [Charter].

6 R. v. L.(R.) (1986), 52 C.R. (3d) 209 at 219 and 225 (Ont. C.A.); to the same ef-

fect, see R. v. B.(S.) (1989), 76 Sask. R. 308 (C.A.).

The Youth Justice Court Proce ss 435

This reasoning applies to t he YCJA as well. The adoption of the sum-

mary procedure provision s of the Criminal Code and denia l of the right

to a jury trial for almost all cases involving young persons is constitu-

tionally valid. There are, however, some very serious case s for which

a young person may face a sentence of more than three ye ars. Section

11(f) of the Char ter guarantees any person facing a maximum pos sible

sentence of f‌ive years or longer the right to “the benef‌it of trial by jur y.”7

Accordingly, the YCJA allows youth facing sentences of f‌ive years or

longer to have the right to choose to have a prelimin ary inquiry and a

trial by jur y. Thus, a youth facing a murder cha rge, for which the max-

imum youth court sentence is ten years, generally ha s the right to a jury

trial and a preli minary inquiry. Further, for serious charges other than

murder where there is also the prospect of an adult sentence, the youth

has the right to a jur y trial and a preliminary inquir y.8

Because of section 96 of the Constitution Act, 1867,9 a jury trial must

be conducted by a federally appointed superior court judge (e.g., a Queen’s

Bench or Superior Court judge). Generally, youth justice court proceed-

ings are presided over by judges of the provincial or ter ritorial court. Sec-

tion 13(2) of the YCJA provides that if a youth is charged with murder or

there is the possibility that an adult sentence may be imposed, the youth

has the right to be tried by a federally appointed superior court judge,

who has the jurisdiction to conduct a jury trial. Section 14(7) specif‌ies

that a superior court judge dealing w ith a youth proceeding shall be

“deemed to be a youth justice court judge for the purpose of [that] pro-

ceeding, [but] retains the jurisdiction and powers” of a superior court

judge, for example, in regard to issues of contempt of court and control of

the jury process. The tr ial in superior court is subject to the provisions of

the YCJA governing such matters as the right to coun sel and protection of

privacy. As will be dis cussed more fully in Chapter 9 on adult sentencing,

if after conviction in youth court a youth offender is subject to an adult

sentence under the YCJA, at that point the youth will lose t he protections

of the Act and may, for example, be publicly identif‌ied.

2) Crown Election for Hybrid Offences

Legislation that cre ates offences, such as the Criminal Code, specif‌ies

whether an offence is indictable or summar y, with a more severe max-

7 Charter, s. 11(f).

8 In R. v. S.J.L., 2009 SCC 14, the Supreme Court held that the Cr own may prefer

a direct indict ment against a young person, wh ich will deny the youth the rig ht

to a jury tr ial. See discussion i n Chapter 9.

9 (U.K.) 30 & 31 Vict., c. 3 (formerly the Briti sh North America Act, 1867).