The Youth Justice Court Process

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 417-468

417

Chapter 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 th at proceedings

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

Criminal Code th at are applicable to sum mary offences in adult court,

“except to the extent that these provisions are inconsistent with this

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

court also govern youth justice cour t. It is, for example, not suff‌icient

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

ordinary cr iminal standard of proof “beyond a reasonable doubt” must

be satisf‌ied.2 However, since proceedings are summary, youth justice

court proceedings are in general less complex and more expeditious

than those that are applicable to “indictable offences” in adult court.

For YCJA proceedings, there is usua lly no preli minary inquir y and al-

most all trial s 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 LAW418

In adopting a summary procedure for youth justice court, the YCJA

continues the approach of the Young Offenders Act3 and the Juvenile De-

linquents Act,4 allowing for a more expeditious resolution of cases. From

the perspective of an adolescent, the youth justice court is likely to feel

like a formal and unfamiliar environment. The resolution of most cases

without a jury, however, makes the court setting less intimidating than

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 jur y tria l to persons f acing imprisonment of f‌ive

years or more (section 11(f)).5

In R. v. L.(R.), the Ontario Court of Appeal upheld the prov isions

of the YOA t hat denied a youth the right to a jur y trial. While an adult

facing the same indictable charges (including three for break and enter)

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

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

much greater possible maximum penalty. In rejecting the Charter cha l-

lenge, the Court of Appeal emphasized that the maximum penalty in

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

same offence. Justice Morden wrote:

the Young Offende rs Act is intended to provide a comprehensive sys-

tem for dealing with young per sons who are al leged to b e in conf‌lict

with t he law which i s separate and distinct from the adult cr iminal

justice s ystem. While the new system is more like the adult system

than was that u nder the Juvenile Delinquents Act, it nonetheless is a

different s ystem. As far as the a ftermath of a f‌inding of g uilt is con-

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

less severe consequences t han those relati ng to an adult offender. . . .

the establi shment of the legal regime . . . for dea ling with young per-

sons, wh ich is separate and distinct from the adult crim inal justice

system, is of suff‌icient import ance to warrant t he overr iding of the

equality r ight alleged to be inf ringed in th is proceeding.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 Delinquents A ct, enacted as S.C. 1908, c. 40; subject to m inor amendments

over the years, f‌i nally as Juvenile Delinquent s Act, R.S.C. 1970, c. J-3 [J DA].

5 Canadian Char ter of Rights and Freedoms, being Schedu le B of the Constitution

Act, 1982, enacted as Cana da 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 419

This reasoning applies to the YCJA as well. The adoption of the

summary procedure provisions of the Criminal Code and denial of the

right to a jury trial for young persons in most cases is constitutionally

valid. There are, however, some very serious cases for which a young

person may face a sentence of more than three years. Section 11(f) of

the Charter guarantees any person facing a maxi mum possible sen-

tence of f‌ive years or longer the right to “the benef‌it of trial by jury.”7

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

longer to have the r ight to choose to have a preliminary inquiry and a

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

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

trial and a preliminary 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 preliminar y inquiry.8

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

be con du cte d b y a f ed er all y a ppo in te d su pe ri or c our t j ud ge (e .g. , a Q ue en’ s

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

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

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

there is the possibilit y that a n adult sente nce may be imposed, the youth

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

who has t he jurisdiction to conduct a jur y trial. Section 14(7) speci-

f‌ies that a superior court judge dealing with a youth proceeding shall

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

proceeding, [but] retai ns the jurisdiction and powers” of a superior court

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

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

of the YCJA gov erni ng suc h matt ers a s the r ight t o coun sel a nd prot ectio n

of privacy. As discussed 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 t hat point the youth w ill lose t he protectio ns

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

2) Crown Election for Hybrid Offences

Legislation that creates offences, such as the Criminal Code, generally

specif‌ies whether an offence is indictable or summ ary, with a more se-

7 Charter, s. 11(f).

8 In R. v. S.J.L., 2009 SCC 14, the Supreme Court held that th e Crown 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 t he British North America Act, 1867).