Rights to Counsel
Subsection 25(2) of the YCJA states that a young person upon arrest or detention shall be advised without delay of his or her rights to counsel and be given an opportunity to retain counsel. He or she has the right to exercise that right to counsel personally, at any stage of the proceedings, and before or during any consideration or continuing judicial proceedings against the young person.1 Section 25 codifies the young persons’ rights to counsel under the Charter. The statement that the young person has the right to be represented by counsel shall be included in
- 742 any appearance notice or summons issued to the young person;
- 743 any warrant to arrest the young person;
- 744 any promise to appear given by the young person;
- 745 any undertaking or recognizance entered into by the young person; and
- 746 any notice given to the young person in relation to any proceedings held.
A young person may apply for publicly funded counsel for any hearing related to the custody of the young person, that is, for the young person’s judicial interim release hearing, and for trial and/or sentencing. Where the court directs that counsel represent the young person, the Attorney General shall appoint counsel or cause counsel to be appointed to represent the young person.3 The power granted pursuant to subsection 4 that the youth court Judge may direct that the young person be represented by counsel is only when no legal aid program is available, or the young person is unable to obtain counsel through such a program.
If a youth court Judge is satisfied, after independent inquiry, that the young person is legitimately unable to obtain counsel, including an inability to have reasonable recourse to the financial resources of the young person’s parents, the Judge may order that the state provide funded counsel. An order for a publicly funded defence generally, however, only relates to trial. At the very early stages of the proceedings such financial assistance may not be necessary. A young person is not entitled to publicly funded legal aid, for example, at his first appearance where the Crown is only seeking extrajudicial sanctions or a peace bond. Although the young person may need some legal advice at this stage, our courts have concluded that legal advice at this early stage can usually be provided by duty counsel.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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