Category: articles

Patrick J Ducharme

Section 8 of the Charter

Section 8 of the Charter provides everyone has the right to be secure against unreasonable search or seizure. The section serves as a limitation on the powers of search and seizure held by the federal or provincial governments. It does not itself confer any powers of search and seizure on these governments. Section 8 provides a broad and general protection against unreasonable search and seizure. Any discussion concerning search and seizure must begin with a thorough consideration of section 8.
Continue reading “Search and Seizure”

Patrick Ducharme

In R v. H. (L.T.)1 the Supreme Court of Canada held that “young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate.” Parliament has provided young persons with enhanced procedural safeguards contained in section 146 of the YCJA. The pertinent provisions of the Act provided as follows:
Continue reading “Evidence: Admissibility of a Statement Made by a Youth”

Patrick Ducharme

Where the young person is subject to a youth sentence, the young person is subject only to the sanctions prescribed by section 42 of the YCJA. Those possibilities are as follows:
Continue reading “Imposition of a Youth Sentence for a Young Person”

Patrick J Ducharme

Section 71 and 72 of the YCJA

The court is required at the commencement of the sentencing hearing to hold a hearing in respect of an application under subsection 64(1) (application for an adult to sentence) unless the court has received notice that the application is not opposed. Both parties and the parents of the young person are given an opportunity to be heard at the hearing.
Continue reading “Hearing as to Whether a Youth or Adult Sentence is to be Imposed after a Finding of Guilt”

Patrick Ducharme

Notice Requirements: s. 64 of the YCJA

Section 64 of the Act provides the notice requirements. They are:

64(1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth Justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of fourteen years.

Continue reading “Application by Attorney General”

The trial procedure in respect of federal offences allegedly committed by a young person is determined by the sentence that may be imposed: whether a youth sentence may be imposed or whether an adult sentence may be imposed.

Continue reading “Election of Mode of Trial When Facing an Adult Sentence”

The provisions allowing for the imposition of an adult sentence are found within subsections 64(1)(2) and (3); 67; 69(2); 71, and 72, to 81 of the YCJA. Many sections and subsections have been repealed since the Supreme Court of Canada’s decision in R. v. B. (D).1 This case decided that the presumption of adult sentences and previous reverse onus provisions violated section 7 of the Charter and could not be justified under the Charter. This required that the federal government repeal all of the offending provisions.

Continue reading “Trial Procedure, Election and Mode of Trial and the Imposition of Adult Sentences for a Young Person”

Part XVI of the Code dealing with judicial interim release, the formal description of bail, also applies to a young person with some sensible alterations. Section 28 provides that “except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Code apply to the detention and release of young persons under this Act.” For one to argue that the provisions that govern adults in relation to bail should not apply to a young offender it must be demonstrated that that the particular provision is inconsistent with or excluded by the YCJA.

Continue reading “Judicial Interim Release and Young Persons”

Section 26 of the YCJA states that when a young person is arrested and detained in custody pending his or her appearance in court, the officer-in-charge shall, as soon as possible, give or cause to be given notice of arrest to a parent of the young person. The notice must state the place of detention and reason for arrest. If the whereabouts of the parent are not known or where no parent is available, notice may be given to an adult relative of a young person. Notice shall include:

• the name of the young person;
• the charge against the young person;
• the time and place of the young person’s appearance in court; and
• a statement that the young person has the right to be represented by counsel.

Continue reading “Notice to Parents”

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.

Continue reading “Arrest of a Young Person”