Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search is “reasonable” if it is authorized by law, if the law authorizing is itself reasonable, and if the search is conducted in a reasonable manner. In other words, a search or seizure must be authorized by a specific statutory or common-law rule, and then, be carried out within the requirements that the law provides. The investigating officers are required to operate on reasonable grounds that import the concept of a credibly based probability. Continue reading “Constitutionality of Search and Seizure”
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”
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”
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”
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.
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.
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.
Although a young person is jointly charged with committing a criminal offence with an adult, a young person cannot be tried together with that adult. The YCJA is the exclusive means of trying a young person for a federal offence. The Act does not allow for the transfer of a young person to adult court only to keep the young person together with an adult co-actor in the alleged crime. The young person and the adult must be tried separately, the former under the YCJA and the adult in the adult court and subject to the provisions of the Criminal Code. The Attorney General is not entitled to prefer a direct indictment requiring that the youth and the adult be tried together.
The Youth Justice Court is separate from the adult system; with separate courts and rules. In reality, however, the same Judges usually preside as Judges in Provincial Court for adults and also perform the role of Judges for the Youth Court. Consequently, it is not uncommon to hear the clerk of the court stand to say, “Adult court is in recess, Youth Court to commence” and thereafter the same Judge, who, minutes before, was presiding in adult court, is, by these few words uttered by the clerk of the court, transformed into a Youth Court Judge for proceedings under the YCJA. It all must seem rather confusing to uninformed members of the public. A Youth Justice Court Judge is a Judge appointed or designated to sit in a Court established or designated as a Youth Justice Court. Most, if not all, are also designated as Judges of the Provincial Court system. And, we are about to discuss the circumstances under which a Superior Court Justice will preside as a Youth Court Justice.
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.
