At the outset, we wish to voice our support for the declaration of principle set out in section 3 of the bill. As an Association concerned both with civil liberties and civil rights we are especially pleased that Section 3:
- acknowledges that young persons have rights and freedoms in their own right, “including those stated in the Canadian Bill of Rights, and in particular a right to be heard… and participate in the processes that affect them”, and that “young persons should have special guarantees of those rights and freedoms”,
- enunciates the principle that the rights and freedoms of young persons include the right to “the least possible interference with freedoms, having regard to the protection of society, the needs of young persons and the interests of their families”, and
- acknowledges that young persons have the right to be informed of their rights and freedoms in relation to actions and proceedings that might be taken under the proposed Act.
Our Association also wishes to voice its support for the more specific provisions of the Bill that:
- guarantee young persons the right to legal counsel at any stage of proceedings against them (section 11),
- provide young persons with the same appeal remedies as adults (section 27),
- eliminate the status offences of unmanageability, sexual promiscuity and “similar forms of vice” (section 2),
- replace indeterminate probation and custodial dispositions with determinate dispositions limited in duration to periods of 2 years (section 20), and
- require a Youth Court Judge to consider a predisposition report prior to sentencing a youth to a custodial term or ordering transfer of a youth to adult criminal court for trial [sections 24(4) and 16(3)].
Although our Association supports the general principles of this legislation, and while we are pleased that in many instances these principles are given substance in specific sections of the bill, we are also concerned that in some sections the principles are either unsupported or undermined. The remainder of this brief, therefore, will focus on the shortcomings of the bill, together with our concrete proposals to remedy these shortcomings.
Critique and proposals for change
- Age jurisdiction of the youth courtWe note that section 2 of the bill in the first instance defines a young person for the purposes of the Act as a person of 12 years or more, but under 18. However, we note that the same section provides that this age maximum may be reduced to under 17 years or under 16 years in a particular province by federal proclamation. Thus, while a common minimum age is provided, the maximum age may vary across the country, depending on the youth’s province of residence. We are of the opinion that this provision, if not amended, will result in the unequal application of the criminal law to youth in Canada in an age range of 16 to 18 years. To ensure equality of young persons before the law, we recommend that section 2 of the Bill be amended to provide for a uniform maximum age jurisdiction of less than 18 years throughout Canada.
- Offence jurisdiction of the youth courtGenerally speaking, section 5(1) of the Young Offenders Bill gives youth courts exclusive jurisdiction to deal with any offence committed by a young person. This jurisdiction, however, is subject to the provisions of the National Defence Act. It appears to be the intention government’s intention to subject young persons charged with offences under the National Defence Act to military tribunals established under that Act.
The explanatory notes to the Bill contain no reference to this provision or its rationale. No similar restriction is contained in the present Juvenile Delinquents Act. Since we see no obvious or compelling reason to change the present provisions of the Juvenile Delinquents Act in this respect, and since young persons subjected to the jurisdiction of the National Defence Act would not receive the legal protection intended for youths under the Young Offenders Bill, our Association recommends that section 5(1) of the Bill be amended to delete the words “subject to the National Defence Act“
- Alternatives to prosecution in youth courtSection 4(1) permits alternatives to prosecution to be used when a young person is alleged to have committed an offence. We also note that section 4(2) provides that alternative measures must not be used:
- where the young person denies his or her participation or involvement in the offence, or
- where he or she expresses the wish to have his or her charge dealt with in the youth court.
While our Association supports the foregoing restrictions on the use of alternative measures, we are concerned that section 4(5) introduces a double jeopardy for youths who agree to alternative measures. This subsection, it should be noted, provides that the use of alternative measures is not a bar to proceedings against the youth at a later date for the same offence. While the youth court judge in these circumstances is given discretion to dismiss such charges if he or she considers prosecution unfair, the possibility of later prosecutions is ever present when a youth agress to alternative measures. This is contrary to established principles of justice. The decision of the authorities, with the informed consent of the young person, to use alternative measures to deal with the young person’s alleged offence, should act as a complete bar to further proceedings against him or her for the behaviour in question. We therefore recommend that section 4(5) be deleted from the present Bill and replaced with a subsection that clearly indicates that choosing alternative measures as an alternative to prosecution shall act as a bar to future prosecutions.
- Detention awaiting trial or dispositionWe note that the Young Offenders Bill adopts the relevant sections of the Criminal Code for adult offenders in dealing with detention awaiting trial and judicial interim release. We also note that the Bill contains a special subsection (section 7(4)) authorizing the youth court judge, at his or her discretion, to release a youth to the care and custody of a responsible adult pending trial in the youth court.
The language used in these sections should be more clearly worded, so both lawyers and lay persons can understand the offenders rights. We therefore recommend that sections 7 and 8 of the Bill be amended to incorporate in clear language the following:
- that within 24 hours of the detention of a young person, a judicial hearing be held to consider release of the young person while awaiting trial,
- that the young person be released awaiting trial either alone or under the supervision of an adult, unless the court determines that he or she is likely to be a danger to the community or not appear at trial.
- Notice to parentsOur Association fully supports the provision of section 9 of the bill, which requires notice to parents including information about the place and date of trial. We note, however, that section 9(8b) permits a youth court judge to dispense with notice “where, in his or her opinion, having regard to the circumstances, notice may be dispensed with… ” We believe that these broad powers given to judges to dispense with notice could easily be abused. To guard against this, specific criteria should be spelled out in this section to guide the use of this discretion. In general, notice should be given unless the Court finds that the parent is evading service or cannot be found after a diligent search. We therefore recommend that section 9(8b) be amended to incorporate these criteria for dispensing with parental notification.
- Right to legal counselOur Association is pleased that the Young Offender Bill not only guarantees a right to legal counsel but ensures that legal counsel will be appointed to represent a young person when he or she requests, but cannot afford, a lawyer [section 11(4)]. However, we believe that there are two situations where judicial decisions should not be made without legal representation. These are: (1) a decision to transfer the young person to adult criminal court for trial, and, (2) a disposition committing the young person to a period of custodial confinement. Since these decisions involve, respectively, a potential change in civil status and a drastic curtailment of liberty, we believe that the young person should have legal representation at each stage of such proceedings. We therefore recommend that section 11 of the Young Offenders Bill be amended to include a provision requiring that the young person be represented by legal counsel:
- where the crown prosecutor intends to recommend a disposition of custody, or
- where the crown prosecutor applies for transfer of the young person to adult criminal court.
- Custody for examinationSection 13 of the Young Offenders Bill allows a youth court judge to remand a young person in custody for a period of up to 30 days on the recommendation of at least one qualified person to:
- consider an application to transfer the young person to adult criminal court,
- determine fitness to stand trial, or
- make or review a disposition.
Our Association is concerned that this section does not contain sufficient safeguards to ensure adherence to the Bill’s principle as set forth in section 3(e): that in the application of the Act, “…the rights and freedoms of young persons include a right to the least possible interference with freedom, having regard to the protection of society, the needs of young persons and the interests of their families”.
It should be recognized that remands in custody bring young persons who have not been sentenced, or in some cases convicted, in close contact with sentenced offenders in youth detention centres. A lengthy remand can therefore be a traumatic for a young person who has not previously been detained. Unless carefully regulated, it can also be a form of punitive sentence in advance of disposition. Indeed, in this province it has not been uncommon in the recent past for young persons to be remanded to Willingdon Detention Centre from courts in the northern interior for periods up to 30 days and then released on probation.
Our Association believes that remands in custody for purposes of examination should be restricted in the following ways:
- No youth should be remanded to a detention centre to determine his or her fitness to stand trial unless there is a judicial finding that his release to the community for examination presents a threat to public safety or to the safety of the young person.
- where the young person in the opinion of a judge requires a secure setting for purposes of examination as to fitness to stand trial, he or she should be remanded to a psychiatric facility for young persons, if one is available. He or she should not be placed in a forensic psychiatric facility for adult offenders.
- where a young person has been remanded in custody following conviction and pending sentence, the remand in no case should exceed a single period of 8 days, except with special leave of the Court for a single further extension of 8 days.
- Access by young person to the contents of assessment and predisposition reportsThe Young Offenders Bill appears to contemplate that in the normal course of events the contents of a psychological report or a predisposition report will be made available to a young person. However, we note that an exception to this general rule is provided in sections 13(6) and 14(71 which empowers a Youth Court to withhold such reports from the young person when in the opinion of the Court disclosure would be “seriously injurious to the young person”.
These sections are obviously intended to protect young persons from potential psychic trauma when being apprised for the first time of painful background information or a complex or frightening professional diagnosis. We can appreciate this concern. However, we are equally concerned that injustices could occur if a disposition were made by a judge on the basis of information withheld from the young person. This could result in judicial decision-making without providing the young person with the opportunity to answer fully the factual and diagnostic contents of psychological and predisposition reports.
The answer to this dilemma lies in ensuring that the full contents of any reports deemed by the Court seriously injurious to young persons be made available to the legal counsel representing the young person. However, as noted earlier in this brief, the right to legal counsel afforded in the Young Offenders Bill to a young person does not necessarily mean that legal counsel will be requested. Our Association is of the opinion that legal counsel should be made available to a young person in all cases where a judge of the youth court decides to withhold the whole or sections of a psychological or predisposition report. We recommend that amendments to section 13 and 14 of the Young Offenders Bill be made to incorporate this principle.
- Oral predisposition reportsWe note that section 14(3) of the Young Offenders Bill allows a Youth Court judge to authorize an oral predisposition report where such a report “cannot reasonably be committed to writing”. This section may be contrasted with section 662(1) of the Criminal Code, which provides that a pre-sentence report dealing with a convicted adult offender must be in writing.
A written predisposition report is essential to afford the young person or his or her legal counsel the full opportunity to contest its contents at the time of sentencing. We also believe that young persons should be afforded the same rights as adults. We therefore recommend that section 14(3) of the Bill be amended to require that all predisposition reports be in writing.
- Disqualification of a youth court judgeSection 15(1) disqualifies a judge from conducting a trial in the Youth Court where he or she has earlier dealt with an application to transfer the young person to adult court. However, section 15(2) creates an exception to this rule where the young person and prosecutor consent to the judge hearing the case, so long as the judge is satisfied that he or she “has not been pre-disposed by information contained in the Pre-disposition Report” or representations made by Crown Counsel in respect of the transfer application.
No exception should be made to the rule that a judge who receives prior background information on an accused young person should not subsequently conduct the trial of that young person. It is inevitable that a judge who has background information in advance of trial would be influenced by the information. Since this practice could undermine the impartiality of judges in the eyes of accused persons and the general public, we recommend the deletion of section 15(2) of the Young Offenders Bill.
- Exclusion from youth court of young persons during dispositionsSection 39(3) of the Bill allows a Youth Court Judge to exclude a young person from court when considering a disposition where the judge believes the information would be seriously “injurious or prejudicial” to the young person.
Our concern with this section is the same as outlined earlier with respect to denying the young person access to a predisposition or psychological report. In essence it would impede the young person’s ability to make a full submission on matters affecting judicial disposition of his or her case.
The legal rights of a young person in this type of situation can only be fully protected when legal counsel represents him or her at each stage of the proceedings. The presence of legal counsel is required so submissions can be made on behalf of the young person on the question of the latter’s exclusion from court during the disposition stage. It is also vital that defence counsel be present to represent the interests of the young person in the event the judge chooses to exclude him or her from court when hearing submissions on disposition.
Our Association therefore recommends that section 39 of the Young Offenders Bill be amended to require that any young person whom a judge excludes from court during consideration of or review of a disposition be represented by legal counsel prior to such exclusion and during judicial consideration of the disposition.
- Maintenance and use of recordsWe note that sections 40 – 46 outline, in considerable detail, legal provisions applicable to the maintenance and use of youth court records, police records, government and private records, fingerprints and photographs. In general, the Young Offenders Bill allows a much wider sharing of information than was permitted in the discussion draft of the 1975 Young Persons in Conflict with the Law Act. We are concerned that the new provisions could allows the young person’s offence record, unnecessary to law enforcement, correctional treatment, or community supervision, could be widely available, thereby causing unjustified stigmatization and impeded future prospects for the young person. During the coming weeks, our Association will develop a position statement covering this subject in greater depth. For the purposes of this brief, however, we wish to note our concern with the following sections of the Bill dealing with records:
- Whereas section 49(4) requires the destruction of fingerprints or photographs of a young person when he or she has been acquitted of an offence, no parallel provision exists to require the destruction of court or government records in these circumstances. We therefore recommend that the Bill be amended to require destruction of any official record dealing with a young person who has been acquitted of an offence.
- A judge of the youth court is given discretion in sections 40(2) and 40 (3) to provide information from a youth court record to “any person deemed by the judge to have a valid interest in the proceedings against the young person or in the work of the Youth Court”. This section affords unnecessarily wide discretion to judges to determine who has a valid interest in the proceedings or work of the youth court. This likely will lead to varying interpretations, with some judges deciding that a broad spectrum of persons in a community could have a valid interest in the proceedings against the young person or the work of the court. Given the potential that this section has for widespread dissemination of stigmatizing information, our Association strongly recommends that it be deleted from the Young Offenders Bill.
- Section 40(3j) allows a youth court record to be made available for inspection to the government of a province for purposes of employment. This provision seems to apply regardless of whether the young person was acquitted or completed a disposition ordered by the youth court. This section may be contrasted to section 36(3), which provides that application forms for employment in federal government agencies must not contain any question requiring an applicant to disclose whether he or she has been found guilty of an offence for which he or she has completed all dispositions. Thus, while an attempt has been made to lessen possible discrimination against convicted young persons in employment in federal agencies, such discrimination is clearly permitted, if not encouraged, in the case of provincial government employment agencies. This is unfair and therefore strongly urge that section 40(3j) be deleted from the Young Offenders Bill.
- RCMP records and the records of any police force, including fingerprinted other identifying information, may be made available to any class of persons specified in section 40(3) of the Bill. This includes, in addition to correctional agencies, any court dealing with the young person pursuant to provincial child welfare legislation and any person within a class of persons deemed by a youth court judge to have a valid interest in the record. We have already expressed concern over the potential for stigmatization of the power afforded judges of the youth court to disseminate information at judicial discretion. In our view, making similar information from police records available could compound their problem even further. There is no reason for police forces to share information from police records for reasons other than law enforcement. We therefore recommend that sharing police records be solely confined to information for law enforcement officials for criminal investigation only.
- In general, we are pleased that the Young Offenders Bill makes provision in section 45 for the destruction of all records after specified periods of time. We recommend, however, that serious consideration be given to reducing the periods specified in the bill, especially where a young person has been convicted of a summary conviction or minor indictable offence. As the bill now stands, two years must elapse following completion of all dispositions made with respect to a summary offence conviction, before records must be destroyed. Also a parallel period of five years must elapse in the case of conviction for indictable offences, regardless of the gravity of the offence. The bill should be amended to provide for destruction of records:
- six months after completion of dispositions for a summary conviction offence,
- one year after completion of disposition for an indictable offence within the absolute jurisdiction of a magistrate or provincial court judge,
- three years after completion of disposition for other indictable offences.
- Statements to policeOur Association strongly supports the provisions of section 56(2) dealing with the admissibility of statements made by young persons to police officers while in custody. We note that the protections afforded by this section are a great improvement to the present law applicable to admissions by adult offenders. However, we are troubled by the exception to the general rule that a statement, in order to be admissible, must be made in the presence of an adult person or legal counsel for the young person. Thus, section 56(a) provides that a youth may waive his or her right to consult with counsel or a suitable adult, provided that the waiver is in writing and confirms that he or she has been apprised of the right he or she is waiving. However, this action fails to acknowledge the vulnerability of young persons in the presence of police officers at the time of arrest. It gives police an opening to use pressure to persuade a young person to waive his or her legal right to the presence of an adult person prior to making a statement. Our Association therefore urges that section 56 of the Young Offenders Bill be amended to require appropriate consultation with a suitable adult or legal counsel as a legal precondition to the admissibility of a young person’s statement.
We acknowledge the many progressive changes proposed in the Young Offenders Bill, which are designed to ensure that the rights and liberties of young people are recognized and respected in the process of administering our criminal laws. We then sought to identify sections of the Bill that in our opinion fail adequately to support the bill’s declaration of principle in the area of civil rights and liberties for young persons. Finally, we have in the course of our critique proposed changes to the bill, which, in our opinion, buttress the declaration of principle at critical stages in encounters between young persons and agents of the youth justice system. We urge the Members of Parliament to give careful study to our submissions when considering amendments to this bill.