Author: Patrick Ducharme

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”

Continued from Part 1 (Young Offenders Overview)

If the young offender is sentenced as an adult, the sentencing principles of the YCJA are not applicable.3 Although the YCJA emphasizes the need to act promptly in every case, this does not mean that courts will take a different approach to applications of delay pursuant to subsection 11(b) of the Charter.

Continue reading “When a young offender is sentenced as an adult”

Overview: Declarations and Principles of the YCJA

Parliament enacted the Youth Criminal Justice Act (“YCJA”) in 2002 and abolished the preceding Young Offenders Act. The YCJA sets out a very different scheme for dealing with young persons alleged to have committed serious offences. The most significant differences are that the YCJA does not allow for the transfer of a young person to adult court and a young person’s election and mode of trial is intimately connected to whether the prosecution seeks an adult sentence. Except to the extent that they are “inconsistent with or excluded” by provisions of the YCJA, the provisions of the Criminal Code apply to offences alleged to have been committed by young persons.

Continue reading “Young Offenders – Overview”

Continued from Part 1

Offences are classified by statute either as indictable or summary conviction, or those that may be prosecuted either by indictment or summary conviction at the election of the prosecutor. We also have offences that are classified as strict liability offences or absolute liability offences. Most provincial offences are classified as strict or absolute liability offences. The Supreme Court of Canada in Wholesale Travel4 determined that it is appropriate that there be a requirement that the defence prove due diligence by a preponderance of evidence for strict liability offences where the act underlying the offence is proven by the prosecutor. The same decision held that a corporation cannot use s. 7 of the Charter to protect corporate “rights”, however, it is always available to challenge an unfair law.
Public welfare or regulatory offences are generally classified as strict liability offences. While we have very few “absolute liability” offences, absolute liability offences provide for vicarious liability in circumstances where an employer or corporation is held responsible for the fault of its employees or servants, even though the employer or corporation is not directly at fault.

Continue reading “Summary of Procedures Part 2”

If the accused, other than an organization, is charged with an indictable offence, the accused must appear personally in accordance with section 650. This section provides the court with the power to permit the accused to be absent from the proceedings during various times. Except for a specific order, however, the accused is expected to be present. Provision is also made in subsection (1.1) for appearance by counsel or through closed circuit television or similar means. An accused may appoint counsel to represent the accused for any proceedings under the Code by filing a designation with the court. Provided a designation is filed the accused may appear by the designated counsel without being present for any part of the proceedings, other than

• a part during which oral evidence of a witness is taken
• a part during which jurors are being selected, and,
• an application for a writ of habeas corpus.

Continue reading “Summary of Procedures”

(Continued from Part 1)

There are no statutory formalities for the creation of a Part XXI.1 application. The Minister may refer “the matter at any time to the Court of Appeal for hearing and determination by that court as if it were an appeal by the convicted person”.3 Or, the application can be dismissed or there may be an order by the Minister for a new trial.4 The Minister does not have to undertake the investigation of the case personally, or even with the assistance of his or her government staff.

Continue reading “Applications for Ministerial Review (Part 2)”

Part XXI.1 of the Code was proclaimed in force in November 2002. It adopts most of the former law and practice under the repealed section 690 of the Code and removes the characterization of the ministerial review power as the “Mercy of the Crown”. Section 696.1 allows an accused to apply to the Minister of Justice of Canada to review a conviction or a finding that the accused is a dangerous or long term offender. An accused person is only permitted to apply for this remedy after he has exhausted all other appellate remedies. This amounts to an application of last resort. The application seeks a remedy for some legal wrong that is entirely discretionary.

Continue reading “Applications for Ministerial Review”

There is no statutory authority for the Crown’s ability to withdraw a charge(s). The power to do so derives from the common law. Although the Code is silent as to withdrawal of charges, it is an established practice that the prosecutor may withdraw charges without the approval of the court, particularly prior to the accused entering a plea. It appears, however, that although the prosecutor may withdraw a charge as of right any time prior to plea, once evidence has been tendered the withdrawal of the charge requires leave of the court. In the absence of a finding of abuse or flagrant impropriety, once the prosecutor withdraws or stays a charge the court is without any jurisdiction to deal with a Charter application. At this stage, the only possible remedy for an accused is to commence a civil action for remedy.

Continue reading “Withdrawal of Charges”

Section 579 permits the Attorney General, or counsel instructed by him, to direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his/her direction. Proceedings stayed in accordance with section 579 may be re-commenced without laying a new information or preferring a new indictment by giving notice of the re-commencement to the clerk of the court within one year after the entry of the stay of proceedings. If no re-commencement takes place, the proceedings shall be deemed never to have been commenced.

Continue reading “Stay of Proceedings”

If an accused fails to appear for his/her jury trial, subsection 598(1) of the Code provides that the accused loses the right to be tried by a Judge and jury. At a subsequent trial date the accused (if and when he/she re-appears) may be required to proceed on the basis of a trial with a Judge sitting without a jury unless the accused satisfies the court that there was a legitimate excuse for his/her earlier non-appearance, or, the Attorney General requires that the trial proceed before a jury pursuant to section 598.

Continue reading “Failure to Appear for Jury Trial”