What is the difference in Canada between criminal procedure law for adolescents and substantive criminal law for teens? Are young persons in Canada charged with the same criminal charges as adults? Are "young offenders" treated the same or differently than "adult offenders" in criminal court in the Greater Toronto Area. If the criminal law rights of a child in Mississauga or Brampton have been violated, what should a parent do?

 

Almost all of the subtantive law of criminal offences that applies to young persons also applies to adults. Arguably, Canadian young persons have a right under Charter of Rights section 15, to the same substantive criminal offence law as adults. That substantive law is almost totally found in the Criminal Code of Canada or the Controlled Drugs and Substances Act. When a young person in Mississauga is charged with robbery, break & enter, or shoplifting, the law of what constitutes the elements of each of these offences is the same for the juvenile as for an adult. 

 

Criminal procedure law for young persons is partly covered by the Criminal Code of Canada (e.g. law respecting release on a Promise to Appear) and partly covered by the Youth Criminal Justice Act. The Youth Criminal Justice Act, so as not to offend Charter section 15, contains special rules that assist young persons in the exercise of their rights. For example, the declaration of policy  contained in the YCJA and reproduced below encourages the participants in the Youth Criminal Justice system to remember that youth court proceedings must be separate from adult criminal court proceedings even though they may be in the same Brampton courthouse or Brampton courtroom. The rules about Interrogation of young persons is somewhat different than that for adults. Under the YCJA there are Notice to Parent provisions that are not applicable to persons charged over age 18. Accountability and sentencing for young offenders is different.

 

It is important to remember that children charged with criminal offences have rights under the Charter of Rights at least equal to that of adults and that the right belongs to the child not the parent. Denials of a young person's rights under the Charter to freedom from arbitrary search, reasons for arrest, counsel, disclosure of the Crown's case, and full answer and defence are serious matters that adults should not dismiss and our Canadian society should not tolerate.

 

I recall, a number of years ago, in the wake of the Askov decision in the Supreme Court of Canada decision, having to argue in Scarborough Youth Court, that my client, a 14 year old girl, was a "person" in Canadian criminal law. That point was not at all obvious to the Assistant Crown Attorney bringing her to trial a year after the events in violation of section 11(b) of the Charter. The Crown argued that the following did not include a youth under age 18:

 

"11. Any person charged with an offence has the right

(b) to be tried within a reasonable time;

 

If you think you or your child, in the Greater Toronto Area, has been denied a procedural right under the Youth Criminal Justice Act or a constitutional right under the Canadian Charter of Rights and Freedoms, please feel free to telephone me, Stephen Biss, right now at 905-273-3322 or use the contact box at the bottom of the page to send a message directly to my cell phone.

 

 

 

 

YCJA Excerpt:

Policy for Canada with respect to young persons

• 3. (1) The following principles apply in this Act:

  • (a) the youth criminal justice system is intended to protect the public by

    • (i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

    • (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

    • (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

  • (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

    • (i) rehabilitation and reintegration,

    • (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

    • (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

    • (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

    • (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

  • (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

    • (i) reinforce respect for societal values,

    • (ii) encourage the repair of harm done to victims and the community,

    • (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and

    • (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

  • (d) special considerations apply in respect of proceedings against young persons and, in particular,

    • (i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

    • (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

    • (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

    • (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

• Marginal note:Act to be liberally construed

  (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

 

 

 

 

 Excerpt from Canadian Charter of Rights and Freedoms

 

Equality before and under law and equal protection and benefit of law

• 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

• Marginal note:Affirmative action programs

  (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)