Individuals under 18 years of age – in other words, young people, young persons, youths, minors, etc. – involved in the criminal justice system in Canada are subject to a different criminal court process than adults. Their case will primarily be governed by the Youth Criminal Justice Act, which works in combination with other pieces of legislation that create criminal offences, such as the Criminal Code or Controlled Drugs and Substances and Act.
In Canada, the Youth Criminal Justice Act (YCJA) governs the criminal justice system as it applies to young people. It is designed to balance the rights of young people accused of offences with other societal needs served by the criminal justice system. The YCJA applies to individuals charged with offences when they are 12 to 17 years of age (meaning from 12 years to one day short of 18 years old). Additionally, various parts of the YCJA can potentially apply to adults, when an adult is charged with an offence that is alleged to have occurred when they were 12 to 17 years old. Children under 12 are not charged with criminal offences under the YCJA (that said, there would still very likely be state involvement of some other kind if a child under 12 were to be involved in something serious enough).
The YCJA is designed around various principles specific to young people. As a pair of examples, there is recognition that one of the most effective ways to protect the public is through the rehabilitation and reintegration of young offenders, and that the need to keep the youth and adult systems separate is based upon the principle that young offenders have diminished moral blameworthiness (which basically has to do with the level of responsibility a person has for their actions).
Arrest is one of the areas that contains significant differences. This blog provides a basic overview of the rules and procedures that apply to the arrest of young people for criminal offence allegations in Alberta and the rest of Canada.
Can Someone Under 18 Be Arrested?
Like adults, a young person can be arrested. There are various ways that arrests can occur, but by far the most common is when the police have reasonable and probable grounds to believe that the person has committed or is about to commit a criminal offence (of most types, and certain other offences as well).
Also like adults, young people can be temporarily detained by police without the police necessarily arresting them. As two common examples of this, police may detain a driver during a traffic stop, or a person whom they have reasonable grounds to suspect is involved in particular criminal activity. The scenarios in which police can detain without arresting contain many variations though, so this blog will simply focus on arrests and, in particular, arrests that lead to the young person being charged.
One further note is that police have the ability to use warnings, cautions, or referrals of young people to certain programs or agencies, rather than actually initiating charges and judicial proceedings. However, if the police decide to actually initiate charges, numerous other procedures outlined in the YCJA will come into play. Many of them differ from how comparable procedures work for adults.
What is the Process for a Young Person Being Arrested?
Immediate rights upon arrest
Young people, like adults, have various rights under the Canadian Charter of Rights and Freedoms, including ones that apply upon arrest. In particular, upon arrest or detention, the police must immediately advise why the young person has been arrested, and that the young person has the right to contact, retain, and instruct a lawyer (this right is also effectively re-stated in the YCJA).
Another rights-related issue that often arises immediately upon arrest has to do with the level of force that police are permitted to use in executing the arrest and in continuing to maintain control over the arrestee. That question is highly case-specific, and often heavily depends on what is and what is not reasonable in the circumstances.
When arrested, a young person, like an adult, will very likely be searched in some capacity. There may sometimes be more than one search. The type, extent, and timing of any such searches will depend upon numerous factors, including the reason for which the police are arresting them (and, for example, whether there is evidence that they could find) and the existence of safety concerns.
In certain cases, police may attempt to obtain a statement of some kind from a young person. This is one area in which the rights of young people and adults differ to a significant degree. The YCJA sets out a series of requirements before any such statement to an officer or another person in authority can be used in court.
Some of the requirements are equivalent or extremely similar to those that exist in law for adults – for example, the statement must be ‘voluntary’. Other requirements overlap with certain rights that adults possess, but apply relatively differently when actually analyzed in court – for example, how to take into account police failures in advising of or providing the right to counsel. Other requirements are specific to young people – as two major examples: a young person has the right to consult with a parent, guardian, or other responsible adult before making a statement, and they also generally have a right to have a lawyer and/or a parent, guardian, or other responsible adult present when making the statement.
Police can release young people directly for the majority of offences. In the vast majority of cases, there will be a court date for the young person, and sometimes also a date on which the young person must attend at a police detachment to have identifying information collected. There may also be certain conditions of release that are agreed to, such as having no contact with specific people, staying away from particular addresses, not being in possession of weapons, and numerous other possibilities.
If the young person is not being released by the police, they will usually be entitled to some form of release hearing – in other words, a bail hearing. With the exception of certain extremely serious offences, an initial bail hearing will take place in front of a justice of the peace or a youth justice court judge. If that initial bail hearing is before a justice of the peace, and if they decide that the young person must continue to be detained, a young person can still seek to have another, new bail hearing when they appear in front of a youth justice court judge.
The requirements for a young person to be denied bail and held in custody are somewhat different than for adults. While a number of the same broad topics may be looked at – such as whether the young person will appear at court, what is necessary for the protection of the public, and, in certain cases, what is necessary to maintain confidence in the administration of justice – there are some variations in precisely how the analysis is conducted, and there are other requirements that do not exist for adults. For example, bail can only be denied for what the YCJA defines to be a “serious offence” or, if not that type of offence, if the young person has a history that indicates a pattern of either outstanding charges or findings of guilt. In practice, young people are generally less likely to be denied bail than adults, for a wide variety of reasons.
If, in the view of a justice or judge, a young person should be denied bail, they would still have the further option of placing the young person in the care of a responsible person. There are significant requirements of any such adult, and the young person must be willing to be placed in their care, but it is a useful alternative to being detained in custody that may be possible in some cases.
As is the case for adults, there are certain review mechanisms that may allow a young person that has been denied bail to have that reassessed by a higher court. These usually do involve some practical considerations though, including that the process to have one of these reviews, depending on the type, usually involves a certain amount of delay.
Notice to parent
When a young person is being charged in some way, police must cause notice to be given to their parent, guardian, or other responsible adult. That notice must include the young person’s name; the charge, including, usually, when and where they must appear in court; and a statement that the young person has the right to be represented by a lawyer.
Like adults, for the great majority of criminal offences, a young person will typically be subject to having their identifying information collected, which will often include their fingerprints and/or photograph.
First court appearance
It is important to be aware that in Alberta, even if the young person has a lawyer by the time of their first court appearance, the youth justice court judges will generally still expect the young person to be present in court for that first appearance. This is not a requirement that applies in adult court, but it is one that continues to be applied in youth justice court.
There may also be other court appearances or court-related steps that the young person will be required to be present at – once they have a lawyer, the lawyer should be able to explain what will required in that regard.
The Court Process
As mentioned earlier, the criminal court process for young people contains significant differences from the one for adults. This can be a particularly complex topic, and is therefore beyond the scope of this blog, subject to some basic comments here.
As only a few examples of differences:
- Representation: Young people in Alberta are currently able to obtain a free Legal Aid lawyer for representation throughout the court process. This does not prevent a young person and their family from retaining a lawyer rather than going through Legal Aid, if they choose, but it does provide a very important safeguard in case that is not possible.
- Privacy protections: Subject to certain limited exceptions, the name of a young person facing charges and/or information that would identify them cannot be published. There are also significant restrictions on what can be done with records from youth justice court matters.
- Speed of court process: The youth justice system usually will try to complete the court process at a faster rate than occurs in adult court. There are a number of reasons for this, but a major one is that a young person’s sense of time will usually be different than that of most adults.
- Parental involvement: The youth justice system places a special emphasis on the involvement of parents or guardians, where possible. This can arise at various stages throughout the process, from when the charge first arises to the sentencing stage.
- Sentences: If a young person is found guilty, the sentences that they are subject to will be very different than for adult offenders (with the exception of certain cases, although relatively rare in practice, in which the prosecution seeks an adult sentence against a young person). There are numerous reasons for this, including that there is a particularly heavy emphasis on rehabilitation for young people and the recognition that young people typically are less morally blameworthy than adults. The way that youth records operate is very different than adult records as well.
As mentioned, these are only a few examples of the differences between the youth and adult systems. It is important for any young person facing charges to work directly with a lawyer on their case. In the course of that, the lawyer will be able to provide more detailed advice specific to their case, on the topics above, as well as various others.
If you have questions about a youth justice court matter, please feel free to contact our office directly for a consultation.