Q: My son has gotten into some trouble with the law. He is 17. He was questioned without a parent present and made a statement. What are his rights?
A: If your son is younger than 18, he falls under Canada’s Youth Criminal Justice Act (YCJA). This covers young people between 12 and 17 who are alleged to have committed crimes. The YCJA is federal legislation that became effective in the spring of 2003.
Its purpose is to set out guiding principles and rules for young people in trouble with the law.
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Many people have questioned the need for such a law. The basic principle behind the act is that young people are responsible for their acts, but they are also children who make mistakes and do not have the experience, skill and judgment to make sound decisions in all circumstances.
The act presumes that youths should have a chance to grow up, to learn from their errors and not have an early mistake haunt them for the rest of their lives. It gives them a chance to accept that there are consequences arising from their actions.
It also emphasizes the need to allow the young person to “make it right.”
This law ensures that youths involved in criminal activities are treated differently from adults. It is presumed that adults have the experience to make good decisions and are expected to be accountable for their conduct.
The system under the YCJA works separately from the system for adult offenders. There is a larger emphasis on involving parents, guardians or extended family members.
For example, before seeking a statement from a young person, a responsible adult person must be notified and have a chance to consult with the youth.
If this didn’t happen in your son’s case, his statement may be thrown out of court.
In the youth system, rehabilitation has a higher prominence than in adult court. The odds of going to “closed custody” (a youth jail facility) are much lower. The courts also involve social agencies more often. The racial, cultural and social background of the young person may also play a role.
In addition to rights existing at law and under the Charter of Rights, young people have additional rights under the YCJA.
The act says youths have the
right to 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 young criminal justice system.”
It is words such as inconvenience that rile people who oppose this law. Some people believe this is being too soft on crime.
What that ignores is that it has been decided to treat youths in a fundamentally different way than adults. The YCJA has some safeguards in this regard.
Adult court
For serious matters, an application can be made to have the charge heard in adult court and dealt with in an adult manner. The law sets this out for four presumptive offences – first and second-degree murder, manslaughter, attempted murder and aggravated sexual assault.
This means that in the case of a youth who is older than 14 but not yet 18, and who is charged with one of these offences, he or she will receive an adult sentence if they are found guilty of such a serious charge.
Additionally, the YCJA has a category called “serious violent offence.” If a youth inflicts or attempts to inflict serious bodily harm on a victim while committing an offence, the court can treat this as a presumptive offence.
This depends on the track record of the young person. If there are two prior serious violent offences on record, then this provision can apply.
Dealing with young people in the criminal law area is less about punishment and more about making them into productive members of society. Keep this in mind as you deal with your son’s problems. As always, consult with a legal professional for guidance.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
