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Final

Final Review.doc

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Department
Law
Course Code
LAWS 3307
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all

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Laws 3307BTLecture No 7October 17 2013LECTURE 710LAWYERS IN THE YOUTH CRIMINAL JUSTICE SYSTEMA CrownsSee Boucher and StinchcombeB Defence counselRules of Professional ConductLegal AidThe client is the youth not the parentS 25 YCJARight to counsels 25 1 A young person has the right to retain and instruct counsel without delay and to exercise that right personally at any stage of proceedings against the young person and before and during any consideration of whether instead of starting or continuing judicial proceedings against the young person under this Act to use an extrajudicial sanction to deal with the young personArresting officer to advise young person of right to counsel2 Every young person who is arrested or detained shall on being arrested or detained be advised without delay by the arresting officer or the officer in charge as the case may be of the right to retain and instruct counsel and be given an opportunity to obtain counselJustice youth justice court or review board to advise young person of right to counsel3 When a young person is not represented by counsela at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to sentencingb at a hearing held under section 71 hearingadult sentencesc at triald at any proceedings held under subsection 983 continuation of custody 1031 review by youth justice court 1041 continuation of custody 1051 conditional supervision or 1091 review of decisione at a review of a youth sentence held before a youth justice court under this Act orf at a review of the level of custody under section 87the justice or youth justice court before which the hearing trial or review is held or the review board before which the review is held shall advise the young person of the right to retain and instruct counsel and shall give the young person a reasonable opportunity to obtain counselLaws 3307BTLecture No 7 October 17 2013Page 2Trial hearing or review before youth justice court or review board4 When a young person at trial or at a hearing or review referred to in subsection 3 wishes to obtain counsel but is unable to do so the youth justice court before which the hearing trial or review is held or the review board before which the review is helda shall if there is a legal aid program or an assistance program available in the province where the hearing trial or review is held refer the young person to that program for the appointment of counsel orb if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program may and on the request of the young person shall direct that the young person be represented by counselR v S L 2006 Ont CABackground was charged with Utter Threat to Cause Bodily Harm trial judge refused to order appointment of counsel SCJ overturned and ordered counsel be appointed Crown appeals to OCAFactswas 13 yrs old Legal Aid refused certificate because liberty was not likely at stake brought s 254 application at first appearance had no income of his owns parents did not own property were unemployed and had 808 in the bank said he needed a lawyer to help him prepare his defenceCrowns position EJS and peace bondYouth Court Judge refused to appoint publicly funded counsel and asked Duty Counsel to help Issue At what stage of proceedings is a young person entitled to publicly funded legal aidDecision 9 It is my view that it is clear from a plain reading of sections 253 and 254 that it is only when the youth is at a certain stage of proceedings and unable to obtain legal counsel through legal aid that the young person may apply for publicly funded counsel Parliament has specifically provided that it is only when there is a hearing related to the custody of the young person including sentencing or when the young person is engaged in a trial that the youth may apply for publicly funded counsel While a young person may require legal advice at the stage when he or she is considering whether to partake in EJS that advice would be available through duty counselTherefore entitled to have counsel appointedHearing related to the custody of the young personpresumably bailsentencingtrial was not at this stage therefore did not qualify for publicly funded counsel yetAppointment of counsel5 When a direction is made under paragraph 4b in respect of a young person the Attorney General shall appoint counsel or cause counsel to be appointed to represent the young personRelease hearing before justice6 When a young person at a hearing referred to in paragraph 3a that is held before a justice who is not a youth justice court judge wishes to obtain counsel but is unable to do so the justice shalla if there is a legal aid program or an assistance program available in the province where the hearing is heldi refer the young person to that program for the appointment of counsel orLaws 3307BTLecture No 7 October 17 2013Page 3ii refer the matter to a youth justice court to be dealt with in accordance with paragraph 4a or b orb if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program refer the matter without delay to a youth justice court to be dealt with in accordance with paragraph 4bYoung person may be assisted by adult7 When a young person is not represented by counsel at trial or at a hearing or review referred to in subsection 3 the justice before whom or the youth justice court or review board before which the proceedings are held may on the request of the young person allow the young person to be assisted by an adult whom the justice court or review board considers to be suitableCounsel independent of parents8 If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel the judge or justice shall ensure that the young person is represented by counsel independent of the parentStatement of right to counsel9 A statement that a young person has the right to be represented by counsel shall be included ina any appearance notice or summons issued to the young personb any warrant to arrest the young personc any promise to appear given by the young persond any undertaking or recognizance entered into before an officer in charge by the young persone any notice given to the young person in relation to any proceedings held under subsection 983 continuation of custody 1031 review by youth justice court 1041 continuation of custody 1051 conditional supervision or 1091 review of decision orf any notice of a review of a youth sentence given to the young personRecovery of costs of counsel10 Nothing in this Act prevents the lieutenant governor in council of a province or his or her delegate from establishing a program to authorize the recovery of the costs of a young persons counsel from the young person or the parents of the young person The costs may be recovered only after the proceedings are completed and the time allowed for the taking of an appeal has expired or if an appeal is taken all proceedings in respect of the appeal have been completedException for persons over the age of twenty11 Subsections 4 to 9 do not apply to a person who is alleged to have committed an offence while a young person if the person has attained the age of twenty years at the time of his or her first appearance before a youth justice court in respect of the offence however this does not restrict any rights that a person has under the law applicable to adultsSummary Proceedingss 142 YCJA youth court proceedings are governed by Part XXVII of the Criminal Code Summary Conviction proceedingss 1422 an indictable offence is still indictable
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