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| Oksana Romanov |
Working with children and youth in the community
Before applying to law school, I managed an after-school program for high school youth in several neighbourhoods in Toronto, which are designated by the city as Neighbourhood Improvement Areas. In addition to my “office” days doing desk work, I had multiple opportunities throughout the academic year to fill in for my team, consisting of youth facilitators, if they called in sick or got delayed on transit getting into work for their evening shift.
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For lawyers working with youth
Many children and young people may distrust adults and authority-like figures, be it parents, school principals, social workers or police officers if they had negative experiences interacting with the system in the past. They may be apprehensive about reaching out for help to familiar adults, let alone lawyers in hopes of navigating the legal system and obtaining legal advice. For a lawyer working with young clients it might be difficult to get legalese across and obtain client instructions because it takes a special skill set combined with passion and patience for a successful outcome.
Time allotted for a consultation may not be sufficient to scratch the surface let alone solve a criminal problem. Oftentimes, youth cannot afford to hire a lawyer. Some members of the criminal defence bar, knowledgeable in the YCJA regime, may choose to offer a free consultation and even take on youth matters on a pro bono basis.
Under s. 25(1) of the YCJA, “[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.” If legal aid is not available or they cannot retain a lawyer, a young person may seek a court order under this section for legal representation.
In Toronto, youth under the age of 18 or anyone under the age of 25, who is experiencing homelessness, and has a legal problem and needs help navigating the criminal justice system, can also contact Justice for Children and Youth. Unfortunately, these resources are not limitless.
What is a bail hearing really?
The presumption of innocence is a cornerstone of our criminal justice system. A bail hearing is an opportunity to exercise one’s right to liberty and advocate against pre-trial detention in both Crown and reverse onus situations. Not only does detention prior to trial lead to loss of liberty, it may also lead to job loss, gaps in education, and breakdowns in relationships with family members and friends, social stigma, and psychological trauma. Any time spent in detention or pretrial custody is especially harmful and traumatic for young persons.
While release at the earliest reasonable opportunity is currently the law, detention remains a possibility, as each bail hearing entails a fact-specific risk assessment. Therefore, it is critical for the accused to be represented at this stage in a criminal proceeding.
What is a youth bail hearing?
The Youth Criminal Justice Act has a self-contained bail regime. Unlike in an adult bail hearing situation, currently, all youth offences are Crown onus. In R. v. B. (S.), 2013 ONCJ 505, at para. 2, Justice of the Peace Paul Kowarsky explained that “[u]nder section 29(3) of the Y.C.J.A. the onus is on the Crown to persuade the court, on a balance of probabilities, that it is necessary that S.B. be detained in custody pending the outcome of the proceedings against him.”
Because the “ladder principle” – R. v. Antic, 2017 SCC 27, [2017] 1 SCR 509, per Justice Richard Wagner., at para. 47 – codified in ss. 515(1) to (2.03) of the Criminal Code of Canada, applies to young persons, it may seem that youth may get bail without conditions or with a minimal number of conditions in almost all cases. However, the court may impose a condition outlined in ss. 515(4) to (4.2) of the Code if they are satisfied that the conditions of release outlined in s. 29(1)(a) to (c) of the YCJA are met. Namely, “(a) the condition is necessary to ensure the young person’s attendance in court or for the protection or safety of the public, including any victim of or witness to the offence; (b) the condition is reasonable having regard to the circumstances of the offending behaviour; and (c) the young person will reasonably be able to comply with the condition.”
Subsection 29(2)(a) to (c) of the YCJA outlines the test for detention. To paraphrase, the court cannot justify detention of a young person unless (1) they have been charged with a “serious offence” or “they have a history that indicates a pattern of either outstanding charges or findings of guilt,” (2) the primary (will not appear in court if released), secondary (will commit a serious offence if released)), and tertiary (“exceptional circumstances that warrant detention”) grounds are of concern on the balance of probabilities, and (3) the proposed condition or a set of conditions do not address the risk that the youth’s conduct may present to the public. In other words, the court shall consider whether there is evidence of a substantial likelihood that the young person will, if released from custody, commit a serious offence, and the adequacy of the proposed plan of release.
The proposed bail and sentencing reform
The proposed bail and sentencing reform promises to make both bail and sentencing provisions of the Criminal Code stricter, including the ones contained in the YCJA, and aligning them with the Criminal Code. Hypothetically, an increase in the sentencing range for a “violent offence” for youth may help straddle the “serious offence” definition for the purposes of bail, thereby making it easier for the prosecution to argue in favour of detention and harder for the young person to obtain judicial interim release. As a result, a complete overhaul will require the ongoing development of jurisprudence, reaching all the way up the Supreme Court of Canada, to calibrate the youth bail hearings in practice. In the meantime, many of the young persons affected will become adults.
Oksana Romanov, BA (Hons), MA (Comm), JD with Distinction, practises criminal law in Toronto and the GTA. She is a sole practitioner at Law Office of Oksana Romanov.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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