Youth in Court Flashcards
1
Q
Canadian Court System:
A
- Indictable cases get heard to superior court
- Precedence only sets it for the PROVINCE not COUNTRY
- Criminal cases: “as of right” is if a decision was made in one country and a different
decision was made in another court. It automatically goes to superior court - Provincial Court (Youths) is always at the lower level
2
Q
Law: Important Distinctions
A
- On Informal level: right and wrongs who is to blame, who is responsible, who is innocent
or guilty? - Factual guilt vs legal guilt (imp difference; not the same) the threshold is legal guilt. Legal
guilt is the findings by the rule of law - Courts: charges laid; and definition of law is this person guilty of these charges laid
against them? Ex. You get charged of 1st degree murder, are you guilty of it and can it be
proven in court? If not, you are found not guilty. - Evidence needs to prove charges ( as legally written)
- Arguments: deductive (if the premises is true, then the conclusion is true as long as both
are connected it to each other. If the evidence is true and connected to the person,
therefore the conclusion must be that the person is guilty) and specific
3
Q
Legal Charter Rights- Courts:
A
- Sec. 11 Any person charged with an offence has the right to
- (a) be informed of offence police stage
- (b) be tried within a reasonable time if it’s not seen in court in a reasonable time, the
court has to drop the case - (c) not to be compelled to testify in court if you are accused of a crime, you don’t need
to testify on your behalf. It’s up to the state to prove you are responsible - (d) to the presumption as innocent until proven guilty (except possession) possession of
stolen goods and possession of drugs. You should be aware of what you are in
possession of. Can’t use the excuse of I didn’t know. - (e) be denied bail without just cause if they deny or release you on bail, they have to
have just cause to hold you in detention.
4
Q
Legal Rights- Special Protections for Youth
A
- Language that is age-appropriate
- Lawyer and presence of lawyer with police questioning (adults do not) for adults, in
Supreme Court said they don’t need it. You can call a lawyer before you get questioned - Have adult (parent/guardian) present when making statements to police
- Right to privacy (media publication bans)
5
Q
Role of the Crown (prosecutor)
A
- Balancing roles: obtain justice & exercise discretion police have discretion on cases
whether to go forward. The crown also has discretion. Most of the work for youth is
done outside the courtroom because of the judicial measures to keep kids out of court.
Adults work is done in court. - Legal proof of facts (fairly and legally)
- Ensure justice served figure out how to do it in a meaningful way
- Ability to use discretion has to use their own discretion in the criminal justice system
- Consider level of youth & meaningful consequences (YOA). Their maturity, the crime
they committed, their abilities, thinking about the protection of the public as well.
6
Q
Crown- Youth (Common Work Requirements)
A
- A) Give advice to police (during investigation and other)
- Except in BC where they screen before the police do
- B) Screening files & gather information
- C) Knowledge of community programs (EM/ES; organize & supervise; formalize EM/ES)
- D) Negotiate plea resolutions (bargains)
- Bargain to plead guilty for a lesser charge. Also, they use the most amount of
charges to get them to plead guilty. - E) Participate in conferences (pre-trial and sentencing)
- F) Set dates (conferences; court; meetings)
- G) Make court appearance
- If they are being held in detention, the Crown has to put it through trial. Not a lot
of youth and adults go through trial process
7
Q
Other work requirements (Crown with Youth)
A
- Youth availability for EM/ES when the youth is available for sanctions, factors have to
disclosed to be able to defend in court - If trial: disclosure to defence
- If convicted: position on sentence
- Adult sentence: whether to seek (early)
- Have to apply for it early in the process so that the youth (age 14 and older)
knows they are trying to get an adult sentence, prepare for it so it takes longer
for it to go through. This way they can elect their trial by jury
8
Q
Charge Screening (Crown)
A
- “screening”: make decision for each case (like police discretion)
- Functions: hard to find witnesses, they aren’t co-operating
- Prospect of finding guilt
- Public interest is it for protection of society
- Charges- make sure right ones
- Police investigation (complete) complete have a better chance at finding
someone guilty
9
Q
Factors influencing crown screening
A
- Culpability of defendant: belief in guilt of accused (most important*- whether
adult/youth) - Evidence: sufficient for plea or trial
- If theres not enough for trial, it may get dropped
- The strongest evidence is when someone admts to the crime
- Priority cases (violence (before property crimes even though property crimes are more
common), prior record (for those that aren’t 1st time offenders), specific crimes, victim
relation (stranger relationship, witnesses involved are more likely to testify which will
have a higher chance of trial) )
10
Q
Role of defence/duty counsel
A
- Opportunity to consult legal advice
- Legal aid plans: extensive and elaborate systems for youth
- If the parents have income and applies for legal aid and it doesn’t work, the
youth will still get legal aid and be there for all stages except for trial. It’s paid by
the state - Provincial variations
- Ontario: there’s duty counsel, the responsibility of providing legal advice in every
stage but trial
11
Q
Role of duty counsel (Ontario)
A
- “duty counsel”- first appearance
- Purpose: explain to youth (procedures, outcomes, etc) what to expect when they are
interrogated by police, explanations to the guardians, address the act if they go to court,
if they are released on bail) - Act on behalf of youth in court
12
Q
Role of duty counsel/defence:
A
- A) if charge is serious (may be detained)
- Until they go to court
- Inform of options
- Contact people to supervise (“surety”- important for youth)
- Youth will not be released without and has to be under a supervised adult
- Patt King’s surety was met 2 weeks ago and didn’t get released. It has to be
someone that is connected to you and more than 2 weeks ago - Examine witnesses
- They have to find out about evidence that may be used at bail hearing/release
hearing and want to be informed of that information before that stage - Advocacy for bail
- If it’s serious, you won’t get released on it’s own, usually on payment. Less
serious cases get released on your own - B) crown agrees to EM/ES
- If it reaches the trial, more likely sanctions
- Review procedures & options with youth
- Consent: get from youth for program (EM/ES)
- Negotiate (proposed sanction)
- Court: speak in court on youth’s behalf
- Gets approved/recorded in court. Most likely for 1st offenders
- C) EM/ES not offered- youth wants to plead guilty
- Review facts: understand significance
- Advise: what will happen (process/outcomes)
- What your sentence may possibly be
- Mitigating factors: provide to court (more lenient)
- Being in school, having good attendance in school
- For adults: having a job
- Judge sentencing
- Will set a date for sentence, pre-sentence court and then announce what that
sentence is
13
Q
Role of defence
A
D) no EM/ES- Youth wants to plead guilty
* Initial court appearances, arrangements for trial
- Arraignment. There is no innocence in court so it’s either guilty or not guilty
* Trial: need a defence lawyer
- This is where duty counsel duty’s end
* Legal aid (need to apply)
14
Q
Transfer to Adult Court- YOA
A
- Indictable offence: serious offence (6 months + prison; $5,000+ fine)
- Initially by application (by Crown)
o Has to be early in the process and has to applied for - 1996 changes
o 14-year-old: transfers
o 16 and 17-year-olds: automatic transfer
▪ Unless they committed a summary offence
o Offences (four): presumptive offences- murder, manslaughter, attempted murder
and aggravated sexual assault
o Reverse onus: youth
▪ On them to stay in youth court and shouldn’t be transferred to adult
court. Less likely to get rehabilitation as a part of their sentence and
especially at their age, you want the ability to get them in rehab. When
they end up in adult court, it’s more punitive.
15
Q
(Transfers to) Adult Court- YCJA
A
- Remain in Youth Court: w/ adult sentences
- Crown establish early in process (elect trial by jury)
o More likely to be heard in superior court because there is not jury in lower court
o In Canada, you can only elect trial by jury if it’s 5+ years in prison - Attorney General may apply
- Offences (most sought): murder, attempted murder, manslaughter (more common but
not that common) & aggravated sexual assault (not common among youth) - Additionally: twice guilty of committing serious violent offence
o Even if tried as an adult, the rehab part will still be apart of it
16
Q
Youth Court Cases
A
- Statistics Canada
- Year: 2014/15 (match A&S)
- Reference year (April 1 to March 31) this is when court starts and ends
- Youth court attendees
o Gender (Males-greater proportion- 77%; ranges from 75 to 80%)
17
Q
Youth Court Cases- At a glance (2014/2015)
A
- Completed cases (32,835)
- Includes charges: 120,907
- Includes criminal code and statute offences
- Declining over time (lower since collection)
- Non-violent offences
- Completed case (70%)
- Consistent (over time & reflects UCR/ police rec)
- Property offences- largest decline (because of EM) because of the extrajudicial
sanctions and measures
18
Q
Top 10 Cases in Youth Court (2014/2015)
A
- Top 5: 40% cases in youth court
- Top 5 from 2004/05 to 2014/15 (10 years)
19
Q
Girls in Court
A
- Charges and court appearances (increased after 1980)
o After the YOA, it increased as well - Serious charges- remain constant (murder, robbery, drug trafficking, major theft)
- Majority of offences (against person) minor assault. Possess weapon, impaired drivingincreased 9 to 20% (1980 to 200) & criminal harassment (more recent & increased
online)
o Probably increased ever since because of social media, internet, other ways of
contacting people
20
Q
Girls in Court (2014/2015)
A
- Proportion in Court: 23%
- Highest representation:
- Non-violent offences:
- Prostitution: (44%)
- Failure to appear (39%) [admin]
- Lowest Representation:
- Sexual assault (3%) & other sexual offences (4%)
21
Q
Youth in Court by Age and Sex (2014/2-15): Type of crime important
A
DUI & Prostitution (older) sexual assault (younger)
22
Q
Remand/Pre-Trial Detention
A
- Remand (pre-trial) holds youth in detention (waiting for a bail hearing)
- Prior to court appearance/trial, or awaiting sentencing
- More narrow in who can be held and should still be considered innocent still
- Research: (pre-trial): if held in remand – increased risk of conviction, longer sentences,
likelihood of prison sentence - Most defence lawyers will fight in court for this reason, murder cases are an
instant remand because of public safety
23
Q
Remand/ Pre-Trial Detention- YCJA
A
- Age requirements (required to be separated from adults) [doesn’t always happen]
- Interim release: may be granted after judge/JOP within 24 hours of being charged
- May be denied: primary grounds (attend court) or secondary grounds (public safety)
- Important changes:
- 1) cannot use as a substitute for child protection
- 2) Releasing youth to a responsible person (where possible)
- 3) Limited use: serious violence and long criminal record
24
Q
Pre-trial Detention Patterns
A
- Most common age: 16 to 17-year-olds because they are the ones that are more
commonly to commit crimes - Girls vs boys (more 13 and 15-year-olds girls are detained than boys that age; girls more
likely younger) - Indigenous youth vs non-Indigenous youth (Indigenous youth more likely)
- Length of remand (6-9 days on average; from 21 days in early 2000s) due to the YOA
because not a lot of youth are committing offences. They are committing less criminal
crimes and being held for less time in pre-trial detention.
25
Q
Pre-trial Detention Issues
A
- Net widening: administrative or practical changes that result in greater number of
individuals controlled by the CJS. - Failure (to comply): lead to criminalization large portion of this are girls
- Communities for detention: youth may need to leave their community as facilities not
always available - Family circumstances- may be a factor (instead of offence) sometimes they end up in
detention because they can’t find someone to watch the person or someone is deemed
as not responsible enough to watch the youth
26
Q
Denial of Bail Problems (extended detention) pay the entire amount or pay in installments and can get it back if they show up in court
A
- Intrusive measure (no freedom) has to give those specific reasons in court
- Programs and services: minimal (few education & services or treatment psychological,
drug rehabilitation) - Severe problems: prone to bullying & suicide
- Family conflicts: can increase conflicts that have already existed because there is less
contact, them being inside, no way to work with families - Financial costs: high costs with no benefits ($1,000 to $2,000/ week for minor offences)
which is why some of them were released to a responsible adult in their life because it
was expensive to keep them held in
27
Q
Bail Issues (Crown) (Varma. 2002) sat and recorded the decisions made in court for youth
A
- Observational methods (in court) [during YOA]
- Denied bail (1/3)
- Principal charge: violent offence or breaking & entering
- Age & sex: over half were 16 and 17; 82% male
- Appearance: almost all came to court in handcuffs and police custody which gave them
that dangerous appearance - Key decision maker- prosecutor (Crown)
- If did not contest- youth released
- If contested release- few released
- Significant factors- prior record, school attendance, living at home with parents
28
Q
Proportions of Cases where Crown Contested Release (Varma, 2002)
A
The youth being in school was a big factor in considering releasing them
29
Q
Court Proceedings: The Plea (Arraignment)
A
- Youth trials begin with plea
- If they plead non-guilty, they have to arrange trial. If they please guilty, it’s
already pre-arranged - Innocence in court- court does not recognize “innocence” (factual); only legal; guilty or
not guilty* innocence in court is not the same as pleading not guilty FINAL EXAM - Guilty: to sentencing
- Not guilty: goes to trial (elect jury if adult sentence or murder)
- If your sentence is 5 years or more
30
Q
Plea Resolutions (plea bargains)
A
- Ontario (efficient recourse)
- Meeting with the defence pre-trial trying to come to a resolution. There are more
resources for young people vs adults because time is an important factor - A) negotiation of guilty pleas- agree to facts & laws
- We will drop the other charges if you confess to the other crimes
- B) issues & witnesses- required to attend court
- C) factors affect disposition- for administration of justice
- Guilty Pleas: crown sentencing position
- Leniency in sentencing: youth benefit (because) admit guilt, minimize trauma to victim,
preserve court time - Early resolution: important for youth
- the more meaningful it is for their development
- YCJA (explicit) youth perception of time and why it’s so important to deal with them
quicker and plea bargain allows for this to happen. May happen before they are released
pr when they are released depending on their case - Encouragement greater for youth (& more leniency)
- Only 10% go to trial and the other 90% are dealt with through plea bargain and
stayed
31
Q
Judges
A
- Involvement- later in process
- Youth Court vs. Adult Court [no difference for judge]
- Variation across judges (youth & adults)
32
Q
Decisions in Court
A
- Conviction: plead guilty or found guilty by trial (fair tribunal)
- A person who had plead guilty or found guilty by trial (fair tribunal- upholding
rule of law) - Acquitted: found not guilty by trial
- Can only be done through trial. The acquittal rate is low because only 10% of
cases go through trial - Stay: (or withdrawn): discontinue prosecution
- They have stopped the prosecution, the Crown doesn’t want to go forward with
the case, can pick it up later on in the year, they don’t have the evidence for
conviction, or youth has involved in extrajudicial measure or sanction - Could be dependent on EM/ES
- Other: not criminally responsible or unfit to stand trial
- Or they have to be transferred to another province and they await transfer to the
province to where the crime was committed
33
Q
Decisions in Court Cases
A
- Guilty- more than half (57%); vs adults (63%)
- Acquitted- rare (1%); vs adults (4%)
- Fewer trials go to court
- Rate of conviction (% of cases with guilty finding)
- Differs by category of crime (traffic-high; violence & property-low)
- Differs by crimes within same category (murder-high vs assault-lower; different
than adult)
34
Q
Sentencing
A
- YCJA: limitations of custodial sentences
- Sentencing conferences: professional makes recommendation to the court about
appropriate sentence
o Didn’t exist prior. The court and judge uses this to see what they can do about
the convicted youth - Professionals: provincial director, police, JOP, prosecutor, youth worker, youth judge
o The family can provide information for the youth which usually happens
35
Q
Sentencing: Pre-sentence report (they do it for youth and adults, no difference between both) (by probation officer) [same with adults]
A
- Background information (history with court, any EM)
- Unique to youth. If this is the second time, that information would be included
- Victim (from interviews; VIS)
- Recommendation from sentencing conference
- Information from: parents, family, social workers, school officials
- Information that an adult wouldn’t have
- Judgements about youth: development and character
- Youth’s insight into offence (make amends; future)
- What their goals are for the future, can have assessment done with psychiatrist
or psychologist or, do they have remorse, do they feel bad, did they change their
behaviour, recognize that they need to change their behaviour
36
Q
Factors to be considered in sentencing
A
- Aggravating factors: justifies a harsher sentence
o Being in gang, isn’t a crime but can be used as an aggravating factor. Accomplices
are used as aggravating factor as well - Participation in the crime: more involved
- Evidence of planning (deliberate) vs in the moment
- Harm done to victims (vulnerability of victim)
- Presence of weapon- possible harm
- If it was robbery, the presence of the weapon even if it wasn’t used would be
aggravating factor because of the harm - Criminal record: prior record; 2nd+ time offender
- Gang affiliation (or organized crime)
- Mitigating factors: justify more lenient sentence
- Criminal record: first time offenders
- Viewed as getting more leniency
- Reparation made- by youth
- Ways they tried to make amends before getting to court
- Good character- generally good citizens/students (good attendance in school; volunteer)
- This information is attained by social worker
- Time spent in detention
37
Q
Sentencing Youth
A
- Uniformity- other youth sentences (similar offences in jurisdiction)
- Least restrictive, by meaningful to youth
- Should promote principles of restoration, reconciliation, and reintegration (the young
person’s community) of youth (new YCJA & restorative justice) - Added: denunciation & deterrence (Bill C-10)
38
Q
Homicide Sentence in Youth Court- YCJA
A
- Custody (also means in prison) & Community supervision
- 1
st degree murder - Max sentence: 10 years (6 years custody; 4 conditional supervision)
▪ Having reintegration reduces the likelihood of recidivism. Part of the
reason why it’s added for young people - 2nd degree murder
- Max sentence: 7 years max (4 years custody; 3 conditional supervision)
- Manslaughter: 3 years max (2 years custody; 1 conditional supervision)
- Public trust is why they impose the maximum
39
Q
Homicide Sentence with adult sentence- YCJA
A
- If adult sentence (earlier parole)
- 1
st degree murder: life sentence (parole) - 14-15 years: parole after 5 to 7 years
▪ For adults, it’s after 25 years - 16-17 years: parole after 10 years
- 2nd degree murder: life sentence
- 14-15 years: parole after 5 to 7 years
- 16-17 years: parole after 10 years
▪ It could be longer but you would get more leniency with 2nd degree
murder because it’s seen as less serious
40
Q
Sentencing Priciples (Penal Philosophies)
A
- Deterrence: will not engage in crime if penalty is too great (cost-benefit)
- Rehabilitation: assumption people can change- given opportunity (and help)- especially
youth - Incapacitation: perceived as danger to the public (prison)
- You get custody or orison as a result because you are seen as a danger to that
community. Multiple records of coming into the system, committed a serious
crime - Retribution: pay in equal proportion to harm done (related to proportionality principle)
- Denunciation: shaming individual (evidence: not best approach)
- People are not motivated by shame which is why it wasn’t originally included in
the YOA
41
Q
Sentencing Options from less serious to very serious
A
- Reprimand: stern lecture from judge (warning; technically not a “sentence”)
o Way for judge to explain the ramifications. Usually used for first time offenders
and for youth - Absolute discharge: guilty, but not “convicted” (no criminal record once conditions met;
common EM/ES)
o Alcohol or drugs and go through rehab treatment programs - Conditional discharge: comply with condition(s) (fail- return to court; success- becomes
“absolute”) - Community Service Order (CSO): do service or charity (food bank common; no more
than 240 hours within 12 months- mostly: property & drug offences) - Fine: fee specified (youth max $1,000)
o for adults, there is no maximum for indicatable offences - Restitution: payment to victim (cover expenses from crime)
o Ex: Property loss (most of it is for this because mischief is the 2nd most crime
after theft), damages, personal injury - Treatment order/intensive support, and supervision: treatment facility (only with
consent)
o The court has deemed that you are in need of it. Through the psychological
assessment, if there is an assessment that you need treatment and the purpose
is for rehab, you might have to go through with it - Non-Residential attendance order: program treatment (max 240 hours; rehabilitation)
- Probation: under supervision in community (max 2 years for youth) (common: sexual
offences, assault, drugs, theft and arson) - Deferred custody & supervision (conditional sentence): alternative to custody (2003;
serve in community- like house arrests with conditions) - Custody: prison (max 10 years youth, with reintegration; life with early parole with adult
sentence) - Net widening
