Legal Resources
LEGAL REPRESENTATION
Right
to Silence | Right to Obtain Counsel
| How to Apply for Legal Aid and Obtain
Counsel
For
a complete review of the admissibility of statement provisions
of the Youth Criminal Justice Act (YCJA)
relating to the right to silence see Admissibility
of Statements by Young Persons on the Justice Canada website.
A
crucial issue in youth proceedings is the admissibility of
a statement made by a young person to a person in authority.
In addition to their right to remain silent under the
Charter of Rights and Freedoms young people have special
guarantees of their rights under the YCJA.
Although
the YCJA attempts to balance the rights of young
persons, at the same time it grants the courts limited discretion
to admit statements. As a result defence counsel may find
they are unable to rely on the state’s non-compliance
with statutory prerequisites in order to have statements excluded
at trial.
There are three bodies of law applicable to these statements:
1. the common law rules of voluntariness;
2. sections 7, 9, and 10 of the Canadian Charter of Rights
and Freedoms;
3. the statutory rules in the YCJA.
There
is a complex interrelationship between these sources with
different burdens of proof for each. Given this interrelationship
s.146 of the YCJA makes the issue of admissibility
potentially confusing. Under section 56 of the previousYoung
Offenders Act non-compliance with the waiver requirements
regarding youth statements resulted in the inadmissibility
of the statement. Under section 146 of the YCJA the
courts are given discretion to admit statements that do not
meet the waiver requirements, but only under limited circumstances.
For a complete review
of the right to counsel under the YCJA see the Right
to Counsel module on the Justice Canada website.
The right to counsel
is enshrined in subsection 10(b) of the Canadian Charter
of Rights and Freedoms. It states that:
“
Everyone has the right on arrest or detention to retain
and instruct counsel without delay and to be informed of
that right.”
The
YCJA also creates obligations at various stages of
the youth criminal justice process to ensure that a young
person's right to counsel is explained and protected.
NOTES
ON SECTION 25 YCJA AS APPLIED IN ALBERTA
1.
APPOINTMENT OF COUNSEL UNDER SECTION 25(4) OF THE YCJA.
Below
is a summary of two Alberta cases decided under the previous
Young Offenders Act (YOA) on the appointment
of counsel where a young person is unable to obtain assistance
from the Legal Aid Society of Alberta.
Note:
Subsection 25(4) of the YCJA is virtually
identical to subsection 11(4) of the YOA.
C.(S.T.) v. Alberta , T.(D.M.)
v. Alberta 1993 81 C.C.C.(3d)
407, 140 A.R. 259, [1993] W.D.F.L. 816
Alberta Court of Queens Bench, Russell J.
Two
applications were made concerning separate decisions not to
appoint counsel to represent young persons. In the first matter
the young person was refused legal aid and requested court-appointed
counsel. The Youth Court declined and interpreted section
11(4) of the YOA as giving the court discretion to
inquire as to whether the young person was “unable to
obtain counsel” and placed the onus on the young person
to establish this fact. In the second case the young person
filed an affidavit dated several weeks after the court had
declined to appoint counsel indicating that the young person
wished to obtain counsel, had been refused legal aid, and
did not have the means to obtain counsel independently.
Russell
J. of the Queens Bench decided that the YOA must
be read purposively and construed liberally in accordance
with the principles set out in s.5 which include a declaration
that young persons have special guarantees of rights and freedoms
in addition to those set out in the Charter. The
preamble to section 11(4) does not direct that a hearing be
conducted to ensure a young person is unable to obtain counsel,
nor does it use discretionary language or establish criteria
to be met in the exercise of any discretion. If there is a
legal aid program in place, the court is required by section
11(4)(a) to direct the young person to legal aid. This cannot
be interpreted as giving the court discretion to conduct a
hearing to determine if the young person is unable to obtain
counsel. Paragraph 11(4)(b) requires the court to direct that
a young person who has been refused legal aid assistance and
requests counsel be represented by counsel. The intent of
the provision is clear and unambiguous, it contemplates that
young persons have a real opportunity to exercise the right
to counsel at every stage of the proceedings and compels the
court to assist them in doing so. The court has no discretion
to determine whether a young person should be provided with
counsel out of public funds, and an attempt to exercise such
discretion is an error of law going to jurisdiction.
Bottom line: Where a young person is charged with a criminal
offence and requests appointment of counsel, the court has
no discretion to refuse.
2.
SUBSECTION 25(10) YCJA
Subsection
25(10) of the YJCA permits provinces to establish
a program for the recovery of costs of a young person’s
counsel from the young person or the parents of the young
person. The Province of Alberta has not established such program
to date.
The Youth Criminal Justice Act guarantees young people charged
with criminal offences the right to retain and instruct counsel
and requires Youth Justice Court Judges to advise young people
of this right. If a young person wants to have a lawyer but
is unable to retain one, the Youth Justice Court Judge must
refer the young person to a legal aid program. If no such
program exists or the young person is unable to obtain counsel
through the program, the young person can ask the Court to
order the Attorney General to appoint counsel to represent
them. The Court is then required to do so.
In Alberta there is a legal aid program, operated by the
Legal Aid Society of Alberta. The Society also administers
the program through which the Attorney General appoints counsel
to act for young people.
If a young person wishes
to obtain a lawyer through the Legal Aid Society or if a Youth
Justice Court Judge has referred them to the Legal Aid Society
and/or directed that counsel be appointed the young person
must complete an application. Legal Aid employees take applications
at various locations throughout the Province.
In Calgary, young people can apply to the Legal Aid Society
from Monday to Friday (holidays excepted) between the hours
of 9:00 a.m. and 12:00 noon at the following location:
3rd Floor, J.J. Bowlen Building
620-7th Avenue, SW, Calgary, Alberta
If Duty Counsel is present, the young person should speak
to him or her before applying.
In Edmonton, applications are taken Monday to Friday (holidays
excepted) from 9:00 a.m. until the closing of morning youth
docket court. They are taken at the following location:
4th Floor North, Law Courts
1A Sir Winston Churchill Square, Edmonton, Alberta
Again, if Duty Counsel is present the young person should
speak to him or her before applying.
For information as to where to apply for Legal Aid in other
areas of the Province, see the Legal
Aid Society of Alberta website or telephone Service Alberta at 310-0000. After dialing
310-0000 hold or press zero for operator assistance and ask
for the Legal Aid office nearest to you. You can access Service
Alberta toll-free, from anywhere in the Province, weekdays
from 8:00 a.m. to 6:00 p.m.
Legal Aid is not free. If a young
person obtains a lawyer through the Legal Aid Society,
he or she will receive an
account. However, the account is generally for a fee that
is less than that which would be charged by a lawyer retained
privately. The Society is also aware that many young people
do not have the means to pay their accounts. It attempts
to be sensitive to the financial realities facing young
people when deciding what steps should be taken to collect.
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