COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., DOHERTY and MacPHERSON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Kim Crosbie, for the appellant
Appellant
- and -
L. S. (a young person)
Lois Pineau, for the respondent
Respondent
Heard: November 7, 2006
On appeal from the order of Justice Susan Himel of the Superior Court of Justice dated September 19, 2005, whereby she reversed the decision of Justice Salvatore Merenda of the Ontario Court of Justice dated May 5, 2005 where he refused to order the provision of publicly funded legal aid to a young offender.
McMURTRY C.J.O.:
OVERVIEW
1The sole issue on the appeal is at what point in a proceeding against a young person under the Youth Criminal Justice Act, S.C. 2002, c.1, (YCJA) is a young person who is unable to obtain counsel entitled to publicly funded legal aid.
FACTS
2The respondent, Liban S., is a young person who was charged with uttering a threat to cause bodily harm. He was thirteen years old at the time of the alleged offence. He was refused Legal Aid on the basis that his liberty was not likely at stake. At his first appearance in youth court on May 5, 2005, the respondent through an agent brought an application for publicly funded counsel pursuant to s. 25(4) of the YCJA. In support of his application, the respondent swore an affidavit stating that he had no income of his own; that his parents did not own property, were unemployed and had only $8.08 in the bank; and that he required the services of a lawyer to prepare his defence. The Crown stated that it would be seeking extra judicial sanctions (EJS) and a peace bond.
3The youth court judge stated that he was not going to issue an order for publicly funded legal aid and requested that duty counsel assist the young person. The following exchange took place between duty counsel and the court:
The Court: All right. I’m not going to issue such an order. Mr. McNeil, would you assist this young man.
Duty Counsel: Yes, Your Honour. I’m sorry did Your Honour already make the decision on the 25(4) Application? Assist him in what capacity, Your Honour?
The Court: As duty counsel.
Duty Counsel: Certainly. The Crown, I believe, I just heard is offering EJS, is that correct?
Ms. George [Crown]: He just brought it in.
The Court: The consequences are minimal for this young man and I do not feel that it is appropriate to issue such an order.
Duty Counsel: Well, Your Honour, I’ll certainly speak to him. It may be a situation where he’s not going to be able to enter into this program, in which case I would certainly ask that the application be reviewed.
The Court: I am not signing the order. I have made my decision.
PROCEEDINGS IN THE SUPERIOR COURT OF JUSTICE
4On September 19, 2005, the respondent brought a certiorari and mandamus application in the Superior Court of Justice for a review of the decision of the youth court. Counsel for the respondent submitted that “[i]n order to take extrajudicial sanctions, you have to admit guilt” and in order to make that decision the young person would require the assistance of legal counsel.
5There was no evidence before the motions judge as to whether the young person would or would not avail himself of the extrajudicial sanctions as of that date.
6In her decision granting the respondent’s application, the motions judge made the following observations:
In this case the young person was being offered the opportunity to have EJS (extra-judicial sanctions) provided that he accepted responsibility for the offence. While the Crown says the young person’s right to counsel was not triggered, because he did not indicate whether he wished to proceed with the trial, or guilty plea, or avail himself of extra-judicial sanctions, in my view the young person need not make such an election before being entitled to counsel. Rather, the very purpose of the right to counsel is to allow the young person to retain and instruct counsel without delay, and s. 25 says precisely that in sub-section 1 and I quote:
A young person has the right to retain and instruct counsel without delay and to exercise that right personally at any stage of the 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 extra judicial sanction to deal with the young person.
Under the Youth Criminal Justice Act, the court has no discretion to decline to direct that counsel be provided where the young person has been unable to obtain legal aid.
7The motions judge concluded by stating that “the right to counsel is absolute”, and allowed the application for certiorari and mandamus and directed the Youth Court to refer the matter to legal aid for the funding of counsel for the young person.
MOOTNESS
8At the outset of the hearing of this appeal, it was brought to the court’s attention that the charge against the respondent young person had been disposed of and that the appeal is therefore moot. No objection was taken to the hearing of the appeal. The issue had not been before this court in the context of the new YCJA and as the issue would probably occur again, we concluded that the public has an interest in having the issue resolved and we therefore exercised our discretion to hear the appeal. Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; Tremblay v. Daigle, 1989 33 (SCC), [1989] 2 S.C.R. 530; Re Cadeddu and The Queen (1983), 1983 1763 (ON CA), 4 C.C.C. (3d) 112 (Ont. C.A.).
APPLICABLE STATUTORY PROVISIONS
- (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 person.
(3) When a young person is not represented by counsel
(a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to sentencing,
(b) at a hearing held under section 71 (hearing – adult sentences),
(c) at trial,
(d) at any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision),
(e) at a review of a youth sentence held before a youth justice court under this Act, or
(f) at a review of the level of custody under section 87,
the 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 counsel.
(4) 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 held
(a) 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; or
(b) 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 counsel.
(5) When a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person.
9It is my view that it is clear from a plain reading of sections 25(3) and 25(4) 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 counsel.
10Furthermore, in my opinion, this interpretation of the legislation is supported by the fact that the reference to s. 25(3) in s. 25(4) would be superfluous if a youth court was required to appoint counsel at any stage of the proceedings.
11In the matter before us, the young person had not reached any of the stages identified in s. 25(4). He was at his first court appearance, his custody was not in issue and he had yet to decide whether he wished to have a trial. Accordingly, in my view, the youth court judge properly refused to appoint counsel at that particular point.
12I am therefore of the opinion that the motions judge erred in granting the young person certiorari and mandamus from the youth court judge’s decision. In coming to her conclusion, the motions judge stated that “once satisfied that the young person is legitimately unable to obtain counsel, the mandatory provision is triggered”. It is also instructive to note that she only made reference to s. 25(1) of the YCJA without any reference whatsoever to s. 25(4). Subsection 25(1) refers only to a general right to counsel whereas the right to publicly funded counsel is addressed in s. 25(4).
CONCLUSION
13I therefore conclude that the decision of the motions judge that is the subject matter of this appeal must be set aside.
“R. Roy McMurtry C.J.O.”
“I agree: Doherty J.A.”
“I agree: J.C. MacPherson J.A.”
RELEASED: “RRM” December 4, 2006
