WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. J.B., 2019 ONCJ 997
DATE: 2019 03 25
COURT FILE No.: London 18-Y196
Sitting as a Youth Court under the Youth Criminal Justice Act, S.C. 2002, c 1
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J.B., a young person
Before Justice Harris Bentley
Heard on March 4, 2019
Reasons for Judgment released on March 25, 2019
Kenna Dalrymple................................................................................ counsel for the Crown
George Grant........................................................................... counsel for the accused J.B.
Harris Bentley J.:
[1] The accused young person, J.B., has brought an application under s. 25(4) of the Youth Criminal Justice Act (YCJA) for an order directing the appointment of counsel in respect of one count of mischief exceeding $5000, contrary to s. 430(3) of the Criminal Code of Canada (Criminal Code) and nine counts of mischief under $5000, contrary to s. 430(4) of the Criminal Code.
[2] J.B. has made an application and been refused a Legal Aid certificate to fund counsel for the following reason:
“Legal Aid has determined that there is insufficient legal merit to the case to justify a legal aid certificate. This is based on an assessment of the information you have provided about your case and/or provided from counsel.”
[3] The Crown has determined that Extrajudicial Sanctions (EJS) are not available to J.B. with respect to these charges. He wishes to resolve his matters in the Youth Therapeutic Court and does not wish to have a trial. Custody is not an available sentence upon conviction for this young person.
Position of the parties
[4] The defence submits that once a young person enters a plea of not guilty they are at trial within the meaning of s. 25(3)(c) YCJA. The defence relies upon certain provisions of the Criminal Code which are adopted by s 142 YCJA. Defence points to the definition of trial, the process on guilty pleas, as well as the discussion about trial and sentencing hearings by the Supreme Court of Canada in R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368 (Gardiner). The defence submits that the sentencing hearing is the ultimate part of the trial process, not a separate hearing.
[5] The defence also argues that, pursuant to s. 785 Criminal Code, the definition of trial includes the hearing of a complaint. In the course of a guilty plea, finding of guilt and sentencing, the facts of the complaint are heard, the trial judge decides whether they make out the charge and makes a finding of guilt if they do, and a sentencing hearing is held and a decision made. The defence submits therefore that the guilty plea process should be considered to be a trial for the purposes of the YCJA.
[6] Once it is determined that the young person is at trial, the trial court must appoint counsel upon their request pursuant to s. 25(4) YCJA.
[7] The Crown takes no position but did make submissions regarding the importance of young people retaining counsel at an early stage in the proceedings.
[Youth Criminal Justice Act](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
[8] S. 25 of the YCJA provides as follows:
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 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.
A young person must be at a hearing listed in [s. 25(3)](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
[9] In R. v. L.S., [2006] O.J. No. 4808 (Ont. C.A.) (L.S.), a young person applied for an order appointing counsel at his first appearance. EJS had been offered. The young person had not yet decided whether he wished to take advantage of the offer of EJS or whether to go to trial. McMurtry C.J.O set out at paras. 9 - 11;
9 It 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.
10 Furthermore, 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.
11 In 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. [emphasis added]
[10] S. 25(3) YCJA does not specifically list sentencing as a hearing for which an order can be made. The listed qualifying hearings include trials, hearings which relate to the custody of a young person and the review of youth sentences. Interestingly, McMurtry CJO included “a hearing related to the custody of a young person, including sentencing” as a stage at which an appointment of counsel can be made. The reasoning behind the decision to include sentencing hearings involving custody is not set out in the judgment.
[11] S. 25(3)(e) YCJA provides for an order appointing counsel for a review of a youth sentence. The review of the sentence may involve custody but non-custodial dispositions may also be reviewed such as under s. 59 YCJA. It is curious that an order appointing counsel is available for the review of sentence and not the sentencing itself. It would not be anomalous however if sentencing were considered to be part of the trial process.
Is the arraignment, finding of guilt and sentencing a trial?
Legislation
[12] Pursuant to s. 142 of the YCJA, the provisions of Part XXVII, and any other provisions of the Criminal Code that apply in respect of summary conviction offences and that relate to trial proceedings, apply to proceedings under the YCJA.
[13] S. 785 of the Criminal Code in Part XXVII, which defines certain terms, sets out that:
“Trial” includes the hearing of a complaint
[14] S. 606 Criminal Code sets out the procedure on arraignment which includes the court accepting a guilty plea.
606 (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.
(1.1) A court may accept a plea of guilty only if it is satisfied that the accused
(a) is making the plea voluntarily; and
(b) understands
(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and the prosecutor.
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
(2) Where an accused refuses to plead or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty.
(3) An accused is not entitled as of right to have his trial postponed but the court may, if it considers that the accused should be allowed further time to plead, move to quash or prepare for his defence or for any other reason, adjourn the trial to a later time in the session or sittings of the court, or to the next of any subsequent session or sittings of the court, on such terms as the court considers proper.
(4) Notwithstanding any other provision of this Act, where an accused or defendant pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the court shall find the accused or defendant not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court.
(4.1) If the accused is charged with a serious personal injury offence, as that expression is defined in section 752, or with the offence of murder, and the accused and the prosecutor have entered into an agreement under which the accused will enter a plea of guilty of the offence charged — or a plea of not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence — the court shall, after accepting the plea of guilty, inquire of the prosecutor if reasonable steps were taken to inform the victims of the agreement.
(4.2) If the accused is charged with an offence, as defined in section 2 of the Canadian Victims Bill of Rights, that is an indictable offence for which the maximum punishment is imprisonment for five years or more, and that is not an offence referred to in subsection (4.1), and the accused and the prosecutor have entered into an agreement referred to in subsection (4.1), the court shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement
[15] When a young person pleads guilty, s. 36 YCJA requires the trial judge to determine whether the facts support the charge. The wording of s. 36 YCJA contemplates proceeding with “the trial” should the facts not support the charge.
36 (1) If a young person pleads guilty to an offence charged against the young person and the youth justice court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence.
(2) If a young person charged with an offence pleads not guilty to the offence or pleads guilty but the youth justice court is not satisfied that the facts support the charge, the court shall proceed with the trial and shall, after considering the matter, find the young person guilty or not guilty or make an order dismissing the charge, as the case may be. [emphasis added]
Case Law
[16] The case of R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368 established that, in deciding disputed facts in sentencing, the trial judge should not depart from the traditional criminal standard of proof beyond a reasonable doubt. The Crown argued that there was a sharp demarcation between the trial process and the sentencing process. The Court decided that this interpretation was artificial. Dickson, J. held at page 413,
Sentencing is part of a fact finding, decision-making process of the criminal law. Sir James Fitzjames Stephen, writing in 1863 said that “the sentence is the gist of the proceeding. It is to the trial what the bullet is to the powder” (quoted in Olah, “Sentencing: The Last Frontier of the Criminal Law” (1980), 16 C.R. (3d) 97, at p. 98). The statement is equally true today.
[17] Dickson, J. continues at pages 414 to 415;
It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.
To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. “It would appear well established that the sentencing process is merely a phase of the trial process” (Olah, supra, at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.
In S. v. Manchester City Recorder, [1969] 3 All E.R. 1230 the suggestion was made that a court might be functus officio in the use of its powers to convict or acquit, as distinct from its powers to sentence. Lord Reid found this proposition to be both novel and erroneous, adding at p. 1233:
In my judgment magistrates have only one officium—to carry the case before them to a conclusion. There is no reason to divide up their functions and hold that at some stage in the proceedings one officium comes to an end and another begins.
In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing. [emphasis added]
[18] It is clear is that the Supreme Court of Canada views the sentencing hearing to be part of the trial process. It is my view that the guilty plea, followed by a finding of guilt with all of the steps that that process entails, followed by sentencing is also a trial process.
When is a young person “at trial”?
[19] There was some discussion during this hearing about whether a young person should be considered to be at trial once EJS is denied by the Crown. In my view, this is not logical as s 25(3) and (4) YCJA would be meaningless if that were the case as set out in L.S. I agree with the reasoning of Jennis J. regarding whether the young person should be considered to be at trial merely upon stating their intention to have one. At para. 13 in R. v J.N., [2008] O.J. No. 920 (O.C.J.) (J.N.) Jennis J. states;
13 Both Crown and defence initially urged that the operative time for the term "at trial" commencing is when the young person expresses his desire to have a trial. That seems to me to be impractical and fraught with intellectual difficulties and linguistic and legal gymnastics which cannot enhance the administration of justice. Taken to its logical extreme, that process could commence the moment after the young person was charged and arrested and claimed to the police officer that he or she was "not guilty" and wished a trial. It seems to me there must be something more than the young person's desire to have a trial. The desire to have a trial cannot be equated to the process of being "at trial". There must be a legal step taken to commence that process.
In my view, a similar analysis would follow in the context of a guilty plea, finding of guilt and sentencing once EJS has been denied. There must be a legal step to commence the process. That step is the arraignment and plea.
When can the next step take place?
[20] Following the decision in L.S., provincial courts considered the meaning of “at trial” due to the considerable delay which would follow from orders being made on the date of the hearing of evidence. In order to prepare, defence counsel would need to start from the beginning, reviewing disclosure, having resolution meetings and pretrials and setting a new date for trial. Subpoenaed witnesses would be inconvenienced and court time wasted, resulting in Jordan concerns. The delay in proceedings would also contravene the principles of timeliness set out in s. 3 YCJA.
3(b) the criminal justice system for young persons must emphasize the following:
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;
[21] A contemplated solution to the delay problem was to allow a young person to enter a plea of not guilty early in the process so that the young person would be “at trial” and then schedule the hearing date so that counsel could be retained and instructed in a timely fashion. This suggestion was rejected in R. v. R.K.S. [2007] O.J. No.1255 (R.K.S.). Kukurin J. did not wish to stretch the meaning of the words “at trial” while at the same time recognizing the significant challenges which would result from such an interpretation. The solution was adopted in J.N. and R. v. R.R., 2008 CanLII 18004 (NL PC), 2008 CanLII18004 (NL PC) (R.R.), in which the Courts concluded that being at trial meant from the commencement of the trial process, which is the arraignment and the entering of the plea and that the plea could be taken early in the process.
[22] As Kukurin J. said in R.K.S., at para. 11
11 From my experience, if not from common sense, the earlier such "legal representation" comes on board, the better for all concerned - the young person, the court and the administration of justice. Young persons have no legal training. They are acknowledged by Parliament to be subject to developmental challenges [preamble to YCJA], greater dependency [section 3(1)(b)(ii) YCJA] and reduced level of maturity [section 3(1)(b)(ii) YCJA].
[23] I adopt the reasoning in J.N. and R.R. In my view, an early arraignment allowing for the application for an order for counsel is appropriate so that the young person is “at trial”. It allows for the logical and timely process of a matter from plea to conclusion of a trial. The same analysis would apply to guilty pleas which I have found to be a trial process. Upon entering a plea of “guilty”, a young person would be “at trial” and the Youth Court may consider an application for an order appointing counsel. The arraignment can take place early in the process and the finding of guilt and sentencing portions of the hearing may be adjourned to a later date.
Conclusion
[24] Upon J.B. entering his pleas of not guilty to the 10 charges of mischief, I will consider him to be at trial. Upon his request, I must direct that he be represented by counsel pursuant to s. 25 (4)(b) YCJA.
Released: March 25, 2019
Signed: Justice Harris Bentley