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Contact us for an initial consultation.

Stephen R. Biss

Barrister & Solicitor

303-470 Hensall Circle

Mississauga, ON

L5A 3V4

905-273-3322

biss@lawyers.ca

Youth Courts We Cover

We represent young persons at all GTA Youth Court Courthouses including Brampton, Milton, Orangeville, Guelph, and Toronto.

​© Copyright 2018 Stephen R. Biss, Barrister & Solicitor

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Right to Counsel and Section 25 Orders

Hire a lawyer privately before you go to Youth Court. I can be reached at 905-273-3322.

Young persons have a right to retain counsel, just like adults do. "Counsel" does not mean a counsellor, it means a lawyer. A lawyer is a barrister & solicitor, not a paralegal. The lawyer should be one with substantial experience in criminal law and particularly in Youth Court law. When police use the terminology "retain and instruct counsel without delay", they are not talking about holding on to something or teaching. Retain means to hire a lawyer. To instruct does not, in this context, mean to terach but rather to give directions to the lawyer as to what the client, (the young person, not the parent) wants the lawyer to do.

 

Young persons will always have more options if they privately retain lawyers rather than relying on  lawyers retained by Legal Aid certificate or by duty counsel. Lawyers paid by Legal aid certificate have unacceptable limits placed on the hours they can spend on their cases and on disbursements. Duty counsel have extreme limits on the amount of time they can spend with you on your case in the context of many other cases on any given day. Duty counsel have no time to get to know your real needs, strengths, and weaknesses.

 

If a young person absolutely cannot retain private counsel there is the Legal aid certificate system for serious offences. If a young person needs counsel independent of his or her parent (e.g. a parent who is trying to force the young person to enter a guilty plea) the Court can make an appropriate order under YCJA section 25.


There has been discussion about whether section 25 is being abused.​

 

 

 

Charter of Rights

 

Arrest or detention

 Everyone has the right on arrest or detention

  • (a) to be informed promptly of the reasons therefor;

  • (b) to retain and instruct counsel without delay and to be informed of that right; and

  • (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

 

 

 

Youth Criminal Justice Act

 

Right to counsel
  •  (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.

  • Marginal note:Arresting officer to advise young person of right to counsel

    (2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel.

  • Marginal note:Justice, youth justice court or review board to advise young person of right to counsel

    (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.

  • Marginal note:Trial, hearing or review before youth justice court or review board

    (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.

  • Marginal note:Appointment of 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.

  • Marginal note:Release hearing before justice

    (6) When a young person, at a hearing referred to in paragraph (3)(a) that is held before a justice who is not a youth justice court judge, wishes to obtain counsel but is unable to do so, the justice shall

    • (a) if there is a legal aid program or an assistance program available in the province where the hearing is held,

      • (i) refer the young person to that program for the appointment of counsel, or

      • (ii) refer the matter to a youth justice court to be dealt with in accordance with paragraph (4)(a) or (b); or

    • (b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, refer the matter without delay to a youth justice court to be dealt with in accordance with paragraph (4)(b).

  • Marginal note:Young person may be assisted by adult

    (7) When a young person is not represented by counsel at trial or at a hearing or review referred to in subsection (3), the justice before whom or the youth justice court or review board before which the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the justice, court or review board considers to be suitable.

  • Marginal note:Counsel independent of parents

    (8) If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of the parent.

  • Marginal note:Statement of right to counsel

    (9) A statement that a young person has the right to be represented by counsel shall be included in

    • (a) any appearance notice or summons issued to the young person;

    • (b) any warrant to arrest the young person;

    • (c) any promise to appear given by the young person;

    • (d) any undertaking or recognizance entered into before an officer in charge by the young person;

    • (e) any notice given to the young person in relation to 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); or

    • (f) any notice of a review of a youth sentence given to the young person.

  • Marginal note:Recovery of costs of counsel

    (10) Nothing in this Act prevents the lieutenant governor in council of a province or his or her delegate from establishing a program to authorize the recovery of the costs of a young person’s counsel from the young person or the parents of the young person. The costs may be recovered only after the proceedings are completed and the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed.

  • Marginal note:Exception for persons over the age of twenty

    (11) Subsections (4) to (9) do not apply to a person who is alleged to have committed an offence while a young person, if the person has attained the age of twenty years at the time of his or her first appearance before a youth justice court in respect of the offence; however, this does not restrict any rights that a person has under the law applicable to adults.