Crown Decision-Making Under the Youth Criminal Justice Act

Description of the Courts

1. Court Caseloads

The caseloads of the courts were markedly below normal during data collection. Because of this factor, Crown and defence counsel were asked for the typical time lags before the proclamation of the Youth Criminal Justice Act. Undue delay attributable to high caseloads was not mentioned. Trials were being set well within the customary limits. Trial dates were being set three to four months ahead in one Saskatchewan court and in about four weeks for cases being held in pre-trial detention. In the second, trials were scheduled within two to three months. In the three British Columbia courts,[4] it was estimated that trial dates were set within two to three months, and within one month for in-detention matters. In one court, priority cases such as assaults could have a trial date within six to eight weeks.

With the exception of one court, respondents said that there were ample numbers of prosecutors and members of the bench to deal with caseloads even before the Act's implementation. Only a few prosecutors cited heavy workload.

In most courts, therefore, court workload was manageable, backlog was non-existent, trial dates were being set in reasonable time frames, and court actors were not unduly stressed by case volume.

2. Charging Authority

In Saskatchewan, the police have the authority to lay charges,[5] although in complex matters the Crown may be consulted. The criteria used by Crown prosecutors to proceed with charges are “reasonable” likelihood of conviction and whether the prosecution is in the public interest.

In British Columbia, the police refer all cases to the Crown for a decision on charging.[6] The standard for prosecution in British Columbia is “substantial” likelihood of conviction, which is a higher standard than reasonable likelihood. Just as in Saskatchewan, public interest is the second criteria. For cases of high risk violent and/or dangerous offenders, the Crown may still proceed even though the above criteria are not met; in consultation with the Regional or Deputy Regional Crown Counsel, the Crown may proceed using the criterion of reasonable prospect of conviction.

3. The Key Actors

The Bench

Four of the five youth courts were physically located in buildings with adult courts and shared members of the bench with the adult criminal court. The fifth court, in downtown Vancouver, is a family court that also hears small claims and provincial traffic cases.

In Regina, one judge tended to hear most youth court cases. In Saskatoon, there were two judges who were responsible for two weeks of every month; other adult court judges rotated into the youth court for the rest of the time. About a dozen judges sat in the downtown Vancouver court. In Surrey, which has caseloads similar in size to Vancouver, two provincial court judges heard many of young offender matters although cases could be dealt with by any member of the bench. In Victoria, two judges generally sit youth court.

Crown Prosecutors

Short- and medium term assignment to youth court was the pattern in the youth courts studied, with the exception of downtown Vancouver and Victoria. That is, Crown prosecutors were not exclusively assigned to youth court, but when assigned – often for six to twelve months at a time – they spent most of their working day on young offender cases.

In Regina, one Crown was responsible for most routine activities such as bail hearings and sentencing on guilty pleas. The conduct of trials was rotated through the Crown's office; a variety of Crowns could be assigned to youth trials while also working on other matters. In Saskatoon, two prosecutors spent most of their time on youth matters and one courtroom was dedicated to youth cases. These prosecutors were often in the one courtroom – one prosecutor dealt with new arrests and the second handled adjournments and sentencing. In both Regina and Saskatoon, the Crowns were rotated through the youth court at reasonably lengthy intervals.

In the Vancouver Family Court, there are 12 Crown counsel who also prosecute provincial traffic offences; seven Crowns spend most of their time on youth and two others assist as needed. In Surrey, an administrative Crown counsel and one to two other Crowns deal with most youth cases with the other Crowns acting at trials. The administrative Crown rotates at annual (or longer) intervals. In Victoria, one Crown is mainly responsible for youth court unless there is a scheduling conflict.

On average, Crown prosecutors interviewed in the five communities had more than a dozen years of experience since being called to the bar and there was no difference between Saskatchewan and British Columbia.

Legal Representation

In the study courts, all or almost all young persons are represented either by retained or duty counsel at every stage of youth court proceedings, including bail hearings, sentencing and trials. Crown and defence counsel estimated that 99 to 100 percent of young persons had representation. Several mentioned that judges would not proceed without the presence of defence counsel.

Most legal aid and retained counsel are criminal lawyers who divide their time between youth and adult criminal court. In Saskatchewan, most representation is by legal aid staff who also act as duty counsel.[7] Counsel in private practice appointed under section 25 of the YCJA act for young persons when legal aid staff lack the time. In British Columbia, most defence were lawyers in private practice retained on a legal aid certificate; duty counsel were contracted on a weekly basis from private firms. Wards of the child protection agency were represented by an experienced lawyer on contract to the Ministry of Children and Family Development of British Columbia (MCFD). In all courts, very few young persons were represented by defence who had been retained and paid privately. In one Saskatchewan court, a defence counsel in private practice estimated that no more than 5 to 10 percent of cases retained counsel privately and the estimates were similar elsewhere.

The years of professional experience among defence was lower in B.C. than in Saskatchewan. In British Columbia, defence lawyers had an average of eight years since they had been called to the bar. In Saskatchewan, defence counsel had an average of over 20 years. This is probably because most Saskatchewan defence interviewed were employees of the provincial legal aid plan whereas in B.C. defence lawyers were in private practice, usually working on a legal aid certificate. Typically, more experienced lawyers in private practice do not work on legal aid certificates.

Other System Actors

In Saskatchewan, probation officers/youth workers and judicial interim release (JIR) personnel are in or near the courtroom much of the time while youth court is in session. Crown prosecutors commented on the advantages of this practice – these workers often have personal knowledge of the accused. Some defence counsel were less enthusiastic because personal knowledge could work to the disadvantage of their clients.

In Vancouver, staff of the John Howard Society are available to explain court proceedings to young persons and their parents. In Surrey and Victoria, youth workers sit in youth court to monitor proceedings and assist the Crown with information about the youth, the programs in which they have been involved and the availability of other resources.

  • [4] A defence lawyer in one court commented that “this is the most efficient court house that I have seen in the Lower Mainland”.
  • [5] Prince Albert has the only pre-charge screening program in the province (Saskatchewan Justice, 2003, 27).
  • [6] Prosecutors in British Columbia are termed Crown Counsel. For the purposes of this report, the terms prosecutor or Crown prosecutor is also used.
  • [7] There is also an experienced paralegal who deals with most matters except trials.

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