Provincial Directors

Marginal note:Powers, duties and functions of provincial directors

22. The provincial director may authorize any person to exercise the powers or perform the duties or functions of the provincial director under this Act, in which case the powers, duties or functions are deemed to have been exercised or performed by the provincial director.

PART 3JUDICIAL MEASURES

Consent to Prosecute

Marginal note:Pre-charge screening

• 23. (1) The Attorney General may establish a program of pre-charge screening that sets out the circumstances in which the consent of the Attorney General must be obtained before a young person is charged with an offence.

• Marginal note:Pre-charge screening program

  (2) Any program of pre-charge screening of young persons that is established under an Act of the legislature of a province or by a directive of a provincial government, and that is in place before the coming into force of this section, is deemed to be a program of pre-charge screening for the purposes of subsection (1).

Marginal note:Private prosecutions

24. No prosecutions may be conducted by a prosecutor other than the Attorney General without the consent of the Attorney General.

Right to Counsel

Marginal note:Right to counsel

• 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.

• 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.

Notices to Parents

Marginal note:Notice in case of arrest or detention

• 26. (1) Subject to subsection (4), if a young person is arrested and detained in custody pending his or her appearance in court, the officer in charge at the time the young person is detained shall, as soon as possible, give or cause to be given to a parent of the young person, orally or in writing, notice of the arrest stating the place of detention and the reason for the arrest.

• Marginal note:Notice in other cases

  (2) Subject to subsection (4), if a summons or an appearance notice is issued in respect of a young person, the person who issued the summons or appearance notice, or, if a young person is released on giving a promise to appear or entering into an undertaking or recognizance, the officer in charge, shall, as soon as possible, give or cause to be given to a parent of the young person notice in writing of the summons, appearance notice, promise to appear, undertaking or recognizance.

• Marginal note:Notice to parent in case of ticket

  (3) Subject to subsection (4), a person who serves a ticket under the Contraventions Act on a young person, other than a ticket served for a contravention relating to parking a vehicle, shall, as soon as possible, give or cause to be given notice in writing of the ticket to a parent of the young person.

• Marginal note:Notice to relative or other adult

  (4) If the whereabouts of the parents of a young person are not known or it appears that no parent is available, a notice under this section may be given to an adult relative of the young person who is known to the young person and is likely to assist the young person or, if no such adult relative is available, to any other adult who is known to the young person and is likely to assist the young person and who the person giving the notice considers appropriate.

• Marginal note:Notice on direction of youth justice court judge or justice

  (5) If doubt exists as to the person to whom a notice under this section should be given, a youth justice court judge or, if a youth justice court judge is, having regard to the circumstances, not reasonably available, a justice may give directions as to the person to whom the notice should be given, and a notice given in accordance with those directions is sufficient notice for the purposes of this section.

• Marginal note:Contents of notice

  (6) Any notice under this section shall, in addition to any other requirements under this section, include

  • (a) the name of the young person in respect of whom it is given;

  • (b) the charge against the young person and, except in the case of a notice of a ticket served under the Contraventions Act, the time and place of appearance; and

  • (c) a statement that the young person has the right to be represented by counsel.

• Marginal note:Notice of ticket under Contraventions Act

  (7) A notice under subsection (3) shall include a copy of the ticket.

• Marginal note:Service of notice

  (8) Subject to subsections (10) and (11), a notice under this section that is given in writing may be served personally or be sent by confirmed delivery service.

• Marginal note:Proceedings not invalid

  (9) Subject to subsections (10) and (11), failure to give a notice in accordance with this section does not affect the validity of proceedings under this Act.

• Marginal note:Exception

  (10) Failure to give a notice under subsection (2) in accordance with this section in any case renders invalid any subsequent proceedings under this Act relating to the case unless

  • (a) a parent of the young person attends court with the young person; or

  • (b) a youth justice court judge or a justice before whom proceedings are held against the young person

    • (i) adjourns the proceedings and orders that the notice be given in the manner and to the persons that the judge or justice directs, or

    • (ii) dispenses with the notice if the judge or justice is of the opinion that, having regard to the circumstances, the notice may be dispensed with.

• Marginal note:Where notice is not served

  (11) Where there has been a failure to give a notice under subsection (1) or (3) in accordance with this section and none of the persons to whom the notice may be given attends court with the young person, a youth justice court judge or a justice before whom proceedings are held against the young person may

  • (a) adjourn the proceedings and order that the notice be given in the manner and to the persons that the judge or justice directs; or

  • (b) dispense with the notice if the judge or justice is of the opinion that, having regard to the circumstances, the notice may be dispensed with.

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

  (12) This section does 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.