Right to Counsel
When a Young Person Has a Right to Counsel
A young person has the right, at any stage of the proceedings, to retain and instruct counsel without delay, and to exercise this
right personally. The right to counsel applies before and during the consideration of an extrajudicial sanction.
Young persons who are arrested or detained must be advised without delay about the right to counsel by either the arresting
officer or the officer in charge. The officer must also provide the young person with an opportunity to obtain counsel. It should be
noted that the right to counsel belongs to the young person — it is not exercised through a parent or guardian.
In addition to the obligations imposed on the police officer during arrest or detention, the YCJA requires that courts and
review boards presiding at various stages in the process advise the young person of the right to counsel, and provide him or her with
an opportunity to obtain counsel.
Upon Arrest or Detention
Once arrested or detained, a young person is to be advised without delay by the arresting officer or the officers in charge of his
or her right to counsel. The young person is also to be given a reasonable opportunity to obtain counsel
(subsection 25(2)). If the young person does
not have a lawyer at the first appearance before the court, the youth justice court judge or justice must inform the young person of
the right to retain and instruct counsel
(paragraph 32(1)(b)).
If the young person is not represented, before accepting a plea the court must:
- Ensure that the young person understands the charge
(paragraph 32(3)(a)).
- If applicable, explain the consequences of being liable to an adult sentence, and explain the process for applying for a youth
sentence (para. 32(3)(b)).
- Explain the plea options, and, if applicable, the election options
(paragraph 32(3)(c)).
If the court is not satisfied that the young person understands these matters, then the court must direct that the young person be
represented by counsel (subsection 32(5)).
Before a Young Person Makes a Voluntary Statement
The taking of statements from young persons is strictly governed. The provisions relating to statements are found in
section 146 of the YCJA. If these
provisions are not complied with, then the statement may not be admitted. This module is concerned strictly with how the right to
counsel relates to statements taken from young persons. A separate module deals specifically with the topic of evidence.
The following steps must occur before a young person makes a voluntary statement:
- The person to whom the statement is to be made must caution the young person that he or she has the right to consult counsel and
a parent or other appropriate adult
(subparagraph 146(2)(b)(iii)).
- The person to whom the statement is to be made must caution the young person that any statement he or she makes must be made in
the presence of counsel, a parent or other appropriate adult, unless the young person desires otherwise
(subparagraph 146(2)(b)(iv)).
- The young person must be given a reasonable opportunity to consult with counsel, a parent or other appropriate adult
(paragraph 146(2)(c)).
- If consultation with counsel, a parent or other adult occurs, the young person must be given a reasonable opportunity to give
the statement in the presence of the person with whom he or she has consulted
(paragraph 146(2)(d)).
For a more detailed discussion of statements, refer to the Evidence, Statements and Reports
module.
During Consideration of Extrajudicial Sanctions
A young person has the right to retain and instruct counsel before and during any consideration of an extrajudicial sanction by
the police officer or crown (subsection 25(1)).
Furthermore, a young person must be advised of the right to counsel and be given a reasonable opportunity to consult with counsel
before consenting to the application of an extrajudicial sanction
(paragraph 10(2)(d)).
At a Hearing
When a young person attends a hearing under the YCJA without a lawyer, the court or review board must advise the young
person of the right to counsel and must give the young person a reasonable opportunity to obtain counsel
(subsection 25(3)). This obligation is imposed
on the court or review board regardless of whether the young person has already been informed of his or her rights by a police
officer, or by any notice that the young person has received. The obligation provides an additional safeguard to the young person's
right to counsel.
The hearings that give rise to the obligation are listed in subsection
25(3) of the YCJA:
- pre-trial detention hearings;
- adult sentence hearings;
- trials;
- hearings to consider the application for a continuation of the custodial portion of a youth sentence;
- hearings to determine whether the young person has breached condition(s) of his or her community supervision;
- hearings to set the conditions of a young person's conditional supervision;
- hearings to determine whether the suspension of a young person's conditional supervision is appropriate;
- reviews of a youth sentence held before a youth justice court under the YCJA;
- reviews of the level of custody.
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