When is a Young Person "At Trial" Under the YCJA?

X.C.’s Case 

The young person in this case, X.C., was denied legal aid (R. v. X.C. at para 4). X.C. sought the appointment of counsel under s. 25(4) of the YCJA to contest his single charge of breaking and entering (R. v. X.C. at para 4). In making this application to court, X.C.’s would-be counsel argued that X.C. is presumed innocent and intends to contest his charges; and although this is his right under the Canadian criminal system, it is difficult for anyone, let alone a young person, to navigate the criminal justice system alone (R. v. X.C. at para 9). Counsel further argued that X.C. comes from a marginalized background, creating additional barriers which he may face in the criminal justice system (R. v. X.C. at para 10). 

Justice Jones granted X.C’s requested relief (R. v. X.C. at para 6), and in his reasons, provided clarification of the definition of “at trial”. Considering the volume of cases in youth criminal court, many involving those seeking counsel under section 25(4), Justice Jones provides important guidance towards section 25(4) application, which may help reduce the volume of self-represented youth criminal cases. 

In Ontario, where a young person is denied a legal aid certificate and needs services beyond those of duty counsel, they may apply under  Section 25(4) of the YCJA for court-ordered counsel (R. v. X.C. at para 25). However, as the Ontario Court of Appeal first held in R. v. L. S., 2006 CanLII 40609 (Ont. C.A.), a young person must first decide that they want to dispute their charges before they can submit a section 25(4) application (R. v. X.C. at paras 28-29). However, in the years following that decision, there has been ongoing debate in the jurisprudence regarding the precise meaning of “at trial” in the context of the YCJA (R. v. X.C. at para 29).    

In the case of R. v. R.K.S., [2007] O.J. No. 1255, it was held that “at trial” indicates a later stage of a criminal case, although it was acknowledged that identifying the exact start of that stage is difficult (R. v. X.C. at para 29). However, in R. v. J.B., 2019 ONCJ 997, the court concluded that a young person is only at trial once they have been arraigned and entered a plea (R. v. X.C. at para 30). Justice Jones declined to follow these precedents, stating that these cases “mistakenly imposed undue limitations on the authority of youth justice courts to issue YCJA section 25(4) orders. They did not engage with the entire statutory scheme of the YCJA or Canada’s international law commitments. Additionally, there have been significant developments in the Supreme Court’s jurisprudence since these decisions were rendered” (R. v. X.C. at para 31). 

In rejecting the earlier precedents, Justice Jones finds that a young person is “at trial” once they have decided they want to “contest the charges and will not be accepting any form of resolution that duty counsel could assist them with. “(R. v. X.C. at para 46). In support of his conclusions, Justice Jones points to the wording of section 25, noting that young people are entitled to retain counsel at any stage of their proceedings (R. v. X.C. at para 34; YCJA s. 25(1)). Looking to the YCJA’s preamble, Justice Jones emphasizes the importance that young people are treated fairly throughout their criminal process (R. v. X.C. at para 38; YCJA at Preamble). This sentiment not only aligns with the YCJA, but broader international laws like the UNCRC (R. v. X.C. at paras 38; 41).  

Justice Jones further notes the “key objective of the YCJA is to ensure that young persons are represented by counsel, in one form or another, throughout all stages of the criminal justice process” (R. v. X.C. at para 42). Denying a young person their section 25(4) application can have severe adverse consequences; these young people have already been denied legal aid and duty counsel can only do so much – section 25(4) is their last chance at retaining a lawyer (R. v. X.C. at para 5). He notes concern at the impact of denying a young person their right to legal representation, which might lead them to abandon their right to a trial, and to plead guilty just to bring matters to a conclusion (R. v. X.C. at para 43). Furthermore, he states the practical barriers created where lawyers who might otherwise be tentatively prepared to accept an offer of representation may decline, knowing the young person may not be able to retain counsel any time soon, due to not yet being “at trial” (R. v. X.C. at para 45). Reviewing the disclosure materials alone in most youth cases will require a considerable amount of time and effort, subsequently discouraging lawyers from representing vulnerable youth, adding hardship to the already overburdened youth criminal justice system (R. v. X.C. at para 45). As it is not possible to separate the pre-trial and trial phases, the artificial distinction of “at trial” should no longer be drawn (R. v. X.C. at para 45).  

Indeed, while there may be circumstances where a young person intends to accept responsibility from the moment they are charged with a relatively minor offence, in instances where a youth is unsure how to proceed or if they have very serious charges, the default starting place should and shall be that they gain access to counsel at an early enough stage in their proceeding. This allows the young person to be supported with the review of disclosure, considering a plea, negotiations with the Crown at a Crown Pre-Trial and at any Judicial Pre-trials. Implicit within section 24(5) is that a young person can change their mind at any point about proceeding with a trial. The case management stage allows a young person the “right to review the Crown’s evidence against them and make strategic decisions with the advice of counsel” (R. v X.C. at para 57). With the advice of a lawyer, a young person may change their mind and choose to pursue extra-judicial sanctions. The point is that with counsel retained, a young person can come to this decision with legal advice. Subsequently, this ensures the spirit and intent of the YCJA is adhered to, and young people are afforded special protection and support, given their inherent vulnerability.  

Conclusion 

Justice Jones’ analysis of section 25(4) in R. v. X.C. highlights many of the issues within the youth criminal justice system which impact access to justice. Justice Jones’ decision opens the door to greater access to justice for vulnerable young people by clarifying that a young person is “at trial” once they choose to contest their charges. Notably, Justice Jones reminds counsel in obiter that section 25(4) applications should be submitted as written applications to address the volume of cases heard daily in youth criminal court. In sum, Justice Jones has established a positive, youth-centered precedent for young people who find themselves before the youth criminal justice system.  

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