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An ongoing Ottawa case involves allegations of pimping, forcible confinement and sexual assault against several youths. The matter is currently proceeding in the Ontario Court of Justice before Judge alone. There was no preliminary inquiry. Tactically, it is my view that the matter would have been better run as a jury trial, or at the very least put to Superior Court. Had this election been made by any of the defence lawyers, all parties concerned would have had the benefit of a preliminary inquiry whereby all witnesses could have been cross-examined at length to determine the scope of their allegations and the bounds of their ability to recall, recount and recollect. While it is exceedingly rare to see, the Youth Criminal Justice Act does allow for the possibility of trial before judge and jury. This occurs only in limited circumstances. Specifically, the option of a preliminary inquiry and trial by jury manifests if, and only if the Crown makes an application for an adult sentence. It must first be pointed out, that there no such thing as a youth being tried in adult court. The court remains a youth court, whether or not the youth is tried by judge alone, or judge and jury. The court remains a youth court, but with the possibility of an adult sentence being imposed upon conviction. While it is extremely infrequently exercised, pursuant to the section 13 of the Youth Criminal Justice Act, if the Crown elects to proceed by indictment, and if the Crown is seeking an adult sentence for the youth, then the defence has the option to proceed to a preliminary inquiry and has the option of electing trial before a judge and a jury. That sections reads as follows:

When a young person elects or is deemed to have elected to be tried by a court composed of a judge and jury, the superior court of criminal jurisdiction in the province in which the election is made or deemed to have been made is deemed to be a youth justice court for the purpose of the proceeding, and the superior court judge is deemed to be a youth justice court judge.

The option of electing trial by jury trial on a youth matter is rare. First, the Crown must make an application to seek an adult sentence, pursuant to section 64(1) of the YCJA, which reads as follows:

The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years.

Notably, several factors must be present before the Crown is able to attempt to obtain an adult sentence. First, the Attorney General must consent. Second, before the Attorney General consents, the file must undergo an internal screening process, adding another layer of administrative protection. The consent of the Attorney General is not given lightly. The prospect of imposing an adult sentence on a youth is supposed to be a rare occurrence. Historically, this has been the case, though the line between youth and adult is arguably about to blur. Third, the young person must be potentially facing a sentence that may result in a period of more than two years had they been an adult. Fourth, the young person must be over the age of 14. This is somewhat of an anomaly, since the minimum age to charge a youth, is 12. Thus, Parliament, in its wisdom has deemed that those under 14 should never have adult sentences imposed regardless of the crime. That is the current state of the legislation today. If those foregoing factors are met, then the Judge must apply to law to see if the facts of the case merit an adult sentence. To this effect, upon application by the Crown for an adult sentence the Judge must apply section 72 of the YCJA, which reads:

The youth justice court shall order that an adult sentence be imposed if it is satisfied that the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and a youth sentence imposed in accordance with the purpose and principles [of the YCJA] and [a youth sentence] would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

Thus, one can see that there are numerous layers of protection afforded to a youth who faces potential adult jeopardy. Thankfully, when the prospect of an adult sentence looms, the defence is provided with one tactical advantage. Specifically, the right to request a preliminary inquiry and then ensuing right to trial before a judge and jury. A jury can be a double edged sword. Where issues of credibility are concerned and where there are valid triable issues (i.e. not fanciful or whimsical theories to advance on behalf of the defence), it is my view that the only way to proceed is in front of a jury. This is decided on a case by case basis, of course. Juries are composed of twelve members of the public who are able to apply their common sense and life experience to determine matters of credibility. Juries use their collective wisdom to determine matters of fact and have an innate ability to sense the slightest degree of insincerity on behalf of a complainant, or an accused. However, when an accused is facing adult jeopardy, the YCJA has given the defence tools to fully explore the evidence and deconstruct the allegations. It is my view, they should be used to their fullest.


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Paul Lewandowski Professional Corporation
200 Elgin St,
Ottawa, Ontario, Canada,
K2P 1L5