Legal Rights of Youth

In Depth

What is the Charter of Rights and Freedoms?
The Charter of Rights and Freedoms is legislation that sets out the rights and freedoms of every Canadian under the law, including legal rights.

What rights do youth have when stopped by the police?

The police can talk to anyone out in public, usually the youth can decide whether or not they want to stay with the police or leave. However, the police have the right to stop a youth and keep the youth with them for a certain amount of time if they have objective reasons (articulable cause) to investigate the youth’s participation in a crime or to arrest them for a crime. Objective reasons are based on facts, not on a whim or desire. However, if a youth is driving, the police can stop the youth for all sorts of reasons such as checking to make sure all passengers are wearing seatbelts.

When police stop a youth:

  • They usually ask the youth to give his or her name and address.
  • If the youth is driving, they ask to see the driver’s license and insurance.
  • Asking for a name and address or a license and insurance is not considered a "search."

What does the Charter say about being searched?
Section 8 of the Charter of Rights and Freedoms says: Everyone has the right to be secure against unreasonable search and seizure. This section guarantees a general right to be secure from unreasonable search.

Police may search a person and their possessions if they have objective reasons to believe that the person may have committed a crime. In these cases, police must be able to prove in court that the search was reasonable. It may be reasonably necessary in the circumstances for police to search a bag, especially if the police are concerned for their own safety. Police can also search someone if that person consents to being searched. You do not have to consent and you should tell the police if you do not consent. However, you should not resist a search if the police insist on searching you as you could be charged with a separate offence of resisting arrest. Just tell them you do not consent and tell a lawyer about what happened.

 

What rights does a youth have when arrested?
If the youth has been arrested, the police must provide the youth with the following information:

  • The reasons for the arrest
  • The right to remain silent
  • The fact that everything the youth says may and will be held against him/her in any subsequent proceedings
  • The youth’s right to retain and instruct counsel
  • The right to contact his/her parents or other appropriate adult
  • The possibility of contacting counsel when he/she arrives at the police station
  • The possibility of obtaining the assistance of counsel free of charge
  • The right to contact any of these persons in private
  • The right to have the persons contacted present during any questioning by the police

The police should also assist the youth in contacting any of these people

How must the police give this information?
The police must give this information in a language the youth understands and check that the youth has in fact understood the nature of his/her rights.

Can a youth waive (give up) his or her rights?
Youth can waive (give up) their rights under the YCJA. It is the decision of the youth whether or not to give up his or her rights.

When can a youth be photographed and fingerprinted?
If a youth has been charged with a serious crime (an indictable offence), the youth can be photographed and fingerprinted.

Can a youth be held in custody while waiting for trial?
Yes, but there is a presumption against pre-trial detention.  A youth will only be detained if the Court is satisfied that the youth has either committed a serious offence or has a history that shows a pattern of outstanding charges or findings of guilt.  It must also be proven that, if released, the youth will either:

  • Not appear in court,
  • Commit a serious offence, or
  • That it is necessary to detain the youth to maintain confidence in the administration of justice.

Lastly, the Court must be satisfied that there are no conditions of release that would meet these concerns.

If the Court does decide to release the youth, any conditions they impose must be strictly related to the offence and criminal justice purposes. They must not be too restrictive and the youth must reasonably be able to comply with them. Release conditions cannot be used as replacements for child protection purposes, mental health services or other more appropriate social measures.

What rights does a youth have during an extrajudicial measure or in court?
Youth have the right to:

  • Retain counsel (lawyer) and have that counsel present
  • Be dealt with in a timely manner
  • Have a trial to determine guilt before any sentence is considered

When can a youth call a lawyer?
Youth have the right to a lawyer. The lawyer can be present at all of the youth’s dealings with the justice system. This includes:

  • When the youth is questioned on arrest
  • When the youth is involved in an alternative to the formal court process
  • When the case goes to trial

A youth can always have a lawyer if the case goes to court. The youth can get a lawyer through a legal aid program if one is available, or the judge will appoint a lawyer.

What do judges need to consider when sentencing?
The sentence imposed against a youth charged under the YCJA must reflect the seriousness of the offence.  The YCJA provides a detailed list of principles for the Judge to consider.  The Court must also take into account the needs of Indigenous youth and youth with special requirements.