Zora , the Charter , and the Youth Criminal Justice Act : Defending the Rights of Youths is the Responsibility of all Court Participants

Abstract

In R v Zora, the Supreme Court of Canada underscored the responsibility of all participants—the defence, the Crown, and the presiding judge—to uphold section 11(e) of the Charter. While the discussion in Zora was within the context of the bail system, there is no reason that the notion that all court actors bear a responsibility to uphold the Charter does not apply more broadly throughout criminal law. This essay posits that, like in Zora, the same broad, multi-actor responsibility extends to all Charter rights and that these shared responsibilities are especially critical when dealing with the rights of youth.

For more than a century, Canada has dealt with youth criminal matters separately from adults. This is partly due to the inherent and heightened vulnerability of young people that come before the court. The enhanced procedural protections of the Youth Criminal Justice Act (“YCJA”) and the careful attention to the Charter rights of young people are central to the proper functioning of youth court system in Canada.

The purpose of this essay is to embark on a broad exploration of common Charter considerations in the practice of youth criminal justice and to tie these Charter considerations to the SCC’s message in Zora—that all court participants bear a responsibility to uphold the rights of youths. The topics covered herein represent a non-exhaustive list of Charter issues that arise within youth proceedings. The focus is on issues unique to youth criminal justice, to the extent that that is possible.

While this essay primarily addresses sections 7, 9, 11, 12 and 15, it is important to note that youths regularly face the same issues as adults that fall under other sections of the Charter, particularly section 8. However, given that the focus of this work is on the unique rights or interpretations of rights afforded to youths, Charter issues that apply equally to all accused, regardless of age, are not covered in this essay. While section 8 concerns are routinely raised in youth criminal proceedings, their substance is not sufficiently distinct from adult matters to be addressed herein.

Ultimately, this essay seeks to convey the urgent message that the defence of the Charter rights of youth is crucial to the healthy functioning of a youth criminal justice system, and that all participants are obligated to work towards that purpose.