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  • Writer's pictureMichael Coristine

The tragic death of Ken Lee shines the spotlight on our youth justice system in Canada

*cover photo source: CTV News Toronto

**above photo source: gofundme

The recent stabbing death of Ken Lee, a homeless man in Toronto has been amply covered by Toronto’s usual solid group of news sources (links below). Police have officially charged eight teenage girls aged 13-16 with murder, alleging that they swarmed and stabbed Mr. Lee in an argument over alcohol. While cases such as this are always newsworthy, criminal courts all across Ontario are flooded on a daily basis by youth who are charged with a wide range of serious offences. The vast majority of those cases do not make the news but are nonetheless extremely serious for the youth who are charged, as well as their families. I have often been asked about the various complexities of our youth justice system, initially as a Crown Attorney and now as a criminal defence lawyer. The purpose of this article is to hopefully answer some of those questions with a general overview of the youth justice system in Canada. I will also offer my thoughts on how the trial regarding Mr. Lee's death will likely proceed.

Who is considered a youth according to the law in Canada?

The Youth Criminal Justice Act (YCJA) is the governing legislation in Canada for all young persons who are at least 12 but under 18 years old, and who are alleged to have committed criminal offences. One essential principle behind the YCJA states that “the youth justice system is intended to protect the public by (i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons, and (iii) supporting crime prevention by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour.” In short, the law recognizes that young persons sometimes make bad choices, are not always conscious of the impact of their actions, and are often deserving of second chances to prevent them from engaging in an endless cycle of crime that will carry into adulthood.

Can the media publish the name of a youth who is charged?

The YCJA expressly prohibits the publication of a young person’s name and other identifying details once that young person has been criminally charged. The main reason, as articulated by The Supreme Court of Canada in 2005, is that “protecting the privacy interests of young persons serves rehabilitative objectives and thereby contributes to the long-term protection of society”. Of course, as with all areas of law there are rare exceptions to the publication ban, such as to ensure public safety or if the young person is eventually sentenced as an adult (more on that below).

Can a youth be denied bail?

The short answer is yes. The YCJA works in tandem with the Criminal Code in terms of governing the youth bail system. As a starting point, a court can only deny bail to a youth accused where the young person has been charged with a serious offence (punishable by 5 years jail or more for adults) or if he or she has a history that indicates a pattern of either outstanding charges or findings of guilt. If one of the two conditions is met, the court must then go on to consider whether any proposed bail plan of supervision can address three potential concerns: i) that the youth will attend court as required, ii) that the youth does not represent a substantial likelihood to endanger the safety of the public by committing a serious offence, or iii) that the release of the youth will not cause the public to lose confidence in the administration of justice (note – this “tertiary” concern is only applied to youth in exceptional circumstances). It is initially up to the Crown Attorney to decide whether or not to oppose bail and the Crown must provide a basis to deny bail (e.g., a concern that the accused represents a danger to the public). If the matter proceeds to a bail hearing , and assuming the Crown Attorney still opposes bail after all the evidence is heard, the court must finally determine on a balance of probabilities whether the proposed bail plan can address all of the concerns cited by the Crown.

How does the court determine bail conditions?

In general, a court must exercise restraint and can only impose bail conditions on a youth where: i) the condition is necessary to ensure the young person’s court attendance or for the protection or safety of the public, ii) the condition is reasonable having regard to the circumstances of the offending behaviour; and iii) the young person will reasonably be able to comply with the condition.

The exact nature of the bail conditions will vary on a case by case basis, depending on the nature of the charges, the potential witnesses, and/or the evidence presented at the hearing. Common examples of conditions include "no contact" with the complainant(s)/alleged victim(s) and "do not attend" at a particular location where the alleged offence occurred.

Can youth charges be resolved without a trial or guilty plea?

Yes. The YCJA allows for the imposition of extrajudicial sanctions (EJS) in appropriate cases – that is where the young person has been charged with a non-violent offence and has not been previously found guilty of an offence. EJS consist of non-court measures designed to hold young persons accountable for criminal acts without going to jail or otherwise having a more serious entry on a criminal record. Examples of EJS include an apology to the victim, community service work, restitution, participation in supportive programming, drug/alcohol treatment, and/or crime prevention projects. Upon successful completion of the agreed upon EJS, the Crown will promptly withdraw the charges. Note that, although EJS will not count as a criminal conviction, it can still be used against the youth if he or she is arrested on new charges within two years (more on that below).

Who decides if a youth is eligible for EJS?

The Crown in its sole discretion decides who gets offered EJS. As a general rule, the Crown can offer EJS for low level offences such as theft, mischief, simple assault, and drug possession. That is not to say more serious offences cannot be approved for EJS, but it will depend on the circumstances of a given case. All young persons who have been approved for EJS by the Crown Attorney will either be referred directly to the service provider by the Ministry of Children, Community and Social Services (MCCSS) Provincial Director or directly by the Crown Attorney, as per local practice.

Can a youth be tried as an adult?

Kind of. Our system in Canada is different from the United States where youth can be tried as an adult and effectively be subject to the same trial and sentencing procedures. Also unlike the United States, a young person in Canada cannot be tried alongside an adult co-accused. In Canada, a young person will always face trial in a designated youth court, and except in rare circumstances, the trial will take place before a judge sitting alone. As we will see below, a youth can be subject to an adult sentence where certain criteria are met.

Can a youth be sentenced to jail?

Yes. Jail is available under the YCJA if the youth has been found guilty of a violent offence, previously failed to comply with youth sentences, has a particular pattern of reoffending, or the circumstances of the offence are sufficiently aggravating. In most of those scenarios, the Crown will seek a jail sentence, especially if the youth is convicted after a trial as opposed to pleading guilty earlier in the process. As with all sentencing decisions, only a judge can make the ultimate decision as to whether jail is necessary.

Can a youth be sentenced as an adult?

Yes. If a youth is at least 14 years of age and is found guilty of an offence that is punishable by a sentence of at least two years’ jail, the Crown can apply to the court for an adult sentence. However, the Crown usually will only pursue an adult sentence for extremely serious charges such as murder, manslaughter or aggravated sexual assault. It is ultimately up to the judge whether to grant an adult sentence. Even if given an adult sentence, such as “life”, young persons have shorter periods of parole eligibility.

Is a youth criminal record permanent?

It depends. Actual findings of guilt will remain on a criminal record for anywhere from two months to five years before eventually being “inaccessible” (i.e. cannot be used in new criminal proceedings against the individual except in exceptional circumstances). It is important to note that even non-court resolutions such as EJS will remain "accessible" and can be used in subsequent court proceedings for up to 2 years. So, if you received EJS in 2022 for an assault, but you are charged with a new assault in 2023, the Crown at the bail hearing can cite your prior assault charges as a reason to have you denied bail. Finally, the YCJA states that any findings of guilt for a young person will become permanent if the person is convicted as an adult before the expiry of that particular youth entry on the record. So it is particularly critical for youth who are caught up in the justice system to get on the right path before turning 18.

What will happen to the girls charged with the murder of Ken Lee?

First, a disclaimer - I am not involved with the case and have no direct knowledge of the evidence.

I note that bail has already been granted for at least one accused. I would bet that any of the co-accused who has a suitable plan of release and does not have a particular troubling criminal record or multiple sets of serious outstanding charges will also be granted bail (either on consent of the Crown or by the court after a hearing).

After the bail stage is over, the Crown will begin the long and difficult task of reviewing all of the evidence gathered by Toronto Police to try to develop a coherent theory of what exactly happened. It is safe to assume that the evidence will consist of eye witness statements, video evidence from nearby locations, and possibly some forensic evidence such as DNA or fingerprints (unlike in shows like CSI, compelling forensic evidence is not always found at the scene of the crime). Based on the evidence in its possession, the Crown could form the belief that not all of the individuals charged played an equal role in the death of Mr. Lee. Perhaps some played a minimal role or no role at all. The Crown might then be in a position to offer lesser resolution offers to certain accused. Even someone who played a central role in the death of Mr. Lee could still want to avoid a trial and The Crown If the matter proceeds to trial, the Crown will join all the co-accused together to prevent inconsistent verdicts and to conserve resources. I would also assume that the Crown will pursue adult sentences upon conviction, particularly if convicted of murder or manslaughter. Beyond that, everything at the bail stage is covered by the publication ban referred to above. More details will emerge once the matter proceeds to a trial, however we will likely not learn the names of any of the accused until/unless there are convictions and adult sentences are given.

Where can I read more about the case involving Mr. Lee's death?

To get up to speed on the case, please refer to the following pieces from some of Toronto’s more notable news sources:

Where can I read more about youth justice in Canada?

Please refer to the following links for more information about youth justice in Canada:

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