Justice For Children and Youth (JFCY)

JFCY blog has migrated to www.jfcy.org

2014-11-03T16:51:00.000-05:00

Justice for Children and Youth is excited to announce that our website has been redesigned to include our social media feeds and that the JFCY blog has now been merged with our main website. This JFCY blog will no longer be used.

Please visit our website at www.jfcy.org

The new look:

Join us for our AGM & Fundraiser on International Child Day - November 20, 2014

2014-10-28T12:05:00.001-04:00

It is that time of year when we reach out - to invite you to celebrate, and ask for your support in meeting the needs of our vulnerable clients.

Over 75% of homeless kids in Toronto are victims of crime in a given year. They need your help.Please join Justice for Children and Youth to help Kids in crisis.

Our AGM at 6:30 pm, followed by

Our Annual Fundraising event

On: Thursday November 20th at 7:30 pm

At: The Loft Raum - 66 Gerrard Street East

Hors d’oeuvres, drinks, a silent auction, and more – something for everyone!

Live Music by Jen Shaffer and the Shiners

All proceeds from the event will help support invaluable programs such as Street Youth Legal Services (SYLS).

For more information, visit our JFCY Benefit page: http://jfcy2014.wix.com/jfcybenefit

PRESS RELEASE: Conservative Government’s last minute appeal of Federal Court ruling on refugee health cuts prolongs unnecessary suffering

2014-10-03T17:03:00.003-04:00

TORONTO, ON – October 1, 2014 – At the very last legal minute, the Conservative Government has appealed the Federal Court decision on refugee health care to the Federal Court of Appeal. Canadian Doctors for Refugee Care (CDRC), the Canadian Association of Refugee Lawyers (CARL), and Justice for Children and Youth (JFCY), all parties to the original court action, denounced the government’s decision today as cynical and irresponsible.

"It's another sad day for refugees”, said Dr. Philip Berger, founding member of Canadian Doctors for Refugee Care and Medical Director, Inner City Health Program at St. Michael’s Hospital. “The Conservative Government is recklessly choosing to let vulnerable people, including pregnant women and ill children, suffer rather than accept the very clear and comprehensive decision of the court".

On July 4, Justice Mactavish of the Federal Court ruled that the federal cabinet’s cuts to refugee health care were “cruel and unusual treatment” and thus a violation of s. 12 of the Canadian Charter of Rights and Freedoms. The court also ruled that the health cuts were inequitable and discriminatory, and therefore breached the Charter’s s.15 equality guarantee.

“The government is in denial”, added Lorne Waldman, President of CARL and lead counsel on the case. “The factual conclusions of the court were clear: before the cuts, refugees received no more than basic health care; secondly, the cuts applied to all refugees save Government Assisted Refugees, not only fraudulent claims, as the government alleged; finally, the cuts put lives at risk. The government’s bafflegab about cutting health care to keep fraudulent refugees out of Canada, was exactly that – bafflegab. It was a smokescreen for a wrong-headed policy and the Federal Court shot it down.”

This latest government action is particularly curious given a recent Forum opinion poll revealed Canadians are not in favour of providing refugees with less access to health care.
Mitchell Goldberg, Vice-president of CARL called the government’s decision to appeal shockingly cynical. “They know the health cuts put lives at risk. Rather than reinstating the refugee health program, they delayed their appeal to the last minute. What part of ‘lives at risk’ do they not understand?”

The government has also asked the Court of Appeal to stay the court order until the appeal is decided which means many more months where refugees continue to be denied health care. The group plans to vigorously oppose the government’s stay motion, as well as its appeal.

“The government knows it is wrong on this issue” said Dr. Meb Rashid, founding member of Canadian Doctors for Refugee Care and medical director of the Crossroads Clinic at Women's College Hospital. “More than 20 national health organizations and every provincial health minister representing various political parties have called on the government to reverse their dangerous cuts. What will it take for the Conservative Government to listen?”

-30-

For further information contact:

Lorne Waldman (CARL): 416.254.4590 | lorne@lornewaldman.ca

Mitchell Goldberg (CARL en français): 514.844.7528 | mitchell.goldberg@gmail.com

Christopher Holcroft (CDRC): 416.996.0767 | Chris_Holcroft@yahoo.com

Emily Chan (JFCY): 416-920-1633 | chane@lao.on.ca

"Especially and Particularly": How The Charter Rights of Children Are Finally Being Granted Unique Consideration By The Courts

2014-09-09T13:33:00.000-04:00

Written by JFCY guest blogger: Brock Jones, Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. This is written in a personal capacity and does not reflect the views of the Attorney General of Ontario nor the Office of the Crown Law Criminal.

Should children be entitled to different constitutional protections from the courts than similarly situated adults?

Canadian law has long recognized the inherent vulnerability of children and the need to provide them with particular protections in a variety of contexts. Yet, surprisingly, the courts have been reluctant to explicitly hold that the Charter of Rights and Freedoms bestows upon children any enhanced constitutional protections. For example, over 20 years ago, in R v M. (G.C.), the Ontario Court of Appeal ruled that young persons are not to be granted a “special constitutional guarantee” which would differ in substance to that available to adults.

Yet two recent judgments – decided in very different contexts – may signal a tipping point has been reached where courts are finally willing to recognize that violations of children’s constitutional rights should be viewed differently – and inevitably more significantly – than those of adults. This blog post will address the Ontario Court of Appeal’s decision in R. v S.B. 2014 ONCA 576 (decided under s. 11(e) of the Charter) and the Federal Court’s decision in Canadian Doctors for Refugee Care v Canada (Minister of Citizenship and Immigration) 2014 FC 651 (decided in part under s. 12 of the Charter) and their potential implications.

R v SB 2014 ONCA 576

On April 3, 2011 a search warrant was executed on S.B.’s residence. Two loaded guns were found in his closet. He was arrested and held for a bail hearing. The case was adjourned, first on consent, to April 6, and then over the objections of S.B.’s counsel to April 14. The Crown sought his detention, but he was released by the youth justice court. He was 17, and had no prior record.

At trial, S.B. claimed that his rights under section 11(e) of the Charter were violated. Section 11(e) provides that any person charged with an offence is “not to be denied reasonable bail without just cause.” The delay of 12 days before S.B. could have his bail hearing was found to violate this provision by the trial judge and this decision was upheld on appeal.

S.B. sought a stay of proceedings of the charges he faced as a remedy under section 24(1) of the Charter. While the Court of Appeal ultimately upheld the trial judge’s decision to decline such a remedy, the Court did make several findings worthy of note.

First, it held that the delay in obtaining a bail hearing for 12 days for S.B. undermined the integrity of the justice system. S.B.’s status as a young person, that he had no record, and that he “probably” would have been released in any event were noted as significant factors to weigh.[1]

The Court had particularly strong language for the conduct of the Crown, which had been responsible for much of the delay:

The Crown’s conduct failed to take into consideration the need, especially for young persons, for an early bail hearing. As the trial judge said: “The fact that the declaration of principle in the Y.C.J.A. refers to special considerations which apply in respect to proceedings against young persons should compel all persons participating in the proceedings to guard against infringements.[2]

The emphasis is my own, but the point is clear: the infringement of S.B.’s constitutional right was “especially” significant due to his status as a young person.

Canadian Doctors for Refugee Care v Canada 2014 FC 651

In Canadian Doctors the applicants challenged the constitutionality of the Federal government’s 2012 cuts to health insurance coverage for refugee claimants. The result of the cuts was to significantly reduce the level of health care available to these individuals, and all but eliminate it for some pursuing risk-based claims.

Some 21 national medical organizations offered statements expressing concerns with respect to the cuts. Expert evidence filed in the application noted that the lack of health insurance would have a “detrimental impact on the health of children.” The President of the Paediatric Chairs of Canada criticized the cuts as well and warned against the negative impact they would have on children’s health outcomes.

The applicants (including JFCY) alleged these cuts violated sections 7, 12 and 15 of the Charter. It is under the Court’s section 12 analysis that the most powerful findings with respect to the rights of children may be found.

Section 12 of the Charter prohibits “cruel and unusual treatment or punishment.” As held by the Supreme Court of Canada in penal cases, only treatment or punishment that “shocks the conscience” of the community and “outrages our standards of decency” will rise to the level of a breach of this section.

In paragraph 11 of the judgment the Federal Court found that the health care cuts in question met this very high standard. The cuts constituted cruel and unusual treatment “particularly, but not exclusively”, as they affected children who had been brought to Canada by their parents.

The Court further held that the modifications to the health care program in fact

…potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency.[3]

The “cruelty” of the cuts, which could lead to “unnecessary pain and suffering”, was “especially evident insofar as they affected children.”[4] Children, the Court emphasized, who were entirely innocent and subject to the whims of their parents’ decisions.[5]

Potential For A New Paradigm?

Thus, “especially” and “particularly”, the Charter rights of these children were found to have been breached. It should be noted that in neither case did the Court find that a similarly situated adult would not have had his or her Charter rights violated as well. (Indeed, in Canadian Doctors the court expressly found both adults and children had their Charter rights violated.)

But by noting that the violations in question took on an enhanced or unique status given that the applicants were children, the Courts may be slowly opening the door to a formal recognition that state conduct must, in certain circumstances, be held to a higher standard of scrutiny and care when the constitutional rights of children are at stake.

[1] Para 39.

[2] Para 21.

[3] See para. 691.

[4] See paras. 637 and 658.

[5] See, for example, paras 638, 664, and 669.

JFCY supports Children and Youth in Care Day

2014-05-14T15:24:00.000-04:00

STATEMENT

Toronto, Ontario, 14 May 2014 – Justice for Children and Youth (JFCY) is pleased to recognize Ontario’s first annual Children and Youth in Care Day, and affirm our dedication to assisting youth in and leaving care. Our clinic regularly helps young people navigate the often complex web of legal and non-legal issues that come with being in care or leaving care.

Children and youth in and leaving care face a number of challenges in education, social life, and housing arrangements. It is our collective responsibility to provide excellent care and seamless transition plans for youth in and leaving care. The Youth Leaving Care Hearings held at Queen’s Park in 2011 highlighted the need for change. Positive changes undertaken by the Ontario government since that time include:

Better accessibility to services if a young person leaves care and would like to re-enter;
Extended services to youth transitioning out of care who are still in school; and
Further supports to youth transitioning out of care through the Youth-In-Transition worker positions created by the Ministry of Children and Youth Services.

More change is needed. JFCY continues to advocate for equality to all youth in our care system which stands in the position of the young person’s legal guardian. A gap in service still exists for 16 and 17 year olds accessing care for the first time. Youth needing care after they turn 16 are left with few choices to sustain their safety and security, often leaving them with no option but the shelter system or the streets.

This first annual Child and Youth in Care Day, let us all recognize the bravery and resilience of children and youth in care, and affirm our support to them. We look forward to working with young persons, community members, and the government to continue to strive to meet the needs of young people in Ontario.

R v Manitowabi: The Significance - and Limits - of a Diagnosis of FASD for Young Persons Involved in the Criminal Justice System

2014-04-29T11:58:00.001-04:00

Guest post by Brock Jones, Crown Counsel [1]

The Ontario Court of Appeal released a ground-breaking decision today on the significance of a diagnosis of fetal alcohol spectrum disorders (“FASD”) for young persons in criminal. While the Court clearly acknowledged the nature of FASD and its implications for criminal culpability, it also put significant limits on the use of such a diagnosis unless specifically applied to the facts of a particular case.

The Facts of R v Manitowabi 2014 ONCA 301

Dakota Manitowabi was 16 years of age at the time of his offence. He attended a party where he was not invited and was asked to leave by the homeowner. He did leave, but returned with a large knife. When confronted about his presence again, he stabbed the homeowner once in his torso. The victim died approximately 15 minutes later.

At trial, Manitowabi did not dispute he committed the stabbing but argued he lacked the intent to kill and should not be found guilty of murder. The defence failed and he was found guilty of second degree murder. The judge imposed an adult sentence of life without parole for seven years (the maximum sentence possible) and also lifted the ban on the publication of his identity.[2]

What is FASD?

FASD refers to a wide array of behavioural and intellectual difficulties associated with damage to the human brain caused by exposure to alcohol during pregnancy. Current research suggests the prevalence of FASD in the general population of between 2-5%[3], and the rate in prisons (both juvenile and adult) could be at least 10 -15 times that number.[4]

In Manitowabi, the Court of Appeal noted the following about FASD at paragraph 40:

FASD is a permanent neurodevelopmental disorder. It is an umbrella term describing a range of effects that can occur in an individual whose mother drank alcohol during pregnancy. Those effects can include physical, mental, behavioural and learning disability. Fetal Alcohol Syndrome (“FAS”) describes the most severe manifestation of the disorder…[5]

The Court continued to note that FASD “impacts on executive functioning”, which in turn refers to “specific cognitive skills”, including the ability to grasp “cause and effect.”[6] However, it cautioned that the expert testimony in the case before it warned that executive functioning is an “ambiguous” term referable to a “wide variety of cognitive abilities”, whose deficits are “inherently difficult to measure.”[7]

Does a Diagnosis of FASD matter?

At trial, it was unclear if Manitowabi suffered from FASD and thus defence counsel did not vigorously pursue its significance. By the time of the appeal, several years later, the Court of Appeal had expert evidence before it which established as a probability the appellant suffered from some form of FASD.

The Court accepted that FASD and its effect on executive functioning could be relevant to both a young person’s guilt at trial and his or her moral culpability for the purposes of sentencing. However, it also noted that the “impact of FASD on executive functioning will vary from individual to individual and will vary for the same person from situation to situation.”[8] A blanket, abstract diagnosis of FASD will thus be of limited value.

Rather, clinical tests conducted by an expert witness that will assist with understanding the particular impact of FASD on the young person before the court were recommended. Additionally, the Court of Appeal emphasized that the significance of an FASD diagnosis must be tailored to the specific crime before the youth justice court.

Thus, in Manitowabi’s appeal, the expert evidence presented did not assist with the specific circumstances of the case – that is, whether or not his probable affliction of FASD impacted on his ability to foresee the consequences of stabbing the victim.[9] And while such a diagnosis could “attenuate the moral blameworthiness” of a young offender, since it was not established FASD was relevant to the specific crime in question (i.e. murder), it “could not shed any new light on the appellant’s moral blameworthiness.”[10] As a result, both the conviction and adult sentence were upheld.

Implications for Future Cases

Following Manitowabi, there can be no doubt a diagnosis of FASD for a young person is highly relevant in youth criminal proceedings. But counsel must be cautioned against relying on a mere abstract diagnosis and arguing their client is therefore entitled to an acquittal at trial or mitigation at sentencing. Rather, an expert opinion, specifically tailored to the exact criminal acts in question, must be proffered.

Obtaining an expert opinion that a young person suffers from FASD is already a challenging hurdle for the defence to overcome, as it typically requires the young person’s mother to admit to drinking during pregnancy. Once obtained, its value to the defence is often simply presumed as it establishes a highly mitigating factor. Following Manitowabi, that would be a serious mistake.

While it is incumbent upon all participants in the youth criminal justice system to acknowledge the prevalence of mental health concerns among young persons appearing in the criminal courts, the highly individualized nature of each particular case must always be appreciated.

Resources Available Online

Thankfully, a wide variety of resources exist online to help interested parties learn more about FASD.

FASD Ontario Network of Expertise (FASD ONE) is a group that works together to address issues related to Fetal Alcohol Spectrum Disorder (FASD) in the province of Ontario. Membership includes experts and specialists in research, health promotion, diagnosis, justice services, community and policy development, and service delivery as well as family members who have intimate knowledge of the practical needs of individuals with this disability. Their website has more information including contact numbers for local diagnostic clinics: http://www.fasdontario.ca/cms/resources/diagnostic-clinics

An excellent guidebook for educational practitioners can be ordered online from http://www.motherisk.org for a small fee: http://www.motherisk.org/documents/understandingFASD_OrderForm.pdf

[1] Brock Jones, Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. Any views expressed herein are mine alone and do not represent those of the Crown Law Office nor the Ministry of the Attorney General.

[2] The Youth Criminal Justice Act prohibits the publication of information that would identify a young people as having been dealt with under the Act (s.110 and related sections).

[3] May, P.A., Gossage, J.P., Kalberg, W.O., Robinson, L.K., Bucley, D., Manning, M. 2009. FASD from various research methods with an emphasis on recent in-school studies. Developmental Disabilities Research Reviews 15: 176-192.

[4] http://www.johnhowardbc.ca/images/jhsbc-factsheet-fasd.pdf

[5] R v Manitowabi 2014 ONCA 301 at para 40

[6] Ibid. at para 41

[7] Ibid. at para 42

[8] Ibid. at para 43

[9] Ibid. at para 58.

[10] Ibid. at paras. 64-65

Have You Been Carded?

2014-04-16T15:42:00.005-04:00

You’re walking home after school and from the corner of your eye you notice a police cruiser approaching you. You think nothing of it, as you haven’t committed a crime.

Not too long after, you hear a “hey you” from the direction of the cruiser, and find the officer inside motioning at you to come over. You approach and the officer asks you, “where were you going?” and “do you have anything illegal on you.” and then continues with, “you matched the description of a suspect in nearby house break-ins” or “we’re looking for someonen who matches your description.” Finally, they end by asking for you for identification or to give them personal information such as your name, age and address.

The collection of this information being collected on a Toronto Police form and entered into a database is often referred to as “carding”. Carding is an unfortunate reality for many youths, and disproportionately so, for young males who are ethnic minorities. In law, when an individual is approached by an officer and asked for personal information, the person can decline to answer as his or her right to remain silent are protected under the Canadian Charter of Rights and Freedoms. However, failing to answer or not cooperating can lead to greater problems. Each person must decide what to do in this situation.

http://csg.lao.on.ca/

Why do officers randomly collect personal information from the public?

The police justify carding as a method to reduce crime in high-risk communities. Police officers are asked to document their daily practice and to be as detailed as possible, this includes taking notes of incidents as they happen and documenting their interactions with the members of the public. Large quantifies of carding forms are completed by the police in the identified communities. Additionally, filling out these carding forms is regarded by the police as good police work because the information collected is entered into large databases that the police use to search for connections, persons of interest, and bystanders of previous crimes.

Problems with "carding"

The police have been under heavy scrutiny in Toronto (as well as in other large cities such as New York USA and London UK) because research shows that the police stop racial minorities more frequently. A Toronto Star article reported that the number of black youths carded in Toronto over the last five years is equivalent to the number of black youths in the city itself.

The finding that minorities, such as African-Canadians, are stopped for carding at a higher rate than other groups is problematic. The Charter of Rights and Freedoms and the Ontario Human Rights Code both protect individuals against discriminatory treatment. As representatives of the state, police officers should be held to an especially high standard. In targeting ethnic and racial minorities over other groups, the Toronto police has potentially violated the fundamental rights of many innocent citizens and there is a Stop Police Carding Campaign: http://stoppolicecarding.com/

Recommendations for improvement

In response to the over-use of carding by the Toronto police, the the Toronto Chief of Police Bill Blair is required to release statistics of individuals being carded every three months, and to directly address discriminatory practices by law enforcement authorities. The police may soon be required to give out "receipts" or copies of the completed information form that also states the purpose each stop. Other suggestions that have been made to improve police practices includes the development of stricter criteria for carding, strengthening diversity training for law enforcement teams, and limiting the amount of time for retaining personal information.

Reference: http://www.thestar.com/news/crime/2013/11/18/toronto_police_urged_to_stop_carding.html

Youth Medical Rights

2014-03-20T02:00:00.000-04:00

http://legalrightsforyouth.ca/sites/default/files/pictures/youth/med1.jpg

A person can encounter many healthcare problems over the course of his or her life. From broken arms, mental health needs, to unwanted pregnancies, there are many scenarios in which youth require healthcare services. While many believe that youth health issues are up to their parents and/or legal guardians, young people have many rights that they should be aware of.

Healthcare Decisions

In general, minors (under the age of 18 in Ontario) have the legal right to make their own healthcare decisions. These decisions can include dental care, surgery, substance addiction treatment, etc. The law presumes that minors are capable of understanding the treatment, the treatment process, as well as the risks and benefits associated with the treatment. It is up to the healthcare practitioner (i.e. doctors, nurses, therapists, etc.) to make the decision regarding the minor's capabilities. If the doctor finds that the minor is not capable of understanding the proposed treatment, a substitute decision-maker must act on the minor's behalf; and the minor has a legal right to challenge the finding of incapacity.

Under the Health Care Consent Act, all medical treatments must not be administered until consent has been acquired:

No treatment without consent

10. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).

Confidentiality

Under the Personal Health Information Protection Act, minors over the age of 16 can act on their own behalf over the collection, use, or disclosure of their medical information, provided that they are capable of understanding the information.

Persons who may consent

23. (1) If this Act or any other Act refers to a consent required of an individual to a collection, use or disclosure by a health information custodian of personal health information about the individual, a person described in one of the following paragraphs may give, withhold or withdraw the consent:

1. If the individual is capable of consenting to the collection, use or disclosure of the information,

i. the individual, or

Children under the age of 16 have less freedom over their decisions, but still have the right to make decisions over certain issues.

23. (2) If the individual is a child who is less than 16 years of age, a parent of the child or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of the parent unless the information relates to,

i. treatment within the meaning of the Health Care Consent Act, 1996, about which the child has made a decision on his or her own in accordance with that Act, or

ii. counselling in which the child has participated on his or her own under the Child and Family Services Act.

Conflict if child capable

23. (3) If the individual is a child who is less than 16 years of age and who is capable of consenting to the collection, use or disclosure of the information and if there is a person who is entitled to act as the substitute decision-maker of the child under paragraph 2 of subsection (1), a decision of the child to give, withhold or withdraw the consent or to provide the information prevails over a conflicting decision of that person.

There are exceptions to this principle, however. For example, disclosure of health information may be justifiable to reduce risks of serious harm:

40. (1) A health information custodian may disclose personal health information about an individual if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons. 2004, c. 3, Sched. A, s. 40 (1).

R v Todorovic: Does The Age Of A Child Matter When Determining If She Was “Detained”?

2014-03-06T15:13:00.000-05:00

Guest post by Brock Jones, Crown Counsel

On February 27, 2014, the Ontario Court of Appeal released its decision in R v Todorovic 2014 ONCA 153. The central issue on the conviction appeal was whether Todorovic`s statements to the police on the night of her arrest were properly admissible pursuant to the requirements of section 146 of the Youth Criminal Justice Act (S.C. 2002, c. 1)

The Court of Appeal ruled the statements were properly admitted by the trial judge and upheld the appellant`s conviction for first degree murder. Key to this outcome was the Court of Appeal`s deference to the trial judge`s finding that Todorovic was not “detained” when she was first questioned by the police, thus not triggering any duty on the police to inform her of her rights under the YCJA (and the Charter of Rights and Freedoms). After a lengthy interrogation, Todorovic ultimately confessed that she told her boyfriend she wanted the victim dead due to jealously over his past relationship with her.

Curiously absent from the decision however is any significant discussion of what role, if any, Todorovic’s status as a young person should have played in the trial court’s assessment of whether or not she was “detained” for the purposes of the YCJA.

A Brief Review of the Facts

The facts of this case have received widespread attention in the media and only some of them need be reviewed here. On January 1, 2008, David Bagshaw, then 17, stabbed Stefanie Rengel to death outside her home. He was dating Todorovic (then 15), at the time. The Crown alleged Todorovic encouraged Bagshaw to kill the victim due to an obsessive jealously she had over Baghshaw’s prior relationship with the victim several years earlier.

Bagshaw confessed his role in the crime to a friend that same night. Officers began their investigation and learned of his relationship to Todorovic. They interviewed her with her mother at a police station beginning around 3:05 am on January 2, 2008. Before they began questioning her, they gave Todorovic a standard “K.G.B.” warning and she was told she could choose whether to make a statement or not. As the police did not believe she was a suspect at the time, they did believe they had to caution her about her rights under the YCJA or the Charter.

She ultimately gave an incriminating statement to the effect that she had asked Bagshaw to kill the victim. At that point, she was formally arrested and read her rights.

Section 146 of the YCJA

Section 146 of the YCJA governs the admissibility of statements made to persons in authority by young persons. In order for those protections to become available, however, the young person must be arrested or detained, or the police must have reasonable grounds to believe the young person has committed an offence. It does not apply to the questioning of young persons who are simply witnesses, or persons of interest.

In R v LTH 2008 SCC 49 the Supreme Court of Canada explained the purpose behind this section was to recognize that “’[y]oung persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate.” (LTH at para 1.) These protections are required because “young persons… are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.” (LTH at para 3.)

Todorovic’s Interrogation and the Test for Detention

The Court of Appeal held the test for determining if someone is “detained” was established by the Supreme Court of Canada in R v Grant 2009 SCC 32. One can be detained psychologically, in circumstances where a “reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.” (Grant at para 44.) Both the nature of the police conduct and the circumstances of the individual are relevant, including the individual’s age. (Grant at para 44.)

In Todorovic’s case, the police knew before questioning began that her boyfriend had killed the victim and about an incident three months earlier in which Baghsaw had attended at the victim’s house and told her that his girlfriend wanted him to stab her.

The police called Todorovic’s mother just before 3 am and told her she could come to the station with her daughter or the police could come and pick them up. She offered to cooperate and attended at the station with her daughter. During questioning, the door to the interview room was shut but not locked. The appellant was told she was not under arrest and was not obligated to give a statement. She was never told she could leave, however.

In rejecting Todorovic’s argument that she was detained at this early stage of the interrogation, the Court of Appeal noted that she was free to leave at any time. But nowhere in the decision does the Court consider whether or not her status as a young person was relevant to making this determination.

A Reasonable Young Person?

Surely a child’s age would affect how a “reasonable person” in her position would perceive her freedom to leave in these circumstances. By definition, s. 146 of the YCJA requires an analysis of the “reasonable young person.” Behaviour and perception are very different at an early age; indeed, as the Supreme Court of the United States observed in JDB v North Carolina (131 S. Ct. 2394 (2011)), it is folly for courts to mistakenly view children as simply “miniature adults.” (JDB at 2404.)

Ignoring those “very real differences between children and adults” could have the effect of disenfranchising children from their enhanced procedural safeguards. (JDB at 2408) Thus in JDB, the Supreme Court of the United States held that courts must consider the age of a detainee when assessing if his or her Miranda rights were triggered.

Yet nowhere in the Todorovic decision is any such consideration explored. Perhaps it would not have made any difference. Todorovic was ultimately sentenced as an adult.

It will now be for a future Canadian court to determine whether or not in certain circumstances, detention may be found for a child where it would not be found for an adult, as the Supreme Court of the United States found in JDB.

This guest post was written by Brock Jones: Crown counsel, Crown Law Criminal; Adjunct Prof. Of Law, University of Toronto. The opinions expressed herein are those of the author and do not reflect those of the Ministry of the Attorney General.

What Are Extrajudicial Measures and Sanctions?

2014-01-24T09:19:00.001-05:00

The Youth Criminal Justice Act (“YCJA”) says it is better to deal with less serious offenses outside the court system. This is often the most appropriate and effective way to address non-violent youth crime.

EXTRAJUDICIAL MEASURES: are designed to hold young people responsible for wrongful behaviour without formally charging a youth with a criminal offence. The police can give warnings (informally), cautions (usually a letter sent to you and your parents and may require you and your parents to go into the police station to speak with an officer), or referrals to a community program. The crown attorney can also give a caution instead of a charge, or withdraw a charge and give a caution instead.

EXTRAJUDICIAL SANCTIONS: may be given by a Crown attorney before or after a young person has been charged with a criminal offence, as a way of dealing with the offending behaviour without proceeding further through the formal court system. They may be used only if a warning, caution or referral is not enough to hold the young person responsible. The Crown can request an extrajudicial sanction and a referral to an extrajudicial sanction programs before or after the young person has been charged. If you are accepted into the program, you will be required to complete the program. This means you will get some consequences for your actions, but you will not go through the court system and be punished by a Judge.

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You can get an extrajudicial sanction only if:

there is such a program where you live;
the police or the crown attorney thinks that the program is the right thing for you and for the interests of the community;
you are told all about the program and you freely agree to participate;
you have been given a chance to consult with a lawyer;
you are willing to accept responsibility for what the police say you have done wrong; and
there is a real case against you, and you could otherwise be brought to trial through the court system

There are a number of different options for an extrajudicial sanction program, some examples include: You may be asked to do some kind of community service, participate in a conference, write an essay or letter of apology, go to workshops, do a mediation, or perhaps do something else that would be relevant to you or the offence.

When you successfully complete the program, then any charge that has been laid against you will be dismissed and you will not have to return to court on this matter. Additionally, a record of your participation in the program will stay in the records of your local police for only 2 years. You will not get a youth justice court record.

This blog post was written by Lauren Grossman, a first year law student at the University of Toronto who volunteered at JFCY through her law school’s Pro Bono Students Canada program in 2012/13. All legal content was reviewed by a JFCY lawyer. JFCY's legal content is based on the laws in Ontario relevant to youth under the age of 18.

Bill to open child welfare servies to older youth called to committee

2013-11-29T18:04:00.003-05:00

JFCY has been working on reforms to child welfare legislation to give options to older youth to reach out to CAS care. Currently, the legislation does not allow youth over age 16 access CAS’s for the 1st time. A Private Member put forth a Bill to extend services and incorporate the UN Declaration on Rights of the Child into the CFSA, and we’ve been supporting its evolution.

Bill 88 – Right to Care Bill is being called to Committee next Wednesday for public hearings and submissions (for consideration to be brought to 3rd Reading and passed into law). This is unexpected good news & a quick turn-around for help to support Bill 88 going forward.

Sign our petition to support the Bill: http://chn.ge/1buOK6A

And distribute widely! We are trying to collect 500 signatures by Wednesday. Your leadership and support will make a huge impact.

Feel free to contact Johanna Macdonald, Street Youth Lawyer at JFCY for questions or to learn more about how to get involved.

JFCY is hiring!

2013-06-14T11:01:00.000-04:00

GRAPHIC DESIGN STUDENT INTERN

Justice for Children and Youth is hiring a part time student intern who can design and develop small websites, graphics for branding (facebook, instagram, pinterest), and online training material. Our ideal candidate will be an independent worker, with extraordinary communication skills and a clear understanding of various social media platforms.

Please provide resume and samples of your work to jfcy.student2@lao.on.ca

Youth Action Documentary (2011)

2013-06-10T18:03:00.000-04:00

Prior to entering law school, I completed a Bachelor of Social Work degree at Ryerson University. My fourth year practicum requirement was fulfilled at Justice for Children and Youth, where a central part of my role involved facilitating the Youth Action Committee (YAC) from September 2010 to June 2011.

Composed of young people aged 13-17, YAC’s purpose is to provide space for youth to contribute their unique perspectives on legal issues that affect their lives. Additionally, YAC is determined make positive contributions to its community by making the law increasingly accessible to Ontario’s youth.

YAC’s 2010-2011 contribution was the creation of a documentary film. The documentary considers the impact of the YAC program on participants during the 2010-2011 school year, with special attention paid to their perspectives. The aim of the documentary is to highlight the benefit of creating space for young people to strategize how to contribute positively to their communities.

The documentary is composed of four parts:

Part 1 describes the roles and involvement of the Youth Action Committee from 2010-2011. It provides viewers on opportunity to get to know the members.

Part 2 explores what "community" means to the members of the Youth Action Committee.

Part 3 & Part 4 allows viewers to fast forward and see the impact that participating in the Youth Action Committee had on the 2010-2011 members. To watch click here:
Epilogue 1 - Fiona Martyn
Epilogue 2 - Cindy Quan

This post was written by former JFCY intern Jenna Marie Persuad. To learn more about the Youth Action Meeting click here.

“Your Right! It’s the Law!” Project Kicks Off

2013-06-07T18:08:00.001-04:00

HI!!

My name is Cecilia Alejo Rivas, and I will be coordinating the “Your Right! It’s the Law!” project at Justice for Children and Youth. Funded by the Law Foundation, this project will use social media to connect with youth and youth workers in Thunder Bay around the various legal issues facing youth in their community. The neat thing about this project, is that we will use the web as a creative platform to not only stay connected, but also as a tool to train our partners in Thunder Bay on youth legal rights!

I am very excited to be at Justice for Children and Youth, having over ten years of experience working with youth, I have always respected and admired the work done by JFCY. Before JFCY, I was a muralist, social worker, youth engagement worker, radio host and community activist. Through these roles, I have come to understand the power of social media and the internet, particularly as a tool of engagement, and have been using it since MySpace was cool. I am excited to see how this blog, Facebook, Twitter, Instagram, Youtube, and Pinterest will add to this project!

Lauren's Experience as the PLE Team Leader

2013-04-16T17:57:00.001-04:00

As final exams are approaching and "crunch" time begins, I wanted to briefly share my JFCY experience with you. Since October, I have been working as JFCY's Public Legal Education team leader through my school's (the University of Toronto law school) Pro Bono Student's Canada program.

My experience at JFCY as the PLE team leader has been memorable. Not only have I developed my legal research and writing skills but I have had the opportunity to gain knowledge in practical, day-to-day legal issues prevalent in the lives of children and youth. I gained knowledge through my research for this blog but also by working collectively with JFCY’s staff lawyers and the PLE team members I have learned more than any textbook could have taught me.

What is my favorite part you ask? The PLE team of course! These monthly meetings have become something I look forward to. The team is composed of a great group of people, all hard working and dedicated. I had the opportunity to lead the team to create a trivia game to inform the youth community of their legal rights; “Who Wants to Be a Millionaire": Youth Criminal Justice Act ("YCJA") Edition. Through a cumulative effort, we created an interactive, entertaining yet, educational game which will be featured on our website shortly! Stayed tuned for that...

Thanks for checking out our blog! We appreciate your support and we hope that we have tailored our blog posts to suit your interests.

To learn more about the PLE Team click here.

To learn more about the Pro Bono Student Canada program click here.

Consequences of Loitering

2013-03-22T08:40:00.000-04:00

My name is John and I’m 14 years old. I live with my mother and my little brother. My mother usually allows us to chill with friends only when we have completed our homework, except she works at night so I often meet up with my friends when she is at work. She has no idea that I leave the house so late at night though. Often times, my friends and I hang out, ride our bikes and skateboard around the plaza’s parking lot right by my house. On several occasions security guards approach us and escort us off the property. They constantly escort us out of there and remind us that we were loitering, warning us not to return. We didn’t take their orders seriously and one night at around one in the morning when my friends and I were hanging out in the parking lot of the plaza the security guards caught us. This time, the security guard brought us home and spoke to our mothers. I got in a lot of trouble but I didn’t even know I was doing anything wrong? How come the security guard took me home? Why is my mother so mad?

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Section 79 (5) of the Child and Family Services Act, states that parents of children under sixteen cannot permit their children to be out without an authorized adult in public places between midnight and six am. If parents or a designated adult are with the child in the public place, then it is okay and they can be out late. But it is actually illegal for kids under age 16, like John, to be “loitering” in a public place or at a “place of entertainment” without a parent or designated adult between midnight and 6am. John was returned home to his parents because section 79(6), authorizes the security guard to return the child to a safe place.

John will not be arrested nor charged for loitering on public property at one in the morning, but there are possible consequences for his mother. The Child and Family Services Act gives police the power to apprehend a child without a warrant if they find the child without a parent/adult in a public place between 12am and 6am. Often, the police simply bring the child back to their parents’ home, as was the situation in which the security guard returned John to his home. However, depending on the circumstances and the level of concern for the child's well-being, the police do have the power to bring John into the care of a Children’s Aid Society, who can then commence child protection proceedings in court. This could affect John’s mother’s custody rights. The lack of attention that she was paying to John's actions could result in her being held liable. In other words, it can be very serious and this is likely why John’s mother was very upset.

THE RELEVANT LEGISLATION

Child and Family Services Act: Section 79

Allowing child to loiter, etc.

(5) No parent of a child less than sixteen years of age shall permit the child to,

(a) loiter in a public place between the hours of midnight and 6 a.m.; or

(b) be in a place of public entertainment between the hours of midnight and 6 a.m., unless the parent accompanies the child or authorizes a specified individual eighteen years of age or older to accompany the child.

Police may take child home or to place of safety

(6) Where a child who is actually or apparently less than sixteen years of age is in a place to which the public has access between the hours of midnight and 6 a.m. and is not accompanied by a person described in clause (5) (b), a peace officer may apprehend the child without a warrant and proceed as if the child had been apprehended under subsection 42 (1).

This blog scenario was written by Deqa Abdi, a volunteer on the JFCY's PLE Team. The legal content was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY as the PLE team leader through her law school's Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer. JFCY's legal content is based on the laws in Ontario relevant to youth under the age of 18.

Youth Employment Rights

2013-03-18T09:31:00.000-04:00

EMPLOYMENT STANDARD ACT

The Employment Standards Act (ESA) sets out the rights and responsibilities of both employees and employers in Ontario.

MINIMUM AGE TO WORK

According to the ESA, young workers have the same rights as other employees in most Ontario workplaces. It is important to know that the minimum age for working in Ontario is 14 years old in most types of workplaces.

Regulations specify higher minimum ages for certain types of work and workplaces. For example, working in the kitchen at a restaurant requires you to be at least 15 years old. You also have to be at least 15 to work in laundries, shipping and receiving areas in grocery stores, automotive service garages, produce and meat preparation areas, and warehouses.

As long as John is above the age of 14, he will be legally allowed to work in the record store.

MINIMUM WAGE

Minimum wage is the lowest hourly wage an employer can pay employees. Employers must pay most employees, including young workers, at least the minimum wage.

The minimum wage rate for a certain job can depend on what kind of work an employee is doing and how old the employee is. In Ontario, there is a general minimum wage rate that applies to most employees. There is also a student minimum wage rate that applies to many students under the age of 18. Students must be paid at least the student minimum wage if they are under 18 and they:

work no more than 28 hours a week when school is in session, or
work during a school holiday (for example, March break, Christmas break, summer holidays)

As John is a high school student and working during holiday time, his employer will have to pay him student minimum wage.

Student minimum wage rate is $9.60 per hour (current as of March 18th, 2013)

This is John´s situation and $9.60 is the minimum amount he should be paid for each hour he works at the record store. John’s employer is paying John the appropriate, legal minimum wage for his age and the hours he works.

Students who work more than 28 hours a week when school is in session are entitled to the general minimum wage. General minimum wage rate is $10.25 per hour.

If John decides to take on more hours during the school year, $10.25 is the amount that John should be paid per hour.

**There are some exceptions to the minimum wage requirements.

If you are participating in a high school “co-op” or work experience program authorized by the school board that operates your school
If you are a college or university student performing work through your school program
If you are training for certain occupations such as architecture, law, professional engineering, medicine, optometry
If you are a student employed to instruct or supervise children and a person employed as a student at a camp for children (like a camp counselor)

HOLIDAYS

Ontario has 9 public holidays: New Year's Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, Boxing Day

Most employees who qualify are entitled to take these days off work and be paid public holiday pay. They can agree in writing to work on the holiday and they will be paid: (a) public holiday pay plus premium pay for the hours worked on the public holiday; or their regular rate for hours worked on the holiday, plus they will receive another day off (called a "substitute" holiday) with public holiday pay. If the employee has earned a substitute day off with public holiday pay, the public holiday pay calculation is done with respect to the four work weeks before the work week in which the substitute day off falls.

The Right to Refuse to Work on Public Holidays

Most employees of a retail business have the right to refuse to work on a public holiday. As John is an employee in a retail business (record store), he should have the right to refuse to work and his employer can not threaten to fire him for this refusal. Even if John agrees to work on the public holiday in writing, he can still decline to work by giving the employer at least 48 hours notice before his work on the public holiday was to begin.

This blog scenario was written by Tony Young, a volunteer on the JFCY's PLE Team. The legal content was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY as the PLE team leader through her law school's Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer. JFCY's legal content is based on the laws in Ontario relevant to youth under the age of 18.

CUTS TO THE INTERIM FEDERAL HEALTH (IFH) PROGRAM AND ITS IMPLICATIONS ON CHILDREN AND YOUTH REFUGEE CLAIMANTS

2013-03-11T10:14:00.000-04:00

Jasmine and Robert came to Canada on July 12 of 2011 as refugee claimants. Their older son Paul is twelve years old and Jasmine is pregnant again. When they arrived in Canada, they felt good, because they were safe and they had all that they needed: They received help for food and shelter from Ontario Works and healthcare free from the government. However, on May of 2012, they received a letter where the government told to them that since June 30 of 2012, the Interim Federal Health (IFH) would change. They did not know what kind of changes could happen, it was only when Jasmine tried to book an appointment with the family doctor for her son that she realized how things had changed. The secretary told to her that she could not book an appointment for refugee or refugee claimant because the law had changed. With the new information, Jasmine was worried and tried to get an appointment with her gynaecologist but again the secretary told Jasmine that she could not book an appointment, for the same reason that the family doctor´s secretary had told to her. Jasmine and Robert are really worried. Their son has a sugar problems and if he does not receive medical treatment on time, later he may develop Diabetes.

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BASIC INFORMATION

The (IFH) Interim Federal Health program provides access to refugees and refugee claimants who need healthcare for a period of time, and who generally have no other way of obtaining necessary health benefits.

On April 25th, 2012 the Federal government announced cuts to most healthcare benefits for refugees that are currently provided by Canada’s Interim Federal Health (IFH) program, effective on June 30, 2012.

The changes to the IFH program include cutting access to essential medication, cuts to basic primary health care, cuts to dental care, vision care and cuts to mobility devices like wheelchairs, for many classes of refugees. Healthcare services to be cut include prenatal care, child health check-ups and access to mental health care. Most refugees are now only entitled to basic emergency care - they are not entitled to medication or vaccines unless their condition is deemed to pose a threat to public health.

IMPLICATIONS FOR CHILDREN AND YOUTH

These cuts to the IFH program will leave some of Canada’s most vulnerable children and youth without access to primary and preventive health care. Many will have experienced horrific trauma and persecution and their families endured great hardship to come to our safe country. In some cases, these children may be without health insurance for many years. Certain refugee claimants in Canada will even be denied coverage for emergency health services. These changes will not only gravely impact the short- and long-term health of refugees living in Canada but also result in increased financial, health and societal costs to the Canadian public as a whole. The changes to IFH contravene the UN Convention on the Rights of the Child, and will also deny what is deemed a fundamental right to Canadian society; access to basic health care.

How will the changes impact the immediate and long term health of children and youth?

First of all, how will the changes impact the immediate health of children and youth? Ending coverage for basic health care will result in no access to care for the diagnosis and treatment of common illnesses including infections.[1] Chronic medical conditions that are routinely present in early childhood such as asthma and inflammatory bowel diseases may be diagnosed late, or not at all. Early intervention for these conditions prevents hospitalizations and maintains good health, whereas delays may result in serious consequences.

In addition, there will be no ability to diagnose and manage mental health conditions which are known to affect child refugees at higher rates due to trauma related to the refugee experience. Also, cuts means that children and youth do not have access of the preventive health screening, which will result in a failure to diagnose problems such as developmental delays, vision and hearing disabilities all of which require early intervention. Finally, lack of coverage for prenatal and obstetrical care, including deliveries, will most certainly lead to preventable perinatal morbidities. These could include increased rates of prematurity, low birth weight, uncontrolled gestational diabetes, brain damage, or worst neonatal deaths.

Secondly, how will the changes impact the long-term health and productivity of children and youth? Given the proven link between primary health care in the early years and later adult health, the IFH changes will definitely affect the overall health and well-being of these children and youth. Children’s health and well-being also declines if parents have uncontrolled chronic medical or psychiatric conditions: If parents are ill, they may not be capable of optimally parenting and caring for their children. The long-term medical and developmental problems resulting from lack of prenatal and obstetrical care will lead to otherwise avoidable costs to the health and social systems.[2]

How do the changes contravene Canadian and international conventions?

One of the basic tenets of Canadian society has been and remains universal access to health care. The primary objective of the Canada Health Act is “to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.”[3] The proposed changes to the IFH program will effectively deny this tenet to some of the most vulnerable children and youth living in our country. This is despite a previous praise Canada's refugee system received from the UN High Commission for Refugees citing Canada’s “willingness to accept a range of refugees, including urgent protection cases and those with high medical needs, as a strength of the system.”

As a signatory to the UN Convention on the Rights of the Child, Canada has agreed that all children and specifically children living in Canada have the basic rights to life, survival and development of their full potential. Article 24 emphasizes “the right of the child to the enjoyment of the highest attain able standard of health” and to have access to facilities for the treatment of illness and rehabilitation of health. It states that “signing parties shall take appropriate measures to ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health."

For more information visit:

The Canadian Council for Refugees

Citizenship and Immigration Canada's Summary of IFH Coverage

[1] Citizenship and Immigration Canada. Refugees: Health Care http://www.cic.gc.ca/english/refugees/outside/summary-ifhp.asp

[2] Public Health Agency of Canada, 2006. Chapter 24: Well-baby care in the ﬁ 13. rst 2 years of life (Pediatric Preventive Care), in The Canadian Guide to Clinical Preventive Health Care: www.phac-aspc.gc.ca/publicat/clinic-clinique/pdf/s2c24e.pdf

[3] Canada Health Act: http://laws-lois.justice.gc.ca/eng/acts/C-6/FullText.html

This post was written by JFCY PLE Team volunteer Lina Maria Sanchez. The views and explanation of the IFH cuts are those of Lina Maria and not JFCY

Evidence in the Criminal Law

2013-03-08T10:12:00.003-05:00

In crime dramas like CSI, we often notice police officers gathering large amounts of weapons and shell in clear plastic bags. These bags have ‘evidence’ clearly marked on their cover, and are later used to convict the suspect. Driving past a real world crime scene, we similarly observe police officers sectioning off pieces of land or property with caution tape. This tape serves the purpose of keeping the public out of harms way, but also to ensure evidence remains unaltered from its original state. It must remain unaltered as it usually determines the guilt or innocence of the individual accused of the crime.

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To put forward evidence, means to have information to be used in order to prove or disprove a certain matter of fact.

The law of evidence uses rules and legal principles that control the proof of facts in legal proceedings. These rules and principles determine what can and cannot be considered evidence, and how much weight is to be given to each piece of evidence. Evidence law is also concerned with the type of proof, quality, and quantity required.

The law of evidence has two main purposes in our criminal justice system. Firstly, this law establishes a set of principles that work to take out facts of no use to the decision maker. In doing so, it helps decision makers like judges or the jury make unbiased conclusions. Secondly, evidence law helps reduce the large amount of information coming before the decision makers; it expedites legal proceedings. In addition, judges exercise a significant amount of discretion for what can and cannot be considered evidence during trial.

In furthering our understanding evidence, It is important to understand the burden of proof as it relates to the criminal justice system. The burden of proof is a party’s obligation to prove something is the case. In the criminal court, this burden or ‘onus’ is placed up on the Crown attorney, who must prove that an accused person has committed the alleged offence. The Crown attorney does this with the aid of evidence. In court, the accused is presumed innocent. In criminal court, the standard of proof is ‘beyond reasonable doubt’. The Crown attorney must be able to prove the accused is guilty beyond reasonable doubt in order to get a conviction or in the youth criminal justice system a finding of guilt.

There are three different forms of evidence. The first is ‘real evidence’, which consists of things that are tangible. This type of evidence includes physical objects such as tape recordings, printouts, and photographs. In order for real evidence to be used in court, it must be relevant, and trustworthy. This also includes ‘demonstrative evidence’ such as charts, models, and experiments.

The second form of evidence is ‘documentary evidence’. This type of evidence includes digital tape recording, business and personal records, court documents, video clips, and computer records. For documentary evidence, there is a requirement that it must be the original copy or form—unless unavailable—this is called the ‘best evidence rule’. All documentary evidence is established as authentic and relevant prior to their use. This is done through the use of affidavits, or a testimony.

The third type of evidence is ‘testimonial evidence’, also known as oral evidence. This evidence is given viva voce, or through oral speech. Testimonial evidence is received through answers to questions asked mainly by Crown attorneys and Defense counsels. For instance, when a police officer is answering the questions of a lawyer on the witness stand, he or she is testifying for or against the accused. Any witness that testifies must give an oath or affirmation prior to giving their evidence, they must be personally present in court, and are subject to cross-examination.

If you are being investigated as a suspect for a criminal offence:

Youth who are charged with an offence under the age of eighteen are dealt with in accordance with the Youth Criminal Justice Act. It is important for young people who are accused with an offence to know that if he/she is being investigated for a charge AND HAVE NOT BEEN CHARGED he/she have no obligation to provide evidence to the investigating officer. This includes answering any questions. You have no obligation to go to a police station for questioning unless you arrested and taken to the station. Justice for Children and Youth recommends that youth to do not make a statement to the police. The police have a burden to prove their case against you - you have no legal obligation to assist them. Anything that you say to a police officer can and will be used against you as evidence. The police officers will take notes of everything you say and provide this as evidence to the Crown attorney to be used against you.

If you are charged with a criminal offence:

When an accused attends to court for their first court appearance, if it is ready, they will be provided with disclosure. Disclosure is a package that includes all the evidence that was used by the police to lay the charge against the accused. This will include all of the police officers notes, any statements taken by witnesses/victims, DVD's of footage from security cameras/filmed statements, etc. In the Youth Criminal Justice System the Crown attorney is obligated to provide all disclosure to a young person who has been charged with an offence.

Evidence has a significant role in the daily works of our criminal justice system. It ensures that all useful and valuable information gets placed in front of decision makers, like the Judge or Jury. The methods we use in court proceedings today have been developed over many decades, and attempt to ensure a fair and unbiased resolution to all legal disputes.

Information in this blogpost gathered from:
"Rules of Evidence: A Practical Approach" by: Doug Cochran, Michael Gulycz, & Mary Ann Kelly
http://en.wikibooks.org/wiki/Canadian_Criminal_Evidence

This blog post was written by Shawn Malik, a volunteer on JFCY's PLE team. All legal content was reviewed by a JFCY staff lawyer.

What Happens if My Friend Shoplifts?

2013-03-07T17:29:00.000-05:00

Camilla’s high school is a ten-minute walk away from a mall so her and her friends usually go there during their lunch period. In their most recent visit to the mall, Camilla and her friends go into a make up store because they want to buy the newest shade of nail polish. While most of them grab a bottle and head to the checkout to pay, one of her friends, Natalie, says, “I’m just going to keep looking around. I forgot my debit card so I’ll probably come back this weekend.”

Camilla is first in line at the checkout so when she is done paying for her nail polish, she goes to look for Natalie. From a distance Camilla notices that Natalie is still in the aisle with the nail polish. She continues to walk toward her and notices Natalie grab a bottle of the nail polish off the shelf, throw it in her purse and then head in the opposite direction.

Camilla is shocked and doesn’t know what to do; she asks Natalie what she is doing. Natalie replies with a smile and tells Camilla “I’ll grab one for you too, act natural“. Camilla doesn’t want her to friend to be mad at her so she does as told. One by one her friends finish cashing out and join her, then they all leave the store and head back to school since their lunch period is almost over.

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WHAT WILL HAPPEN IF NATALIE IS CAUGHT?

If Natalie is caught shoplifting the nail polish, the store security may try to have her sign a document regarding the situation that asks her to take full responsibility for the incident and pay all of the related security costs. She does not have to sign this document but even if she does, she is not required to make the payment claimed. The security may also keep her at the store until the police arrive but they must call the police within a reasonable time.

In Ontario law, you are responsible to compensate someone if you caused them harm by stealing things that belong to them or by trespassing on their property. However, if Natalie returns the nail polish that she stole, the stole will have lost no money as the shoplifted items have been recovered.

The store may also send a Civil Recovery Demand Letter. Stores often send these demand letters to people who have been caught shoplifting in their stores,or to parents of young people who have also been caught. These letters are often signed by a lawyer and demand payment of amounts in the range of $300.00 to $475.00 to a collection agency, called "Civil Recovery" claiming the security costs of detecting shoplifters in their stores. The letters sometimes suggest that if you don't pay by a certain date the amounts will increase. If you do not pay, the store might also start a lawsuit.

It is important to know that Natalie and Natalie's parents do not have to pay the amount in the letter. It is simply a threat that cannot be enforced unless it is found to be a valid debt in Small Claims Court. Her family does not need to worry unless they receive a Statement of Claim in the mail. In Justice For Children and Youth's experience - this does not happen.

Natalie's parents can rest assured as well that no harm will come to their credit rating as a result of these letters.

If the store chooses to call the police, she may be charged under s. 322 of the Criminal Code. This offence is for committing theft: ...fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it.

WHAT ABOUT CAMILLA?

Camilla does not have a legal obligation to report Natalie’s theft to employees of the store, to the police or even to her parents. However, If Camilla does not try to stop Natalie or leave the situation, she may be charged as a party to the offence. This is a criminal offence in the Criminal Code of Canada. Under s.21 (1) of the Criminal Code, everyone is a party to an offence who: (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Section 21(1) describes three situations where a person is a “party,” i.e., criminally responsible for the conduct of another. In order to be found guilty of the offence or for the charge to be reasonable, there must be some evidence that Camilla intended to assist Natalie or that she stood somewhere so that the store wouldn't notice Natalie put the item in the bag.

For more information on what shoplifting and Civil Recovery letters check out some of our past blogs and videos:

Past Blogs on Shoplifting

Part 1 - http://jfcy1.blogspot.ca/2010/10/guest-blogger-tracy-on-shoplifting.html

Part 2 - http://jfcy1.blogspot.ca/2010/10/guest-blogger-tracy-shoplifting-part-ii.html

Video – Civil Recovery Letters

http://jfcy1.blogspot.ca/2011/09/video-civil-recovery-demand-letters.html

Informational Pamphlet: Shop Lifting Demand Letters

http://www.jfcy.org/PDFs/ShopliftingDemandLettersApril%202012.pdf

Informational Pamphlet: Youth Criminal Court Guide

http://www.jfcy.org/PDFs/Charged_March2012.pdf

For further advice or information:

Justice for Children and Youth (if the letter involves a person under 18) GTA: 416-920-1633

Elsewhere in Ontario: 1-866-999-5329

Your local community legal aid clinic: www.legalaid.ca

Lawyer Referral Service 1-900-565-4577 or if under 18 call 1-800-268-8326 (no charge)

This blog scenario was written by Marsha Rampersaud, a volunteer on the JFCY's PLE Team. The legal content was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY as the PLE team leader through her law school's Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer.

Theft in a Shopping Mall

2013-03-05T17:14:00.000-05:00

http://images.clipartof.com/small/76396-Royalty-Free-RF-
Clipart-Illustration-Of-A-Brunette-Girl-Shoplifting-In-A-Store.jpg

Shirley is a 18 year old high school student. Both her parents work during the day, so they only see her at night. She makes her own breakfast and dinner, and travels to school on her own. She is always studying and receiving good marks for her studies. On her birthday, she wanted her parents to take a day off to spend it with her, but they were too busy and couldn’t go. Shirley was sad but her friends tried to cheer her up and persuaded her to go out to the mall and watch a movie. They arrived at the shopping mall first and they separated ways looking for different clothes. She came across a jewelry store and decided to steal something. Shirley looked around to see where the cameras were and kept eyeing a necklace in the corner of the store. She slightly opened her bag and slipped the necklace in while nobody was looking. Slowly, she headed towards the exit and had her head down. The alarm went off and the salesperson approached her asking if she could take a look at her bag. The salesperson then found the necklace which she didn’t pay for and called mall security. Her parents arrived at the scene and took her home. Shirley has never committed any type of crime before and she admitted to the security that she had stolen the necklace. The necklace itself was $20 and she handed it to the security.

What will happen to Shirley?

i) Store Security Guard May Try to Have Shirley Sign a Document Requiring Payment Before Allowing Her to Leave the Store.

Shirley does not have to sign this document and even if she does sign the document, she is not required to make the payment claimed. It is not legal for someone to threaten to have you charged by the police if you do not sign a document or do not agree to pay them money. It is not legal for someone, other than a police officer, to refuse to let you leave if you do not sign a document. It is legal for the security guard to keep you at the store until the police arrive. If they do call the police, they must do so within a reasonable time.

ii) Store Security May Call the Police

When the police arrive, they may decide to charge Shirley with theft. They might ask her to appear at the police station for photograph and fingerprints and to appear in court. The police may give Shirley an Appearance Notice that sets out the date, time, and location of her required appearances for the identification process and for court. It is a criminal offence to not attend for either of these purposes. If she fails to go, she will likely be arrested and charged with further criminal offences. If Shirley does not receive notice of a court date, she was not charged with an offence.

iii) Shirley May be Charged with an Offence

The police may charge Shirley under the Criminal Code of Canada section 322. This offence is for committing theft: "...fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it."

Section 322 (2) of the Criminal Code of Canada outlines when the time of the theft occurs. As Shirley concealed the jeweler item on her person (in her bag) it is possible that a court may view this as “moving” the property such that the theft occured upon her putting the jewelry in her bag: “A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.”

However, it is important to be established whether Shirley intended to pass the cashier or exit or did in fact pass the cashier and exited the jewelry store with the necklace in her bag.

Furthermore, because she is over 17 she will be charged as an adult and not under the Youth Criminal Justice Act

iv) The Store May Send Shirley a Civil Recovery Demand Letter

Some retail stores send demand letters to people who have been caught shoplifting or to parents of young people who have been caught. In this case, the store has recovered the item Shirley had stolen as she admitted the theft and rightfully handed it back to the security. Therefore, the store will not be claiming the value of the jewelry item that was stolen but will be claiming security costs; the costs associated with detecting shoplifters in their stores. The letters are often signed by a lawyer and demand payment of amounts in the range of $300.00 to $475.00 to a collection agency. The letters themselves are not the same as a court order and she can choose to pay the amount or not. If she does not pay, the store can start a lawsuit. However, it is rare for the lawyer or company to follow up with a court action if someone refuses to pay. So, she can choose to ignore the letter. Because the item has been returned, it really is Shirley’s decision whether she feels morally obligated to pay any money to the store without a court order.

v) Shirley May Not be Allowed to Enter the Store or the Mall for A Period of Time

The security may issue a notice under the Trespass to Property Act banning Shirley from their stores. Shirley should take this very seriously and not return to the store or the mall until the requisite time period has elapsed. If she does return before this time, she will be trespassing as she is on the property without permission and could be charged.

This scenario was written by Ying Yi, a volunteer on JFCY's PLE team. The legal content of this blog post was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY through her law schools Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer. JFCY's legal content is based on the laws in Ontario relevant to youth under the age of 18.

Facebook & the Law...

2013-02-18T11:18:00.000-05:00

https://play.google.com/store/apps/details?id=com.facebook.katana

It is no secret that teenagers have come to rely on Facebook, Twitter and Instagram to document every aspect of their lives. It is easy to get lost in the online world of social media and think that because you’ve set your profile to “private”, what you post online will have no repercussions. This blog post will outline some of the possible consequences of documenting too much of your information through social media.

It has become increasingly known that many employers do a Facebook search of their potential employees before they even have a chance to introduce themselves. In most cases, these searches will turn employers away from the candidate before even interviewing them. However, what is not as well known is the fact that universities do the same. According to a Kaplan Test Prep survey from 2011, 24% of college admission officers in the United States admitted to using social networks such as Facebook to learn more about their candidates (Schaffer and Wong).

What is perhaps more important to know is that even if you’ve set your profile to “private”, Facebook reserves the right to “access, preserve and share information when [they] have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity” (Facebook), as outlined in their privacy policy. This means that what you post online can and will be used against you if you are suspected of committing a crime. We need only look at the recent arrest of 18-year-old Jacob Cox-Brown to realize the repercussions of some status updates: Jacob, who hit two cars while driving under the influence and fled the scene, proceeded to post about it on Facebook: “Drivin drunk... classic ;) but to whoever’s vehicle i hit i am sorry. :P” (qtd. in Gorrow). A few of his “friends” contacted the local police, who until then had no leads on the perpetrator of the hit-and-run. While the Facebook evidence was not enough to convict Jacob of drunk driving, they were able to match the car registered to Jacob’s name to the damage done at the hit-and-run scene. Consequently, Jacob was charged with “failure to perform the duties of a driver” (Gorrow).

http://i.i.com.com/cnwk.1d/i/tim/2013/01/04/teen-facebook-drunk_620x350.jpg

Another, more surprising example of Facebook information use by the government is the story of Paula Asher. Paula is an 18-year-old girl who landed in jail for refusing to take down her Facebook page after she posted prior to her court date: “My dumbass got a DUI and hit a car LOL” (qtd. in Ashe), which the judge was not very pleased with.

Facebook information is also often used local high schools when problems in a school arise. Students in Ontario who use Facebook as a means to bully students in their schools can be suspended or in some cases expelled. The Education Act states in s. 306 (1)(6) that a principal must consider suspending you if you bully someone. S. 310(1)(6) of the Education Act goes on to state that a principal must consider expelling you:
a) if your bullying is motivated by bias (i.e. race, ethnicity, nationality, sexuality, disability or more) OR
b) previously have been suspended for bullying and create an unsafe risk to the safety of another student.

Posting hurtful comments on Facebook about other students at your school qualifies as an act that will impact the school climate regardless of whether you posted these comments off school property or out of school hours. It is easy for this information to come to the attention of the school administration; your posts can be printed by any of your friends or by the person who your comments may be directed too. Any posts on Facebook that are threatening or point to a pattern of harassment or other criminal activity can be used as evidence in court for criminal charges or civil law suits.

As these and many other stories show, it is important to know where your information is stored, for how long, and most importantly, who can access it. As a press release from Astoria police read, “When you post [...] on Facebook, you have to figure that it is not going to stay private long” (qtd. in Gorrow).

References

Ashe, Dru. “Teenage Girl Sent to Jail After Posting About Her DUI Charge on Facebook.” Complex Tech. 20 September 2012. Web. http://www.complex.com/tech/2012/09/girl-ends-up-in-jail-over-facebook-status-of-her-dui-charge. Accessed 17 January 2013

Facebook. “Data Use Policy: Some other things you need to know.” Facebook. 11 December 2012. Web. https://www.facebook.com/about/privacy/other. Accessed 17 January 2013

Gorrow, Chelsea. “Facebook post lands Astoria man in jail.” The Daily Astorian. 4 January 2013. Web. http://www.dailyastorian.com/free/facebook-post-lands-astoria-man-in-jail/article_f7f0ddf6-55d6-11e2-b3d7-0019bb2963f4.html. Accessed 17 January 2013

This scenario was written by Naiara Toker, a volunteer on JFCY's PLE team. All legal content was reviewed by a JFCY lawyer.

Consequences for Skipping School and Dropping Out

2013-02-14T11:08:00.002-05:00

Walter is currently 15 years old and is just finishing up Grade 10, his second year of high school. He dreams to become a chef one day, and so he currently holds a part-time position working after school at Yummy Patties; a local burger joint where he flips burgers and makes some much needed cash. He finds his job very rewarding because he works with some great people, has a very understanding manager, and sees this opportunity as a building block in his aspiration to own a restaurant in the future.

When it comes to his academics, Walter is not doing so well. He dislikes the subjects he is currently taking because he does not find the courses applicable to his daily life. He enjoys the independence that comes with working part-time; he does not need to ask his parents for an allowance and he feels “all grown up” because people are much older than he is at his workplace.

After much deliberation, Walter decides that he wants to drop out of high school because he sees no benefit in staying in school. To him, a full-time job at Yummy Patties is more realistic as it will give him the motivation to move up the hierarchy of the corporation.

Is it legal for Walter to drop out of school at his current age? What are the repercussions?

There is a statute in Ontario, called the Education Act, which covers all issues related to education. According to s.21 (1) of the Education Act (below) everyone over the age of six must attend school until they graduate or reach age 18:

Section 21(1) Unless excused under this section,

(a) every person who attains the age of six years on or before the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in that year until the person attains the age of 18 years; and

(b) every person who attains the age of six years after the first school day in September in any year shall attend an elementary or secondary school on every school day from the first school day in September in the next succeeding year until the last school day in June in the year in which the person attains the age of 18 years

Walter is under 15 years old and he can actually be charged with an offence under the Provincial Offences Act and made to attend court for skipping or "being habitually absent" from school, see section 30 (5) of the Education Act below:

Section 30 (5): A person who is required by law to attend school and who refuses to attend or who is habitually absent from school is, unless the person is 16 years old or older, guilty of an offence and on conviction is liable to the penalties under Part VI of the Provincial Offences Act and subsection 266 (2) of this Act applies in any proceeding under this section.

Walter’s parents can be charged too. The Education Act makes it a parent or guardian’s responsibility to make sure that students go to school if the law requires it. If a parent neglects or refuses to fulfill this responsibility, they can be fined up to $200. See section 30 (1) of the Education Act below:

Section 30 (1): A parent or guardian of a person required to attend school under section 21 who neglects or refuses to cause that person to attend school is, unless the person is 16 years old or older, guilty of an offence and on conviction is liable to a fine of not more than $200

Not only that Walter's employer Yummy Patties could also be charged for employing Walter during school hours. He could be asked to pay a fine for up to $200. See section 30(3) of the Education Act below:
Section 30(3): Anyone who employs during school hours a person required to attend school under section 21 is, unless the person is sixteen years or older, guilty of an offence and on conviction is liable to a fine of not more than $200.

In 2006, Ontario introduced Bill 52, "The Learning to Age 18 Act", an act to amend the Education Act, which stated that changed the laws related to penalties for being out of school so that they applied to youth until the age of eighteen. However, while this bill was successfully passed in the Legislature it has not been made law.

If this is something that Walter really wants to do and he waits until he is 16 or 17 before he drops out of school, then he is technically breaking the law however, at this age neither Walter, his employer or his parents will be charged with an offence.

This blog scenario was written by Georjo Tabucan. The legal content of this blog post was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY through her law schools Pro Bono Students Canada program. All legal content was reviewed by a JFCY staff lawyer.

Break and Enter

2013-02-08T20:30:00.000-05:00

During a cold winter night closer to Christmas, a group of 18 year olds—Alan, Chris, Kyle and Jason—were hanging around the park where they noticed a van pull out of the driveway across the street filled with luggage sets. In curiosity, the group approached a dark non-lit house and rang the doorbell. No answer. They tried to peek into the window and noticed a large Christmas tree surrounded by large presents. “Maybe this family left for a vacation…no one’s around…” the boys assumed.

The next day, the boys came back to the same house in the afternoon and watched as the neighbours pass by the house. “Let’s come back tonight and see if the van is parked in the driveway,” Kyle commanded. Later that night, approximately 11pm, the boys approached the house and still noticed that the driveway was empty and the house remained unlit. Filled with excitement, Kyle guaranteed the rest of his friends without a doubt that the family who owns the house is on vacation. Kyle, then, gathered around his friends Alan, Chris and Jason suggesting to break into the house and steal the presents.

At 3AM, Chris drove his white van and pulled into the driveway along with Jason, Kyle and Alan who wore dark clothing and masks. Kyle rang the doorbell one more time to make sure that no one was home… no answer. All 4 boys, then, went to the backyard and threw a piece of stone to break the glass window. As they broke in, they took all the presents under the Christmas tree and also a laptop that was left in the living room. They ran out through the front door with all the things they found, hopped into the van, and drove away.

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http://daigetssocial.com/wp-content/uploads/2011/11/burglar-thief-computer-burglary1.jpg

What are the legal ramifications of this scenario?

In Canada, the crime of burglary is referred to as “breaking and entering" or "B&E”. All four boys can be charged with the offence of break and enter under s.348 of the Criminal Code of Canada. The offence of break and enter encompasses situations where the accused was or attempted to trespass on private property with an intent to commit an offence or actually committed the offence. Break and enter does not require any damage to the property entered. All that is required is any entrance into the property by even a part of one's body (s.350 of the Criminal Code of Canada). The key evidence for a conviction of such an offence is circumstantial. For this reason, the identity of those charged as well as evidence of possession of the stolen items are often important indicators. If there was a neighbor or third party on the street who saw these boys, or if a parent, friend, sibling finds the stolen goods or if one of the boys involved comes forward, it is probable that the boys will be charged based on this evidence.

Importantly, if you are charged with a crime after you turn 18, the YCJA is no longer applicable and you will be charged under the Criminal Code of Canada. These four boys are over 17 years old, and will be charged under the Criminal Code of Canada.

Legislation: Criminal Code of Canada

348. (1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,

(b) breaks and enters a place and commits an indictable offence therein, or

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein, is guilty

(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and

(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

350. For the purposes of sections 348 and 349,

(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and

(b) a person shall be deemed to have broken and entered if

(i) he obtained entrance by a threat or an artifice or by collusion with a person within, or

(ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening.

This blog scenario was written by Karen Jacobe, a volunteer on the JFCY's PLE Team. The legal content was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY as the PLE team leader through her law school's Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer.

Child Protection: How you can help a friend in need

2013-02-06T20:24:00.001-05:00

Daniel is fourteen years old and in grade nine. He is on his school’s junior basketball team, and practices in the mornings before school. One morning Daniel and his teammates are in the change room, suiting up for their basketball practice. They are all talking about an upcoming game against their rival school. Daniel’s friend Eric is changing next to him. When Eric is changing into his basketball jersey, Daniel notices a huge bruise on Eric’s shoulder. Daniel asks him about it and Eric immediately says, “Oh it’s nothing. I’m such a klutz – I fell down the stairs yesterday!” With that Eric finishes changing at lightning speed and practically runs out into the gym, away from Daniel. Daniel gets an uneasy feeling in his stomach.

At the end of the day, Daniel and Eric walk home from school together. At first Daniel keeps the conversation light, talking about class and their upcoming basketball game. But Daniel can’t shake the uneasy feeling about what had happened that morning. Daniel decides to bring up the subject with Eric.

“Eric, that bruise on your shoulder looks pretty bad.”

Eric’s walk slows, but he responds, “Oh, it’s nothing. It doesn’t hurt that bad. It was my fault, I fell on the ice at hockey practice last night.”

“But this morning you said that you fell down the stairs.”

“Yah… I fell down the stairs and I tripped on the ice – I’m a klutz. Drop it.”

Daniel doesn’t want to drop it. He has a terrible feeling and asks, “Eric, did someone give you that bruise?” Eric won’t make eye contact with Daniel and doesn’t answer the question. Daniel says, “I’m just worried. Are you okay?”

Eric asks Daniel if he can keep a secret; Daniel says, “Of course.” Eric then confesses to Daniel that the bruise wasn’t an accident. His stepfather got angry last night when Eric forgot to unload the dishwasher, and he hit him.

“Eric, that’s not a reason for him to hit you. You should tell your mom… or Mrs. Matthews the principal. I’m sure that one of them can help.”

Eric responds, “Look it was my fault. It’s always my fault! I should have unloaded the dishwasher. I always forget to do stuff, and if I didn’t he wouldn’t have to remind me! I just have to be better. I’m not telling anyone. And you promised you wouldn’t say anything!”

Daniel says, “Yah I promised, but…”

“No ‘buts’! You promised!”

“Okay, okay. I won’t say anything.” Daniel promises.

That night, Daniel wants to talk to his parents about what Eric said, but he is afraid that he will get in trouble, or that he’ll get Eric in trouble. And he doesn’t want to break Eric’s trust.

http://www.papsyblog.org/2011/11/doctors-might-miss-some-cases-of-child.html

WHAT CAN DANIEL DO?

Daniel can tell his parents, or Mrs. Matthews the principal or one of the teachers about the information that Eric told him. Abuse is harm that can take many different forms, including both words and physical actions. No person ever deserves abuse, and regardless of whether Eric forgot to do his daily chores or misbehaved, his stepfather has no right to hit him in anger. Eric needs to realize that it is not his fault and he by no means deserves the abuse from his stepfather.

The adult that Daniel chooses to confide in about his concerns for Eric may talk to Eric to find out what is going on. If this adult thinks that Eric is being abused then he/she has a legal duty to report the situation to the Children’s Aid Society (CAS). The Children’s Aid Society is responsible for protecting children under the age of 16 from harm. CAS also works with families to help take better care of their children. According to Ontario law, every member of the public must contact CAS to report suspicions if they have reasonable grounds to believe that a child is being abused or neglected. The law defines the phrase "child in need of protection" and sets out what must be reported to a children's aid society, which includes physical, sexual and emotional abuse, neglect, and risk of harm. In this case, if Daniel speaks to an adult, the adult will have a duty to report suspicions of abuse (bruise on Eric’s shoulder and his explanation of it). CAS has the authority to investigate a situation if they are contacted.

IF CAS IS CONTACTED:

Once contacted, the CAS will do an initial screening of the report. The CAS worker will take some steps to decide whether CAS needs to become involved. If the CAS worker decides that the children are well cared for, then it may decide not to become involved. After the first step, screening, the CAS may decide to do a child protection investigation. If this happens, the CAS worker will visit Eric’s family home and talk to the family. They may also talk to other people, such as Eric’s teachers or neighbours. At the end of the investigation, they CAS worker may decide that the children are not in need of protection, and no further action will be taken. If, however, the CAS decides that the children are in need of protection, they will take steps to make sure the children are safe. This can include working with the family to try to address the issues and problems the family is facing. If the CAS feels there is no other way to keep the children safe, it can remove, or apprehend, the children. It is important to note that if a decision is made for you to be removed from your home against your parents wishes then the case would have to be heard in court. Children in Ontario have the right to lawyer from the Office of the Children's lawyer who would represent your best interests at court.

NOTE: Having involvement from a Child Protection Agency can be scary and overwhelming. It is important for a young person to know that they have rights and there are agencies that can help explain what is happening and offer support and advice.

If live in Ontario and are under 18 and you have questions about child protection you can call us at Justice for Children and Youth for more information and legal advice at (416) 920–1633 or 1-866-999-5329. It is important to note that while most adults who Eric spoke to about his situation may have a legal obligation to report their suspicion/concern to the local child protection agency this rule does not apply to youth who contact a lawyer for legal advice. Most of the time, a lawyer will not be obligated to report a child protection concern. If you want legal advice - call and we'd be happy to speak with you.

Furthermore, if a local child protection agency has been contacted and you want added assistance the Office of the Provincial Advocate for Children and Youth has advocates who are happy to assist young people who want help advocating for their rights related to entering into care. You can contact them by calling 1-416-325-8326 or 1-800-263-2841.

To find more information or to contact your local Children’s Aid Society, please visit:

Ontario Association of Children’s Aid Societies: http://www.oacas.org/

Native Child and Family Services of Toronto: http://www.nativechild.org/

Catholic Children’s Aid Society of Toronto: http://www.torontoccas.org/

Jewish Family and Child: http://www.jfandcs.com/