Young Offenders

New Study Finds Black Youth More Likely to Be Charged in Durham

Written on Behalf of Affleck & Barrison LLP

A recent study entitled “Youthful Discretion:  Police Selection Bias in Access to Pre-Charge Diversion Programs in Canada” published in the journal Race and Justice has found that “[r]ace has a small but statistically significant impact on arrest decisions”.


Kanika Samuels-Wortley, a doctoral candidate in criminology at the University of Waterloo, examined nearly 6,500 cases between 2007 and 2013 to see how young people were treated on a first offence for simple drug possession or minor theft charges.  These are two of the most common offences that Canadian youth face in the criminal justice system.

Although the paper does not name Durham police as the police service used to collect the data, the demographic data was found to match the Durham region.

According to the data, officers were found to use their discretion to caution more than half of the young people facing the offences, while 31% were ordered to go to a formal youth diversion program (and avoid court), and the remaining 15% were charged.

These figures were promising and consistent with the principles set out in the Youth Criminal Justice Act (“YCJA”), which aims to limit the number of court proceedings for youth involved in less serious offences. 

The YCJA applies to young persons between the ages of 12 and 18.  The YCJA sets out that the youth criminal justice system in Canada is intended to:

  1. Prevent crime by addressing the circumstances underlying a young person’s offending behaviour;
  2. Rehabilitate young persons who commit offences and reintegrate them into society; and
  3. Ensure that a young person is subject to meaningful consequences for the offence in order to promote the long-term protection of the public.

In keeping with these principles, the YCJA allows for extrajudicial measures to be used to address young people who have committed offences.  Extrajudicial measures are defined as measures other than judicial proceedings.  Police officers are required to consider whether extrajudicial measures, such as issuing a warning, administering a caution or referring the individual to a community program or agency, would be more appropriate than proceeding to court.


According to Samuels-Wortley’s findings, the outcomes of how police treated the youth they encountered were somewhat affected by the race of the accused youth.  She found that Black youth were charged in 19% of cases, whereas White youth were charged in 16% of cases, and youth of other racial backgrounds were charged in 17% of cases. At the time of the study, Black youth represented only 6% of the youth population in Durham region.

Samuel-Wortley also found that young women were treated more leniently overall than males, with 11% of young women being charged, in comparison to 18% of young men being charged.

One of the largest racial disparities was found when examining cannabis possession cases.  In these cases, Black youth were charged 38% of the time, in comparison to White youth being charged 22% of the time.


Dave Selby, a spokesperson for Durham police, in an email to the Star, acknowledged the findings by Samuel-Wortley and advised that Durham police accepted her research. 

Selby also informed the Star that an internal study of more recent case records by Durham police from 2014 to 2018 has been conducted which suggests that the racial gaps have closed.  However, this study has not been made available to the public.

Selby stated:

Over the years we have invested a ton of time and money into training front-line officers in terms of bias-free policing.  We continue to provide additional training and educational opportunities.  We have a robust Diversity, Equity and Inclusion Strategy and continue to message this important information to all of our employees.

… [E]veryone has biases, including police officers, so it’s important to discuss this openly and to focus our coaching, mentoring and training efforts to recognize and eliminate any biases we uncover.


An investigation by the Toronto Star in 2017 examined Toronto Police Services data regarding marijuana arrests and charges from 2003 to 2013. 

Toronto Police were found to have arrested 11,299 people for possessing up to 30 grams of marijuana, who had no prior convictions.  According to the data, police recorded these individuals skin colour as follows:  52.8% were White, 25.2% were Black, 15.7% were Brown and 6.3% were categorized as “other”. 

The investigation found that the rate of arrest for Black individuals was significantly higher than their population according to the 2006 census (8.4%).  According to the 2006 census, White individuals made up 53.1% of Toronto’s population.

This investigation also found that most of the individuals caught with possessing marijuana who did not have a prior conviction were released at the scene, however, 15.2% (the highest rate among the racial groups) of the Black individuals were detained for a bail hearing.

In regards to young people, the Star investigation found that 15% of the Black youth were detained for a bail hearing in comparison to 3.2% of the White youth.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Ontario Sets 12 Month Ceiling for Youth Cases

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged about, the Supreme Court of Canada in R. v. Jordan established that adult criminal cases decided in the provincial courts must be resolved within 18 months. In circumstances where cases exceed the 18 months ceiling, it has been found that the accused’s rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) have been violated and a stay of proceedings may be granted, except under “exceptional circumstances”.

The Ontario Youth Court of Justice recently held that a 12-month ceiling should apply for youth cases. In the case of R. v. D.A., the Court applied section 3(1)(b) of the Youth Criminal Justice Act (“YCJA”) which states that youth court proceedings should be carried out with “promptness and speed…given young persons’ perception of time”. This is the first reported decision to specifically establish a lower ceiling for youth cases than adult cases.

The accused, D.A., applied for an order for a stay of proceedings under section 24(2) of the Charter arguing that his rights have been infringed pursuant to section 11(b). He maintained that it will take 18 months and 7 days for the completion of his trial, which is unreasonable and exceeds the presumptive ceiling set by the SCC in R. v. Jordan. Furthermore, the accused submitted that a young person should be subject to a lower presumptive ceiling.


On a date between January 1, 2015 and November 4, 2016, the accused allegedly was observed to be grinding his penis into a three years old’s buttocks as he lay on the floor.

During this same time period, the accused allegedly pulled down his pants and underwear exposing his penis to a nine-year-old boy (the accused’s first cousin) and a four-year-old boy. The accused allegedly asked the boys to touch his penis, which they did.

On December 6, 2016, the accused was interviewed by police without the presence of his mother. At that time, he provided a partially incriminating statement.

The accused was then charged with 8 offences, including sexual assault, sexual interference and invitation to sexual touching. He was released on an undertaking to a peace officer and a promise to appear.


The judicious conclusion of criminal court cases is a fundamental right of all accused individuals found within section 11(b) of the Charter. It is also an important factor in ensuring public confidence in the Canadian criminal justice system.

The timely culmination of criminal court matters is also important for witnesses, victims and their families. Proceeding in this manner assists with the accurate recall of information related to the crime and allows for emotional and psychological closure.

The SCC case of R. v. Jordan set out a new framework and timelines for processing criminal court cases in Canada. The Court set out a “presumptive ceiling” for completing criminal court cases and anything beyond these time periods is deemed unreasonable. However, if a delay is caused by the defence it will not count towards the presumptive ceiling (ie. requesting unnecessary adjournments). Once the presumptive ceiling has been exceeded, the burden is on the Crown prosecutor to justify the delay on the basis of exceptional circumstances.


Individuals who are charged between the ages of 12 and 17 are processed through youth courts in Canada, which operate independently from adult criminal courts. The YCJA provides more proportionate accountability for young persons through age appropriate sentences and the promotion of rehabilitation.

Canada has acknowledged the necessity that criminal proceedings involving young persons should generally be brought to trial faster than adult matters. This has been codified in section 3 of the YCJA.

The Ontario Court of Appeal has also provided reasoning for the belief that young persons should be brought to trial faster in several its decisions. These reasons include:

  • The ability of a young person to appreciate the connection between offending behaviour and consequences will weaken the longer the proceedings take to complete;
  • The perception of time for a young person may be distorted when compared to that of an adult; and
  • The need to sentence young persons while they remain in his/her formative years.

In the case of R. v. D.A., Justice P.T. O’Marra found that the total delay was 555 days less the defence delay of 28 days, resulting in a total delay of 527 days (17 months and 2 weeks). Justice O’Marra irrefutably stated there should be a reduced presumptive ceiling of 12 months for youth cases that are non-complex cases. Therefore, Justice O’Marra held that the delay in this non-complex case was not reasonable, was well over the “youth presumptive ceiling of twelve months” and accordingly the application was allowed and the proceedings were stayed.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Supreme Court of Canada Will Not Hear Appeal of Shafia Honour Killing Case

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (SCC) recently denied Hamed Shafia’s leave to appeal. Shafia (along with his father and mother) was convicted of murdering his three sisters and his father’s first wife.

Shafia had asked the SCC to hear his appeal, arguing that new evidence that established that he had been a youth at the time of the murders should not have been dismissed by a lower court. The SCC denied Shafia’s request, but provided no reason for the denial.

First Degree Murder

In January 2012, Shafia and his parents were found guilty of four counts of first-degree murder and sentenced to life in prison. The bodies of Shafia’s three older sisters and his father’s first wife from what turned out to be a polygamous marriage were found at the bottom of a canal in Kingston, Ontario in 2009.

The convictions were the culmination of a trial that made headlines for months. After only 15 hours of deliberations, the jury accepted the prosecution’s theory that the sisters had been murdered in an honour killing because they had shamed their conservative Muslim family, and the first wife had been killed as she had not produced any children, and was therefore “no longer needed”.

The Court of Appeal

Shafia had previously appealed to the Ontario Court of Appeal, claiming that new evidence had surfaced that showed that he had been too young at the time of the murders to be tried as an adult, and should have been tried separately.

The Court of Appeal found no reason to permit the appeal to move forward on the basis of the new evidence, as the evidence was “not compelling”.

In the application for leave to appeal to the SCC, Shafia’s lawyers argued that the Court of Appeal had not correctly applied the well-known “Palmer test” for admitting fresh evidence. Under the test, fresh evidence can be accepted by an appeal court where is it in the “interests of justice to do so”, and where the evidence is relevant, credible, and could possible modify the outcome of a previous decision. The new evidence should have been accepted by the Ontario Court of Appeal because it raised the very real possibility that a young person had been tried and convicted by a court that had no jurisdiction as a result of his age.

The Significance of the Alleged Age Difference

Shafia’s claim is based on the argument that he was actually 17 years old when his family members were killed, and not 18 as originally thought. As such, he should have been protected by the Youth Criminal Justice Act (Act), which applies to children and “young persons” (i.e.- anyone under 18).

Under the Act, a young person convicted of first-degree murder cannot serve more than six years in prison. Where prosecutors convince a judge to sentence such as youth as an adult, their eligibility for parole begins after 10 years, rather than the 25 years that applies to adults.

If Shafia could successfully establish that he had actually been 17 at the time of the murders he would either have a shortened prison sentence, or would be eligible for parole in the next few years. However, his opportunity to do so has been denied by Canada’s highest court.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, or if believe you have a matter that belongs in the youth criminal justice system, the Oshawa criminal lawyers at Affleck & Barrison can help. Contact us online or at 905-404-1947 to schedule a free consultation with one of our Oshawa lawyers representing young offenders.


An Introduction to the Youth Criminal Justice Act

Written on Behalf of Affleck & Barrison LLP

The Youth Criminal Justice Act came into effect in 2003. It governs the prosecution of youths for criminal offences in Canada. It applies to young persons between the ages of 12 and 17. In Canada, a person is legally considered to be an adult at the age of 18. Canadian law treats young people differently than adults because of their level of development and maturity, but it also recognizes that young persons should be made accountable for their actions for public safety reasons. One of the underlying goals of the Act is to promote the rehabilitation and reintegration of young people back into their families and communities.

The majority of young people who commit crimes are either non-violent or first time offenders. They will generally be given alternative options than going through the court process. “Extrajudicial Measures and Extrajudicial Sanctions” are an alternative to the formal court process designed to help the youth focus on repairing the harm done to the victim and the community. Such options may include police warnings or diversion programs. Young people who have offended may also be placed into programs that will help address their problems and may also provide an opportunity to make restitution to the community. If a young person does end up in court, his or her sentence may involve doing some form of community service or doing something for the victim to make up for the crime.

Serious violent crimes occur when someone gets hurt as a result of a crime or if there is a resinous risk of someone being hurt. For example, a robbery in which no one was injured could be considered “violent” if a gun, or a replica of a gun, was used as a threat.

An adult sentence may be given to a youth 14-17 years old in several situations:

  • The youth has been convicted of one of four serious violent offences;
  • The youth has a pattern of convictions for violent offences; or
  • If the offence is one for which an adult could receive more than two years in jail.

This means that when a youth aged 14 or older commits attempted murder, murder, manslaughter, aggravated sexual assault or has committed three serious violent offences, an adult sentence shall be imposed if the youth is found guilty. A trial will always be held in youth court.

Although the names of young offenders may not be published by the media, the Act does states that the media may publish the name of a youth who has been convicted of a serious violent crime and has received an adult sentence.

If you have any questions about the Youth Criminal Justice Act, please contact Affleck & Barrison online or at 905-404-1947.