Teen sent to jail because there was nowhere else for him to go

A teenager who was forced to represent himself at a bail hearing ended up spending four days in jail have because he had nowhere to go and no lawyer to advocate for him.

Youth forced to represent himself at bail hearing was jailed before charges dropped

Defence lawyer Ben Leung is trying to get the Alberta government to fund counsel for youths who are facing charges after a teenager sat in jail for four days because he was forced to represent himself. (Meghan Grant/CBC)

An Alberta youth who was forced to represent himself at a bail hearing ended up spending four days in jail because he had nowhere to go and no lawyer to advocate for him.

The boy's charges were ultimately withdrawn once defence lawyer Ben Leung and prosecutor Dane Rolfe got hold of the file. Even if the teen had been convicted, his breach charges would not have resulted in a jail sentence for a first offence. 

On Friday, Leung sent a letter to the province's justice minister, calling on the government to fund a duty counsel lawyer so children do not have to represent themselves at bail hearings. 

"We all work hard to ensure the system is robust and fair, and when you see such gross unfairness happening, it provokes a very visceral reaction," said Leung.

Bail hearing dilemma

The teen from the Siksika Nation reserve, 90 kilometres east of Calgary, was arrested on the Labour Day long weekend for breaching his release conditions.

A transcript of the first court appearance shows the prosecutor and justice of the peace discussing the boy's living situation.

The prosecutor told the justice of the peace that the teen's mother and grandmother both said he was not welcome in their homes.

Instead of looking into available shelters or other adults whose custody the boy could be released into, they decided to keep him in custody. The boy was then brought into the conversation over closed-circuit TV.

A transcript of the bail hearing shows the boy did not have a lawyer and simply went along with the prosecutor's wishes to have him held in custody.

"At the Crown's request, you're remanded, but you won't be able to be transported until tomorrow, which is Tuesday, so you won't be able to make a court appearance until Wednesday," said Justice of the Peace Angeline Verenka to the teen.

"OK," said the boy. 

But on the Wednesday, his case was delayed another day. 

The next day, Leung was acting as duty counsel in Siksika court when he realized the youth had been sitting for days behind bars. He said his reaction was one of "anger and disappointment."

"The Calgary Young Offender's Centre is not a shelter," said Leung. "You can't use jail as an alternative to social welfare."

For that reason and because the boy was not advised of his right to a lawyer, Leung said the teen's detainment was "unlawful" under the Youth Criminal Justice Act.

'Miscarriages of justice'

A Court of Queen's Bench decision recently determined that police officers could not act as Crowns in bail hearings, so the provincial government has funded two dozen prosecutor bail officers, but no duty counsel for accused who don't already have a lawyer.

"When you don't have that balancing voice there, you end up with miscarriages of justice," said Leung.

Not only does Leung want to see a duty counsel lawyer available for bail hearings, he also wants an inquiry — for the justice minister to look into what went wrong in this case. 

The boy's probation officer has said that the teen's mother was, in fact, willing to have her son come home, so Leung is now concerned about the information passed from RCMP to the Crown prosecutor. 

Justice Minister Kathleen Ganley confirmed her office has received Leung's letter and said she's asked for more details on the facts of the case.

"Access to justice is absolutely a priority for our government and we are continuously looking for ways to improve the justice system," said Ganley in a written statement. "We recently transitioned from police presenters to Crown prosecutors at bail hearings across Alberta and are having ongoing discussions with Legal Aid Alberta."

In accordance with the Youth Criminal Justice Act, the teen's name cannot be published.