The Youth Criminal Justice Act


The Juvenile Delinquents Act

The Juvenile Delinquents Act of 1908 enunciated a philosophy which required that children adjudged to have committed delinquencies (i.e. breaches of municipal, truancy, provincial, or federal law) be dealt with not as offenders, but as being in a condition of delinquency and requiring help and guidance and supervision. The determination of whether or not a delinquency had been committed was made informally and sometimes without due process. Available sentencing options included suspension of disposition, adjournment sine die (no penalty), fines, probation, placement with Children's Aid Society, and indeterminate committal to training school. Sentence did not necessarily fit the crime. An individual who violated a minor provincial statute could be sentenced to training school for an undetermined length of time if the judge thought it necessary to reform his or her delinquent condition.


Y.O.A. and Y.C.J.A.  Declaration of Principle

The Young Offenders Act of 1984 and the current Youth Criminal Justice Act, unlike the Juvenile Delinquents Act of 1908, focus on the responsibility of young persons for consequences of their behaviour.. Except for breach of probation, federal criminal offences for young persons are the same as for adults. Provincial offences are dealt with under provincial legislation. Most criminal procedure is the same for young persons as it is for adults. Most evidence law is the same for young persons as it is for adults. Sentencing for young persons must fit the crime as it does for adults.


Criminal Code of Canada and the Canada Evidence Act

Individuals seeking to understand the criminal law of Canada should first read the Criminal Code of Canada to determine what behaviour is considered criminal, to learn the essential steps in criminal procedure, and to establish what evidence will be admitted in Court.


Youth Court Jurisdiction

Young persons charged with criminal offences are dealt with in Youth Justice Court. In Ontario, Youth Justice Court Judges are judges of the Ontario Court of Justice, the same judges who deal with adults for all adult summary offences and those adult indictable offences tried before provincial judges. Youth Justice Courts in Ontario are generally in the same courthouses as the adult criminal courts. The same Crown Attorneys prosecute as in adult matters. The same court staff assist. The same police officers testify in adult and Youth Justice Courts. Notwithstanding the provisions of the YCJA., holding facilities, including individual cells for young persons often adjoin adults. A young person in detention in an Ontario courthouse has great potential for being verbally influenced by adult detainees.


Alternative Measures, Extrajudicial Measures, and Diversion

Young persons charged with relatively minor criminal offences, such as shoplifting, may be eligible for alternative measures programmes unique to each province. In Ontario, young persons who really are guilty of such offences, may apply to the local Crown Attorney to be considered. If approved, the criminal charges will be withdrawn or stayed upon the young persons' undertakings to do community work, write apologies, make restitution, write papers, or other public service.


Bail Hearings s. 28

Bail hearings for young persons are essentially the same as they are for adults, except that adolescents are generally not released on their own recognizance. Young persons who do not have a parent available to house them, supervise them and post a (surety) will find it very difficult to obtain release pending trial. Adults, on the other hand, who have their own homes and jobs are more likely to be released on their own recognizance. Young person can alternatively be placed in the care of a responsible person.


Notice to Parent

Unlike the case with adults, a young person's parent must be of the Court appearance prior to the date. Notice is given in writing to a parent or adult relative. Matters are often adjourned to permit service of such notice.


Confessions and Statements 

At trial the police often attempt to prove that the young person has made a confession, admitting responsibility for the crime in the form of an oral, handwritten, typed, or videotaped statement. As with adults the statement must be (voluntary) (not as a result of torture, physical abuse, intimidation, threats, or inducements). Police must advise young persons of their right to counsel and afford a reasonable opportunity for counsel under s. 10 of the Canadian Charter of Rights and Freedoms.

Under section 146 of the Youth Criminal Justice Act, police must clearly explain certain things to a young person prior to taking a statement. The requirement of a clear explanation for each of the four parts of 146(2)(b)cannot be waived. Young persons studying law should carefully learn each component of s. 146(2)(b)(i) through (iv). The young person under 146(2)(c) must be given a reasonable opportunity to consult with a parent and/or a lawyer prior to the taking of any statement. "Consult" means far more than a telephone call, or a "talk to". A young person is entitled to privacy, face to face conversation, quality advice, and reasonable time. A young person may consult both a parent and a lawyer, on the telephone or in person, as the adolescent wishes. Under s. 146(2)(d) any person so consulted, must be present during the taking of the oral, handwritten, typed, or videotaped confession. A young person who clearly understands what he or she is giving up may waive the requirements of s. 146(2)(c) and (d). Any such waiver must however be in writing or videotaped. Unfortunately, most waiver documents signed by young persons prior to the taking of a statement are not adequately understood by them. Research has shown that young persons who sign such waivers are generally those who don't understand them. The public and the media seem convinced that adolescents are all too aware of their legal rights. In fact, nothing could be further from the truth. Our educational institutions need to do a better job of informing young persons of their very important rights under s. 146 of the Youth Criminal Justice Act.


Sentencing

A young person who is found guilty of a criminal offence under the Criminal Code of Canada or other federal offence will be sentenced to a penalty which fits the crime. The Court will consider mitigating factors such a guilty plea, demonstrated remorse, restitution, and evidence of good character as well as aggravating factors such as previous criminal record, evidence of planning, extent of violence or damage or loss, impact on the victim, and participation with others. In my experience, the existence of a prior record has more of an aggravating impact in Youth Criminal Justice Court than it does in adult court.


Pre-Sentence Report

If a judge wants more information on the offender than is available prior to sentencing he or she may order a pre-sentence report in adult court  or Youth Court. In Ontario, a matter will be postponed or adjourned 4 to 6 weeks for preparation of such a report by a probation officer. Parents, the young person, the victim, school authorities, professionals involved with the young person and others will be interviewed. Letters of character reference from family friends, coaches, pastors and employers will be considered. The youth worker will analyze family history, school history, medical and psychological history, and prior involvement with community resources (including probation and Children's Aid Society). A written report will be prepared for the judge immediately prior to the sentencing date. Both the Crown and defence will have an opportunity to cross-examine the author of the report, make corrections, challenge its accuracy, and make other submissions as to sentence.


Available Sentences

Available sentencing options include absolute discharge, conditional discharge, fine, compensation or restitution order, community service order, prohibition order (eg. weapons), probation, or jail. An absolute discharge means no sentence other than the finding of guilt. A conditional discharge provides the same, conditional upon satisfactory completion of probation. Community service orders are administered by a local community service co-ordinator or probation officer and often involve work in community centres for seniors or the environment.  Young persons serve the real time to which they are sentenced.  

The statutory range of sentences includes:

  • (a) reprimand the young person;

  • (b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest;

  • (c) by order direct that the young person be discharged on any conditions that the court considers appropriate and may require the young person to report to and be supervised by the provincial director;

  • (d) impose on the young person a fine not exceeding $1,000 to be paid at the time and on the terms that the court may fix;

  • (e) order the young person to pay to any other person at the times and on the terms that the court may fix an amount by way of compensation for loss of or damage to property or for loss of income or support, or an amount for, in the Province of Quebec, pre-trial pecuniary loss or, in any other province, special damages, for personal injury arising from the commission of the offence if the value is readily ascertainable, but no order shall be made for other damages in the Province of Quebec or for general damages in any other province;

  • (f) order the young person to make restitution to any other person of any property obtained by the young person as a result of the commission of the offence within the time that the court may fix, if the property is owned by the other person or was, at the time of the offence, in his or her lawful possession;

  • (g) if property obtained as a result of the commission of the offence has been sold to an innocent purchaser, where restitution of the property to its owner or any other person has been made or ordered, order the young person to pay the purchaser, at the time and on the terms that the court may fix, an amount not exceeding the amount paid by the purchaser for the property;

  • (h) subject to section 54, order the young person to compensate any person in kind or by way of personal services at the time and on the terms that the court may fix for any loss, damage or injury suffered by that person in respect of which an order may be made under paragraph (e) or (g);

  • (i) subject to section 54, order the young person to perform a community service at the time and on the terms that the court may fix, and to report to and be supervised by the provincial director or a person designated by the youth justice court;

  • (j) subject to section 51 (mandatory prohibition order), make any order of prohibition, seizure or forfeiture that may be imposed under any Act of Parliament or any regulation made under it if an accused is found guilty or convicted of that offence, other than an order under section 161 of the Criminal Code;

  • (k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;

  • (l) subject to subsection (3) (agreement of provincial director), order the young person into an intensive support and supervision program approved by the provincial director;

  • (m) subject to subsection (3) (agreement of provincial director) and section 54, order the young person to attend a non-residential program approved by the provincial director, at the times and on the terms that the court may fix, for a maximum of two hundred and forty hours, over a period not exceeding six months;

  • (n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period which is one half as long as the first be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order;

  • (o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;

  • (p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate;

  • (q) order the young person to serve a sentence not to exceed

    • (i) in the case of first degree murder, ten years comprised of

      • (A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and

      • (B) a placement under conditional supervision to be served in the community in accordance with section 105, and

    • (ii) in the case of second degree murder, seven years comprised of

      • (A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed four years from the date of committal, and

      • (B) a placement under conditional supervision to be served in the community in accordance with section 105;

  • (r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person

    • (i) that is for a specified period that must not exceed

      • (A) two years from the date of committal, or

      • (B) if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of committal,

      and that orders the young person to be committed into a continuous period of intensive rehabilitative custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder under conditional supervision in the community in accordance with section 105,

    • (ii) that is for a specified period that must not exceed, in the case of first degree murder, ten years from the date of committal, comprising

      • (A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed six years from the date of committal, and

      • (B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105, and

    • (iii) that is for a specified period that must not exceed, in the case of second degree murder, seven years from the date of committal, comprising

      • (A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed four years from the date of committal, and

      • (B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105; and

  • (s) impose on the young person any other reasonable and ancillary conditions that the court considers advisable and in the best interests of the young person and the public.

 


Records Access

Contrary to public perception , Youth Court records are not destroyed at age 18. Evidence of prior findings of guilt under the Young Offenders Act and Youth Criminal Justice Act are often used against adults in Court at bail hearings and sentencing. Young persons are never "convicted" but rather are "found guilty" of criminal offences.

After periods of time, Youth Court records are made not available, i.e. they may be "purged" or made not available from the local police or R.C.M.P. databases. The periods are:



  • (a) if an extrajudicial sanction is used to deal with the young person, the period ending two years after the young person consents to be subject to the sanction in accordance with paragraph 10(2)(c);

  • (b) if the young person is acquitted of the offence otherwise than by reason of a verdict of not criminally responsible on account of mental disorder, the period ending two months after the expiry of the time allowed for the taking of an appeal or, if an appeal is taken, the period ending three months after all proceedings in respect of the appeal have been completed;

  • (c) if the charge against the young person is dismissed for any reason other than acquittal, the charge is withdrawn, or the young person is found guilty of the offence and a reprimand is given, the period ending two months after the dismissal, withdrawal, or finding of guilt;

  • (d) if the charge against the young person is stayed, with no proceedings being taken against the young person for a period of one year, at the end of that period;

  • (e) if the young person is found guilty of the offence and the youth sentence is an absolute discharge, the period ending one year after the young person is found guilty;

  • (f) if the young person is found guilty of the offence and the youth sentence is a conditional discharge, the period ending three years after the young person is found guilty;

  • (g) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is a summary conviction offence, the period ending three years after the youth sentence imposed in respect of the offence has been completed;

  • (h) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence, the period ending five years after the youth sentence imposed in respect of the offence has been completed;

  • (i) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an offence punishable on summary conviction committed when he or she was a young person, the latest of

    • (i) the period calculated in accordance with paragraph (g) or (h), as the case may be, and

    • (ii) the period ending three years after the youth sentence imposed for that offence has been completed; and

  • (j) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an indictable offence committed when he or she was a young person, the period ending five years after the sentence imposed for that indictable offence has been completed.


 

Dispositions other than alternative measures and discharges will not be purged, however, if there is an intervening offence. Notwithstanding these provisions, fingerprints are transferred to the Special Fingerprints Repository and are destroyed after a further five years. Individuals with records prior to December 1995 should apply to the R.C.M.P. to obtain the benefit of these sections.


Young Offenders Act and Youth Criminal Justice Act articles at other sites

 

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Stephen R. Biss, Barrister & Solicitor

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Mississauga, Ontario
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Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.