December 2010: Enter Your Comments and Opiniion Respecting the JDA, the YOA, and the YCJA

January 2011: The Great Youth Criminal Justice Act Debate Continues 

Young Offenders Act

Y-1

as of January 1, 2003 

now repealed

An Act respecting young offenders

SHORT TITLE

Short title

1. This Act may be cited as the Young Offenders Act.

1980-81-82-83, c. 110, s. 1.

INTERPRETATION

Definitions

2. (1) In this Act, "adult"
«adulte »

"adult" means a person who is neither a young person nor a child;

"alternative measures"
«mesures de rechange »

"alternative measures" means measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence;

"child"
«enfant »

"child" means a person who is or, in the absence of evidence to the contrary, appears to be under the age of twelve years;

"disposition"
«décision »

"disposition" means a disposition made under any of sections 20, 20.1 and 28 to 32, and includes a confirmation or a variation of a disposition;

"offence"
«infraction »

"offence" means an offence created by an Act of Parliament or by any regulation, rule, order, by-law or ordinance made thereunder, other than an ordinance of the Yukon Territory or the Northwest Territories or a law of the Legislature for Nunavut;

"ordinary court"
«juridiction normalement compétente »

"ordinary court" means the court that would, but for this Act, have jurisdiction in respect of an offence alleged to have been committed;

"parent"
«père ou mère » ou
«père et mère »

"parent" includes, in respect of another person, any person who is under a legal duty to provide for that other person or any person who has, in law or in fact, the custody or control of that other person, but does not include a person who has the custody or control of that other person by reason only of proceedings under this Act;

"pre-disposition report"
«rapport prédécisionnel »

"pre-disposition report" means a report on the personal and family history and present environment of a young person made in accordance with section 14;

"progress report"
«rapport d’évolution »

"progress report" means a report made in accordance with section 28 on the performance of a young person against whom a disposition has been made;

"provincial director"
«directeur provincial » ou
«directeur »

"provincial director" means a person, a group or class of persons or a body appointed or designated by or pursuant to an Act of the legislature of a province or by the Lieutenant Governor in Council of a province or his delegate to perform in that province, either generally or in a specific case, any of the duties or functions of a provincial director under this Act;

"review board"
«commission d’examen »

"review board" means a review board established or designated by a province for the purposes of section 30;

"young person"
«adolescent »

"young person" means a person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act with having committed an offence while he was a young person or is found guilty of an offence under this Act;

"youth court"
«tribunal pour adolescents »

"youth court" means a court established or designated by or under an Act of the legislature of a province, or designated by the Governor in Council or the Lieutenant Governor in Council of a province, as a youth court for the purposes of this Act;

"youth court judge"
«juge du tribunal pour adolescents »

"youth court judge" means a person appointed to be a judge of a youth court;

"youth worker"
«délégué à la jeunesse »

"youth worker" means a person appointed or designated, whether by title of youth worker or probation officer or by any other title, by or pursuant to an Act of the legislature of a province or by the Lieutenant Governor in Council of a province or his delegate, to perform, either generally or in a specific case, in that province any of the duties or functions of a youth worker under this Act.

Words and expressions

(2) Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.

R.S., 1985, c. Y-1, s. 2; R.S., 1985, c. 24 (2nd Supp.), s. 1; 1993, c. 28, s. 78; 1995, c. 39, s. 177; 1998, c. 15, s. 41.

Powers, duties and functions of provincial directors

2.1 Any power, duty or function of a provincial director under this Act may be exercised or performed by any person authorized by the provincial director to do so and, if so exercised or performed, shall be deemed to have been exercised or performed by the provincial director.

R.S., 1985, c. 24 (2nd Supp.), s. 2.

DECLARATION OF PRINCIPLE

Policy for Canada with respect to young offenders

3. (1) It is hereby recognized and declared that

(a) crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi-disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future;

(a.1) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;

(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;

(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;

(c.1) the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences, and rehabilitation is best achieved by addressing the needs and circumstances of a young person that are relevant to the young person’s offending behaviour;

(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;

(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;

(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;

(g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and

(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate.

Act to be liberally construed

(2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).

R.S., 1985, c. Y-1, s. 3; 1995, c. 19, s. 1.

ALTERNATIVE MEASURES

Alternative measures

4. (1) Alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if

(a) the measures are part of a program of alternative measures authorized by the Attorney General or his delegate or authorized by a person, or a person within a class of persons, designated by the Lieutenant Governor in Council of a province;

(b) the person who is considering whether to use such measures is satisfied that they would be appropriate, having regard to the needs of the young person and the interests of society;

(c) the young person, having been informed of the alternative measures, fully and freely consents to participate therein;

(d) the young person has, before consenting to participate in the alternative measures, been advised of his right to be represented by counsel and been given a reasonable opportunity to consult with counsel;

(e) the young person accepts responsibility for the act or omission that forms the basis of the offence that he is alleged to have committed;

(f) there is, in the opinion of the Attorney General or his agent, sufficient evidence to proceed with the prosecution of the offence; and

(g) the prosecution of the offence is not in any way barred at law.

Restriction on use

(2) Alternative measures shall not be used to deal with a young person alleged to have committed an offence if the young person

(a) denies his participation or involvement in the commission of the offence; or

(b) expresses his wish to have any charge against him dealt with by the youth court.

Admissions not admissible in evidence

(3) No admission, confession or statement accepting responsibility for a given act or omission made by a young person alleged to have committed an offence as a condition of his being dealt with by alternative measures shall be admissible in evidence against him in any civil or criminal proceedings.

No bar to proceedings

(4) The use of alternative measures in respect of a young person alleged to have committed an offence is not a bar to proceedings against him under this Act, but

(a) where the youth court is satisfied on a balance of probabilities that the young person has totally complied with the terms and conditions of the alternative measures, the youth court shall dismiss any charge against him; and

(b) where the youth court is satisfied on a balance of probabilities that the young person has partially complied with the terms and conditions of the alternative measures, the youth court may dismiss any charge against him if, in the opinion of the court, the prosecution of the charge would, having regard to the circumstances, be unfair, and the youth court may consider the young person’s performance with respect to the alternative measures before making a disposition under this Act.

Laying of information, etc.

(5) Subject to subsection (4), nothing in this section shall be construed to prevent any person from laying an information, obtaining the issue or confirmation of any process or proceeding with the prosecution of any offence in accordance with law.

1980-81-82-83, c. 110, s. 4.

JURISDICTION

Exclusive jurisdiction of youth court

5. (1) Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act.

Period of limitation

(2) No proceedings in respect of an offence shall be commenced under this Act after the expiration of the time limit set out in any other Act of Parliament or any regulation made thereunder for the institution of proceedings in respect of that offence.

Proceedings continued when adult

(3) Proceedings commenced under this Act against a young person may be continued, after he becomes an adult, in all respects as if he remained a young person.

Powers of youth court judge

(4) A youth court judge, for the purpose of carrying out the provisions of this Act, is a justice and a provincial court judge and has the jurisdiction and powers of a summary conviction court under the Criminal Code.

Court of record

(5) A youth court is a court of record.

R.S., 1985, c. Y-1, s. 5; R.S., 1985, c. 24 (2nd Supp.), s. 3.

Certain proceedings may be taken before justices

6. Any proceeding that may be carried out before a justice under the Criminal Code, other than a plea, a trial or an adjudication, may be carried out before a justice in respect of an offence alleged to have been committed by a young person, and any process that may be issued by a justice under the Criminal Code may be issued by a justice in respect of an offence alleged to have been committed by a young person.

R.S., 1985, c. Y-1, s. 6; R.S., 1985, c. 24 (2nd Supp.), s. 4.

DETENTION PRIOR TO DISPOSITION

Designated place of temporary detention

7. (1) A young person who is

(a) arrested and detained prior to the making of a disposition in respect of the young person under section 20, or

(b) detained pursuant to a warrant issued under subsection 32(6)

shall, subject to subsection (4), be detained in a place of temporary detention designated as such by the Lieutenant Governor in Council of the appropriate province or his delegate or in a place within a class of such places so designated.

Exception

(1.1) A young person who is detained in a place of temporary detention pursuant to subsection (1) may, in the course of being transferred from that place to the court or from the court to that place, be held under the supervision and control of a peace officer.

Detention separate from adults

(2) A young person referred to in subsection (1) shall be held separate and apart from any adult who is detained or held in custody unless a youth court judge or a justice is satisfied that

(a) the young person cannot, having regard to his own safety or the safety of others, be detained in a place of detention for young persons; or

(b) no place of detention for young persons is available within a reasonable distance.

Transfer by provincial director

(3) A young person who is detained in custody in accordance with subsection (1) may, during the period of detention, be transferred by the provincial director from one place of temporary detention to another.

Exception relating to temporary detention

(4) Subsections (1) and (2) do not apply in respect of any temporary restraint of a young person under the supervision and control of a peace officer after arrest, but a young person who is so restrained shall be transferred to a place of temporary detention referred to in subsection (1) as soon as is reasonably practicable, and in no case later than the first reasonable opportunity after the appearance of the young person before a youth court judge or a justice pursuant to section 503 of the Criminal Code.

Authorization of provincial authority for detention

(5) In any province for which the Lieutenant Governor in Council has designated a person or a group of persons whose authorization is required, either in all circumstances or in circumstances specified by the Lieutenant Governor in Council, before a young person who has been arrested may be detained in accordance with this section, no young person shall be so detained unless the authorization is obtained.

Determination by provincial authority of place of detention

(6) In any province for which the Lieutenant Governor in Council has designated a person or a group of persons who may determine the place where a young person who has been arrested may be detained in accordance with this section, no young person may be so detained in a place other than the one so determined.

R.S., 1985, c. Y-1, s. 7; R.S., 1985, c. 24 (2nd Supp.), s. 5.

Placement of young person in care of responsible person

7.1 (1) Where a youth court judge or a justice is satisfied that

(a) a young person who has been arrested would, but for this subsection, be detained in custody,

(b) a responsible person is willing and able to take care of and exercise control over the young person, and

(c) the young person is willing to be placed in the care of that person,

the young person may be placed in the care of that person instead of being detained in custody.

Condition of placement

(2) A young person shall not be placed in the care of a person under subsection (1) unless

(a) that person undertakes in writing to take care of and to be responsible for the attendance of the young person in court when required and to comply with such other conditions as the youth court judge or justice may specify; and

(b) the young person undertakes in writing to comply with the arrangement and to comply with such other conditions as the youth court judge or justice may specify.

Removing young person from care

(3) Where a young person has been placed in the care of a person under subsection (1) and

(a) that person is no longer willing or able to take care of or exercise control over the young person, or

(b) it is, for any other reason, no longer appropriate that the young person be placed in the care of that person,

the young person, the person in whose care the young person has been placed or any other person may, by application in writing to a youth court judge or a justice, apply for an order under subsection (4).

Order

(4) Where a youth court judge or a justice is satisfied that a young person should not remain in the custody of the person in whose care he was placed under subsection (1), the youth court judge or justice shall

(a) make an order relieving the person and the young person of the obligations undertaken pursuant to subsection (2); and

(b) issue a warrant for the arrest of the young person.

Effect of arrest

(5) Where a young person is arrested pursuant to a warrant issued under paragraph (4)(b), the young person shall be taken before a youth court judge or justice forthwith and dealt with under section 515 of the Criminal Code.

R.S., 1985, c. 24 (2nd Supp.), s. 5.

Offence and punishment

7.2 Any person who wilfully fails to comply with section 7, or with an undertaking entered into pursuant to subsection 7.1(2), is guilty of an offence punishable on summary conviction.

R.S., 1985, c. 24 (2nd Supp.), s. 5.

8.

(1) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 6]

Application to youth court

(2) Where an order is made under section 515 of the Criminal Code in respect of a young person by a justice who is not a youth court judge, an application may, at any time after the order is made, be made to a youth court for the release from or detention in custody of the young person, as the case may be, and the youth court shall hear the matter as an original application.

Notice to prosecutor

(3) An application under subsection (2) for release from custody shall not be heard unless the young person has given the prosecutor at least two clear days notice in writing of the application.

Notice to young person

(4) An application under subsection (2) for detention in custody shall not be heard unless the prosecutor has given the young person at least two clear days notice in writing of the application.

Waiver of notice

(5) The requirement for a notice under subsection (3) or (4) may be waived by the prosecutor or by the young person or his counsel, as the case may be.

Application for review under section 520 or 521 of Criminal Code

(6) An application under section 520 or 521 of the Criminal Code for a review of an order made in respect of a young person by a youth court judge who is a judge of a superior, county or district court shall be made to a judge of the court of appeal.

Nunavut

(6.1) Despite subsection (6), an application under section 520 or 521 of the Criminal Code for a review of an order made in respect of a young person by a youth court judge who is a judge of the Nunavut Court of Justice shall be made to a judge of that court.

Idem

(7) No application may be made under section 520 or 521 of the Criminal Code for a review of an order made in respect of a young person by a justice who is not a youth court judge.

Interim release by youth court judge only

(8) Where a young person against whom proceedings have been taken under this Act is charged with an offence referred to in section 522 of the Criminal Code, a youth court judge, but no other court, judge or justice, may release the young person from custody under that section.

Review by court of appeal

(9) A decision made by a youth court judge under subsection (8) may be reviewed in accordance with section 680 of the Criminal Code and that section applies, with such modifications as the circumstances require, to any decision so made.

R.S., 1985, c. Y-1, s. 8; R.S., 1985, c. 24 (2nd Supp.), s. 6; 1999, c. 3, s. 86.

NOTICES TO PARENTS

Notice to parent in case of arrest

9. (1) Subject to subsections (3) and (4), where a young person is arrested and detained in custody pending his appearance in court, the officer in charge at the time the young person is detained shall, as soon as possible, give or cause to be given, orally or in writing, to a parent of the young person notice of the arrest stating the place of detention and the reason for the arrest.

Notice to parent in case of summons or appearance notice

(2) Subject to subsections (3) and (4), where a summons or an appearance notice is issued in respect of a young person, the person who issued the summons or appearance notice, or, where a young person is released on giving his promise to appear or entering into a recognizance, the officer in charge, shall, as soon as possible, give or cause to be given, in writing, to a parent of the young person notice of the summons, appearance notice, promise to appear or recognizance.

Notice to relative or other adult

(3) Where the whereabouts of the parents of a young person

(a) who is arrested and detained in custody,

(b) in respect of whom a summons or an appearance notice is issued, or

(c) who is released on giving his promise to appear or entering into a recognizance

are not known or it appears that no parent is available, a notice under this section may be given to an adult relative of the young person who is known to the young person and is likely to assist him or, if no such adult relative is available, to such other adult who is known to the young person and is likely to assist him as the person giving the notice considers appropriate.

Notice to spouse

(4) Where a young person described in paragraph (3)(a), (b) or (c) is married, a notice under this section may be given to the spouse of the young person instead of a parent.

Notice on direction of youth court judge or justice

(5) Where doubt exists as to the person to whom a notice under this section should be given, a youth court judge or, where a youth court judge is, having regard to the circumstances, not reasonably available, a justice may give directions as to the person to whom the notice should be given, and a notice given in accordance with those directions is sufficient notice for the purposes of this section.

Contents of notice

(6) Any notice under this section shall, in addition to any other requirements under this section, include

(a) the name of the young person in respect of whom it is given;

(b) the charge against the young person and the time and place of appearance; and

(c) a statement that the young person has the right to be represented by counsel.

Service of notice

(7) Subject to subsections (9) and (10), a notice under this section given in writing may be served personally or may be sent by mail.

Proceedings not invalid

(8) Subject to subsections (9) and (10), failure to give notice in accordance with this section does not affect the validity of proceedings under this Act.

Exception

(9) Failure to give notice under subsection (2) in accordance with this section in any case renders invalid any subsequent proceedings under this Act relating to the case unless

(a) a parent of the young person against whom proceedings are held attends court with the young person; or

(b) a youth court judge or a justice before whom proceedings are held against the young person

(i) adjourns the proceedings and orders that the notice be given in such manner and to such persons as the judge or justice directs, or

(ii) dispenses with the notice where the judge or justice is of the opinion that, having regard to the circumstances, the notice may be dispensed with.

 

Where a notice not served

(10) Where there has been a failure to give a notice under subsection (1) in accordance with this section and none of the persons to whom such notice may be given attends court with a young person, a youth court judge or a justice before whom proceedings are held against the young person may

(a) adjourn the proceedings and order that the notice be given in such manner and to such person as he directs; or

(b) dispense with the notice where, in his opinion, having regard to the circumstances, notice may be dispensed with.

(11) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 7]

R.S., 1985, c. Y-1, s. 9; R.S., 1985, c. 24 (2nd Supp.), ss. 7, 44(F); 1991, c. 43, s. 31.

Order requiring attendance of parent

10. (1) Where a parent does not attend proceedings before a youth court in respect of a young person, the court may, if in its opinion the presence of the parent is necessary or in the best interest of the young person, by order in writing require the parent to attend at any stage of the proceedings.

Service of order

(2) A copy of any order made under subsection (1) shall be served by a peace officer or by a person designated by a youth court by delivering it personally to the parent to whom it is directed, unless the youth court authorizes service by registered mail.

Failure to attend

(3) A parent who is ordered to attend a youth court pursuant to subsection (1) and who fails without reasonable excuse, the proof of which lies on that parent, to comply with the order

(a) is guilty of contempt of court;

(b) may be dealt with summarily by the court; and

(c) is liable to the punishment provided for in the Criminal Code for a summary conviction offence.

Appeal

(4) Section 10 of the Criminal Code applies where a person is convicted of contempt of court under subsection (3).

Warrant to arrest parent

(5) If a parent who is ordered to attend a youth court pursuant to subsection (1) does not attend at the time and place named in the order or fails to remain in attendance as required and it is proved that a copy of the order was served on the parent, a youth court may issue a warrant to compel the attendance of the parent.

(6) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 8]

R.S., 1985, c. Y-1, s. 10; R.S., 1985, c. 24 (2nd Supp.), ss. 8, 44(F).

RIGHT TO COUNSEL

Right to retain counsel

11. (1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and prior to and during any consideration of whether, instead of commencing or continuing judicial proceedings against the young person under this Act, to use alternative measures to deal with the young person.

Arresting officer to advise young person of right to counsel

(2) Every young person who is arrested or detained shall, forthwith on his arrest or detention, be advised by the arresting officer or the officer in charge, as the case may be, of his right to be represented by counsel and shall be given an opportunity to obtain counsel.

Justice, youth court or review board to advise young person of right to counsel

(3) Where a young person is not represented by counsel

(a) at a hearing at which it will be determined whether to release the young person or detain him in custody prior to disposition of his case,

(b) at a hearing held pursuant to section 16,

(c) at his trial,

(c.1) at any proceedings held pursuant to subsection 26.1(1), 26.2(1) or 26.6(1),

(d) at a review of a disposition held before a youth court or a review board under this Act, or

(e) at a review of the level of custody pursuant to subsection 28.1(1),

the justice before whom, or the youth court or review board before which, the hearing, trial or review is held shall advise the young person of his right to be represented by counsel and shall give the young person a reasonable opportunity to obtain counsel.

Trial, hearing or review before youth court or review board

(4) Where a young person at his trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth court before which the hearing, trial or review is held or the review board before which the review is held

(a) shall, where there is a legal aid or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or

(b) where no legal aid or assistance program is available or the young person is unable to obtain counsel through such a program, may, and on the request of the young person shall, direct that the young person be represented by counsel.

Appointment of counsel

(5) Where a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General of the province in which the direction is made shall appoint counsel, or cause counsel to be appointed, to represent the young person.

Release hearing before justice

(6) Where a young person at a hearing before a justice who is not a youth court judge at which it will be determined whether to release the young person or detain him in custody prior to disposition of his case wishes to obtain counsel but is unable to do so, the justice shall

(a) where there is a legal aid or an assistance program available in the province where the hearing is held,

(i) refer the young person to that program for the appointment of counsel, or

(ii) refer the matter to a youth court to be dealt with in accordance with paragraph (4)(a) or (b); or

 

(b) where no legal aid or assistance program is available or the young person is unable to obtain counsel through such a program, refer the matter to a youth court to be dealt with in accordance with paragraph (4)(b).

Young person may be assisted by adult

(7) Where a young person is not represented by counsel at his trial or at a hearing or review referred to in subsection (3), the justice before whom or the youth court or review board before which the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the justice, court or review board considers to be suitable.

Counsel independent of parents

(8) In any case where it appears to a youth court judge or a justice that the interests of a young person and his parents are in conflict or that it would be in the best interest of the young person to be represented by his own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of his parents.

Statement of right to counsel

(9) A statement that a young person has the right to be represented by counsel shall be included in

(a) any appearance notice or summons issued to the young person;

(b) any warrant to arrest the young person;

(c) any promise to appear given by the young person;

(d) any recognizance entered into before an officer in charge by the young person;

(e) any notice given to the young person in relation to any proceedings held pursuant to subsection 26.1(1), 26.2(1) or 26.6(1); or

(f) any notice of a review of a disposition given to the young person.

R.S., 1985, c. Y-1, s. 11; R.S., 1985, c. 24 (2nd Supp.), s. 9; 1992, c. 11, s. 1; 1995, c. 19, s. 2.

APPEARANCE

Where young person appears

12. (1) A young person against whom an information is laid must first appear before a youth court judge or a justice, and the judge or justice shall

(a) cause the information to be read to the young person;

(b) where the young person is not represented by counsel, inform the young person of the right to be so represented; and

(c) where the young person is a young person referred to in subsection 16(1.01), inform the young person that the young person will be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence unless an application is made to the youth court by the young person, the young person’s counsel or the Attorney General or an agent of the Attorney General to have the young person proceeded against in the youth court and an order is made to that effect.

Waiver

(2) A young person may waive the requirement under paragraph (1)(a) where the young person is represented by counsel.

Where young person not represented by counsel

(3) Where a young person is not represented in youth court by counsel, the youth court shall, before accepting a plea,

(a) satisfy itself that the young person understands the charge against him; and

(b) explain to the young person that he may plead guilty or not guilty to the charge.

Idem

(3.1) Where a young person is a young person referred to in subsection 16(1.01) and is not represented in youth court by counsel, the youth court shall satisfy itself that the young person understands

(a) the charge against the young person;

(b) the consequences of being proceeded against in ordinary court; and

(c) the young person’s right to apply to be proceeded against in youth court.

Where youth court not satisfied

(4) Where the youth court is not satisfied that a young person understands the charge against the young person, as required under paragraph (3)(a), the court shall enter a plea of not guilty on behalf of the young person and shall proceed with the trial in accordance with subsection 19(2) or, with respect to proceedings in Nunavut, subsection 19.1(2).

Idem

(5) Where the youth court is not satisfied that a young person understands the matters referred to in subsection (3.1), the court shall direct that the young person be represented by counsel.

R.S., 1985, c. Y-1, s. 12; 1995, c. 19, s. 3; 1999, c. 3, s. 87.

MEDICAL AND PSYCHOLOGICAL REPORTS

Medical or psychological assessment

13. (1) A youth court may, at any stage of proceedings against a young person,

(a) with the consent of the young person and the prosecutor, or

(b) on its own motion or on application of the young person or the prosecutor, where

(i) the court has reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability,

(ii) the young person’s history indicates a pattern of repeated findings of guilt under this Act, or

(iii) the young person is alleged to have committed an offence involving serious personal injury,

and the court believes a medical, psychological or psychiatric report in respect of the young person is necessary for a purpose mentioned in paragraphs (2)(a) to (f),

 

by order require that the young person be assessed by a qualified person and require the person who conducts the examination to report the results thereof in writing to the court.

Purpose of assessment

(2) A youth court may make an order under subsection (1) in respect of a young person for the purpose of

(a) considering an application under section 16;

(b) making or reviewing a disposition under this Act, other than a disposition made under section 672.54 or 672.58 of the Criminal Code;

(c) considering an application under subsection 26.1(1);

(d) setting conditions under subsection 26.2(1);

(e) making an order under subsection 26.6(2); or

(f) authorizing disclosure under subsection 38(1.5).

Custody for assessment

(3) Subject to subsections (3.1) and (3.3), for the purpose of an assessment under this section, a youth court may remand a young person to such custody as it directs for a period not exceeding thirty days.

Presumption against custodial remand

(3.1) A young person shall not be remanded in custody pursuant to an order made by a youth court under subsection (1) unless

(a) the youth court is satisfied that on the evidence custody is necessary to conduct an assessment of the young person, or that on the evidence of a qualified person detention of the young person in custody is desirable to conduct the assessment of the young person and the young person consents to custody; or

(b) the young person is required to be detained in custody in respect of any other matter or by virtue of any provision of the Criminal Code.

Report of qualified person in writing

(3.2) For the purposes of paragraph (3.1)(a), when the prosecutor and the young person agree, evidence of a qualified person may be received in the form of a report in writing.

Application to vary assessment order where circumstances change

(3.3) A youth court may, at any time while an order in respect of a young person made by the court under subsection (1) is in force, on cause being shown, vary the terms and conditions specified in that order in such manner as the court considers appropriate in the circumstances.

Disclosure of report

(4) Where a youth court receives a report made in respect of a young person pursuant to subsection (1),

(a) the court shall, subject to subsection (6), cause a copy of the report to be given to

(i) the young person,

(ii) a parent of the young person, if the parent is in attendance at the proceedings against the young person,

(iii) counsel, if any, representing the young person, and

(iv) the prosecutor; and

 

(b) the court may cause a copy of the report to be given to a parent of the young person not in attendance at the proceedings against the young person if the parent is, in the opinion of the court, taking an active interest in the proceedings.

Cross-examination

(5) Where a report is made in respect of a young person pursuant to subsection (1), the young person, his counsel or the adult assisting him pursuant to subsection 11(7) and the prosecutor shall, subject to subsection (6), on application to the youth court, be given an opportunity to cross-examine the person who made the report.

Report to be withheld where disclosure unnecessary or prejudicial

(6) A youth court shall withhold all or part of a report made in respect of a young person pursuant to subsection (1) from a private prosecutor, where disclosure of the report or part, in the opinion of the court, is not necessary for the prosecution of the case and might be prejudicial to the young person.

Report to be withheld where disclosure dangerous to any person

(7) A youth court shall withhold all or part of a report made in respect of a young person pursuant to subsection (1) from the young person, the young person’s parents or a private prosecutor where the court is satisfied, on the basis of the report or evidence given in the absence of the young person, parents or private prosecutor by the person who made the report, that disclosure of all or part of the report would seriously impair the treatment or recovery of the young person, or would be likely to endanger the life or safety of, or result in serious psychological harm to, another person.

Idem

(8) Notwithstanding subsection (7), the youth court may release all or part of the report referred to in that subsection to the young person, the young person’s parents or the private prosecutor where the interests of justice make disclosure essential in the court’s opinion.

Report to be part of record

(9) A report made pursuant to subsection (1) shall form part of the record of the case in respect of which it was requested.

Disclosure by qualified person

(10) Notwithstanding any other provision of this Act, a qualified person who is of the opinion that a young person held in detention or committed to custody is likely to endanger his own life or safety or to endanger the life of, or cause bodily harm to, another person may immediately so advise any person who has the care and custody of the young person whether or not the same information is contained in a report made pursuant to subsection (1).

Definition of “qualified person”

(11) In this section, “qualified person” means a person duly qualified by provincial law to practice medicine or psychiatry or to carry out psychological examinations or assessments, as the circumstances require, or, where no such law exists, a person who is, in the opinion of the youth court, so qualified, and includes a person or a person within a class of persons designated by the Lieutenant Governor in Council of a province or his delegate.

(12) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 10]

R.S., 1985, c. Y-1, s. 13; R.S., 1985, c. 24 (2nd Supp.), s. 10; 1991, c. 43, ss. 32, 35; 1995, c. 19, s. 4.

Statements not admissible against young person

13.1 (1) Subject to subsection (2), where a young person is assessed pursuant to an order made under subsection 13(1), no statement or reference to a statement made by the young person during the course and for the purposes of the assessment to the person who conducts the assessment or to anyone acting under that person’s direction is admissible in evidence, without the consent of the young person, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

Exceptions

(2) A statement referred to in subsection (1) is admissible in evidence for the purposes of

(a) considering an application under section 16 in respect of the young person;

(b) determining whether the young person is unfit to stand trial;

(c) determining whether the balance of the mind of the young person was disturbed at the time of commission of the alleged offence, where the young person is a female person charged with an offence arising out of the death of her newly-born child;

(d) making or reviewing a disposition in respect of the young person;

(e) determining whether the young person was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) of the Criminal Code, if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;

(f) challenging the credibility of a young person in any proceeding where the testimony of the young person is inconsistent in a material particular with a statement referred to in subsection (1) that the young person made previously;

(g) establishing the perjury of a young person who is charged with perjury in respect of a statement made in any proceeding;

(h) deciding an application for an order under subsection 26.1(1);

(i) setting the conditions under subsection 26.2(1);

(j) conducting a review under subsection 26.6(1); or

(k) deciding an application for a disclosure order under subsection 38(1.5).

1991, c. 43, ss. 33, 35; 1994, c. 26, s. 76; 1995, c. 19, s. 5.

APPLICATION OF PART XX.1 OF THE CRIMINAL CODE (MENTAL DISORDER)

Sections of Criminal Code applicable

13.2 (1) Except to the extent that they are inconsistent with or excluded by this Act, section 16 and Part XX.1 of the Criminal Code, except sections 672.65 and 672.66, apply, with such modifications as the circumstances require, in respect of proceedings under this Act in relation to offences alleged to have been committed by young persons.

Notice and copies to counsel and parents

(2) For the purposes of subsection (1), wherever in Part XX.1 of the Criminal Code a reference is made to

(a) a copy to be sent or otherwise given to an accused or a party to the proceedings, the reference shall be read as including a reference to a copy to be sent or otherwise given to

(i) counsel, if any, representing the young person,

(ii) any parent of the young person who is in attendance at the proceedings against the young person, and

(iii) any parent of the young person who is, in the opinion of the youth court or Review Board, taking an active interest in the proceedings; and

 

(b) notice to be given to an accused or a party to proceedings, the reference shall be read as including a reference to notice to be given to counsel, if any, representing the young person and the parents of the young person.

Proceedings not invalid

(3) Subject to subsection (4), failure to give a notice referred to in paragraph (2)(b) to a parent of a young person does not affect the validity of proceedings under this Act.

Exception

(4) Failure to give a notice referred to in paragraph (2)(b) to a parent of a young person in any case renders invalid any subsequent proceedings under this Act relating to the case unless

(a) a parent of the young person attends at the court or Review Board with the young person; or

(b) a youth court judge or Review Board before whom proceedings are held against the young person

(i) adjourns the proceedings and orders that the notice be given in such manner and to such persons as the judge or Review Board directs, or

(ii) dispenses with the notice where the youth court or Review Board is of the opinion that, having regard to the circumstances, the notice may be dispensed with.

 

No hospital order assessments

(5) A youth court may not make an order under subsection 672.11 of the Criminal Code in respect of a young person for the purpose of assisting in the determination of an issue mentioned in paragraph 672.11(e) of that Act.

Considerations of court or Review Board making a disposition

(6) Before making or reviewing a disposition in respect of a young person under Part XX.1 of the Criminal Code, a youth court or Review Board shall consider the age and special needs of the young person and any representations or submissions made by the young person’s parents.

Cap applicable to young persons

(7) Subject to subsection (9), for the purpose of applying subsection 672.64(3) of the Criminal Code to proceedings under this Act in relation to an offence alleged to have been committed by a young person, the applicable cap shall be the maximum period during which the young person would be subject to a disposition by the youth court if found guilty of the offence.

Application to increase cap of unfit young person subject to transfer

(8) Where an application is made under section 16 to proceed against a young person in ordinary court and the young person is found unfit to stand trial, the Attorney General or the agent of the Attorney General may, before the youth court makes or refuses to make an order under that section, apply to the court to increase the cap that shall apply to the young person.

Consideration of youth court for increase in cap

(9) The youth court, after giving the Attorney General and the counsel and parents of the young person in respect of whom an application is made under subsection (8) an opportunity to be heard, shall take into consideration

(a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed,

(b) the age, maturity, character and background of the young person and any previous findings of guilt against the young person under any Act of Parliament,

(c) the likelihood that the young person will cause significant harm to any person if released on expiration of the cap that applies to the young person pursuant to subsection (7), and

(d) the respective caps that would apply to the young person under this Act and under the Criminal Code,

and the youth court shall, where satisfied that the application under section 16 would likely succeed if the young person were fit to stand trial, apply to the young person the cap that would apply to an adult for the same offence.

Prima facie case to be made every year

(10) For the purpose of applying subsection 672.33(1) of the Criminal Code to proceedings under this Act in relation to an offence alleged to have been committed by a young person, wherever in that subsection a reference is made to two years, there shall be substituted a reference to one year.

Designation of hospitals for young persons

(11) A reference in Part XX.1 of the Criminal Code to a hospital in a province shall be construed as a reference to a hospital designated by the Minister of Health of the province for the custody, treatment or assessment of young persons.

1991, c. 43, s. 33.

PRE-DISPOSITION REPORT

Pre-disposition report

14. (1) Where a youth court deems it advisable before making a disposition under section 20 in respect of a young person who is found guilty of an offence it may, and where a youth court is required under this Act to consider a pre-disposition report before making an order or a disposition in respect of a young person it shall, require the provincial director to cause to be prepared a pre-disposition report in respect of the young person and to submit the report to the court.

Contents of report

(2) A pre-disposition report made in respect of a young person shall, subject to subsection (3), be in writing and shall include

(a) the results of an interview with

(i) the young person,

(ii) where reasonably possible, the parents of the young person and,

(iii) where appropriate and reasonably possible, members of the young person’s extended family;

 

(b) the results of an interview with the victim in the case, where applicable and where reasonably possible;

(c) such information as is applicable to the case including, where applicable,

(i) the age, maturity, character, behaviour and attitude of the young person and his willingness to make amends,

(ii) any plans put forward by the young person to change his conduct or to participate in activities or undertake measures to improve himself,

(iii) the history of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this or any other Act of Parliament or any regulation made thereunder or under an Act of the legislature of a province or any regulation made thereunder or a by-law or ordinance of a municipality, the history of community or other services rendered to the young person with respect to those findings and the response of the young person to previous sentences or dispositions and to services rendered to him,

(iv) the history of alternative measures used to deal with the young person and the response of the young person thereto,

(v) the availability and appropriateness of community services and facilities for young persons and the willingness of the young person to avail himself or herself of those services or facilities,

(vi) the relationship between the young person and the young person’s parents and the degree of control and influence of the parents over the young person and, where appropriate and reasonably possible, the relationship between the young person and the young person’s extended family and the degree of control and influence of the young person’s extended family over the young person, and

(vii) the school attendance and performance record and the employment record of the young person; and

 

(d) such information as the provincial director considers relevant, including any recommendation that the provincial director considers appropriate.

Oral report with leave

(3) Where a pre-disposition report cannot reasonably be committed to writing, it may, with leave of the youth court, be submitted orally in court.

Report to form part of record

(4) A pre-disposition report shall form part of the record of the case in respect of which it was requested.

Copies of pre-disposition report

(5) Where a pre-disposition report made in respect of a young person is submitted to a youth court in writing, the court

(a) shall, subject to subsection (7), cause a copy of the report to be given to

(i) the young person,

(ii) a parent of the young person, if the parent is in attendance at the proceedings against the young person,

(iii) counsel, if any, representing the young person, and

(iv) the prosecutor; and

 

(b) may cause a copy of the report to be given to a parent of the young person not in attendance at the proceedings against the young person if the parent is, in the opinion of the court, taking an active interest in the proceedings.

Cross-examination

(6) Where a pre-disposition report made in respect of a young person is submitted to a youth court, the young person, his counsel or the adult assisting him pursuant to subsection 11(7) and the prosecutor shall, subject to subsection (7), on application to the youth court, be given the opportunity to cross-examine the person who made the report.

Report may be withheld from private prosecutor

(7) Where a pre-disposition report made in respect of a young person is submitted to a youth court, the court may, where the prosecutor is a private prosecutor and disclosure of the report or any part thereof to the prosecutor might, in the opinion of the court, be prejudicial to the young person and is not, in the opinion of the court, necessary for the prosecution of the case against the young person,

(a) withhold the report or part thereof from the prosecutor, if the report is submitted in writing; or

(b) exclude the prosecutor from the court during the submission of the report or part thereof, if the report is submitted orally in court.

Report disclosed to other persons

(8) Where a pre-disposition report made in respect of a young person is submitted to a youth court, the court

(a) shall, on request, cause a copy or a transcript of the report to be supplied to

(i) any court that is dealing with matters relating to the young person, and

(ii) any youth worker to whom the young person’s case has been assigned; and

 

(b) may, on request, cause a copy or a transcript of the report, or a part thereof, to be supplied to any person not otherwise authorized under this section to receive a copy or a transcript of the report if, in the opinion of the court, the person has a valid interest in the proceedings.

Disclosure by the provincial director

(9) A provincial director who submits a pre-disposition report made in respect of a young person to a youth court may make the report, or any part thereof, available to any person in whose custody or under whose supervision the young person is placed or to any other person who is directly assisting in the care or treatment of the young person.

Inadmissibility of statements

(10) No statement made by a young person in the course of the preparation of a pre-disposition report in respect of the young person is admissible in evidence against him in any civil or criminal proceedings except in proceedings under section 16 or 20 or sections 28 to 32.

R.S., 1985, c. Y-1, s. 14; R.S., 1985, c. 24 (2nd Supp.), s. 11; 1995, c. 19, s. 6.

DISQUALIFICATION OF JUDGE

Disqualification of judge

15. (1) Subject to subsection (2), a youth court judge who, prior to an adjudication in respect of a young person charged with an offence, examines a pre-disposition report made in respect of the young person, or hears an application under section 16 in respect of the young person, in connection with that offence shall not in any capacity conduct or continue the trial of the young person for the offence and shall transfer the case to another judge to be dealt with according to law.

Exception

(2) A youth court judge may, in the circumstances referred to in subsection (1), with the consent of the young person and the prosecutor, conduct or continue the trial of the young person if the judge is satisfied that he has not been predisposed by information contained in the pre-disposition report or by representations made in respect of the application under section 16.

1980-81-82-83, c. 110, s. 15.

TRANSFER

Transfer to ordinary court

16. (1) Subject to subsection (1.01), at any time after an information is laid against a young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 553 of the Criminal Code but prior to adjudication, a youth court shall, on application of the young person or the young person’s counsel or the Attorney General or an agent of the Attorney General, determine, in accordance with subsection (1.1), whether the young person should be proceeded against in ordinary court.

Trial in ordinary court for certain offences

(1.01) Every young person against whom an information is laid who is alleged to have committed

(a) first degree murder or second degree murder within the meaning of section 231 of the Criminal Code,

(b) an offence under section 239 of the Criminal Code (attempt to commit murder),

(c) an offence under section 232 or 234 of the Criminal Code (manslaughter), or

(d) an offence under section 273 of the Criminal Code (aggravated sexual assault),

and who was sixteen or seventeen years of age at the time of the alleged commission of the offence shall be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence unless the youth court, on application by the young person, the young person’s counsel or the Attorney General or an agent of the Attorney General, makes an order under subsection (1.04) or (1.05) or subparagraph (1.1)(a)(ii) that the young person should be proceeded against in youth court.

Making of application

(1.02) An application to the youth court under subsection (1.01) must be made orally, in the presence of the other party to the proceedings, or in writing, with a notice served on the other party to the proceedings.

Where application is opposed

(1.03) Where the other party to the proceedings referred to in subsection (1.02) files a notice of opposition to the application with the youth court within twenty-one days after the making of the oral application, or the service of the notice referred to in that subsection, as the case may be, the youth court shall, in accordance with subsection (1.1), determine whether the young person should be proceeded against in youth court.

Where application is unopposed

(1.04) Where the other party to the proceedings referred to in subsection (1.02) files a notice of non-opposition to the application with the youth court within the time referred to in subsection (1.03), the youth court shall order that the young person be proceeded against in youth court.

Deeming

(1.05) Where the other party to the proceedings referred to in subsection (1.02) does not file a notice referred to in subsection (1.03) or (1.04) within the time referred to in subsection (1.03), the youth court shall order that the young person be proceeded against in youth court.

Time may be extended

(1.06) The time referred to in subsections (1.03) to (1.05) may be extended by mutual agreement of the parties to the proceedings by filing a notice to that effect with the youth court.

Order

(1.1) In making the determination referred to in subsection (1) or (1.03), the youth court, after affording both parties and the parents of the young person an opportunity to be heard, shall consider the interest of society, which includes the objectives of affording protection to the public and rehabilitation of the young person, and determine whether those objectives can be reconciled by the youth being under the jurisdiction of the youth court, and

(a) if the court is of the opinion that those objectives can be so reconciled, the court shall

(i) in the case of an application under subsection (1), refuse to make an order that the young person be proceeded against in ordinary court, and

(ii) in the case of an application under subsection (1.01), order that the young person be proceeded against in youth court; or

 

(b) if the court is of the opinion that those objectives cannot be so reconciled, protection of the public shall be paramount and the court shall

(i) in the case of an application under subsection (1), order that the young person be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence, and

(ii) in the case of an application under subsection (1.01), refuse to make an order that the young person be proceeded against in youth court.

 

Onus

(1.11) Where an application is made under subsection (1) or (1.01), the onus of satisfying the youth court of the matters referred to in subsection (1.1) rests with the applicant.

Considerations by youth court

(2) In making the determination referred to in subsection (1) or (1.03) in respect of a young person, a youth court shall take into account

(a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed;

(b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act of Parliament or any regulation made thereunder;

(c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section, to meet the circumstances of the case;

(d) the availability of treatment or correctional resources;

(e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and

(f) any other factors that the court considers relevant.

Pre-disposition reports

(3) In making the determination referred to in subsection (1) or (1.03) in respect of a young person, a youth court shall consider a pre-disposition report.

Where young person on transfer status

(4) Notwithstanding subsections (1) and (3), where an application is made under subsection (1) by the Attorney General or the Attorney General’s agent in respect of an offence alleged to have been committed by a young person while the young person was being proceeded against in ordinary court pursuant to an order previously made under this section or serving a sentence as a result of proceedings in ordinary court, the youth court may make a further order under this section without a hearing and without considering a pre-disposition report.

Court to state reasons

(5) Where a youth court makes an order or refuses to make an order under this section, it shall state the reasons for its decision and the reasons shall form part of the record of the proceedings in the youth court.

No further applications for transfer

(6) Where a youth court refuses to make an order under this section in respect of an alleged offence, no further application may be made under this section in respect of that offence.

Effect of order

(7) Where an order is made under this section pursuant to an application under subsection (1), proceedings under this Act shall be discontinued and the young person against whom the proceedings are taken shall be taken before the ordinary court.

Idem

(7.1) Where an order is made under this section pursuant to an application under subsection (1.01), the proceedings against the young person shall be in the youth court.

Jurisdiction of ordinary court limited

(8) Where a young person is proceeded against in ordinary court in respect of an offence by reason of

(a) subsection (1.01), where no application is made under that subsection,

(b) an order made under subparagraph (1.1)(b)(i), or

(c) the refusal under subparagraph (1.1)(b)(ii) to make an order,

that court has jurisdiction only in respect of that offence or an offence included therein.

Review of youth court decision

(9) An order made in respect of a young person under this section or a refusal to make such an order shall, on application of the young person or the young person’s counsel or the Attorney General or the Attorney General’s agent made within thirty days after the decision of the youth court, be reviewed by the court of appeal, and that court may, in its discretion, confirm or reverse the decision of the youth court.

Extension of time to make application

(10) The court of appeal may, at any time, extend the time within which an application under subsection (9) may be made.

Notice of application

(11) A person who proposes to apply for a review under subsection (9) shall give notice of the application in such manner and within such period of time as may be directed by rules of court.

Inadmissibility of statement

(12) No statement made by a young person in the course of a hearing held under this section is admissible in evidence against the young person in any civil or criminal proceeding held subsequent to that hearing.

(13) [Repealed, 1992, c. 11, s. 2]

(14) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 12]

R.S., 1985, c. Y-1, s. 16; R.S., 1985, c. 24 (2nd Supp.), s. 12; 1992, c. 11, s. 2; 1995, c. 19, s. 8.

Detention pending trial — young person under eighteen

16.1 (1) Notwithstanding anything in this or any other Act of Parliament, where a young person who is under the age of eighteen is to be proceeded against in ordinary court by reason of

(a) subsection 16(1.01), where no application is made under that subsection,

(b) an order under subparagraph 16(1.1)(b)(i), or

(c) the refusal under subparagraph 16(1.1)(b)(ii) to make an order,

and the young person is to be in custody pending the proceedings in that court, the young person shall be held separate and apart from any adult who is detained or held in custody unless the youth court is satisfied, on application, that the young person, having regard to the best interests of the young person and the safety of others, cannot be detained in a place of detention for young persons.

Detention pending trial — young person over eighteen

(2) Notwithstanding anything in this or any other Act of Parliament, where a young person who is over the age of eighteen is to be proceeded against in ordinary court by reason of

(a) subsection 16(1.01), where no application is made under that subsection,

(b) an order under subparagraph 16(1.1)(b)(i), or

(c) the refusal under subparagraph 16(1.1)(b)(ii) to make an order,

and the young person is to be in custody pending the proceedings in that court, the young person shall be held in a place of detention for adults unless the youth court is satisfied, on application, that the young person, having regard to the best interests of the young person and the safety of others, should be detained in a place of custody for young persons.

Review

(3) On application, the youth court shall review the placement of a young person in detention pursuant to this section and, if satisfied, having regard to the best interests of the young person and the safety of others, and after having afforded the young person, the provincial director and a representative of a provincial department responsible for adult correctional facilities an opportunity to be heard, that the young person should remain in detention where the young person is or be transferred to youth or adult detention, as the case may be, the court may so order.

Who may make application

(4) An application referred to in this section may be made by the young person, the young person’s parents, the provincial director, the Attorney General or the Attorney General’s agent.

Notice

(5) Where an application referred to in this section is made, the applicant shall cause a notice of the application to be given

(a) where the applicant is the young person or one of the young person’s parents, to the provincial director and the Attorney General;

(b) where the applicant is the Attorney General or the Attorney General’s agent, to the young person, the young person’s parents and the provincial director; and

(c) where the applicant is the provincial director, to the young person, the parents of the young person and the Attorney General.

Statement of rights

(6) A notice given under subsection (5) by the Attorney General or the provincial director shall include a statement that the young person has the opportunity to be heard and the right to be represented by counsel.

Limit — age 20

(7) Notwithstanding anything in this section, no young person shall remain in custody in a place of detention for young persons under this section after the young person attains the age of twenty years.

1992, c. 11, s. 2; 1995, c. 19, s. 9.

Placement on conviction by ordinary court

16.2 (1) Notwithstanding anything in this or any other Act of Parliament, where a young person who is proceeded against in ordinary court by reason of subsection 16(1.01), where no application is made under that subsection, or by reason of an order under subparagraph 16(1.1)(b)(i) or the refusal under subparagraph 16(1.1)(b)(ii) to make an order, is convicted and sentenced to imprisonment, the court shall, after affording the young person, the parents of the young person, the Attorney General, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard, order that the young person serve any portion of the imprisonment in

(a) a place of custody for young persons separate and apart from any adult who is detained or held in custody;

(b) a provincial correctional facility for adults; or

(c) where the sentence is for two years or more, a penitentiary.

Factors to be taken into account

(2) In making an order under subsection (1), the court shall take into account

(a) the safety of the young person;

(b) the safety of the public;

(c) the young person’s accessibility to family;

(d) the safety of other young persons if the young person were to be held in custody in a place of custody for young persons;

(e) whether the young person would have a detrimental influence on other young persons if the young person were to be held in custody in a place of custody for young persons;

(f) the young person’s level of maturity;

(g) the availability and suitability of treatment, educational and other resources that would be provided to the young person in a place of custody for young persons and in a place of custody for adults;

(h) the young person’s prior experiences and behaviour while in detention or custody;

(i) the recommendations of the provincial director and representatives of the provincial and federal correctional facilities; and

(j) any other factor the court considers relevant.

Report necessary

(3) Prior to making an order under subsection (1), the court shall require that a report be prepared for the purpose of assisting the court.

Review

(4) On application, the court shall review the placement of a young person in detention pursuant to this section and, if satisfied that the circumstances that resulted in the initial order have changed materially, and after having afforded the young person, the provincial director and the representatives of the provincial and federal correctional systems an opportunity to be heard, the court may order that the young person be placed in

(a) a place of custody for young persons separate and apart from any adult who is detained or held in custody;

(b) a provincial correctional facility for adults; or

(c) where the sentence is for two years or more, a penitentiary.

Who may make application

(5) An application referred to in this section may be made by the young person, the young person’s parents, the provincial director, a representative of the provincial and federal correctional systems and the Attorney General.

Notice

(6) Where an application referred to in this section is made, the applicant shall cause a notice of the application to be given

(a) where the applicant is the young person or one of the young person’s parents, to the provincial director, to representatives of the provincial and federal correction systems and to the Attorney General;

(b) where the applicant is the Attorney General or the Attorney General’s agent, to the young person, the young person’s parents and the provincial director and representatives of the provincial and federal correction systems; and

(c) where an applicant is the provincial director, to the young person, the parents of the young person, the Attorney General and representatives of the provincial and federal correction systems.

1992, c. 11, s. 2; 1994, c. 26, s. 77(F); 1995, c. 19, s. 10.

Order restricting publication of information presented at transfer hearing

17. (1) Where a youth court hears an application for a transfer under section 16, it shall

(a) where the young person is not represented by counsel, or

(b) on application made by or on behalf of the young person or the prosecutor, where the young person is represented by counsel,

make an order directing that any information respecting the offence presented at the hearing shall not be published in any newspaper or broadcast before such time as

(c) an order for a transfer is refused or set aside on review and the time for all reviews against the decision has expired or all proceedings in respect of any such review have been completed, or

(d) the trial is ended, if the case is transferred to ordinary court.

Offence

(2) Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Definition of “newspaper”

(3) In this section, “newspaper” has the meaning set out in section 297 of the Criminal Code.

R.S., 1985, c. Y-1, s. 17; 1995, c. 19, s. 11.

TRANSFER OF JURISDICTION

Transfer of jurisdiction

18. Notwithstanding subsections 478(1) and (3) of the Criminal Code, where a young person is charged with an offence that is alleged to have been committed in one province, he may, if the Attorney General of the province where the offence is alleged to have been committed consents, appear before a youth court of any other province and,

(a) where the young person signifies his consent to plead guilty and pleads guilty to that offence, the court shall, if it is satisfied that the facts support the charge, find the young person guilty of the offence alleged in the information; and

(b) where the young person does not signify his consent to plead guilty and does not plead guilty, or where the court is not satisfied that the facts support the charge, the young person shall, if he was detained in custody prior to his appearance, be returned to custody and dealt with according to law.

1980-81-82-83, c. 110, s. 18.

ADJUDICATION

Where young person pleads guilty

19. (1) Where a young person pleads guilty to an offence charged against him and the youth court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence.

Where young person pleads not guilty

(2) Where a young person charged with an offence pleads not guilty to the offence or pleads guilty but the youth court is not satisfied that the facts support the charge, the court shall, subject to subsection (4), proceed with the trial and shall, after considering the matter, find the young person guilty or not guilty or make an order dismissing the charge, as the case may be.

Application for transfer to ordinary court

(3) The court shall not make a finding under this section in respect of a young person in respect of whom an application may be made under section 16 for an order that the young person be proceeded against in ordinary court unless it has inquired as to whether any of the parties to the proceedings wishes to make such an application, and, if any party so wishes, has given that party an opportunity to do so.

Election — offence of murder

(4) Notwithstanding section 5, where a young person is charged with having committed first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the youth court, before proceeding with the trial, shall ask the young person to elect to be tried by a youth court judge alone or by a judge of a superior court of criminal jurisdiction with a jury, and where a young person elects to be tried by a judge of a superior court of criminal jurisdiction with a jury, the young person shall be dealt with as provided in this Act.

Where no election made

(5) Notwithstanding section 5, where an election is not made under subsection (4), the young person shall be deemed to have elected to be tried by a judge of a superior court of criminal jurisdiction with a jury and dealt with as provided for in this Act.

Preliminary inquiry

(5.1) Where a young person elects or is deemed to have elected to be tried by a judge of a superior court of criminal jurisdiction with a jury, the youth court shall conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be before a judge of the superior court of criminal jurisdiction with a jury.

Preliminary inquiry provisions of Criminal Code

(5.2) A preliminary inquiry referred to in subsection (5.1) shall be conducted in accordance with the provisions of Part XVIII of the Criminal Code, except to the extent that they are inconsistent with this Act.

Parts XIX and XX of the Criminal Code

(6) Proceedings under this Act before a judge of a superior court of criminal jurisdiction with a jury shall be conducted, with such modifications as the circumstances require, in accordance with the provisions of Parts XIX and XX of the Criminal Code, except that

(a) the provisions of this Act respecting the protection of privacy of young persons prevail over the provisions of the Criminal Code; and

(b) the young person is entitled to be represented in court by counsel if the young person is removed from court pursuant to subsection 650(2) of the Criminal Code.

R.S., 1985, c. Y-1, s. 19; R.S., 1985, c. 24 (2nd Supp.), s. 13; 1995, c. 19, s. 12.

If young person pleads guilty — Nunavut

19.1 (1) If a young person pleads guilty to an offence charged against the young person and the youth court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence.

If young person pleads not guilty — Nunavut

(2) If a young person charged with an offence pleads not guilty to the offence or pleads guilty but the youth court is not satisfied that the facts support the charge, the court shall, subject to subsection (4), proceed with the trial and shall, after considering the matter, find the young person guilty or not guilty or make an order dismissing the charge, as the case may be.

Application for transfer to ordinary court — Nunavut

(3) The court shall not make a finding under this section in respect of a young person in respect of whom an application may be made under section 16 for an order that the young person be proceeded against in ordinary court unless it has inquired as to whether any of the parties to the proceedings wishes to make such an application, and, if any party so wishes, has given that party an opportunity to do so.

Election re offence of murder — Nunavut

(4) If a young person is charged with having committed first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the youth court, before proceeding with the trial, shall ask the young person to elect

(a) to be tried by a judge of the Nunavut Court of Justice alone, acting as a youth court, or

(b) to have a preliminary inquiry and to be tried by a judge of the Nunavut Court of Justice, acting as a youth court, with a jury,

and if a young person elects under paragraph (a) or (b), the young person shall be dealt with as provided in this Act.

If no election made — Nunavut

(5) Despite section 5, if an election is not made under subsection (4), the young person shall be deemed to have elected under paragraph (4)(b).

Preliminary inquiry — Nunavut

(6) If a young person elects or is deemed to have elected under paragraph (4)(b), a preliminary inquiry shall be held in the youth court and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be before a judge of the Nunavut Court of Justice, acting as a youth court, with a jury.

Preliminary inquiry provisions of Criminal Code — Nunavut

(7) A preliminary inquiry referred to in subsection (6) shall be conducted in accordance with the provisions of Part XVIII of the Criminal Code, except to the extent that they are inconsistent with this Act.

Parts XIX and XX of the Criminal Code — Nunavut

(8) Proceedings under this Act before a judge of the Nunavut Court of Justice, acting as a youth court, with a jury shall be conducted, with any modifications that the circumstances require, in accordance with the provisions of Parts XIX and XX of the Criminal Code, except that

(a) the provisions of this Act respecting the protection of privacy of young persons prevail over the provisions of the Criminal Code; and

(b) the young person is entitled to be represented in court by counsel if the young person is removed from court pursuant to subsection 650(2) of the Criminal Code.

Application to Nunavut

(9) This section, and not section 19, applies in respect of proceedings under this Act in Nunavut.

1999, c. 3, s. 88.

DISPOSITIONS

Dispositions that may be made

20. (1) Where a youth court finds a young person guilty of an offence, it shall consider any pre-disposition report required by the court, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person and any other relevant information before the court, and the court shall then make any one of the following dispositions, other than the disposition referred to in paragraph (k.1), or any number thereof that are not inconsistent with each other, and where the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall make the disposition referred to in paragraph (k.1) and may make such other disposition as the court considers appropriate:

(a) 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;

(a.1) by order direct that the young person be discharged on such conditions as the court considers appropriate;

(b) impose on the young person a fine not exceeding one thousand dollars to be paid at such time and on such terms as the court may fix;

(c) order the young person to pay to any other person at such time and on such terms as the court may fix an amount by way of compensation for loss of or damage to property, for loss of income or support or for special damages for personal injury arising from the commission of the offence where the value thereof is readily ascertainable, but no order shall be made for general damages;

(d) 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 such time as the court may fix, if the property is owned by that other person or was, at the time of the offence, in his lawful possession;

(e) if any 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 such time and on such terms as the court may fix, an amount not exceeding the amount paid by the purchaser for the property;

(f) subject to section 21, order the young person to compensate any person in kind or by way of personal services at such time and on such terms as 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 (c) or (e);

(g) subject to section 21, order the young person to perform a community service at such time and on such terms as the court may fix;

(h) subject to section 20.1, make any order of prohibition, seizure or forfeiture that may be imposed under any Act of Parliament or any regulation made thereunder where an accused is found guilty or convicted of that offence;

(i) [Repealed, 1995, c. 19, s. 13]

(j) place the young person on probation in accordance with section 23 for a specified period not exceeding two years;

(k) subject to sections 24 to 24.5, commit the young person to custody, to be served continuously or intermittently, for a specified period not exceeding

(i) two years from the date of committal, or

(ii) where 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;

 

(k.1) order the young person to serve a disposition 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 shall not, subject to subsection 26.1(1), 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 26.2, 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 shall not, subject to subsection 26.1(1), 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 26.2; and

 

(l) impose on the young person such other reasonable and ancillary conditions as it deems advisable and in the best interest of the young person and the public.

Coming into force of disposition

(2) A disposition made under this section shall come into force on the date on which it is made or on such later date as the youth court specifies therein.

Duration of disposition

(3) No disposition made under this section, other than an order made under paragraph (1)(h), (k) or (k.1), shall continue in force for more than two years and, where the youth court makes more than one disposition at the same time in respect of the same offence, the combined duration of the dispositions, except in respect of an order made under paragraph (1)(h), (k) or (k.1), shall not exceed two years.

Combined duration of dispositions

(4) Subject to subsection (4.1), where more than one disposition is made under this section in respect of a young person with respect to different offences, the continuous combined duration of those dispositions shall not exceed three years, except where one of those offences is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, in which case the continuous combined duration of those dispositions shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder.

Duration of dispositions made at different times

(4.1) Where a disposition is made under this section in respect of an offence committed by a young person after the commencement of, but before the completion of, any dispositions made in respect of previous offences committed by the young person,

(a) the duration of the disposition made in respect of the subsequent offence shall be determined in accordance with subsections (3) and (4);

(b) the disposition may be served consecutively to the dispositions made in respect of the previous offences; and

(c) the combined duration of all the dispositions may exceed three years, except where the offence is, or one of the previous offences was,

(i) first degree murder within the meaning of section 231 of the Criminal Code, in which case the continuous combined duration of the dispositions may exceed ten years, or

(ii) second degree murder within the meaning of section 231 of the Criminal Code, in which case the continuous combined duration of the dispositions may exceed seven years.

 

Custody first

(4.2) Subject to subsection (4.3), where a young person who is serving a disposition made under paragraph (1)(k.1) is ordered to custody in respect of an offence committed after the commencement of, but before the completion of, that disposition, the custody in respect of that subsequent offence shall be served before the young person is placed under conditional supervision.

Conditional supervision suspended

(4.3) Where a young person referred to in subsection (4.2) is under conditional supervision at the time the young person is ordered to custody in respect of a subsequent offence, the conditional supervision shall be suspended until the young person is released from custody.

Disposition continues when adult

(5) Subject to section 743.5 of the Criminal Code, a disposition made under this section shall continue in effect in accordance with the terms thereof, after the young person against whom it is made becomes an adult.

Reasons for the disposition

(6) Where a youth court makes a disposition under this section, it shall state its reasons therefor in the record of the case and shall

(a) provide or cause to be provided a copy of the disposition, and

(b) on request, provide or cause to be provided a transcript or copy of the reasons for the disposition

to the young person in respect of whom the disposition was made, the young person’s counsel and parents, the provincial director, where the provincial director has an interest in the disposition, the prosecutor and, in the case of a custodial disposition made under paragraph (1)(k) or (k.1), the review board, if a review board has been established or designated.

Limitation on punishment

(7) No disposition shall be made in respect of a young person under this section that results in a punishment that is greater than the maximum punishment that would be applicable to an adult who has committed the same offence.

Application of Part XXIII of Criminal Code

(8) Part XXIII of the Criminal Code does not apply in respect of proceedings under this Act except for section 722, subsection 730(2) and sections 748, 748.1 and 749, which provisions apply with such modifications as the circumstances require.

Section 787 of Criminal Code does not apply

(9) Section 787 of the Criminal Code does not apply in respect of proceedings under this Act.

Contents of probation order

(10) The youth court shall specify in any probation order made under paragraph (1)(j) the period for which it is to remain in force.

No orders under section 161 of Criminal Code

(11) Notwithstanding paragraph (1)(h), a youth court shall not make an order of prohibition under section 161 of the Criminal Code against a young person.

R.S., 1985, c. Y-1, s. 20; R.S., 1985, c. 27 (1st Supp.), s. 187, c. 24 (2nd Supp.), s. 14, c. 1 (4th Supp.), s. 38; 1992, c. 11, s. 3; 1993, c. 45, s. 15; 1995, c. 19, s. 13, c. 22, ss. 16, 17, 25, c. 39, s. 178.

Mandatory prohibition order

20.1 (1) Notwithstanding subsection 20(1), where a young person is found guilty of an offence referred to in any of paragraphs 109(1)(a) to (d) of the Criminal Code, the youth court shall, in addition to making any disposition referred to in subsection 20(1), make an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2).

Duration of prohibition order

(2) An order made under subsection (1) begins on the day on which the order is made and ends not earlier than two years after the young person’s release from custody after being found guilty of the offence or, if the young person is not then in custody or subject to custody, after the time the young person is found guilty of or discharged from the offence.

Discretionary prohibition order

(3) Notwithstanding subsection 20(1), where a young person is found guilty of an offence referred to in paragraph 110(1)(a) or (b) of the Criminal Code, the youth court shall, in addition to making any disposition referred to in subsection 20(1), consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.

Duration of prohibition order

(4) An order made under subsection (3) against a young person begins on the day on which the order is made and ends not later than two years after the young person’s release from custody or, if the young person is not then in custody or subject to custody, after the time the young person is found guilty of or discharged from the offence.

Definition of “release from imprisonment”

(5) In paragraph (2)(a) and subsection (4), “release from custody” means a release from custody in accordance with this Act, other than a release from custody under subsection 35(1), and includes the commencement of conditional supervision or probation.

Reasons for the prohibition order

(6) Where a youth court makes an order under this section, it shall state its reasons for making the order in the record of the case and shall

(a) provide or cause to be provided a copy of the order, and

(b) on request, provide or cause to be provided a transcript or copy of the reasons for making the order

to the young person against whom the order was made, the young person’s counsel and parents and the provincial director.

Reasons

(7) Where the youth court does not make an order under subsection (3), or where the youth court does make such an order but does not prohibit the possession of everything referred to in that subsection, the youth court shall include in the record a statement of the youth court’s reasons.

Application of Criminal Code

(8) Sections 113 to 117 of the Criminal Code apply in respect of any order made under this section.

Report

(9) Before making any order referred to in section 113 of the Criminal Code in respect of a young person, the youth court may require the provincial director to cause to be prepared, and to submit to the youth court, a report on the young person.

1995, c. 39, s. 179.

Where a fine or other payment is ordered

21. (1) The youth court shall, in imposing a fine on a young person under paragraph 20(1)(b) or in making an order against a young person under paragraph 20(1)(c) or (e), have regard to the present and future means of the young person to pay.

Fine option program

(2) A young person against whom a fine is imposed under paragraph 20(1)(b) may discharge the fine in whole or in part by earning credits for work performed in a program established for that purpose

(a) by the Lieutenant Governor in Council of the province in which the fine was imposed; or

(b) by the Lieutenant Governor in Council of the province in which the young person resides, where an appropriate agreement is in effect between the government of that province and the government of the province in which the fine was imposed.

Rates, crediting and other matters

(3) A program referred to in subsection (2) shall determine the rate at which credits are earned and may provide for the manner of crediting any amounts earned against the fine and any other matters necessary for or incidental to carrying out the program.

Representations respecting orders under paras. 20(1)(c) to (f)

(4) In considering whether to make an order under paragraphs 20(1)(c) to (f), the youth court may consider any representations made by the person who would be compensated or to whom restitution or payment would be made.

Notice of orders under paras. 20(1)(c) to (f)

(5) Where the youth court makes an order under paragraphs 20(1)(c) to (f), it shall cause notice of the terms of the order to be given to the person who is to be compensated or to whom restitution or payment is to be made.

Consent of person to be compensated

(6) No order may be made under paragraph 20(1)(f) unless the youth court has secured the consent of the person to be compensated.

Order for compensation or community service

(7) No order may be made under paragraph 20(1)(f) or (g) unless the youth court

(a) is satisfied that the young person against whom the order is made is a suitable candidate for such an order; and

(b) is satisfied that the order does not interfere with the normal hours of work or education of the young person.

Duration of order for service

(8) No order may be made under paragraph 20(1)(f) or (g) to perform personal or community services unless those services can be completed in two hundred and forty hours or less and within twelve months of the date of the order.

Community service order

(9) No order may be made under paragraph 20(1)(g) unless

(a) the community service to be performed is part of a program that is approved by the provincial director; or

(b) the youth court is satisfied that the person or organization for whom the community service is to be performed has agreed to its performance.

Application for further time to complete disposition

(10) A youth court may, on application by or on behalf of the young person in respect of whom a disposition has been made under paragraphs 20(1)(b) to (g), allow further time for the completion of the disposition subject to any regulations made pursuant to paragraph 67(b) and to any rules made by the youth court pursuant to subsection 68(1).

R.S., 1985, c. Y-1, s. 21; R.S., 1985, c. 24 (2nd Supp.), s. 15.

22. [Repealed, 1995, c. 19, s. 14]

Conditions that must appear in probation orders

23. (1) The following conditions shall be included in a probation order made under paragraph 20(1)(j):

(a) that the young person bound by the probation order shall keep the peace and be of good behaviour; and

(b) that the young person appear before the youth court when required by the court to do so.

(c) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 16]

Conditions that may appear in probation orders

(2) A probation order made under paragraph 20(1)(j) may include such of the following conditions as the youth court considers appropriate in the circumstances of the case:

(a) that the young person bound by the probation order report to and be under the supervision of the provincial director or a person designated by the youth court;

(a.1) that the young person notify the clerk of the youth court, the provincial director or the youth worker assigned to his case of any change of address or any change in his place of employment, education or training;

(b) that the young person remain within the territorial jurisdiction of one or more courts named in the order;

(c) that the young person make reasonable efforts to obtain and maintain suitable employment;

(d) that the young person attend school or such other place of learning, training or recreation as is appropriate, if the court is satisfied that a suitable program is available for the young person at that place;

(e) that the young person reside with a parent, or such other adult as the court considers appropriate, who is willing to provide for the care and maintenance of the young person;

(f) that the young person reside in such place as the provincial director may specify; and

(g) that the young person comply with such other reasonable conditions set out in the order as the court considers desirable, including conditions for securing the good conduct of the young person and for preventing the commission by the young person of other offences.

Communication of probation order to young person and parent

(3) Where the youth court makes a probation order under paragraph 20(1)(j), it shall

(a) cause the order to be read by or to the young person bound by the probation order;

(b) explain or cause to be explained to the young person the purpose and effect of the order and ascertain that the young person understands it; and

(c) cause a copy of the order to be given to the young person and to a parent of the young person, if the parent is in attendance at the proceedings against the young person.

Copy of probation order to parent

(4) Where the youth court makes a probation order under paragraph 20(1)(j), it may cause a copy of the report to be given to a parent of the young person not in attendance at the proceedings against the young person if the parent is, in the opinion of the court, taking an active interest in the proceedings.

Endorsement of order by young person

(5) After a probation order has been read by or to a young person and explained to him pursuant to subsection (3), the young person shall endorse the order acknowledging that he has received a copy of the order and acknowledging the fact that it has been explained to him.

Validity of probation order

(6) The failure of a young person to endorse a probation order pursuant to subsection (5) does not affect the validity of the order.

Commencement of probation order

(7) A probation order made under paragraph 20(1)(j) comes into force

(a) on the date on which the order is made; or

(b) where the young person in respect of whom the order is made is committed to continuous custody, on the expiration of the period of custody.

Notice to appear

(8) A young person may be given notice to appear before the youth court pursuant to paragraph (1)(b) orally or in writing.

Warrant to arrest young person

(9) If a young person to whom a notice is given in writing to appear before the youth court pursuant to paragraph (1)(b) does not appear at the time and place named in the notice and it is proved that a copy of the notice was served on him, a youth court may issue a warrant to compel the appearance of the young person.

R.S., 1985, c. Y-1, s. 23; R.S., 1985, c. 24 (2nd Supp.), s. 16, c. 1 (4th Supp.), s. 39.

Conditions for custody

24. (1) The youth court shall not commit a young person to custody under paragraph 20(1)(k) unless the court considers a committal to custody to be necessary for the protection of society having regard to the seriousness of the offence and the circumstances in which it was committed and having regard to the needs and circumstances of the young person.

Factors

(1.1) In making a determination under subsection (1), the youth court shall take the following into account:

(a) that an order of custody shall not be used as a substitute for appropriate child protection, health and other social measures;

(b) that a young person who commits an offence that does not involve serious personal injury should be held accountable to the victim and to society through non-custodial dispositions whenever appropriate; and

(c) that custody shall only be imposed when all available alternatives to custody that are reasonable in the circumstances have been considered.

Pre-disposition report

(2) Subject to subsection (3), before making an order of committal to custody, the youth court shall consider a pre-disposition report.

Report dispensed with

(3) The youth court may, with the consent of the prosecutor and the young person or his counsel, dispense with the pre-disposition report required under subsection (2) if the youth court is satisfied, having regard to the circumstances, that the report is unnecessary or that it would not be in the best interests of the young person to require one.

Reasons

(4) Where the youth court makes a disposition in respect of a young person under paragraph 20(1)(k), the youth court shall state the reasons why any other disposition or dispositions under subsection 20(1), without the disposition under paragraph 20(1)(k), would not have been adequate.

R.S., 1985, c. Y-1, s. 24; R.S., 1985, c. 24 (2nd Supp.), s. 17; 1995, c. 19, s. 15.

Definitions

24.1 (1) In this section and sections 24.2, 24.3, 28 and 29, "open custody"
«garde en milieu ouvert »

"open custody" means custody in

(a) a community residential centre, group home, child care institution, or forest or wilderness camp, or

(b) any other like place or facility

designated by the Lieutenant Governor in Council of a province or his delegate as a place of open custody for the purposes of this Act, and includes a place or facility within a class of such places or facilities so designated;

"secure custody"
«garde en milieu fermé »

"secure custody" means custody in a place or facility designated by the Lieutenant Governor in Council of a province for the secure containment or restraint of young persons, and includes a place or facility within a class of such places or facilities so designated.

Youth court to specify type of custody

(2) Subject to subsection (3), where the youth court commits a young person to custody under paragraph 20(1)(k) or (k.1) or makes an order under subsection 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order whether the custody is to be open custody or secure custody.

Provincial director to specify level of custody

(3) In a province in which the Lieutenant Governor in Council has designated the provincial director to determine the level of custody, the provincial director shall, where a young person is committed to custody under paragraph 20(1)(k) or (k.1) or an order is made under subsection 26.1(1) or paragraph 26.6(2)(b), specify whether the young person shall be placed in open custody or secure custody.

Factors

(4) In deciding whether a young person shall be placed in open custody or secure custody, the youth court or the provincial director shall take into account the following factors:

(a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to

(i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,

(ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,

(iii) the safety of other young persons in custody, and

(iv) the interests of society;

 

(b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person;

(c) the likelihood of escape if the young person is placed in open custody; and

(d) the recommendations, if any, of the youth court or the provincial director, as the case may be.

R.S., 1985, c. 24 (2nd Supp.), s. 17; 1992, c. 11, s. 4; 1995, c. 19, s. 16.

Place of custody

24.2 (1) Subject to this section and sections 24.3 and 24.5, a young person who is committed to custody shall be placed in open custody or secure custody, as specified pursuant to subsection 24.1(2) or (3), at such place or facility as the provincial director may specify.

Warrant of committal

(2) Where a young person is committed to custody, the youth court shall issue or cause to be issued a warrant of committal.

Exception

(3) A young person who is committed to custody may, in the course of being transferred from custody to the court or from the court to custody, be held under the supervision and control of a peace officer or in such place of temporary detention referred to in subsection 7(1) as the provincial director may specify.

Young person to be held separate from adults

(4) Subject to this section and section 24.5, a young person who is committed to custody shall be held separate and apart from any adult who is detained or held in custody.

Subsection 7(2) applies

(5) Subsection 7(2) applies, with such modifications as the circumstances require, in respect of a person held in a place of temporary detention pursuant to subsection (3).

Transfer

(6) A young person who is committed to custody may, during the period of custody, be transferred by the provincial director from one place or facility of open custody to another or from one place or facility of secure custody to another.

Transfer to open custody — youth court

(7) No young person who is committed to secure custody pursuant to subsection 24.1(2) may be transferred to a place or facility of open custody except in accordance with sections 28 to 31.

No transfer to secure custody — youth court

(8) Subject to subsection (9), no young person who is committed to open custody pursuant to subsection 24.1(2) may be transferred to a place or facility of secure custody.

Exception — transfer to secure custody — youth court

(9) Where a young person is placed in open custody pursuant to subsection 24.1(2), the provincial director may transfer the young person from a place or facility of open custody to a place or facility of secure custody for a period not exceeding fifteen days if

(a) the young person escapes or attempts to escape lawful custody; or

(b) the transfer is, in the opinion of the provincial director, necessary for the safety of the young person or the safety of others in the place or facility of open custody.

Transfer to open custody — provincial director

(10) The provincial director may transfer a young person from a place or facility of secure custody to a place or facility of open custody when the provincial director is satisfied that the needs of the young person and the interests of society would be better served thereby.

Transfer to secure custody — provincial director

(11) The provincial director may transfer a young person from a place or facility of open custody to a place or facility of secure custody when the provincial director is satisfied that the needs of the young person and the interests of society would be better served thereby

(a) having considered the factors set out in subsection 24.1(4); and

(b) having determined that there has been a material change in circumstances since the young person was placed in open custody.

Notice

(12) The provincial director shall cause a notice in writing of the decision to transfer a young person under subsection (11) to be given to the young person and the young person’s parents and set out in that notice the reasons for the transfer.

Where application for review is made

(13) Where an application for review under section 28.1 of a transfer under subsection (11) is made to a youth court,

(a) the provincial director shall cause such notice as may be directed by rules of court applicable to the youth court or, in the absence of such direction, at least five clear days notice of the review to be given in writing to the young person and the young person’s parents; and

(b) the youth court shall forthwith, after the notice required under paragraph (a) is given, review the transfer.

Interim custody

(14) Where an application for review under section 28.1 of a transfer under subsection (11) is made to a youth court, the young person shall remain in a place or facility of secure custody until the review is heard by the youth court unless the provincial director directs otherwise.

R.S., 1985, c. 24 (2nd Supp.), s. 17; 1995, c. 19, s. 17.

Consecutive dispositions of custody

24.3 (1) Where a young person is committed to open custody and secure custody pursuant to subsection 24.1(2), any portions of which dispositions are to be served consecutively, the disposition of secure custody shall be served first without regard to the order in which the dispositions were imposed.

Concurrent dispositions of custody

(2) Where a young person is committed to open custody and secure custody pursuant to subsection 24.1(2), any portions of which dispositions are to be served concurrently, the concurrent portions of the dispositions shall be served in secure custody.

R.S., 1985, c. 24 (2nd Supp.), s. 17; 1995, c. 19, s. 18.

Committal to custody deemed continuous

24.4 (1) A young person who is committed to custody under paragraph 20(1)(k) shall be deemed to be committed to continuous custody unless the youth court specifies otherwise.

Availability of place of intermittent custody

(2) Before making an order of committal to intermittent custody under paragraph 20(1)(k), the youth court shall require the prosecutor to make available to the court for its consideration a report of the provincial director as to the availability of a place of custody in which an order of intermittent custody can be enforced and, where the report discloses that no such place of custody is available, the court shall not make the order.

R.S., 1985, c. 24 (2nd Supp.), s. 17.

Transfer to adult facility

24.5 (1) Where a young person is committed to custody under paragraph 20(1)(k) or (k.1), the youth court may, on application of the provincial director made at any time after the young person attains the age of eighteen years, after affording the young person an opportunity to be heard, authorize the provincial director to direct that the young person serve the disposition or the remaining portion thereof in a provincial correctional facility for adults, if the court considers it to be in the best interests of the young person or in the public interest, but in that event, the provisions of this Act shall continue to apply in respect of that person.

Where disposition and sentence concurrent

(2) Where a young person is committed to custody under paragraph 20(1)(k) or (k.1) and is concurrently under sentence of imprisonment imposed in ordinary court, the young person may, in the discretion of the provincial director, serve the disposition and sentence, or any portion thereof, in a place of custody for young persons, in a provincial correctional facility for adults or, where the unexpired portion of the sentence is two years or more, in a penitentiary.

R.S., 1985, c. 24 (2nd Supp.), s. 17; 1992, c. 11, s. 5.

Transfer of disposition

25. (1) Where a disposition has been made under paragraphs 20(1)(b) to (g) or paragraph 20(1)(j) or (l) in respect of a young person and the young person or a parent with whom the young person resides is or becomes a resident of a territorial division outside the jurisdiction of the youth court that made the disposition, whether in the same or in another province, a youth court judge in the territorial division in which the disposition was made may, on the application of the Attorney General or an agent of the Attorney General or on the application of the young person or the young person’s parent with the consent of the Attorney General or an agent of the Attorney General, transfer the disposition and such portion of the record of the case as is appropriate to a youth court in the other territorial division, and all subsequent proceedings relating to the case shall thereafter be carried out and enforced by that court.

No transfer outside province before appeal completed

(2) No disposition may be transferred from one province to another under this section until the time for an appeal against the disposition or the finding on which the disposition was based has expired or until all proceedings in respect of any such appeal have been completed.

Transfer to a province where person is adult

(3) Where an application is made under subsection (1) to transfer the disposition of a young person to a province in which the young person is an adult, a youth court judge may, with the consent of the Attorney General, transfer the disposition and the record of the case to the youth court in the province to which the transfer is sought, and the youth court to which the case is transferred shall have full jurisdiction in respect of the disposition as if that court had made the disposition, and the person shall be further dealt with in accordance with this Act.

R.S., 1985, c. Y-1, s. 25; R.S., 1985, c. 24 (2nd Supp.), s. 18; 1995, c. 19, s. 19.

Interprovincial arrangements for probation or custody

25.1 (1) Where a disposition has been made under paragraphs 20(1)(j) to (k.1) in respect of a young person, the disposition in one province may be dealt with in any other province pursuant to any agreement that may have been made between those provinces.

Youth court retains jurisdiction

(2) Subject to subsection (3), where a disposition made in respect of a young person is dealt with pursuant to this section in a province other than that in which the disposition was made, the youth court of the province in which the disposition was made shall, for all purposes of this Act, retain exclusive jurisdiction over the young person as if the disposition were dealt with within that province, and any warrant or process issued in respect of the young person may be executed or served in any place in Canada outside the province where the disposition was made as if it were executed or served in that province.

Waiver of jurisdiction

(3) Where a disposition made in respect of a young person is dealt with pursuant to this section in a province other than that in which the disposition was made, the youth court of the province in which the disposition was made may, with the consent in writing of the Attorney General of that province or his delegate and the young person, waive its jurisdiction, for the purpose of any proceeding under this Act, to the youth court of the province in which the disposition is dealt with, in which case the youth court in the province in which the disposition is so dealt with shall have full jurisdiction in respect of the disposition as if that court had made the disposition.

R.S., 1985, c. 24 (2nd Supp.), s. 19; 1992, c. 11, s. 6; 1995, c. 19, s. 20.

Failure to comply with disposition

26. A person who is subject to a disposition made under paragraphs 20(1)(b) to (g) or paragraph 20(1)(j) or (l) and who wilfully fails or refuses to comply with that order is guilty of an offence punishable on summary conviction.

R.S., 1985, c. Y-1, s. 26; R.S., 1985, c. 24 (2nd Supp.), s. 19.

Continuation of custody

26.1 (1) Where a young person is held in custody pursuant to a disposition made under paragraph 20(1)(k.1) and an application is made to the youth court by the Attorney General, or the Attorney General’s agent, within a reasonable time prior to the expiration of the period of custody, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth court and the youth court may, after affording both parties and the parents of the young person an opportunity to be heard and if it is satisfied that there are reasonable grounds to believe that the young person is likely to commit an offence causing the death of or serious harm to another person prior to the expiration of the disposition the young person is then serving, order that the young person remain in custody for a period not exceeding the remainder of the disposition.

Idem

(1.1) Where the hearing for an application under subsection (1) cannot be completed before the expiration of the period of custody, the court may order that the young person remain in custody pending the determination of the application if the court is satisfied that the application was made in a reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody.

Factors

(2) For the purpose of determining an application under subsection (1), the youth court shall take into consideration any factor that is relevant to the case of the young person including, without limiting the generality of the foregoing,

(a) evidence of a pattern of persistent violent behaviour and, in particular,

(i) the number of offences committed by the young person that caused physical or psychological harm to any other person,

(ii) the young person’s difficulties in controlling violent impulses to the point of endangering the safety of any other person,

(iii) the use of weapons in the commission of any offence,

(iv) explicit threats of violence,

(v) behaviour of a brutal nature associated with the commission of any offence, and

(vi) a substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person’s behaviour;

 

(b) psychiatric or psychological evidence that a physical or mental illness or disorder of the young person is of such a nature that the young person is likely to commit, prior to the expiration of the disposition the young person is then serving, an offence causing the death of or serious harm to another person;

(c) reliable information that satisfies the youth court that the young person is planning to commit, prior to the expiration of the disposition the young person is then serving, an offence causing the death of or serious harm to another person; and

(d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiration of the disposition the young person is then serving.

Youth court to order appearance of young person

(3) Where a provincial director fails to cause a young person to be brought before the youth court under subsection (1), the youth court shall order the provincial director to cause the young person to be brought before the youth court forthwith.

Report

(4) For the purpose of determining an application under subsection (1), the youth court shall require the provincial director to cause to be prepared, and to submit to the youth court, a report setting out any information of which the provincial director is aware with respect to the factors referred to in subsection (2) that may be of assistance to the court.

Written or oral report

(5) A report referred to in subsection (4) shall be in writing unless it cannot reasonably be committed to writing, in which case it may, with leave of the youth court, be submitted orally in court.

Provisions apply

(6) Subsections 14(4) to (10) apply, with such modifications as the circumstances require, in respect of a report referred to in subsection (4).

Notice of hearing

(7) Where an application is made under subsection (1) in respect of a young person, the Attorney General or the Attorney General’s agent shall cause such notice as may be directed by rules of court applicable to the youth court or, in the absence of such direction, at least five clear days notice of the hearing to be given in writing to the young person and the young person’s parents and the provincial director.

Statement of right to counsel

(8) Any notice given to a parent under subsection (7) shall include a statement that the young person has the right to be represented by counsel.

Service of notice

(9) A notice under subsection (7) may be served personally or may be sent by registered mail.

Where notice not given

(10) Where notice under subsection (7) is not given in accordance with this section, the youth court may

(a) adjourn the hearing and order that the notice be given in such manner and to such person as it directs; or

(b) dispense with the giving of the notice where, in the opinion of the youth court, having regard to the circumstances, the giving of the notice may be dispensed with.

Reasons

(11) Where a youth court makes an order under subsection (1), it shall state its reasons for the order in the record of the case and shall

(a) provide or cause to be provided a copy of the order, and

(b) on request, provide or cause to be provided a transcript or copy of the reasons for the order

to the young person in respect of whom the order was made, the counsel and parents of the young person, the Attorney General or the Attorney General’s agent, the provincial director and the review board, if any has been established or designated.

Review provisions apply

(12) Subsections 16(9) to (11) apply, with such modifications as the circumstances require, in respect of an order made, or the refusal to make an order, under subsection (1).

Where application denied

(13) Where an application under subsection (1) is denied, the court may, with the consent of the young person, the Attorney General and the provincial director, proceed as though the young person had been brought before the court as required under subsection 26.2(1).

1992, c. 11, s. 7.

Conditional supervision

26.2 (1) The provincial director of the province in which a young person is held in custody pursuant to a disposition made under paragraph 20(1)(k.1) or, where applicable, an order made under subsection 26.1(1), shall cause the young person to be brought before the youth court at least one month prior to the expiration of the period of custody and the court shall, after affording the young person an opportunity to be heard, by order, set the conditions of the young person’s conditional supervision.

Conditions to be included in order

(2) In setting conditions for the purposes of subsection (1), the youth court shall include in the order the following conditions, namely, that the young person

(a) keep the peace and be of good behaviour;

(b) appear before the youth court when required by the court to do so;

(c) report to the provincial director immediately on release, and thereafter be under the supervision of the provincial director or a person designated by the youth court;

(d) inform the provincial director immediately on being arrested or questioned by the police;

(e) report to the police, or any named individual, as instructed by the provincial director;

(f) advise the provincial director of the young person’s address of residence on release and after release report immediately to the clerk of the youth court or the provincial director any change

(i) in that address,

(ii) in the young person’s normal occupation, including employment, vocational or educational training and volunteer work,

(iii) in the young person’s family or financial situation, and

(iv) that may reasonably be expected to affect the young person’s ability to comply with the conditions of the order;

 

(g) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order; and

(h) comply with such reasonable instructions as the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society.

Other conditions

(3) In setting conditions for the purposes of subsection (1), the youth court may include in the order the following conditions, namely, that the young person

(a) on release, travel directly to the young person’s place of residence, or to such other place as is noted in the order;

(b) make reasonable efforts to obtain and maintain suitable employment;

(c) attend school or such other place of learning, training or recreation as is appropriate, if the court is satisfied that a suitable program is available for the young person at such a place;

(d) reside with a parent, or such other adult as the court considers appropriate, who is willing to provide for the care and maintenance of the young person;

(e) reside in such place as the provincial director may specify;

(f) remain within the territorial jurisdiction of one or more courts named in the order; and

(g) comply with such other reasonable conditions set out in the order as the court considers desirable, including conditions for securing the good conduct of the young person and for preventing the commission by the young person of other offences.

Temporary conditions

(4) Where a provincial director is required under subsection (1) to cause a young person to be brought before the youth court but cannot do so for reasons beyond the young person’s control, the provincial director shall so advise the youth court and the court shall, by order, set such temporary conditions for the young person’s conditional supervision as are appropriate in the circumstances.

Conditions to be set at first opportunity

(5) Where an order is made under subsection (4), the provincial director shall bring the young person before the youth court as soon thereafter as the circumstances permit and the court shall then set the conditions of the young person’s conditional supervision.

Report

(6) For the purpose of setting conditions under this section, the youth court shall require the provincial director to cause to be prepared, and to submit to the youth court, a report setting out any information that may be of assistance to the court.

Provisions apply

(7) Subsections 26.1(3) and (5) to (10) apply, with such modifications as the circumstances require, in respect of any proceedings held pursuant to subsection (1).

Idem

(8) Subsections 16(9) to (11) and 23(3) to (9) apply, with such modifications as the circumstances require, in respect of an order made under subsection (1).

1992, c. 11, s. 7; 1995, c. 39, s. 180.

Suspension of conditional supervision

26.3 Where the provincial director has reasonable grounds to believe that a young person has breached or is about to breach a condition of an order made under subsection 26.2(1), the provincial director may, in writing,

(a) suspend the conditional supervision; and

(b) order that the young person be remanded to such place of custody as the provincial director considers appropriate until a review is conducted under section 26.5 and, if applicable, section 26.6.

1992, c. 11, s. 7.

Apprehension

26.4 (1) Where the conditional supervision of a young person is suspended under section 26.3, the provincial director may issue a warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the disposition the young person is then serving.

Warrants

(2) A warrant issued under subsection (1) shall be executed by any peace officer to whom it is given at any place in Canada and has the same force and effect in all parts of Canada as if it had been originally issued or subsequently endorsed by a provincial court judge or other lawful authority having jurisdiction in the place where it is executed.

Peace officer may arrest

(3) Where a peace officer believes on reasonable grounds that a warrant issued under subsection (1) is in force in respect of a young person, the peace officer may arrest the young person without the warrant at any place in Canada.

Requirement to bring before provincial director

(4) Where a young person is arrested pursuant to subsection (3) and detained, the peace officer making the arrest shall cause the young person to be brought before the provincial director or a person designated by the provincial director

(a) where the provincial director or the designated person is available within a period of twenty-four hours after the young person is arrested, without unreasonable delay and in any event within that period; and

(b) where the provincial director or the designated person is not available within the period referred to in paragraph (a), as soon as possible.

Release or remand in custody

(5) Where a young person is brought, pursuant to subsection (4), before the provincial director or a person designated by the provincial director, the provincial director or the designated person

(a) if not satisfied that there are reasonable grounds to believe that the young person is the young person in respect of whom the warrant referred to in subsection (1) was issued, shall release the young person; or

(b) if satisfied that there are reasonable grounds to believe that the young person is the young person in respect of whom the warrant referred to in subsection (1) was issued, may remand the young person in custody to await execution of the warrant, but if no warrant for the young person’s arrest is executed within a period of six days after the time the young person is remanded in such custody, the person in whose custody the young person then is shall release the young person.

1992, c. 11, s. 7.

Review by provincial director

26.5 Forthwith after the remand to custody of a young person whose conditional supervision has been suspended under section 26.3, or forthwith after being informed of the arrest of such a young person, the provincial director shall review the case and, within forty-eight hours, cancel the suspension of the conditional supervision or refer the case to the youth court for a review under section 26.6.

1992, c. 11, s. 7.

Review by youth court

26.6 (1) Where the case of a young person is referred to the youth court under section 26.5, the provincial director shall, as soon as is practicable, cause the young person to be brought before the youth court, and the youth court shall, after affording the young person an opportunity to be heard,

(a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach a condition of the conditional supervision, cancel the suspension of the conditional supervision; or

(b) if the court is satisfied on reasonable grounds that the young person has breached or was about to breach a condition of the conditional supervision, review the decision of the provincial director to suspend the conditional supervision and make an order under subsection (2).

Order

(2) On completion of a review under subsection (1), the youth court shall order

(a) the cancellation of the suspension of the conditional supervision, and where the court does so, the court may vary the conditions of the conditional supervision or impose new conditions; or

(b) the continuation of the suspension of the conditional supervision for such period of time, not to exceed the remainder of the disposition the young person is then serving, as the court considers appropriate, and where the court does so, the court shall order that the young person remain in custody.

Reasons

(3) Where a youth court makes an order under subsection (2), it shall state its reasons for the order in the record of the case and shall

(a) provide or cause to be provided a copy of the order, and

(b) on request, provide or cause to be provided a transcript or copy of the reasons for the order

to the young person in respect of whom the order was made, the counsel and parents of the young person, the Attorney General or the Attorney General’s agent, the provincial director and the review board, if any has been established or designated.

Provisions apply

(4) Subsections 26.1(3) and (5) to (10) and 26.2(6) apply, with such modifications as the circumstances require, in respect of a review under this section.

Idem

(5) Subsections 16(9) to (11) apply, with such modifications as the circumstances require, in respect of an order made under subsection (2).

1992, c. 11, s. 7.

APPEALS

Appeals for indictable offences

27. (1) An appeal lies under this Act in respect of an indictable offence or an offence that the Attorney General or his agent elects to proceed with as an indictable offence in accordance with Part XXI of the Criminal Code, which Part applies with such modifications as the circumstances require.

Appeals for summary conviction offences

(1.1) An appeal lies under this Act in respect of an offence punishable on summary conviction or an offence that the Attorney General or his agent elects to proceed with as an offence punishable on summary conviction in accordance with Part XXVII of the Criminal Code, which Part applies with such modifications as the circumstances require.

Appeals where offences are tried jointly

(1.2) An appeal involving one or more indictable offences and one or more summary conviction offences that are tried jointly or in respect of which dispositions are jointly made lies under this Act in accordance with Part XXI of the Criminal Code, which applies with such modifications as the circumstances require.

Deemed election

(2) For the purpose of appeals under this Act, where no election is made in respect of an offence that may be prosecuted by indictment or proceeded with by way of summary conviction, the Attorney General or his agent shall be deemed to have elected to proceed with the offence as an offence punishable on summary conviction.

Where the youth court is a superior court

(3) In any province where the youth court is a superior court, an appeal under subsection (1.1) shall be made to the court of appeal of the province.

Nunavut

(3.1) Despite subsection (3), if the Nunavut Court of Justice is acting as a youth court, an appeal under subsection (1.1) shall be made to a judge of the Court of Appeal of Nunavut, and an appeal of that judge’s decision shall be made to the Court of Appeal of Nunavut in accordance with section 839 of the Criminal Code.

Where the youth court is a county or district court

(4) In any province where the youth court is a county or district court, an appeal under subsection (1.1) shall be made to the superior court of the province.

Appeal to the Supreme Court of Canada

(5) No appeal lies pursuant to subsection (1) from a judgment of the court of appeal in respect of a finding of guilt or an order dismissing an information to the Supreme Court of Canada unless leave to appeal is granted by the Supreme Court of Canada within twenty-one days after the judgment of the court of appeal is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.

No appeal from disposition on review

(6) No appeal lies from a disposition under sections 28 to 32.

R.S., 1985, c. Y-1, s. 27; R.S., 1985, c. 24 (2nd Supp.), s. 20; 1995, c. 19, s. 21; 1999, c. 3, s. 89.

REVIEW OF DISPOSITIONS

Automatic review of disposition involving custody

28. (1) Where a young person is committed to custody pursuant to a disposition made in respect of an offence for a period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth court forthwith at the end of one year from the date of the most recent disposition made in respect of the offence, and the youth court shall review the disposition.

Idem

(2) Where a young person is committed to custody pursuant to dispositions made in respect of more than one offence for a total period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth court forthwith at the end of one year from the date of the earliest disposition made, and the youth court shall review the dispositions.

Optional review of disposition involving custody

(3) Where a young person is committed to custody pursuant to a disposition made under subsection 20(1) in respect of an offence, the provincial director may, on the provincial director’s own initiative, and shall, on the request of the young person, the young person’s parent or the Attorney General or an agent of the Attorney General, on any of the grounds set out in subsection (4), cause the young person to be brought before a youth court

(a) where the committal to custody is for a period not exceeding one year, once at any time after the expiration of the greater of

(i) thirty days after the date of the disposition made under subsection 20(1) in respect of the offence, and

(ii) one third of the period of the disposition made under subsection 20(1) in respect of the offence, and

 

(b) where the committal to custody is for a period exceeding one year, at any time after six months after the date of the most recent disposition made in respect of the offence,

or, with leave of a youth court judge, at any other time, and where a youth court is satisfied that there are grounds for the review under subsection (4), the court shall review the disposition.

Grounds for review under subsection (3)

(4) A disposition made in respect of a young person may be reviewed under subsection (3)

(a) on the ground that the young person has made sufficient progress to justify a change in disposition;

(b) on the ground that the circumstances that led to the committal to custody have changed materially;

(c) on the ground that new services or programs are available that were not available at the time of the disposition;

(c.1) on the ground that the opportunities for rehabilitation are now greater in the community; or

(d) on such other grounds as the youth court considers appropriate.

No review where appeal pending

(5) No review of a disposition in respect of which an appeal has been taken shall be made under this section until all proceedings in respect of any such appeal have been completed.

Youth court may order appearance of young person for review

(6) Where a provincial director is required under subsections (1) to (3) to cause a young person to be brought before the youth court and fails to do so, the youth court may, on application made by the young person, his parent or the Attorney General or his agent, or on its own motion, order the provincial director to cause the young person to be brought before the youth court.

Progress report

(7) The youth court shall, before reviewing under this section a disposition made in respect of a young person, require the provincial director to cause to be prepared, and to submit to the youth court, a progress report on the performance of the young person since the disposition took effect.

Additional information in progress report

(8) A person preparing a progress report in respect of a young person may include in the report such information relating to the personal and family history and present environment of the young person as he considers advisable.

Written or oral report

(9) A progress report shall be in writing unless it cannot reasonably be committed to writing, in which case it may, with leave of the youth court, be submitted orally in court.

Provisions of subsections 14(4) to (10) to apply

(10) The provisions of subsections 14(4) to (10) apply, with such modifications as the circumstances require, in respect of progress reports.

Notice of review from provincial director

(11) Where a disposition made in respect of a young person is to be reviewed under subsection (1) or (2), the provincial director shall cause such notice as may be directed by rules of court applicable to the youth court or, in the absence of such direction, at least five clear days notice of the review to be given in writing to the young person, his parents and the Attorney General or his agent.

Notice of review from person requesting it

(12) Where a review of a disposition made in respect of a young person is requested under subsection (3), the person requesting the review shall cause such notice as may be directed by rules of court applicable to the youth court or, in the absence of such direction, at least five clear days notice of the review to be given in writing to the young person, his parents and the Attorney General or his agent.

Statement of right to counsel

(13) Any notice given to a parent under subsection (11) or (12) shall include a statement that the young person whose disposition is to be reviewed has the right to be represented by counsel.

Service of notice

(14) A notice under subsection (11) or (12) may be served personally or may be sent by registered mail.

Notice may be waived

(15) Any of the persons entitled to notice under subsection (11) or (12) may waive the right to that notice.

Where notice not given

(16) Where notice under subsection (11) or (12) is not given in accordance with this section, the youth court may

(a) adjourn the proceedings and order that the notice be given in such manner and to such person as it directs; or

(b) dispense with the notice where, in the opinion of the court, having regard to the circumstances, notice may be dispensed with.

Decision of the youth court after review

(17) Where a youth court reviews under this section a disposition made in respect of a young person, it may, after affording the young person, his parent, the Attorney General or his agent and the provincial director an opportunity to be heard, having regard to the needs of the young person and the interests of society,

(a) confirm the disposition;

(b) where the young person is in secure custody pursuant to subsection 24.1(2), by order direct that the young person be placed in open custody; or

(c) release the young person from custody and place the young person

(i) on probation in accordance with section 23 for a period not exceeding the remainder of the period for which the young person was committed to custody, or

(ii) under conditional supervision in accordance with the procedure set out in section 26.2, with such modifications as the circumstances require, for a period not exceeding the remainder of the disposition the young person is then serving.

 

(18) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 21]

R.S., 1985, c. Y-1, s. 28; R.S., 1985, c. 24 (2nd Supp.), s. 21; 1992, c. 11, s. 8; 1995, c. 19, s. 22.

Application to court for review of level of custody

28.1 (1) Where a young person is placed in secure custody pursuant to subsection 24.1(3) or transferred to secure custody pursuant to subsection 24.2(11), the youth court shall review the level of custody if an application therefor is made by the young person or the young person’s parent.

Report

(2) The youth court shall, before conducting a review under this section, require the provincial director to cause to be prepared, and to submit to the youth court, a report setting out the reasons for the placement or transfer.

Provisions apply

(3) The provisions of subsections 14(4) to (10) apply, with such modifications as the circumstances require, in respect of the report referred to in subsection (2), and the provisions of subsections 28(11) to (16) apply, with such modifications as the circumstances require, to every review under this section.

Decision of the youth court

(4) Where the youth court conducts a review under this section, it may, after affording the young person, the young person’s parents and the provincial director an opportunity to be heard, confirm or alter the level of custody, having regard to the needs of the young person and the interests of society.

Decision is final

(5) A decision of the youth court on a review under this section in respect of any particular placement or transfer is, subject to any subsequent order made pursuant to a review under section 28 or 29, final.

1995, c. 19, s. 23.

Recommendation of provincial director for transfer to open custody or for probation

29. (1) Where a young person is held in custody pursuant to a disposition, the provincial director may, if he is satisfied that the needs of the young person and the interests of society would be better served thereby, cause notice in writing to be given to the young person, his parent and the Attorney General or his agent that he recommends that the young person

(a) be transferred from a place or facility of secure custody to a place or facility of open custody, where the young person is held in a place or facility of secure custody pursuant to subsection 24.1(2), or

(b) be released from custody and placed on probation or, where the young person is in custody pursuant to a disposition made under paragraph 20(1)(k.1), placed under conditional supervision,

and give a copy of the notice to the youth court.

Contents of notice

(1.1) The provincial director shall include in any notice given under subsection (1) the reasons for the recommendation and

(a) in the case of a recommendation that the young person be placed on probation, the conditions that the provincial director would recommend be attached to a probation order; and

(b) in the case of a recommendation that the young person be placed under conditional supervision, the conditions that the provincial director would recommend be set pursuant to section 26.2.

Application to court for review of recommendation

(2) Where notice of a recommendation is made under subsection (1) with respect to a disposition made in respect of a young person, the youth court shall, if an application for review is made by the young person, his parent or the Attorney General or his agent within ten days after service of the notice, forthwith review the disposition.

Subsections 28(5), (7) to (10) and (12) to (17) apply

(3) Subject to subsection (4), subsections 28(5), (7) to (10) and (12) to (17) apply, with such modifications as the circumstances require, in respect of reviews made under this section and any notice required under subsection 28(12) shall be given to the provincial director.

Where no application for review made under subsection (2)

(4) A youth court that receives a notice under subsection (1) shall, if no application for a review is made under subsection (2),

(a) in the case of a recommendation that a young person be transferred from a place or facility of secure custody to a place or facility of open custody, order that the young person be so transferred,

(b) in the case of a recommendation that a young person be released from custody and placed on probation, release the young person and place him on probation in accordance with section 23,

(b.1) in the case of a recommendation that a young person be released from custody and placed under conditional supervision, release the young person and place the young person under conditional supervision in accordance with section 26.2, having regard to the recommendations of the provincial director, or

(c) where the court deems it advisable, make no direction under this subsection

and, for greater certainty, an order or direction under this subsection may be made without a hearing.

Conditions in probation order

(4.1) Where the youth court places a young person on probation pursuant to paragraph (4)(b), the court shall include in the probation order such conditions referred to in section 23 as it considers advisable, having regard to the recommendations of the provincial director.

Notice where no direction made

(4.2) Where a youth court, pursuant to paragraph (4)(c), makes no direction under subsection (4), it shall forthwith cause a notice of its decision to be given to the provincial director.

Provincial director may request review

(4.3) Where the provincial director is given a notice under subsection (4.2), he may request a review under this section.

Where the provincial director requests a review

(5) Where the provincial director requests a review pursuant to subsection (4.3),

(a) the provincial director shall cause such notice as may be directed by rules of court applicable to the youth court or, in the absence of such direction, at least five clear days notice of the review to be given in writing to the young person, his parents and the Attorney General or his agent; and

(b) the youth court shall forthwith, after the notice required under paragraph (a) is given, review the disposition.

(6) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 22]

R.S., 1985, c. Y-1, s. 29; R.S., 1985, c. 24 (2nd Supp.), s. 22, c. 1 (4th Supp.), s. 40; 1992, c. 11, s. 9; 1995, c. 19, s. 24.

Review board

30. (1) Where a review board is established or designated by a province for the purposes of this section, that board shall, subject to this section, carry out in that province the duties and functions of a youth court under sections 28 and 29, other than releasing a young person from custody and placing the young person on probation or under conditional supervision.

Other duties of review board

(2) Subject to this Act, a review board may carry out any duties or functions that are assigned to it by the province that established or designated it.

Notice under section 29

(3) Where a review board is established or designated by a province for the purposes of this section, the provincial director shall at the same time as any notice is given under subsection 29(1) cause a copy of the notice to be given to the review board.

Notice of decision of review board

(4) A review board shall cause notice of any decision made by it in respect of a young person pursuant to section 28 or 29 to be given forthwith in writing to the young person, his parents, the Attorney General or his agent and the provincial director, and a copy of the notice to be given to the youth court.

Decision of review board to take effect where no review

(5) Subject to subsection (6), any decision of a review board under this section shall take effect ten days after the decision is made unless an application for review is made under section 31.

Decision respecting release from custody and probation

(6) Where a review board decides that a young person should be released from custody and placed on probation, it shall so recommend to the youth court and, if no application for a review of the decision is made under section 31, the youth court shall forthwith on the expiration of the ten day period referred to in subsection (5) release the young person from custody and place him on probation in accordance with section 23, and shall include in the probation order such conditions referred to in that section as the court considers advisable having regard to the recommendations of the review board.

Decision respecting release from custody and conditional supervision

(7) Where a review board decides that a young person should be released from custody and placed under conditional supervision, it shall so recommend to the youth court and, if no application for a review of the decision is made under section 31, the youth court shall forthwith, on the expiration of the ten day period referred to in subsection (5), release the young person from custody and place the young person under conditional supervision in accordance with section 26.2, and shall include in the order under that section such conditions as the court considers advisable, having regard to the recommendations of the review board.

R.S., 1985, c. Y-1, s. 30; R.S., 1985, c. 24 (2nd Supp.), s. 23; 1992, c. 11, s. 10.

Review by youth court

31. (1) Where the review board reviews a disposition under section 30, the youth court shall, on the application of the young person in respect of whom the review was made, his parents, the Attorney General or his agent or the provincial director, made within ten days after the decision of the review board is made, forthwith review the decision.

Subsections 28(5), (7) to (10) and (12) to (17) apply

(2) Subsections 28(5), (7) to (10) and (12) to (17) apply, with such modifications as the circumstances require, in respect of reviews made under this section and any notice required under subsection 28(12) shall be given to the provincial director.

R.S., 1985, c. Y-1, s. 31; R.S., 1985, c. 1 (4th Supp.), s. 41.

Review of other dispositions

32. (1) Where a youth court has made a disposition in respect of a young person, other than a disposition under paragraph 20(1)(k) or (k.1) or section 20.1, the youth court shall, on the application of the young person, the young person’s parents, the Attorney General or the Attorney General’s agent or the provincial director, made at any time after six months from the date of the disposition or, with leave of a youth court judge, at any earlier time, review the disposition if the court is satisfied that there are grounds for a review under subsection (2).

Grounds for review

(2) A review of a disposition may be made under this section

(a) on the ground that the circumstances that led to the disposition have changed materially;

(b) on the ground that the young person in respect of whom the review is to be made is unable to comply with or is experiencing serious difficulty in complying with the terms of the disposition;

(c) on the ground that the terms of the disposition are adversely affecting the opportunities available to the young person to obtain services, education or employment; or

(d) on such other grounds as the youth court considers appropriate.

Progress report

(3) The youth court may, before reviewing under this section a disposition made in respect of a young person, require the provincial director to cause to be prepared, and to submit to the youth court, a progress report on the performance of the young person since the disposition took effect.

Subsections 28(8) to (10) apply

(4) Subsections 28(8) to (10) apply, with such modifications as the circumstances require, in respect of any progress report required under subsection (3).

Subsections 28(5) and (12) to (16) apply

(5) Subsections 28(5) and (12) to (16) apply, with such modifications as the circumstances require, in respect of reviews made under this section and any notice required under subsection 28(12) shall be given to the provincial director.

Compelling appearance of young person

(6) The youth court may, by summons or warrant, compel a young person in respect of whom a review is to be made under this section to appear before the youth court for the purposes of the review.

Decision of the youth court after review

(7) Where a youth court reviews under this section a disposition made in respect of a young person, it may, after affording the young person, his parent, the Attorney General or his agent and the provincial director an opportunity to be heard,

(a) confirm the disposition;

(b) terminate the disposition and discharge the young person from any further obligation of the disposition; or

(c) vary the disposition or make such new disposition listed in section 20, other than a committal to custody, for such period of time, not exceeding the remainder of the period of the earlier disposition, as the court deems appropriate in the circumstances of the case.

New disposition not to be more onerous

(8) Subject to subsection (9), where a disposition made in respect of a young person is reviewed under this section, no disposition made under subsection (7) shall, without the consent of the young person, be more onerous than the remaining portion of the disposition reviewed.

Exception

(9) A youth court may under this section extend the time within which a disposition made under paragraphs 20(1)(b) to (g) is to be complied with by a young person where the court is satisfied that the young person requires more time to comply with the disposition, but in no case shall the extension be for a period of time that expires more than twelve months after the date the disposition would otherwise have expired.

(10) and (11) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 24]

R.S., 1985, c. Y-1, s. 32; R.S., 1985, c. 24 (2nd Supp.), s. 24; 1992, c. 11, s. 11; 1995, c. 39, s. 181.

Review of order made under s. 20.1

33. (1) A youth court or other court may, on application, review an order made under section 20.1 at any time after the circumstances set out in subsection 45(1) are realized in respect of any record in relation to the offence that resulted in the order being made.

Grounds

(2) In conducting a review under this section, the youth court or other court shall take into account

(a) the nature and circumstances of the offence in respect of which the order was made; and

(b) the safety of the young person and of other persons.

Decision of review

(3) Where a youth court or other court conducts a review under this section, it may, after affording the young person, one of the young person’s parents, the Attorney General or an agent of the Attorney General and the provincial director an opportunity to be heard,

(a) confirm the order;

(b) revoke the order; or

(c) vary the order as it considers appropriate in the circumstances of the case.

New order not to be more onerous

(4) No variation of an order made under paragraph (3)(c) may be more onerous than the order being reviewed.

Application of provisions

(5) Subsections 32(3) to (5) apply, with such modifications as the circumstances require, in respect of a review under this section.

R.S., 1985, c. Y-1, s. 33; R.S., 1985, c. 24 (2nd Supp.), s. 25; 1995, c. 39, s. 182.

Sections 20 to 26 apply to dispositions on review

34. (1) Subject to sections 28 to 32, subsections 20(2) to (8) and sections 21 to 25.1 apply, with such modifications as the circumstances require, in respect of dispositions made under sections 28 to 32.

Orders are dispositions

(2) Orders under subsections 26.1(1) and 26.2(1) and paragraph 26.6(2)(b) are deemed to be dispositions for the purposes of section 28.

R.S., 1985, c. Y-1, s. 34; R.S., 1985, c. 24 (2nd Supp.), s. 25; 1992, c. 11, s. 12.

TEMPORARY RELEASE FROM CUSTODY

Temporary absence or day release

35. (1) The provincial director of a province may, subject to any terms or conditions that he considers desirable, authorize a young person committed to custody in the province pursuant to a disposition made under this Act

(a) to be temporarily released for a period not exceeding fifteen days where, in his opinion, it is necessary or desirable that the young person be absent, with or without escort, for medical, compassionate or humanitarian reasons or for the purpose of rehabilitating the young person or re-integrating him into the community; or

(b) to be released from custody on such days and during such hours as he specifies in order that the young person may

(i) attend school or any other educational or training institution,

(ii) obtain or continue employment or perform domestic or other duties required by the young person’s family,

(iii) participate in a program specified by him that, in his opinion, will enable the young person to better carry out his employment or improve his education or training, or

(iv) attend an out-patient treatment program or other program that provides services that are suitable to addressing the young person’s needs.

 

Limitation

(2) A young person who is released from custody pursuant to subsection (1) shall be released only for such periods of time as are necessary to attain the purpose for which the young person is released.

Revocation of authorization for release

(3) The provincial director of a province may, at any time, revoke an authorization made under subsection (1).

Arrest and return to custody

(4) Where the provincial director revokes an authorization for a young person to be released from custody under subsection (3) or where a young person fails to comply with any term or condition of release from custody under this section, the young person may be arrested without warrant and returned to custody.

Prohibition

(5) A young person who has been committed to custody under this Act shall not be released from custody before the expiration of the period of his custody except in accordance with subsection (1) unless the release is ordered under sections 28 to 31 or otherwise according to law by a court of competent jurisdiction.

R.S., 1985, c. Y-1, s. 35; R.S., 1985, c. 24 (2nd Supp.), s. 26, c. 1 (4th Supp.), s. 42; 1995, c. 19, s. 25.

EFFECT OF TERMINATION OF DISPOSITION

Effect of absolute discharge or termination of dispositions

36. (1) Subject to section 12 of the Canada Evidence Act, where a young person is found guilty of an offence, and

(a) a youth court directs under paragraph 20(1)(a) that the young person be discharged absolutely, or

(b) all the dispositions made under subsection 20(1) in respect of the offence, and all terms of those dispositions, have ceased to have effect,

the young person shall be deemed not to have been found guilty or convicted of the offence except that

(c) the young person may plead autrefois convict in respect of any subsequent charge relating to the offence,

(d) a youth court may consider the finding of guilt in considering an application for a transfer to ordinary court under section 16,

(e) any court or justice may consider the finding of guilt in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any offence, and

(f) the National Parole Board or any provincial parole board may consider the finding of guilt in considering an application for parole or pardon.

Disqualifications removed

(2) For greater certainty and without restricting the generality of subsection (1), an absolute discharge under paragraph 20(1)(a) or the termination of all dispositions in respect of an offence for which a young person is found guilty removes any disqualification in respect of the offence to which the young person is subject pursuant to any Act of Parliament by reason of a conviction.

Applications for employment

(3) No application form for or relating to

(a) employment in any department, as defined in section 2 of the Financial Administration Act,

(b) employment by any Crown corporation, as defined in section 83 of the Financial Administration Act,

(c) enrolment in the Canadian Forces, or

(d) employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament,

shall contain any question that by its terms requires the applicant to disclose that the applicant has been charged with or found guilty of an offence in respect of which the applicant has, under this Act, been discharged absolutely or has completed all the dispositions made under subsection 20(1).

Punishment

(4) Any person who uses or authorizes the use of an application form in contravention of subsection (3) is guilty of an offence punishable on summary conviction.

Finding of guilt not a previous conviction

(5) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions.

R.S., 1985, c. Y-1, s. 36; R.S., 1985, c. 24 (2nd Supp.), s. 27; 1995, c. 19, s. 26, c. 39, ss. 183, 189.

YOUTH WORKERS

Duties of youth worker

37. The duties and functions of a youth worker in respect of a young person whose case has been assigned to him by the provincial director include

(a) where the young person is bound by a probation order that requires him to be under supervision, supervising the young person in complying with the conditions of the probation order or in carrying out any other disposition made together with it;

(a.1) where the young person is placed under conditional supervision pursuant to an order made under section 26.2, supervising the young person in complying with the conditions of the order;

(b) where the young person is found guilty of any offence, giving such assistance to him as he considers appropriate up to the time the young person is discharged or the disposition of his case terminates;

(c) attending court when he considers it advisable or when required by the youth court to be present;

(d) preparing, at the request of the provincial director, a pre-disposition report or a progress report; and

(e) performing such other duties and functions as the provincial director requires.

R.S., 1985, c. Y-1, s. 37; R.S., 1985, c. 24 (2nd Supp.), s. 28; 1992, c. 11, s. 13.

PROTECTION OF PRIVACY OF YOUNG PERSONS

Identity not to be published

38. (1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of any hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

Limitation

(1.1) Subsection (1) does not apply in respect of the disclosure of information in the course of the administration of justice including, for greater certainty, the disclosure of information for the purposes of the Firearms Act and Part III of the Criminal Code, where it is not the purpose of the disclosure to make the information known in the community.

Preparation of reports

(1.11) Subsection (1) does not apply in respect of the disclosure of information by the provincial director or a youth worker where the disclosure is necessary for procuring information that relates to the preparation of any report required by this Act.

No subsequent disclosure

(1.12) No person to whom information is disclosed pursuant to subsection (1.11) shall disclose that information to any other person unless the disclosure is necessary for the purpose of preparing the report for which the information was disclosed.

Schools and others

(1.13) Subsection (1) does not apply in respect of the disclosure of information to any professional or other person engaged in the supervision or care of a young person, including the representative of any school board or school or any other educational or training institution, by the provincial director, a youth worker, a peace officer or any other person engaged in the provision of services to young persons where the disclosure is necessary

(a) to ensure compliance by the young person with an authorization pursuant to section 35 or an order of any court concerning bail, probation or conditional supervision; or

(b) to ensure the safety of staff, students or other persons, as the case may be.

No subsequent disclosure

(1.14) No person to whom information is disclosed pursuant to subsection (1.13) shall disclose that information to any other person unless the disclosure is necessary for a purpose referred to in that subsection.

Information to be kept separate

(1.15) Any person to whom information is disclosed pursuant to subsections (1.13) and (1.14) shall

(a) keep the information separate from any other record of the young person to whom the information relates;

(b) subject to subsection (1.14), ensure that no other person has access to the information; and

(c) destroy the information when the information is no longer required for the purpose for which it was disclosed.

Ex parte application for leave to publish

(1.2) A youth court judge shall, on the ex parte application of a peace officer, make an order permitting any person to publish a report described in subsection (1) that contains the name of a young person, or information serving to identify a young person, who has committed or is alleged to have committed an indictable offence, if the judge is satisfied that

(a) there is reason to believe that the young person is dangerous to others; and

(b) publication of the report is necessary to assist in apprehending the young person.

Order ceases to have effect

(1.3) An order made under subsection (1.2) shall cease to have effect two days after it is made.

Application for leave to publish

(1.4) The youth court may, on the application of any person referred to in subsection (1), make an order permitting any person to publish a report in which the name of that person, or information serving to identify that person, would be disclosed, if the court is satisfied that the publication of the report would not be contrary to the best interests of that person.

Disclosure with court order

(1.5) The youth court may, on the application of the provincial director, the Attorney General or an agent of the Attorney General or a peace officer, make an order permitting the applicant to disclose to such person or persons as are specified by the court such information about a young person as is specified if the court is satisfied that the disclosure is necessary, having regard to the following:

(a) the young person has been found guilty of an offence involving serious personal injury;

(b) the young person poses a risk of serious harm to persons; and

(c) the disclosure of the information is relevant to the avoidance of that risk.

Opportunity to be heard

(1.6) Subject to subsection (1.7), before making an order under subsection (1.5), the youth court shall afford the young person, the young person’s parents, the Attorney General or an agent of the Attorney General an opportunity to be heard.

Ex parte application

(1.7) An application under subsection (1.5) may be made ex parte by the Attorney General or an agent of the Attorney General where the youth court is satisfied that reasonable efforts have been made to locate the young person and that those efforts have not been successful.

Time limit

(1.8) No information may be disclosed pursuant to subsection (1.5) after the record to which the information relates ceases to be available for inspection under subsection 45(1).

Contravention

(2) Every one who contravenes subsection (1), (1.12), (1.14) or (1.15)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Provincial court judge has absolute jurisdiction on indictment

(3) Where an accused is charged with an offence under paragraph (2)(a), a provincial court judge has absolute jurisdiction to try the case and his jurisdiction does not depend on the consent of the accused.

R.S., 1985, c. Y-1, s. 38; R.S., 1985, c. 24 (2nd Supp.), s. 29; 1995, c. 19, s. 27, c. 39, s. 184.

Exclusion from hearing

39. (1) Subject to subsection (2), where a court or justice before whom proceedings are carried out under this Act is of the opinion

(a) that any evidence or information presented to the court or justice would be seriously injurious or seriously prejudicial to

(i) the young person who is being dealt with in the proceedings,

(ii) a child or young person who is a witness in the proceedings, or

(iii) a child or young person who is aggrieved by or the victim of the offence charged in the proceedings, or

 

(b) that it would be in the interest of public morals, the maintenance of order or the proper administration of justice to exclude any or all members of the public from the court room,

the court or justice may exclude any person from all or part of the proceedings if the court or justice deems that person’s presence to be unnecessary to the conduct of the proceedings.

Exception

(2) Subject to section 650 of the Criminal Code and except where it is necessary for the purposes of subsection 13(6) of this Act, a court or justice may not, pursuant to subsection (1), exclude from proceedings under this Act

(a) the prosecutor;

(b) the young person who is being dealt with in the proceedings, his parent, his counsel or any adult assisting him pursuant to subsection 11(7);

(c) the provincial director or his agent; or

(d) the youth worker to whom the young person’s case has been assigned.

Exclusion after adjudication or during review

(3) The youth court, after it has found a young person guilty of an offence, or the youth court or the review board, during a review of a disposition under sections 28 to 32, may, in its discretion, exclude from the court or from a hearing of the review board, as the case may be, any person other than

(a) the young person or his counsel,

(b) the provincial director or his agent,

(c) the youth worker to whom the young person’s case has been assigned, and

(d) the Attorney General or his agent,

when any information is being presented to the court or the review board the knowledge of which might, in the opinion of the court or review board, be seriously injurious or seriously prejudicial to the young person.

Exception

(4) The exception set out in paragraph (3)(a) is subject to subsection 13(6) of this Act and section 650 of the Criminal Code.

R.S., 1985, c. Y-1, s. 39; R.S., 1985, c. 24 (2nd Supp.), s. 30.

MAINTENANCE AND USE OF RECORDS

Records that may be Kept

Youth court, review board and other courts

40. (1) A youth court, review board or any court dealing with matters arising out of proceedings under this Act may keep a record of any case arising under this Act that comes before it.

Exception

(2) For greater certainty, this section does not apply in respect of proceedings held in ordinary court pursuant to an order under section 16.

Records of offences that result in order under s. 20.1

(3) Notwithstanding anything in this Act, where a young person is found guilty of an offence that results in an order under section 20.1 being made against the young person, the youth court may keep a record of the conviction and the order until the expiration of the order.

Disclosure

(4) Any record that is kept under subsection (3) may be disclosed only to establish the existence of the order in any offence involving a breach of the order.

R.S., 1985, c. Y-1, s. 40; R.S., 1985, c. 24 (2nd Supp.), s. 31; 1995, c. 39, s. 185.

Records in central repository

41. (1) A record of any offence that a young person has been charged with having committed may, where the offence is an offence in respect of which an adult may be subjected to any measurement, process or operation referred to in the Identification of Criminals Act, be kept in such central repository as the Commissioner of the Royal Canadian Mounted Police may, from time to time, designate for the purpose of keeping criminal history files or records on offenders or keeping records for the identification of offenders.

Police force may provide record

(2) Where a young person is charged with having committed an offence referred to in subsection (1), the police force responsible for the investigation of the offence may provide a record of the offence, including the original or a copy of any fingerprints, palmprints or photographs and any other measurement, process or operation referred to in the Identification of Criminals Act taken of, or applied in respect of, the young person by or on behalf of the police force, for inclusion in any central repository designated pursuant to subsection (1).

Police force shall provide record

(3) Where a young person is found guilty of an offence referred to in subsection (1), the police force responsible for the investigation of the offence shall provide a record of the offence, including the original or a copy of any fingerprints, palmprints or photographs and any other measurement, process or operation referred to in the Identification of Criminals Act taken of, or applied in respect of, the young person by or on behalf of the police force, for inclusion in any central repository designated pursuant to subsection (1).

R.S., 1985, c. Y-1, s. 41; R.S., 1985, c. 24 (2nd Supp.), s. 31; 1995, c. 19, s. 28.

Police records

42. A record relating to any offence alleged to have been committed by a young person, including the original or a copy of any fingerprints or photographs of the young person, may be kept by any police force responsible for, or participating in, the investigation of the offence.

R.S., 1985, c. Y-1, s. 42; R.S., 1985, c. 24 (2nd Supp.), s. 31.

Government records

43. (1) A department or an agency of any government in Canada may keep records containing information obtained by the department or agency

(a) for the purposes of an investigation of an offence alleged to have been committed by a young person;

(b) for use in proceedings against a young person under this Act;

(c) for the purpose of administering a disposition;

(d) for the purpose of considering whether, instead of commencing or continuing judicial proceedings under this Act against a young person, to use alternative measures to deal with the young person; or

(e) as a result of the use of alternative measures to deal with a young person.

Private records

(2) Any person or organization may keep records containing information obtained by the person or organization

(a) as a result of the use of alternative measures to deal with a young person alleged to have committed an offence; or

(b) for the purpose of administering or participating in the administration of a disposition.

(3) and (4) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 32]

R.S., 1985, c. Y-1, s. 43; R.S., 1985, c. 24 (2nd Supp.), s. 32.

Fingerprints and Photographs

Identification of Criminals Act applies

44. (1) Subject to this section, the Identification of Criminals Act applies in respect of young persons.

Limitation

(2) No fingerprints, palmprints or photographs or any other measurement, process or operation referred to in the Identification of Criminals Act shall be taken of, or applied in respect of, a young person who is charged with having committed an offence except in the circumstances in which an adult may, under that Act, be subjected to the measurements, processes and operations referred to in that Act.

(3) to (5) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 33]

R.S., 1985, c. Y-1, s. 44; R.S., 1985, c. 24 (2nd Supp.), s. 33; 1995, c. 19, s. 29.

Disclosure of Records

Records made available

44.1 (1) Subject to subsections (2) and (2.1), any record that is kept pursuant to section 40 shall, and any record that is kept pursuant to sections 41 to 43 may, on request, be made available for inspection to

(a) the young person to whom the record relates;

(b) counsel acting on behalf of the young person, or any representative of that counsel;

(c) the Attorney General or his agent;

(d) a parent of the young person or any adult assisting the young person pursuant to subsection 11(7), during the course of any proceedings relating to the offence or alleged offence to which the record relates or during the term of any disposition made in respect of the offence;

(e) any judge, court or review board, for any purpose relating to proceedings relating to the young person under this Act or to proceedings in ordinary court in respect of offences committed or alleged to have been committed by the young person, whether as a young person or an adult;

(f) any peace officer,

(i) for the purpose of investigating any offence that the young person is suspected on reasonable grounds of having committed, or in respect of which the young person has been arrested or charged, whether as a young person or an adult,

(ii) for any purpose related to the administration of the case to which the record relates during the course of proceedings against the young person or the term of any disposition,

(iii) for the purpose of investigating any offence that another person is suspected on reasonable grounds of having committed against the young person while the young person is, or was, serving a disposition, or

(iv) for any other law enforcement purpose;

 

(g) any member of a department or agency of a government in Canada, or any agent thereof, that is

(i) engaged in the administration of alternative measures in respect of the young person,

(ii) preparing a report in respect of the young person pursuant to this Act or for the purpose of assisting a court in sentencing the young person after he becomes an adult or is transferred to ordinary court pursuant to section 16,

(iii) engaged in the supervision or care of the young person, whether as a young person or an adult, or in the administration of a disposition or a sentence in respect of the young person, whether as a young person or an adult, or

(iv) considering an application for parole or pardon made by the young person after he becomes an adult;

 

(h) any person, or person within a class of persons, designated by the Governor in Council, or the Lieutenant Governor in Council of a province, for a purpose and to the extent specified by the Governor in Council or the Lieutenant Governor in Council, as the case may be;

(i) any person, for the purpose of determining whether to grant security clearances required by the Government of Canada or the government of a province or a municipality for purposes of employment or the performance of services;

(i.1) to any person for the purposes of the Firearms Act;

(j) any employee or agent of the Government of Canada, for statistical purposes pursuant to the Statistics Act; and

(k) any other person who is deemed, or any person within a class of persons that is deemed, by a youth court judge to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is

(i) desirable in the public interest for research or statistical purposes, or

(ii) desirable in the interest of the proper administration of justice.

 

Exception

(2) Where a youth court has withheld the whole or a part of a report from any person pursuant to subsection 13(6) or 14(7), the report or part thereof shall not be made available to that person for inspection under subsection (1).

Records of forensic DNA analysis of bodily substances

(2.1) Notwithstanding subsections (1) and (5), any record that is kept pursuant to any of sections 40 to 43 and that is a record of the results of forensic DNA analysis of a bodily substance taken from a young person in execution of a warrant issued under section 487.05 of the Criminal Code may be made available for inspection under this section only under paragraph (1)(a), (b), (c), (d), (e), (f), (h) or subparagraph (1)(k)(ii).

Introduction into evidence

(3) Nothing in paragraph (1)(e) authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.

Disclosures for research or statistical purposes

(4) Where a record is made available for inspection to any person under paragraph (1)(j) or subparagraph (1)(k)(i), that person may subsequently disclose information contained in the record, but may not disclose the information in any form that would reasonably be expected to identify the young person to whom it relates.

Record made available to victim

(5) Any record that is kept pursuant to sections 40 to 43 may, on request, be made available for inspection to the victim of the offence to which the record relates.

Disclosure of information and copies of records

(6) Any person to whom a record is required or authorized to be made available for inspection under this section may be given any information contained in the record and may be given a copy of any part of the record.

R.S., 1985, c. 24 (2nd Supp.), s. 34; 1992, c. 1, s. 143(E); 1995, c. 19, s. 30, c. 27, s. 2, c. 39, s. 186.

Disclosure by peace officer during investigation

44.2 (1) A peace officer may disclose to any person any information in a record kept pursuant to section 42 that it is necessary to disclose in the conduct of the investigation of an offence.

Disclosure to insurance company

(2) A peace officer may disclose to an insurance company information in any record that is kept pursuant to section 42 for the purpose of investigating any claim arising out of an offence committed or alleged to have been committed by the young person to whom the record relates.

R.S., 1985, c. 24 (2nd Supp.), s. 34.

Non-Disclosure and Destruction of Records

Non-disclosure

45. (1) Subject to sections 45.01, 45.1 and 45.2, records kept pursuant to sections 40 to 43 may not be made available for inspection under section 44.1 or 44.2 in the following circumstances:

(a) where the young person to whom the record relates is charged with the offence to which the record relates and is acquitted otherwise than by reason of a verdict of not criminally responsible on account of mental disorder, on the expiration of two months after the expiration of the time allowed for the taking of an appeal or, where an appeal is taken, on the expiration of three months after all proceedings in respect of the appeal have been completed;

(b) where the charge against the young person is dismissed for any reason other than acquittal or withdrawn, on the expiration of one year after the dismissal or withdrawal;

(c) where the charge against the young person is stayed, with no proceedings being taken against the young person for a period of one year, on the expiration of the one year;

(d) where alternative measures are used to deal with the young person, on the expiration of two years after the young person consents to participate in the alternative measures in accordance with paragraph 4(1)(c);

(d.1) where the young person is found guilty of the offence and the disposition is an absolute discharge, on the expiration of one year after the young person is found guilty;

(d.2) where the young person is found guilty of the offence and the disposition is a conditional discharge, on the expiration of three years after the young person is found guilty;

(e) subject to paragraph (g), where the young person is found guilty of the offence and it is a summary conviction offence, on the expiration of three years after all dispositions made in respect of that offence;

(f) subject to paragraph (g), where the young person is found guilty of the offence and it is an indictable offence, on the expiration of five years after all dispositions made in respect of that offence; and

(g) where, before the expiration of the period referred to in paragraph (e) or (f), the young person is, as a young person, found guilty of

(i) a subsequent summary conviction offence, on the expiration of three years after all dispositions made in respect of that offence have been completed, and

(ii) a subsequent indictable offence, five years after all dispositions made in respect of that offence have been completed.

 

Destruction of record

(2) Subject to subsections (2.1) and (2.2), when the circumstances set out in subsection (1) are realized in respect of any record kept pursuant to section 41, the record shall be destroyed forthwith.

Transfer of records relating to serious offences

(2.1) Where a special records repository has been established pursuant to subsection 45.02(1), all records in the central repository referred to in subsection 41(1) that relate to

(a) a conviction for first degree murder or second degree murder within the meaning of section 231 of the Criminal Code,

(b) an offence referred to in the schedule, or

(c) an order made under section 20.1,

shall, when the circumstances set out in subsection (1) are realized in respect of the records, be transferred to that special records repository.

Transfer of fingerprints

(2.2) Where a special fingerprints repository has been established pursuant to subsection 45.03(1), all fingerprints and any information necessary to identify the person to whom the fingerprints belong that are in the central repository referred to in subsection 41(1) shall, when the circumstances set out in subsection (1) are realized in respect of the records, be transferred to that special fingerprints repository.

Meaning of “destroy”

(2.3) For the purposes of subsection (2), “destroy”, in respect of a record, means

(a) to shred, burn or otherwise physically destroy the record, in the case of a record other than a record in electronic form; and

(b) to delete, write over or otherwise render the record inaccessible, in the case of a record in electronic form.

Other records may be destroyed

(3) Any record kept pursuant to sections 40 to 43 may, in the discretion of the person or body keeping the record, be destroyed at any time before or after the circumstances set out in subsection (1) are realized in respect of that record.

Young person deemed not to have committed offence

(4) A young person shall be deemed not to have committed any offence to which a record kept pursuant to sections 40 to 43 relates when the circumstances set out in paragraph (1)(d), (e) or (f) are realized in respect of that record.

Deemed election

(5) For the purposes of paragraphs (1)(e) and (f), where no election is made in respect of an offence that may be prosecuted by indictment or proceeded with by way of summary conviction, the Attorney General or his agent shall be deemed to have elected to proceed with the offence as an offence punishable on summary conviction.

Orders made under s. 20.1 not included

(5.1) For the purposes of this Act, orders made under section 20.1 shall not be taken into account in determining any time period referred to in subsection (1).

Application to delinquency

(6) This section applies, with such modifications as the circumstances require, in respect of records relating to the offence of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, as it read immediately prior to April 2, 1984.

R.S., 1985, c. Y-1, s. 45; R.S., 1985, c. 24 (2nd Supp.), s. 35; 1991, c. 43, s. 34; 1995, c. 19, s. 31, c. 39, ss. 187, 189.

Retention of Records

Retention of records

45.01 Where, before the expiration of the period referred to in paragraph 45(1)(e) or (f) or subparagraph 45(1)(g)(i) or (ii), the young person is found guilty of a subsequent offence as an adult, records kept pursuant to sections 40 to 43 shall be available for inspection under section 44.1 or 44.2 and the provisions applicable to criminal records of adults shall apply.

1995, c. 19, s. 32.

Special Records Repository

Special records repository

45.02 (1) The Commissioner of the Royal Canadian Mounted Police may establish a special records repository for records transferred pursuant to subsection 45(2.1).

Records relating to murder

(2) A record that relates to a conviction for the offence of first degree murder or second degree murder within the meaning of section 231 of the Criminal Code or an offence referred to in any of paragraphs 16(1.01)(b) to (d) may be kept indefinitely in the special records repository.

Records relating to other serious offences

(3) A record that relates to a conviction for an offence referred to in the schedule shall be kept in the special records repository for a period of five years and shall be destroyed forthwith at the expiration of that five year period, unless the young person to whom the record relates is subsequently found guilty of any offence referred to in the schedule, in which case the record shall be dealt with as the record of an adult.

Disclosure

(4) A record kept in the special records repository shall be made available for inspection to the following persons at the following times or in the following circumstances:

(a) at any time, to the young person to whom the record relates and to counsel acting on behalf of the young person, or any representative of that counsel;

(b) where the young person has subsequently been charged with the commission of first degree murder or second degree murder within the meaning of section 231 of the Criminal Code or an offence referred to in the schedule, to any peace officer for the purpose of investigating any offence that the young person is suspected of having committed, or in respect of which the young person has been arrested or charged, whether as a young person or as an adult;

(c) where the young person has subsequently been convicted of an offence referred to in the schedule,

(i) to the Attorney General or an agent of the Attorney General,

(ii) to a parent of the young person or any adult assisting the young person,

(iii) to any judge, court or review board, for any purpose relating to proceedings relating to the young person under this Act or to proceedings in ordinary court in respect of offences committed or alleged to have been committed by the young person, whether as a young person or as an adult, or

(iv) to any member of a department or agency of a government in Canada, or any agent thereof, that is

(A) engaged in the administration of alternative measures in respect of the young person,

(B) preparing a report in respect of the young person pursuant to this Act or for the purpose of assisting a court in sentencing the young person after the young person becomes an adult or is transferred to ordinary court pursuant to section 16,

(C) engaged in the supervision or care of the young person, whether as a young person or as an adult, or in the administration of a disposition or a sentence in respect of the young person, whether as a young person or as an adult, or

(D) considering an application for parole or pardon made by the young person after the young person becomes an adult;

 

(c.1) to establish the existence of the order in any offence involving a breach of the order;

(c.2) for the purposes of the Firearms Act;

(d) at any time, to any employee or agent of the Government of Canada, for statistical purposes pursuant to the Statistics Act; or

(e) at any time, to any other person who is deemed, or any person within a class of persons that is deemed, by a youth court judge to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is desirable in the public interest for research or statistical purposes.

1995, c. 19, s. 32, c. 39, s. 189.

Special Fingerprints Repository

Special fingerprints repository

45.03 (1) The Commissioner of the Royal Canadian Mounted Police may establish a special fingerprints repository for fingerprints and any related information transferred pursuant to subsection 45(2.2).

Disclosure for identification purposes

(2) Fingerprints and any related information may be kept in the special fingerprints repository for a period of five years following the date of their receipt and, during that time, the name, date of birth and last known address of the young person to whom the fingerprints belong may be disclosed for identification purposes if a fingerprint identified as that of the young person is found during the investigation of a crime or during an attempt to identify a deceased person or a person suffering from amnesia.

Destruction

(3) Fingerprints and any related information in the special fingerprints repository shall be destroyed five years after the date of their receipt in the repository.

Records of orders made under s. 20.1

(3.1) A record that relates to an order made under section 20.1 shall be kept in the special records repository until the expiration of the order and shall be destroyed forthwith at that time.

1995, c. 19, s. 32, c. 39, s. 189.

Disclosure in Special Circumstances

Where records may be made available

45.1 (1) Subject to subsection (1.1), a youth court judge may, on application by any person, order that any record to which subsection 45(1) applies, or any part thereof, be made available for inspection to that person or a copy of the record or part thereof be given to that person, if a youth court judge is satisfied that

(a) that person has a valid and substantial interest in the record or part thereof;

(b) it is necessary for the record, part thereof or copy thereof to be made available in the interest of the proper administration of justice; and

(c) disclosure of the record or part thereof or information is not prohibited under any other Act of Parliament or the legislature of a province.

Records

(1.1) Subsection (1) applies in respect of any record relating to a particular young person or to any record relating to a class of young persons where the identity of young persons in the class at the time of the making of the application referred to in that subsection cannot reasonably be ascertained and the disclosure of the record is necessary for the purpose of investigating any offence that a person is suspected on reasonable grounds of having committed against a young person while the young person is, or was, serving a disposition.

Notice

(2) Subject to subsection (2.1), an application under subsection (1) in respect of a record shall not be heard unless the person who makes the application has given the young person to whom the record relates and the person or body that has possession of the record at least five days notice in writing of the application and the young person and the person or body that has possession has had a reasonable opportunity to be heard.

Where notice not required

(2.1) A youth court judge may waive the requirement in subsection (2) to give notice to a young person where the youth court is of the opinion that

(a) to insist on the giving of the notice would frustrate the application; or

(b) reasonable efforts have not been successful in finding the young person.

Use of record

(3) In any order under subsection (1), the youth court judge shall set out the purposes for which the record may be used.

R.S., 1985, c. 24 (2nd Supp.), s. 35; 1995, c. 19, s. 34.

Records in the custody, etc., of archivists

45.2 Where records originally kept pursuant to section 40, 42 or 43 are under the custody or control of the National Archivist of Canada or the archivist for any province, that person may disclose any information contained in the records to any other person if

(a) the Attorney General or his agent is satisfied that the disclosure is desirable in the public interest for research or statistical purposes; and

(b) the person to whom the information is disclosed undertakes not to disclose the information in any form that could reasonably be expected to identify the young person to whom it relates.

R.S., 1985, c. 24 (2nd Supp.), s. 35, c. 1 (3rd Supp.), s. 12.

Offence

Prohibition against disclosure

46. (1) Except as authorized or required by this Act, no record kept pursuant to sections 40 to 43 may be made available for inspection, and no copy, print or negative thereof or information contained therein may be given, to any person where to do so would serve to identify the young person to whom it relates as a young person dealt with under this Act.

Exception for employees

(2) No person who is employed in keeping or maintaining records referred to in subsection (1) is restricted from doing anything prohibited under subsection (1) with respect to any other person so employed.

Prohibition against use

(3) Subject to section 45.1, no record kept pursuant to sections 40 to 43, and no copy, print or negative thereof, may be used for any purpose that would serve to identify the young person to whom the record relates as a young person dealt with under this Act after the circumstances set out in subsection 45(1) are realized in respect of that record.

Offence

(4) Any person who fails to comply with this section or subsection 45(2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Absolute jurisdiction of provincial court judge

(5) The jurisdiction of a provincial court judge to try an accused is absolute and does not depend on the consent of the accused where the accused is charged with an offence under paragraph (4)(a).

R.S., 1985, c. Y-1, s. 46; R.S., 1985, c. 24 (2nd Supp.), s. 36.

CONTEMPT OF COURT

Contempt against youth court

47. (1) Every youth court has the same power, jurisdiction and authority to deal with and impose punishment for contempt against the court as may be exercised by the superior court of criminal jurisdiction of the province in which the court is situated.

Exclusive jurisdiction of youth court

(2) The youth court has exclusive jurisdiction in respect of every contempt of court committed by a young person against the youth court whether or not committed in the face of the court and every contempt of court committed by a young person against any other court otherwise than in the face of that court.

Concurrent jurisdiction of youth court

(3) The youth court has jurisdiction in respect of every contempt of court committed by a young person against any other court in the face of that court and every contempt of court committed by an adult against the youth court in the face of the youth court, but nothing in this subsection affects the power, jurisdiction or authority of any other court to deal with or impose punishment for contempt of court.

Dispositions

(4) Where a youth court or any other court finds a young person guilty of contempt of court, it may make any one of the dispositions set out in section 20, or any number thereof that are not inconsistent with each other, but no other disposition or sentence.

Section 708 of Criminal Code applies in respect of adults

(5) Section 708 of the Criminal Code applies in respect of proceedings under this section in youth court against adults, with such modifications as the circumstances require.

Appeals

(6) A finding of guilt under this section for contempt of court or a disposition or sentence made in respect thereof may be appealed as if the finding were a conviction or the disposition or sentence were a sentence in a prosecution by indictment in ordinary court.

1980-81-82-83, c. 110, s. 47.

FORFEITURE OF RECOGNIZANCES

Applications for forfeiture of recognizances

48. Applications for the forfeiture of recognizances of young persons shall be made to the youth court.

1980-81-82-83, c. 110, s. 48.

Proceedings in case of default

49. (1) Where a recognizance binding a young person has been endorsed with a certificate pursuant to subsection 770(1) of the Criminal Code, a youth court judge shall,

(a) on the request of the Attorney General or his agent, fix a time and place for the hearing of an application for the forfeiture of the recognizance; and

(b) after fixing a time and place for the hearing, cause to be sent by registered mail, not less than ten days before the time so fixed, to each principal and surety named in the recognizance, directed to him at his latest known address, a notice requiring him to appear at the time and place fixed by the judge to show cause why the recognizance should not be forfeited.

Order for forfeiture of recognizance

(2) Where subsection (1) is complied with, the youth court judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper.

Judgment debtors of the Crown

(3) Where, pursuant to subsection (2), a youth court judge orders forfeiture of a recognizance, the principal and his sureties become judgment debtors of the Crown, each in the amount that the judge orders him to pay.

Order may be filed

(4) An order made under subsection (2) may be filed with the clerk of the superior court or, in the province of Quebec, the prothonotary and, where an order is filed, the clerk or the prothonotary shall issue a writ of fieri facias in Form 34 set out in the Criminal Code and deliver it to the sheriff of each of the territorial divisions in which any of the principal and his sureties resides, carries on business or has property.

Where a deposit has been made

(5) Where a deposit has been made by a person against whom an order for forfeiture of a recognizance has been made, no writ of fieri facias shall issue, but the amount of the deposit shall be transferred by the person who has custody of it to the person who is entitled by law to receive it.

Subsections 770(2) and (4) of Criminal Code do not apply

(6) Subsections 770(2) and (4) of the Criminal Code do not apply in respect of proceedings under this Act.

Sections 772 and 773 of Criminal Code apply

(7) Sections 772 and 773 of the Criminal Code apply in respect of writs of fieri facias issued pursuant to this section as if they were issued pursuant to section 771 of the Criminal Code.

1980-81-82-83, c. 110, s. 49.

INTERFERENCE WITH DISPOSITIONS

Inducing a young person, etc.

50. (1) Every one who

(a) induces or assists a young person to leave unlawfully a place of custody or other place in which the young person has been placed pursuant to a disposition,

(b) unlawfully removes a young person from a place referred to in paragraph (a),

(c) knowingly harbours or conceals a young person who has unlawfully left a place referred to in paragraph (a),

(d) wilfully induces or assists a young person to breach or disobey a term or condition of a disposition, or

(e) wilfully prevents or interferes with the performance by a young person of a term or condition of a disposition

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.

Absolute jurisdiction of provincial court judge

(2) The jurisdiction of a provincial court judge to try an adult accused of an indictable offence under this section is absolute and does not depend on the consent of the accused.

R.S., 1985, c. Y-1, s. 50; R.S., 1985, c. 24 (2nd Supp.), ss. 37, 44(F).

APPLICATION OF THE CRIMINAL CODE

Application of Criminal Code

51. Except to the extent that they are inconsistent with or excluded by this Act, all the provisions of the Criminal Code apply, with such modifications as the circumstances require, in respect of offences alleged to have been committed by young persons.

R.S., 1985, c. Y-1, s. 51; R.S., 1985, c. 24 (2nd Supp.), s. 44(F).

PROCEDURE

Part XXVII and summary conviction trial provisions of Criminal Code to apply

52. (1) Subject to this section and except to the extent that they are inconsistent with this Act,

(a) the provisions of Part XXVII of the Criminal Code, and

(b) any other provisions of the Criminal Code that apply in respect of summary conviction offences and relate to trial proceedings

apply to proceedings under this Act

(c) in respect of a summary conviction offence, and

(d) in respect of an indictable offence as if it were defined in the enactment creating it as a summary conviction offence.

Indictable offences

(2) For greater certainty and notwithstanding subsection (1) or any other provision of this Act, an indictable offence committed by a young person is, for the purposes of this Act or any other Act, an indictable offence.

Attendance of young person

(3) Section 650 of the Criminal Code applies in respect of proceedings under this Act, whether the proceedings relate to an indictable offence or an offence punishable on summary conviction.

Limitation period

(4) In proceedings under this Act, subsection 786(2) of the Criminal Code does not apply in respect of an indictable offence.

Costs

(5) Section 809 of the Criminal Code does not apply in respect of proceedings under this Act.

1980-81-82-83, c. 110, s. 52.

Counts charged in information

53. Indictable offences and offences punishable on summary conviction may under this Act be charged in the same information and tried jointly.

1980-81-82-83, c. 110, s. 53.

Issue of subpoena

54. (1) Where a person is required to attend to give evidence before a youth court, the subpoena directed to that person may be issued by a youth court judge, whether or not the person whose attendance is required is within the same province as the youth court.

Service of subpoena

(2) A subpoena issued by a youth court and directed to a person who is not within the same province as the youth court shall be served personally on the person to whom it is directed.

1980-81-82-83, c. 110, s. 54.

Warrant

55. A warrant that is issued out of a youth court may be executed anywhere in Canada.

1980-81-82-83, c. 110, s. 55.

EVIDENCE

General law on admissibility of statements to apply

56. (1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.

When statements are admissible

(2) No oral or written statement given by a young person to a peace officer or to any other person who is, in law, a person in authority on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

(a) the statement was voluntary;

(b) the person to whom the statement was given has, before the statement was made, clearly explained to the young person, in language appropriate to his age and understanding, that

(i) the young person is under no obligation to give a statement,

(ii) any statement given by him may be used as evidence in proceedings against him,

(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

 

(c) the young person has, before the statement was made, been given a reasonable opportunity to consult

(i) with counsel, and

(ii) a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person; and

 

(d) where the young person consults any person pursuant to paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

Exception in certain cases for oral statements

(3) The requirements set out in paragraphs (2)(b), (c) and (d) do not apply in respect of oral statements where they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

Waiver of right to consult

(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver shall be videotaped or be in writing, and where it is in writing it shall contain a statement signed by the young person that the young person has been apprised of the right being waived.

Statements given under duress are inadmissible

(5) A youth court judge may rule inadmissible in any proceedings under this Act a statement given by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was given under duress imposed by any person who is not, in law, a person in authority.

Misrepresentation of age

(5.1) A youth court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person where, at the time of the making of the statement or waiver,

(a) the young person held himself or herself to be eighteen years of age or older;

(b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years of age or older; and

(c) in all other circumstances the statement or waiver would otherwise be admissible.

Parent, etc., not a person in authority

(6) For the purpose of this section, an adult consulted pursuant to paragraph 56(2)(c) shall, in the absence of evidence to the contrary, be deemed not to be a person in authority.

R.S., 1985, c. Y-1, s. 56; R.S., 1985, c. 24 (2nd Supp.), s. 38; 1995, c. 19, s. 35.

Testimony of a parent

57. (1) In any proceedings under this Act, the testimony of a parent as to the age of a person of whom he is a parent is admissible as evidence of the age of that person.

Evidence of age by certificate or record

(2) In any proceedings under this Act,

(a) a birth or baptismal certificate or a copy thereof purporting to be certified under the hand of the person in whose custody those records are held is evidence of the age of the person named in the certificate or copy; and

(b) an entry or record of an incorporated society that has had the control or care of the person alleged to have committed the offence in respect of which the proceedings are taken at or about the time the person came to Canada is evidence of the age of that person, if the entry or record was made before the time when the offence is alleged to have been committed.

Other evidence

(3) In the absence, before the youth court, of any certificate, copy, entry or record mentioned in subsection (2), or in corroboration of any such certificate, copy, entry or record, the youth court may receive and act on any other information relating to age that it considers reliable.

When age may be inferred

(4) In any proceedings under this Act, the youth court may draw inferences as to the age of a person from the person’s appearance or from statements made by the person in direct examination or cross-examination.

1980-81-82-83, c. 110, s. 57.

Admissions

58. (1) A party to any proceedings under this Act may admit any relevant fact or matter for the purpose of dispensing with proof thereof, including any fact or matter the admissibility of which depends on a ruling of law or of mixed law and fact.

Other party may adduce evidence

(2) Nothing in this section precludes a party to a proceeding from adducing evidence to prove a fact or matter admitted by another party.

1980-81-82-83, c. 110, s. 58.

Material evidence

59. Any evidence material to proceedings under this Act that would not but for this section be admissible in evidence may, with the consent of the parties to the proceedings and where the young person is represented by counsel, be given in such proceedings.

1980-81-82-83, c. 110, s. 59.

Evidence of a child or young person

60. In any proceedings under this Act where the evidence of a child or a young person is taken, it shall be taken only after the youth court judge or the justice, as the case may be, has

(a) in all cases, if the witness is a child, and

(b) where he deems it necessary, if the witness is a young person,

instructed the child or young person as to the duty of the witness to speak the truth and the consequences of failing to do so.

R.S., 1985, c. Y-1, s. 60; R.S., 1985, c. 24 (2nd Supp.), s. 39.

61. [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 40]

Proof of service

62. (1) For the purposes of this Act, service of any document may be proved by oral evidence given under oath by, or by the affidavit or statutory declaration of, the person claiming to have personally served it or sent it by mail.

Proof of signature and official character unnecessary

(2) Where proof of service of any document is offered by affidavit or statutory declaration, it is not necessary to prove the signature or official character of the person making or taking the affidavit or declaration, if the official character of that person appears on the face thereof.

1980-81-82-83, c. 110, s. 62.

Seal not required

63. It is not necessary to the validity of any information, summons, warrant, minute, disposition, conviction, order or other process or document laid, issued, filed or entered in any proceedings under this Act that any seal be attached or affixed thereto.

1980-81-82-83, c. 110, s. 63.

SUBSTITUTION OF JUDGES

Powers of substitute youth court judge

64. (1) A youth court judge who acts in the place of another youth court judge pursuant to subsection 669.2(1) of the Criminal Code shall,

(a) if an adjudication has been made, proceed with the disposition of the case or make the order that, in the circumstances, is authorized by law; or

(b) if no adjudication has been made, recommence the trial as if no evidence had been taken.

Transcript of evidence already given

(2) Where a youth court judge recommences a trial under paragraph (1)(b), he may, if the parties consent, admit into evidence a transcript of any evidence already given in the case.

R.S., 1985, c. Y-1, s. 64; R.S., 1985, c. 27 (1st Supp.), s. 187.

FUNCTIONS OF CLERKS OF COURTS

Powers of clerks

65. In addition to any powers conferred on a clerk of a court by the Criminal Code, a clerk of the youth court may exercise such powers as are ordinarily exercised by a clerk of a court, and, in particular, may

(a) administer oaths or solemn affirmations in all matters relating to the business of the youth court; and

(b) in the absence of a youth court judge, exercise all the powers of a youth court judge relating to adjournment.

1980-81-82-83, c. 110, s. 65.

FORMS, REGULATIONS AND RULES OF COURT

Forms

66. (1) The forms prescribed under section 67, varied to suit the case, or forms to the like effect, are valid and sufficient in the circumstances for which they are provided.

Where forms not prescribed

(2) In any case for which forms are not prescribed under section 67, the forms set out in Part XXVIII of the Criminal Code, with such modifications as the circumstances require, or other appropriate forms, may be used.

R.S., 1985, c. Y-1, s. 66; R.S., 1985, c. 1 (4th Supp.), s. 43.

Regulations

67. The Governor in Council may make regulations

(a) prescribing forms that may be used for the purposes of this Act;

(b) establishing uniform rules of court for youth courts across Canada, including rules regulating the practice and procedure to be followed by youth courts; and

(c) generally for carrying out the purposes and provisions of this Act.

R.S., 1985, c. Y-1, s. 67; R.S., 1985, c. 24 (2nd Supp.), s. 41.

Youth court may make rules

68. (1) Every youth court for a province may, at any time with the concurrence of a majority of the judges thereof present at a meeting held for the purpose and subject to the approval of the Lieutenant Governor in Council, establish rules of court not inconsistent with this Act or any other Act of Parliament or with any regulations made pursuant to section 67 regulating proceedings within the jurisdiction of the youth court.

Rules of court

(2) Rules under subsection (1) may be made

(a) generally to regulate the duties of the officers of the youth court and any other matter considered expedient to attain the ends of justice and carry into effect the provisions of this Act;

(b) subject to any regulations made under paragraph 67(b), to regulate the practice and procedure in the youth court; and

(c) to prescribe forms to be used in the youth court where not otherwise provided for by or pursuant to this Act.

Publication of rules

(3) Rules of court that are made under the authority of this section shall be published in the appropriate provincial gazette.

1980-81-82-83, c. 110, s. 68.

YOUTH JUSTICE COMMITTEES

Youth justice committees

69. The Attorney General of a province or such other Minister as the Lieutenant Governor in Council of the province may designate, or a delegate thereof, may establish one or more committees of citizens, to be known as youth justice committees, to assist without remuneration in any aspect of the administration of this Act or in any programs or services for young offenders and may specify the method of appointment of committee members and the functions of the committees.

1980-81-82-83, c. 110, s. 69.

AGREEMENTS WITH PROVINCES

Agreements with provinces

70. Any minister of the Crown may, with the approval of the Governor in Council, enter into an agreement with the government of any province providing for payments by Canada to the province in respect of costs incurred by the province or a municipality for care of and services provided to young persons dealt with under this Act.

R.S., 1985, c. Y-1, s. 70; R.S., 1985, c. 24 (2nd Supp.), s. 42.

SCHEDULE

(Subsections 45(2.1) and 45.02(3) and (4))

1. An offence under any of the following provisions of the Criminal Code:

(a) paragraph 81(2)(a) (causing injury with intent);

(b) subsection 85(1) (using firearm in commission of offence);

(c) section 151 (sexual interference);

(d) section 152 (invitation to sexual touching);

(e) section 153 (sexual exploitation);

(f) section 155 (incest);

(g) section 159 (anal intercourse);

(h) section 170 (parent or guardian procuring sexual activity by child);

(i) subsection 212(2) (living off the avails of prostitution by a child);

(j) subsection 212(4) (obtaining sexual services of a child);

(k) section 236 (manslaughter);

(l) section 239 (attempt to commit murder);

(m) section 267 (assault with a weapon or causing bodily harm);

(n) section 268 (aggravated assault);

(o) section 269 (unlawfully causing bodily harm);

(p) section 271 (sexual assault);

(q) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);

(r) section 273 (aggravated sexual assault);

(s) section 279 (kidnapping);

(t) section 344 (robbery);

(u) section 433 (arson — disregard for human life);

(v) section 434.1 (arson — own property);

(w) section 436 (arson by negligence); and

(x) paragraph 465(1)(a) (conspiracy to commit murder).

2. An offence under any of the following provisions of the Criminal Code, as they read immediately before July 1, 1990:

(a) section 433 (arson);

(b) section 434 (setting fire to other substance); and

(c) section 436 (setting fire by negligence).

3. An offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read immediately before January 4, 1983:

(a) section 144 (rape);

(b) section 145 (attempt to commit rape);

(c) section 149 (indecent assault on female);

(d) section 156 (indecent assault on male); and

(e) section 246 (assault with intent).

4. An offence under any of the following provisions of the Controlled Drugs and Substances Act:

(a) section 5 (trafficking);

(b) section 6 (importing and exporting); and

(c) section 7 (production of substance).

R.S., 1985, c. Y-1, Sch.; R.S., 1985, c. 24 (2nd Supp.), s. 43; 1995, c. 19, s. 36, c. 39, s. 189; 1996, c. 19, s. 93.1.

 

 

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Mississauga, Ontario
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905-273-3322  or 1-877-273-3322

 


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