YCJA Participant Overview

7/30/2019 YCJA Participant Overview

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SECTION 1

Overview of the YCJA

We gratefully acknowledge the funding

for these materials which was provided by

theYouth Justice Renewal Fund of Justice Canada.

Section 1: Overview of the YCJA 1.1


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1.2 Section 1: Overview of the YCJA


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AGENDA Time

Welcome

Section 1 Overview of the YCJA

Section 2 The Case of Billy James

Extrajudicial Measures

Section 3 The Case of Steve Chong

and Jason Dunlop

Youth Sentences, Statements

Section 4 The Case of Roberta Hill

Conferences, Victim Services,

Referrals to Child Welfare,

Pre-trial detention

Section 5 The Case of Jean Marquette

Adult Sentences, IRCS (intensive

rehabilitative custody and

supervision), Pre-sentence reports,Reintegration, Publication

Section 6 Aboriginal Issues

Section 7 Restorative Justice Program



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New Terminology

Dispositions are now Sentences

Pre-disposition Reports are nowPre-Sentence Reports

Youth Courts are now YouthJustice Courts

Judges are now Youth JusticeCourt Judges

Alternative Measures are now

Extrajudicial Sanctions


The YCJA reminds police officersof the discretion they haveto use Extrajudicial Measuressuch as warning a YP

Police OfficerRequirements

Police officers are requiredto consider the use of theirdiscretionary powers beforelaying a charge or referringto Extrajudicial Sanctions


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Peace Bonds

Can a young person beplaced on a Peace Bond?

Yes, a young person canbe placed on a Peace Bondunder the YCJA

Pre-Trial Detention

Pre-trial detention cannot be

used as a substitute forappropriate child protection,mental health or other socialmeasures

Pre-Trial Detention

When considering publicsafety there is a presumptionthat the pre-trial detention is notnecessary if the YP could not besentenced to custody for the offence

Sentencing Provisions

Statement of purpose and principlesNew restrictions on the use of custodyRequires alternatives to custody to beexplored.Several new sentences are available

All custodial sentences are followed bysupervision in the community


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Adult Sentencing

A YP can receive an adultsentence after being found guilty in

Youth Justice Court

The age of presumption is set by theprovince at 14, 15 or 16

A new presumptive offence- third serious violent offence - is added

Publishing YP Names

The YPs name can be published if:

They receive an adult sentence

They are found guilty of a presumptiveoffence and receive a youth sentenceunless a judge orders otherwise

They are at large and dangerous-emergency publication increasedfrom two to five days


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YOUTH CRIMINAL JUSTICE ACT TRAINING

Participants Response Form

Justice Canada requires that accurate records of all participants in

YCJA training be maintained. For this reason, all participants mustcomplete Part A of this form and return it to their trainer at the end

of the workshop. The completion of Part B is optional.

PART A Participant Information

Name:

Organization Name:

Organizations Address:

Business Phone #:

email:

PART B Participant Questions

Participants may include any unaswered questions about the Act or

its implementation in their workplace on this form. All answers willbe posted on the Web Site. Any participants who include their

email address will also receive answers to their own questions.

Questions:

Email Address:


PRF O


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PEF O

YOUTH CRIMINAL JUSTICE ACT TRAINING

Participants Evaluation Form

Please complete and return to the facilitator at the end of the module.

Session: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: _ _ _ _ _ _ _ _ _

Facilitator:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Please comment on any rating of 4 or less.

LOW HIGH

Content: 1 2 3 4 5 6 7

Comments:

Relevance: Was this pertinent 1 2 3 4 5 6 7

to your work?

Comments:

Learning: How much new 1 2 3 4 5 6 7

learning did you acquire?

Comments:

Facilitator: 1 2 3 4 5 6 7

Comments:

Materials: 1 2 3 4 5 6 7

Comments:

Learning Environment: 1 2 3 4 5 6 7(room, table set-up)

Comments:

Overall Satisfaction: 1 2 3 4 5 6 7

Comments:



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SECTION 2

THE CASE OF BILLY JAMES


Section 2: The Case of Billy James 2.1


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2.2 Section 2: The Case of Billy James


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The Act requires Police to considerthe use of several of the

Extrajudicial Measures beforecharging a YP or usingExtrajudicial Sanctions


This term includes:- Taking no further action

- Warnings- Police cautions- Referrals to a program oragency in the community- Crown cautions- Extrajudicial Sanctions


If taking no further action, warning,cautioning or referrals to a programare not adequate to deal with theoffence a referral may be made toExtrajudicial Sanctions

Extrajudicial Sanctions

The new term ExtrajudicialSanctions is used to refer to what

was previously called AlternativeMeasures in the Young OffendersAct.


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The principles which apply toExtrajudicial Measures are:

They are often the most appropriate andeffective way to address youth crime

They allow for effective and timelyinterventions

That they are presumed to be adequateto hold first time non violent youngoffenders accountable

Prior use of Extrajudicial Measures or aprior finding of guilt does not precludetheir use.


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Department of Justice Ministre de la Justice

Canada Canada

http://canada.justice.gc.ca/en/ps/yj/repository/4refrenc/02tables/4020001a.html

YCJA Explained Reference : Tables

Principal Charge in Majority of Cases in Youth Court(Canada, 1998-99)

Total Number

of Cases

Percent

Theft under $5,000 15,801 15%

Possession of stolen property 5,208 5%

Failure to appear 11,597 11%

Failure to comply with a disposition 13,072 12%

Subtotal 45,678 43%

Other thefts 4,975 5%

Mischief/damage 5,336 5%

Break and enter 12,251 11%

Minor assault 10,545 10%Total: Sum of eight offences 78,785 74%

All cases 106,665 100%

Source: Statistics Canada (2000), Youth Court Statistics 1998-99.Ottawa: Canadian Centre for Justice Statistics. (*)


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Canada Canada

http://canada.justice.gc.ca/en/ps/yj/repository/3modules/01extud/3010401a.html

Checklist for Police Officers: Police Options (S. 6)1. Do you have reasonable grounds to believe that the youth has committed an offence?

If you do not, then you should not continue with this checklist.

If yes, then you may continue with this checklist.

Note: You should ensure that you have advised the youth of his or her right to counsel andafforded him or her access to counsel wherever that is required during any exercise of police

procedures or powers with respect to this incident. See the module on Right to Counsel.

Before starting judicial proceedings or considering an extrajudicial sanction, apolice officer must consider whether it would be sufficient to administer one of themeasures listed in YCJA, section 6: take no further action, warn, caution, or refer theyoung person.

Note: You should be aware that you may use a conference where you think it might assist

you in decision-making in this part of the process. See the module on Conferences.

2. An extrajudicial measure is often the most appropriate, effective and timely response tocriminal conduct by youth.

In this instance, you should consider using one of the measures listed in section 6(take no further action, warn, caution, or referral), unless there are clear indicationsthat these measures would not be adequate to hold the youth accountable for his orher conduct.

3. If this is a non-violent, first offence by this youth, an extrajudicial measure is presumed to beadequate to hold the youth accountable for his or her conduct.

Do you believe that the youth has committed a non-violent offence and has not

previously been found guilty of an offence? If so, you must consider using one of themeasures listed in section 6 unless there are exceptional circumstances that indicate itwould not be adequate to hold the youth accountable for his or her conduct.

4. You may choose between one of four measures in order to hold the youth accountable for hisor her offence. You may choose

to take no further action against the youth,

to give the youth a warning,

to issue a caution to the youth or

to refer the young person, with his or her consent, to a program or agency in thecommunity that may assist him or her not to commit offences.

The measure that you use should be applied fairly and be proportionate to the offence. Youshould use the least restrictive measure that will hold the youth accountable, ensuring theminimum intervention warranted to respond to the conduct. The measure should always beless than one a court would impose for this conduct, should the youth have been tried andfound guilty of the offence.


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YCJA Explained Extrajudicial Measures : Checklists

Within the limits of fair and proportionate accountability, the measure should be designedand applied with the following principles and objectives in mind:

emphasize timeliness (ensuring the measure is applied with as close a link to the

conduct as possible, to help the youth understand the relationship between action andconsequences);

be an effective intervention;

promote the rehabilitation of the youth;

offer meaningful consequences to the youth;

encourage the youth to acknowledge harm he or she may have caused;

encourage the youth to repair harm he or she may have caused;

involve the family of the youth;

respect the youths rights, and especially any special protections or guarantees of

rights applying to youth.

Note: For further details and information on the considerations you should bear in mind whendeciding which measure to use, see Principles and Objectives in the current module.


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SECTION 3

THE CASE OF STEVE CHONG

AND JASON DUNLOP

Youth Sentences, Statements

Section 3: The Case of Steve Chong and Jason Dunlop 3.1


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3.2 Section 3: The Case of Steve Chong and Jason Dunlop


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Youth SentencesPurpose

The purpose of Youth Sentences is:

- to hold the YP accountable forthe offence through the impositionof just sanctions that havemeaningful consequences

- to promote the YPsrehabilitation andreintegration into society

Thereby contributing to the

long-term protection of the public


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Principles

The principles which must be followedin youth sentencing are:

a. the sentence must not result in agreater punishment than would beappropriate for an adult convicted ofthe same offence in similarcircumstances

b. the sentence must be similar toyouth sentences in the region forsimilar YPs found guilty of the same

offence committed in similarcircumstances

c. the sentence must be proportionateto the seriousness of the offence and the

YPs degree of responsibility

d. All reasonable alternatives to custodymust be considered, with particular

attention to the circumstances ofaboriginal youth

e. While proportionate the sentencemust:

(a) be the least restrictive that canachieve the purpose of sentencing

(b) be most likely to rehabilitate

and reintegrate

(c) promote a sense of responsibilityand an acknowledgement of the harmdone to the victims and thecommunity


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Factors

The factors which the court MUSTconsider when determining a youth

sentence are:

(a) degree of participation

(b) harm done to victims and if intentionalor reasonably foreseeable

(c) reparation made to victim andcommunity

(d) time already spent in custody in

relation to the offence

(e) previous findings of guilt

(f) relevant aggravating or mitigatingcircumstances


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Restrictions on Use ofCustody

The court must NOT impose acustodial sentence UNLESS:

(a) YP found guilty of a violentoffence

(b) YP failed to comply withnon-custodial sentences

(c) YP guilty of an indictableoffence for which an adult canbe sentenced to imprisonmentfor more than 2 years and also hasa history of findings of guilt

(d) In exceptional cases, when theoffence is indictable, and theaggravating circumstances would

make a non-custodial sentenceinconsistent with the purpose andprinciples of youth sentencing,a custodial sentence may beimposed.


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New Youth Sentences

Reprimand

- a warning by a judge

Intensive Support andSupervision Program (ISSP)- a more intensive form of probation.

Attendance Program Order- required to attend a program atspecified times and on conditionsset by the court

Deferred Custody andSupervision Order- similar to conditional sentences foradults

Intensive Rehabilitative Custodyand Supervision Order (IRCS)- for presumptive offences committedby YPs with psychological, mental oremotional illnesses.


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Custodial Sentences

All Custodial Sentences are followedby a period of supervision in the

community

Statements

The statement provisions are very

similar to the YOA. Courts, however,can admit statements despite technicalirregularities in the provision or waiverof rights.


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NOTES: Introducing Steve Chong and Jason Dunlop scenario



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Canada Canada


Canada Canada

http://canada.justice.gc.ca/en/ps/yj/repository/3modules/04youth/3040301h.html

Youth Sentencing Options

There is a broad range of possible sanctions that a court may consider in determining an

appropriate sentence. A sentence must be in accordance with the purpose and principles ofsentencing and may consist of one or more sanctions that are not inconsistent with each other.These various sanctions or sentencing options include several new options along with options thatexisted under the YOA.

The options include both non-custodial and custodial sentences. All custodial sentences include aportion that the young person is to serve under supervision in the community. Before imposing asentence that involves custody, the court must satisfy itself that none of the restrictions oncustody set out in the YCJA exist.

Non-custodial Sentencing Options

The majority of sentencing options provide alternatives to custody, consistent with the objective

in the preamble to the YCJA of reducing the over-reliance on incarceration for non-violent youngpersons. The YCJAprovides a range of alternatives that allow a sentencing response to be tailoredto the individual case, including several new options.

Reprimand (para. 42(2)(a))

This new sentencing option is a formal rebuke by the judge in court. It is essentially a sternscolding or lecture from the judge and may be most appropriate in minor cases in which theexperience of being apprehended, taken through the court process and reprimanded appears to besufficient to hold the young person accountable for the offence. It can reinforce to the young

person that his or herbehaviourwas wrong. It may be appropriate in cases in which the court hasdetermined that reparation made by the offender to the victim, or time spent by the offender indetention, essentially satisfies the requirement of a proportionate sentence. A reprimand may alsoserve as a means of communicating to the prosecutor that, in the courts opinion, the case shouldhave been dealt with outside the court process. The period of access to the record of a reprimandis two months (para. 119(2)(c)). This period is much shorter than the period of access that appliesto the record of an absolute discharge (two years) or a conditional discharge (three years).


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Canada Canada

YCJA Explained Youth Sentencing : Explanatory Text

Absolute Discharge (para. 42(2)(b))

The court may order an absolute discharge of the young person if it is in the best interests of theyouth and not contrary to the public interest.

Conditional Discharge (para. 42(2)(c))

The court may order a discharge of the young person on conditions. In addition, the court mayrequire the young person to report to and be supervised by the provincial director.

Fine (para. 42(2)(d))

The court may impose a fine up to $1000 on the young person. The court must consider theyouths ability to pay but has discretion in fixing time and terms for payment. Provinces mayestablish work programs for young persons to earn work credits towards paying the fine. Asurcharge may be imposed on the fine and used, at the provinces discretion, to provide assistanceto victims services.

Compensation (para. 42(2)(e))

The court may order a young person to compensate another person for loss, damage or injury, bypaying an amount of money determined by the court. The court must consider the youths abilityto pay and has discretion in fixing the time and terms for payment. As with all of the sentencingoptions, the court must comply with the purpose and principles of sentencing in imposing thissanction. The principle of proportionality, for example, may restrict the amount of compensationthat may be ordered. The amount of loss or damage caused by the offence may exceed theseriousness of the offence and the degree of responsibility of the young person. As discussedabove, a relevant factor in determining the seriousness of the case and, therefore, a proportionatesentence is whether the loss or damage was intended or could reasonably have been foreseen bythe young person. In addition, accountability of young persons must be consistent with theirgreater dependency and reduced level of maturity.

Restitution (para. 42(2)(f) and (g))

The court may order restitution of property to the person owning it at the time of the offence.

Reimbursement of Innocent Purchaser (para. 42(2)(g))

If the court has ordered restitution of property to its owner, the court may also order thereimbursement of an innocent purchaser of the property. The court may fix the time and terms for

payment. As noted above with respect to compensation orders, the amount of money that thecourt may order as reimbursement is subject to the sentencing principles, including the principleof proportionality.

Personal Service (para. 42(2)(h))

The court may order the young person to compensate a person by way of personal service for aloss, damage or injury suffered. Alternatively, the court may order that the compensation be inkind. An order under paragraph 42(2)(h) requires the consent of the person to be compensated. Inaddition, the order must not interfere with the young persons normal hours of education or work.The order must not exceed 240 hours of service that can be completed within twelve months.


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Community Service (para. 42(2)(i))

The court may order a young person to perform community service that does not exceed 240hours of service that can be completed within twelve months. The community service must be

part of a program approved by the provincial director or the person or organization for whom the

service is to be performed must have consented to it.

Prohibition Order (para. 42(2)(j))

The court may impose on the young person an order of prohibition, seizure or forfeiture that isauthorized under federal legislation. If a young person is found guilty of an offence referred to insubsection 109(1) of the Criminal Code (e.g., an indictable offence in which violence was usedand is punishable by imprisonment for ten years or more), the court must make an order

prohibiting the young person from possessing a firearm, cross-bow, prohibited weapon, restrictedweapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Thismandatory prohibition order ends not earlier than two years after the completion of the custodial

portion of the sentence or, in the case of a non-custodial sentence, after the finding of guilt.

Probation (para. 42(2)(k))

The young person may be placed on probation, with conditions, for a period of up to two years.Section 55 sets out mandatory and optional conditions of probation orders. The potential range ofconditions is very broad. The conditions may include requiring the young person to attend school,reside in a place that the provincial director may specify, and any other conditions that the courtconsiders appropriate. Although the flexibility of a probation order permits creative,individualized sentences, it must be used with restraint because of the negative consequences ofimposing unrealistic and over-reaching or intrusive conditions on a young person for a periodof up to two years.

Conditions on probation: Under the YOA, approximately 20% of custody sentences are theresult of a young person being found guilty of breach of a condition of probation. Approximately

50% of young persons found guilty of a breach of a condition of probation are sentenced tocustody. Clearly, breach of a condition of probation is a significant factor contributing toCanadas over-reliance on incarceration.

A serious concern in the setting of probation conditions for a young person is that the conditionsmay set up the young person for failure and, therefore, a possible charge of breach of probation.The result may be that a young person is incarcerated for behaviour that would not justify acriminal charge if it were not related to a probation order.

Conditions of probation must be assessed as to whether or not they are in accordance with thepurpose and principles of sentencing. Although a condition may be intended to promote therehabilitation of the young person, it should be carefully scrutinized to determine whether thereis a clear and direct relationship between the condition and a cause of the young persons criminal

behaviour. A realistic assessment should be made as to whether the young person will be likely tocomply with the condition. In addition, if a condition is essentially an attempt to address childwelfare needs of the young person, it should not be imposed. A referral to a child welfare agencyunder section 35 should be made instead.

Although it is possible to charge the young person with breach of probation if he or she does notcomply with a probation order, the YCJA does not require that a charge be laid. An alternativeapproach, which will often be more consistent with the objectives and principles of the YCJA, isto initiate a review of the probation order. Reviews provide an opportunity to make changes to theconditions that can be more effective in promoting the rehabilitation and reintegration of theyoung person. (See Reviews of Non-custodial Sentences.)


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Intensive Support and Supervision Program Order (para. 42(2)(l))

In this new sentencing option, the young person receives a high level of support and supervisionin the community to assist him or her to change his or her behaviour. It is intended to providecloser monitoring and more support than probation. It is intended to provide much smallercaseloads than probation and is particularly well suited for many offenders who under the YOAhave been sentenced to custody.

The use of this sentencing option with an offender can occur only if the provincial director hasdetermined that an intensive support and supervision program is available. Provinces andterritories may decide not to make this option available to the court by deciding not to implementthis provision of the Act. If the option is not available, the court may be able to achieve a similarresult through a probation order by attaching various conditions that involve increasedsupervision and support for the young person.

The intensive support and supervision order is intended to be an alternative to custody and,therefore, is consistent with the YCJAs objective of reducing the high rate of custody under theYOA. This intended function of providing an alternative to custody is highlighted by its inclusion

in subsection 42(2) as a distinct sanction that is not expected to be the same as a probation order.Federal-provincial cost sharing agreements for the YCJAs implementation specifically identifyintensive support and supervision programs as one of the high priority areas in which provincesare able to receive additional federal funding.

Conditions on supervision: Conditions that may be attached to an intensive support andsupervision order are similar to those that may be attached to a probation order. The provisions ofthe YCJA that apply to conditions of probation orders also apply to conditions of intensivesupport and supervision.

The issues and concerns regarding probation conditions, noted above, are also relevant toconditions of intensive support and supervision orders. There is an even greater need to beconcerned about imposing conditions that may set up the young person for failure. Research has

found that the higher level of supervision in this type of order can result in more findings oftechnical violations of conditions. Depending on enforcement policy, these technical violationscan lead to incarceration. This problem reinforces the need to reserve this order for young personswho otherwise would be sentenced to custody. If not used with appropriate restraint, the use ofintensive support and supervision could have a net widening effect of increasing the number ofyouths committed to custody.

The support component of this order is particularly relevant to the YCJAs sentencing requirementthat a sentence must promote the rehabilitation of the young person. The support for the youthshould be designed to respond to the specific needs or problems that appear to contribute to theyouths offending behaviour. Since the youths who are subject to this order are likely to havesignificant and multiple needs, the provincial program to implement the order should have

sufficient flexibility to allow the support to be individualized and targeted to those specific needs.

Attendance Order (para. 42(2)(m))

This new sentencing option requires the young person to attend a program at specified times (upto a maximum of 240 hours over a six month period) and to abide by conditions set by the judge.It is a nonresidential program that, for many offenders, can provide an alternative to a custodialsentence. It can be designed to address the particular circumstances of the young person. Forexample, it could be focused on specific times and days when a young person is unsupervised andtends to violate the law. As with intensive support and supervision programs, federal-provincialcost sharing agreements for the YCJAs implementation specifically identify attendance programsas one of the high priority areas in which provinces are able to receive additional federal funding.


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A pilot attendance centre program in Ontario, funded by the federal government, has been wellreceived by youth court judges and has reported considerable success with youth referred by thecourt.

The use of this sentencing option with an offender can occur only if the provincial director hasdetermined that an attendance order program is available. Provinces and territories may decidenot to make this option available to the court by deciding not to implement this provision of theYCJA. If the option is not available, the court may be able to achieve a similar result through a

probation order by attaching conditions that require the young person to attend a program in thecommunity

The YCJA clearly reflects a strong preference for non-custodial sentences wherever possible. Thepreamble to the YCJA states that the youth justice system should reserve its most seriousintervention for the most serious crimes and reduce the over-reliance on incarceration for non-violent young persons. Sentencing principles emphasize the requirement of proportionality insentencing and, within the limits of proportionality, the requirements of the least restrictivealternative and the promotion of rehabilitation and reintegration. The restrictions on custody in

section 39 prohibit custody in many cases and require a thorough exploration of alternatives tocustody in cases in which custody is not prohibited. If the court decides to impose custody, thecourt must justify its decision by including in its reasons for decision an explanation of why anon-custodial sentence was not adequate to hold the young person accountable.

There are five sentencing options in the YCJA that allow the court to impose a sentence thatincludes custody:

Deferred Custody and Supervision (para. 42(2)(p))

If a young person is found guilty of an offence that is not a serious violent offence, the court mayimpose the new sentencing option of deferred custody and supervision if it is consistent with the

purpose and principles of sentencing and the restrictions on custody in section 39 (ss. 42(2)-(5)).

Although the young person serves the sentence in the community on conditions, it should beconsidered, for most purposes, a type of custodial sentence because a breach of a condition canresult in the young person serving the remainder of the sentence as a custody and supervisionorder.

A deferred custody and supervision order may be for a specified period that is less than sixmonths. During that time, the young person is in the community and must follow conditions set

by the youth justice court judge. A breach of conditions may result in a modification of theconditions. It is also possible for a young person who breaches the conditions to be ordered toserve the remaining time as a custody and supervision order. (See the Custody and Supervisionmodule for a discussion of the enforcement procedure in the event of a breach of a condition.)

Custody and Supervision Orders (para. 42(2)(n),(o), (q) and (r))

Unlike the YOA, the YCJA provides that all custody orders include a period of supervision in thecommunity. The purpose of the community supervision portion is to ensure appropriatesupervision and support for the young person during the transition from custody back to his or hercommunity.

The YCJA contains a list of mandatory conditions that apply to all young persons while undersupervision in the community. Additional conditions can be imposed to support the young personand address his or her needs, as well as manage risk. If a young person breaches a condition whileunder supervision in the community, reviews will be held that can result in a change in conditionsor in the young person being returned to custody.


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It is also possible that a young person may not serve a portion of the sentence in the communityfollowing custody. Before the start of the community portion, the court can require the young

person to remain in custody if the court is satisfied that there are reasonable grounds to believethat a young person will commit an offence causing death or serious harm before the end of thesentence.

The possible overall length of custody and supervision orders, the possible length of thecommunity portion of the order, and the enforcement procedure in the event of a breach vary,depending on the offence. (See the Custody and Supervision module for a discussion ofenforcement procedures in the event of a breach of a condition.)

Most offences: The maximum length of the custody and supervision order for most offences istwo or three years, depending on the offence. The two-year maximum applies to all offencesexcept offences for which an adult would be liable to life imprisonment. These latter offences,other than murder, can result in a maximum youth sentence of three years. The period ofcommunity supervision is one half the length of the custody period (para. 42(2)( n)).

Attempted murder, manslaughter, and aggravated sexual assault: The maximum overalllength of the custody and supervision order for the offences of attempted murder, manslaughter,and aggravated sexual assault is three years because these are offences for which an adult would

be liable to life imprisonment.

Under paragraph 42(2)(o), the period of conditional supervision is set by the court and, therefore,is not necessarily one half the length of the custody period. This provides the court addedflexibility to tailor sentences imposed for these particularly serious offences. If the young person

breaches a condition, the provincial director may bring the young person back into custody.

The court is not required to impose a sentence under paragraph 42(2)(o) for these offences. Thecourt may decide to impose any other sentence under subsection 42(2).

Murder: The offence of murder is the only offence under the Act that must result in a custody

and supervision order. The maximum length of the order is ten years for first-degree murder andseven years for second-degree murder. As with other presumptive offences, the period ofconditional supervision is set by the court and, therefore, is not necessarily one half the length ofthe custody period.

Intensive Rehabilitative Custody and Supervision Order (para. (42(2)(r))

The intensive rehabilitative custody and supervision order is a new special youth sentenceintended to provide treatment for serious violent offenders. The order may be made if the courtdetermines that the following criteria are met:

the young person has been found guilty of murder, attempted murder, manslaughter,aggravated sexual assault, or a third serious violent offence (para. 42(7)(a));

the young person is suffering from a mental or psychological disorder (para. 42(7)(b)); an individualized treatment plan for the young person has been developed (para. 42(7)(c));

and

the provincial director has determined that an intensive rehabilitative custody and supervisionprogram is available and the young persons participation is appropriate (para. 42(7)(d)).

Special federal funding for provinces and territories has been set aside to ensure that thissentencing option can be available throughout the country. This special treatment sentence offersa significant new option in the youth justice system for serious violent young offenders whootherwise might receive an adult sentence. This order is not available if an adult sentence isordered.


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The order is not limited to young persons who are fourteen to seventeen years of age. The courtmay order a twelve or thirteen year-old into intensive rehabilitative custody and supervision, ifthe criteria are met.

The YCJAprovides in subsection 42(8) that this order does not abrogate or derogate from therights of a young person regarding consent to physical or mental health treatment or care. Theyoung persons right to consent to or refuse such treatment under common law or provinciallegislation must be respected.

The maximum length of the order depends on the offence committed. The overall maximumlengths for the offences listed in paragraph 42(7)(a) are the same as the overall maximum lengthsfor the ordinary custody and supervision order, discussed above.


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NOTES: Whats wrong with this picture?



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ADMISSIBILITY OF STATEMENTS BY YOUNG PERSONS

Reference: Admissibility of Statements, Admissions and

Confessions

No oral or written statement made by a young person to a person

in authority, upon arrest or detention, or upon the person in

authority having reasonable grounds to believe that the young

person has committed an offence is admissible against the young

person unless the statement is voluntary (para. 146(2)(a)) and

meets the following conditions:

Before the statement, the person in authority explained that

the young person is under no obligation to make a

statement; the statement may be used as evidence against the young

person;

the young person has the right to consult counsel and a

parent; and

the statement must be made in the presence of counsel and

anyone else consulted by the young person (para. 146(2)(b)).

Before the statement, the young person was provided with a

reasonable opportunity to consult counsel and a parent or any

other appropriate adult who was not a co-accused or under

investigation for the same offence (para. 146(2)(c)).

If the young person consulted counsel, a parent or another

person, the young person was given an opportunity to make the

statement in the presence of the person or persons consulted

(para. 146(2)(d)).

The conditions in paragraphs 146(2)(b) to (d) do not apply for oral

statements made spontaneously to a person in authority before

that person has had the opportunity to comply with those

requirements(ss. 146(3)). If the young person is cautioned as

required by paragraph 146(2)(b), he or she may waive his or herrights under paragraphs 146(2)(c) and (d), but the waiver must be

recorded or written in a signed statement (para. 146(4)). The young

persons waiver may be accepted without recording or a signed

statement if the youth justice court is satisfied that the young

person was informed of his or her rights and voluntarily waived

them (ss. 146(5)).

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The youth justice court may admit into evidence a statement taken

despite a technical irregularity incomplying with paragraphs

146(2)(b) to (d), if the court is satisfied that admitting the statement

would not bring into disrepute the principle that young persons are

entitled to enhanced procedural protection to ensure that they aretreated fairly and their rights are protected (ss. 146(6)).

If a young person satisfies the judge that a statement was made

under duress imposed by any person who is not a person in

authority, then the youth justice court judge may rule that the

statement is not admissible (ss. 146(7)).

The youth justice court judge may admit a statement or waiver if,

at the time of making the statement:

The young person represented himself or herself as being 18years old or older.

The person to whom the young person made the statement or

waiver made reasonable inquiries as tothe young persons age

and had reasonable grounds to believe he or she was 18 years

old or older.

In all other circumstances the statement or waiver would

otherwise be admissible (ss. 146(8)).

A statement made by a young person during a medical or

psychological assessment is inadmissible asevidence in a youth

justice court unless the young person consents. Such a statementis admissible for thepurposes of

making a decision as to whether an adult or youth sentence is

to be applied;

determining a young persons fitness to stand trial;

determining the young persons state of mind during the

commission of an alleged offence;

challenging the credibility of the young person or establishing

the young persons perjury;

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SECTION 4

THE CASE OF ROBERTA HILL

Conferences, Victim Services,

Referrals to Child Welfare,Pre-trial detention

Section 4: The Case of Roberta Hill 4.1


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4.2 Section 4: The Case of Roberta Hill


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Conferences

Conferences are defined as:

A group of people broughttogether to give advice to policeofficers, judges, justices of thepeace, prosecutors, provincialdirectors and youth workers whoare required to make decisionsunder the Act.

ConferencesA conference could giveadvice on decisions such as:

- appropriate extrajudicial measures

- conditions for release frompre-trial detention

- sentences and reviews of sentences

- plans for reintegrating the youngperson into the community

Conferences

Case Conference

- to develop a plan for the youth

Restorative Justice Conference- allows the YP to meet with the

victim and community to develop aplan to repair the harm caused bythe offence


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Assessments

Court can order a medical,psychological or psychiatric report

when they believe:

- the YP is sufferingfrom a medical or mental illness

- the YP has a history of repeatedfindings of guilt

- in the case of a serious violentoffence

Victims

Some provisions which recognizevictims include:

- victim impact statement

- victims are acknowledgedin the prinicples section

- victims are informed ofextrajudicial sanctions upon request

- victims may request access torecords


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Referral to Child Welfare

Referrals can be made atany stage of proceedings, by a

Judge, for assessment todetermine if the YP is inneed of child welfare services

Pre-trial Detention

q Presumption that detention is notnecessary if YP could not receive acustodial sentence if found guilty,because of the restrictions on theuse of custody in the YCJA

q cannot be used as a substitute forappropriate child protection, mentalhealth or other social measures


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NOTES: Playing the Part



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YCJA Explained Conferences : Introduction

Conferences

In many parts of Canada, there has been an increasing use of conferences to assist in makingdecisions regarding young persons who are involved in the youth justice system. In general,conference refers to various types of processes in which affected or interested parties cometogether to provide advice to decision makers in specific youth justice cases. Conferences werenot referred to or authorized in the Young Offenders Act, but are an explicit part of the youthcriminal justice system as envisioned by the Youth Criminal Justice Act(YCJA).

Operation and Purpose of Conferences

Conferences generally operate in an informal manner. They can take the form of family group

conferences, community accountability panels, sentencing circles and inter-agency caseconferences. Conferences provide an opportunity for a wider range of perspectives on a case,more creative solutions, better coordination of services, and increased involvement of the victimand other community members in the youth criminal justice system.

Youth Justice Committees

Youth justice committees are also defined in the YCJA, where one of their functions isspecifically to act as a conference.


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YCJA Explained Conferences; Summary Diagr

YCJA, SS. 18-19


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YCJA Explained Conferences : Explanatory Text

Conferences Uses for Conferences

Participants in Conferences

Times When a Conference May Be Appropriate

New Provisions for Conferences

The YCJA explicitly provides new provisions for conferences. The Act defines a conference as a

group of persons who are convened to give information in accordance with section 19 of the

YCJA. Section 19, in turn, provides stipulations on who may call conferences, and the purposes

and rules for conferences.

Who May Call a Conference

A conference can be convened by a youth justice court judge, the provincial director, a police

officer, a justice of the peace, a prosecutor or a youth worker for the purpose of making a decision

under the Act (ss. 19(1)).

Purpose of a Conference

Conferences may be convened, among other things, to give advice on appropriate extrajudicial

measures, conditions for judicial interim release, sentences, including the review of sentences,

and reintegration plans (ss. 19(2)).

Rules Governing Conferences

With respect to conferences other than those convened by judges or justices of the peace,jurisdictions can establish rules for convening and conducting conferences. If such rules are

established by a jurisdiction, conferences to which the rules apply must be convened and

conducted accordingly (ss. 19(3)). Where jurisdictions do not establish rules, then the uses and

range of conferences could be extremely broad, provided that the principles of the YCJA are

complied with.


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NOTES: To release or not to release...



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YCJA Explained Pre-trial Detention : Introduction

Pre-trial DetentionA key objective of the Youth Criminal Justice Act(YCJA) is to reduce the incarceration of youthat the pre-trial stage of the youth justice process. Recent studies indicate that there has been asubstantial increase in the use of pre-trial detention under the Young Offenders Act(YOA). Thereis also evidence of significant variation among provinces and territories in the use of pre-trialdetention. This increased use of pre-trial detention and the negative consequences for youthhighlight the need for restraint in the use of pre-trial detention.

Basic Principle

It is important to remember that a young person who is held in pre-trial detention is presumed tobe innocent. The presumption of innocence reinforces the basic principle that pre-trial detentionshould not be used unless it is the least restrictive alternative. It also underlies the clear decisionsof courts that pre-trial detention is not be used to punish the young person.

Negative Consequences

Although pre-trial detention is not to be used as punishment, decision-makerspolice,prosecutors, youth court judges and justices of the peaceneed to be aware of the negativeconsequences for the young person who is detained. These include a major deprivation of libertyand a disruption of education, employment, family life, and social and community involvement.In addition, research indicates that the detention of the young person increases his or her chancesof being found guilty of the offence and sentenced to custody if found guilty.

New Provisions

The YCJA provides new provisions that restrict the use of pre-trial detention and encourage theuse of alternatives, including:

a prohibition on the use of detention as a substitute for child welfare, mental health or othersocial measures;

a presumption against the use of detention if the young person could not be sentenced tocustody if found guilty of the offence; and

a requirement that the judge inquire about the possible availability of a responsible personto provide an alternative to detaining the young person.

Extensive use of pre-trial detention also raises the question of whether limited youth justice

resources are being used appropriately and whether enough resources are being used to providealternatives to detention. As part of the implementation of the YCJA, additional federal funds areavailable to the provinces to provide alternatives that would reduce the reliance on detention andavoid some of the negative consequences experienced by detained youth.


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YCJA Explained Pre-Trial Detention : Checklist

Pre-Trial Detention

Checklist for Judicial Interim Release(YCJA, s. 29-31; CC, s. 515)1. Has the youth received notice of his or her right to counsel and been afforded effective access

to counsel (ss. 25(3))?

2. What attention is being paid to the importance of ensuring timeliness in determining thismatter (subpara. 3(1)(b)(iv) and (v))?

3. Have the youths parents or family been notified?

4. In case it might subsequently appear that the youth would be otherwise detained:

Is there an agency who could provide care?

Have any steps been taken, especially in relation to reverse onus offences, to ascertain ifthere is a person willing to act as a responsible person?

5. Is the onus on the crown or on the youth to show cause why he or she should be detained orreleased (CC, s. 515)?

6. If the onus is on the crown to show cause why the youth should be detained, would the crownconsent to releasing the youth?

7. If crown does not consent to release, and the crown seeks to show cause why the youthshould be detained, or the youth seeks to show cause why he or she should be released, on

what ground should the court decide whether the youth should be detained or not?

Grounds for pre-trial detention or release

The prohibition contained in YCJA, subsection 29(1), against using detention as a social measure

applies to all grounds for detention.

Criminal Code Ground YCJA, SS. 29(2) Presumption

To ensure attendance in court (CC,para. 515(10)(a). Not applicable to this ground.

For public protection or safety reasons (CC,para. 515(10)(b).

Could the youth, if convicted, be committed tocustody under YCJA,para. 39(1)(a)(b) or (c)? If not,

detention should not be considered.

For any other just cause (CC, para. 515(10)(c)). Not applicable to this ground.

8. If the court determines to release the youth, has a case been made out for attaching conditionsto the order? Do these conditions address the grounds set out in the Criminal Code,

subsection 515(10)? Can they be justified as both a reasonable and necessary restriction on

the youths liberty?

9. If the court is satisfied that grounds exist to detain the youth in custody, it must inquire aboutthe availability of a responsible person (ss. 31(2)). Is there a responsible person available andis the young person willing to be placed in the care of that person?

How can defence counsel, youth, family or community agencies assist the court in thisrespect?



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YCJA Explained Pre-Trial Detention : Checklist

What challenges and obligations will arise in fulfilling the arrangement and what skillsand circumstances would be helpful?

10.Where the court has ordered detention, has it set out its reasons for detention?

11. If the court finds there are grounds to justify detention and there is no alternative toplacement on detention and no responsible person available to undertake care of the youth,the court may order temporary detention of the youth. The youth may only be detained in a

facility where he or she is kept separate and apart from adults, unless certain circumstances

exist that may require the court to consider temporary placement in adult facilities. Do any of

the following circumstances exist?

If the court is satisfied, having regard to the best interests of the young person, that theyoung person cannot, having regard to his or her own safety or the safety of others, be

detained in a place of detention for young persons; or

If the court is satisfied having regard to the best interests of the young person, that no

place of detention for young persons is available within a reasonable distance (ss. 30(3)).


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YCJA Explained Detention before Sentencing; Flow Cha

Deciding Whether to Detain or Release: Show Cause Hearings


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YCJA Explained Detention before Sentencing; Flow Chart 2

Placing YP in the Care of a Responsible Person


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NOTES: Considering the victims



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SECTION 5

THE CASE OF JEAN MARQUETTE

Adult Sentences, IRCS (intensive

rehabilitative custody andsupervision), Pre-sentence reports,Reintegration, Publication

Section 5: The Case of Jean Marquette 5.1


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5.2 Section 5: The Case of Jean Marquette


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Presumptive Offences

Offences for which there isan adult sentence persumed are:

First and second degree murder

Attempted murder

Manslaughter

Aggravated sexual assault

Third serious violent offence

Serious Violent Offence

A serious violent offence is anoffence during which a youngperson causes or attempts tocause serious bodily harm.


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Third SeriousViolent Offence:Criteria for Presumption

First:YP has committed a seriousviolent offence for which anadult is liable to imprisonmentfor more than two years

Second:The third serious violentoffence occurred after the Act cameinto effect

Third:At the time of the offence the YPhad reached age of presumption(14 16 years)

Fourth:At the time of the offence at leasttwo prior judicialdeterminations of serious

violent offence were made at

different proceeding

Presumptive Offences

q YP applies for youth sentence

q onus on YP to show why an adultsentence should not be imposed


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Non-presumptive Offence

Indictable offences for whichan adult could receive a sentence

of imprisonment of more than2 years but not a presumptiveoffence

Non-presumptive Offence

- Crown makes application

- Crown provides notice to courtand YP- Onus on the Crown to show

why YP should receive anadult sentence

Test for an Adult Sentence

Would a youth sentence be longenough to hold the YP accountable?

If yesyouth sentenceIf noadult sentence

Pre-sentence Reports

Pre-disposition reports are nowpre-sentence reports.Only the information relevant tothe purpose and principles ofsentencing and the restrictions oncustody are to be included in thereport.


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New Requirements for PSR

The recommendation of anyconference

Information that may assist thecourt to determine whether thereis an alternative to custody

The YCJA expressly says thatExtrajudicial Sanctions can only beincluded during the disclosureperiods

Planning for Reintegration

q Youth worker helps the YP in thepreparation and implementationof a reintegration plan that setsout the most effective programs forthe YP that maximizes the chancesof successful reintegration into thecommunity.

q The youth worker thensupervises, supports and assists the

YP to implement the plan in thecommunity


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Supervisionin the Community

If conditions are breached, the YPcan be returned to custody

In the case of presumptive offences,the judge sets both the period ofconditional supervision and theconditions. For the usual two-thirds,one-third, the court sets mandatoryconditions but the provincialdirector can also add otherconditions to the order.

Publication

Permitted where:

q YP receives an adult sentence

q YP receives a youth sentence fora presumptive offence unless a Judge

orders otherwise

q Emergency publication timeperiod increased from two to fivedays

Publication Prohibited

q in all other cases; and

q where Crown does not seek anadult sentence for a presumptiveoffence


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Q & A EXERCISE

1 What are Jeans chances of having an

adult sentence imposed?

2 Is an IRCS sentence appropriate in

Jeans case?

3 Under what conditions can Jeans

identity be published?


Pocket Guide

pp. 42, 48 and 49

Pocket Guide

pp. 32 to 34

Pocket Guide

pp. 100 to 101


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4 What are the steps of release planning

for Jean?

What might be the role of the

Restorative Justice Program in helping Jean

return to the community?

5 If Jean were to be released tosupervision in the community, would there

be additional conditions set and who would

set those?

6 If Jean were to breach a condition, what

would be the procedure and what would be

the likely result?


Pocket Guide p. 66

Pocket Guidepp. 74 to 75

Pocket Guide

pp. 86 to 88


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YCJA Explained Adult Sentences : Introduction

Adult SentencesFor nearly 100 years the law allowed young persons who are 14 years of age or older to betransferred to the adult court under certain circumstances and, if convicted there, receive an adultsentence. Under the Young Offenders Act(YOA), if a 16 or 17-year-old was charged with murder,attempted murder, manslaughter or aggravated sexual assault, it was presumed that an adultsentence would be applied, unless the young person could persuade the court that it should not.

Experience Under the YOA

Experience with the regime under the YOA has shown that:

Relatively few young persons were transferred to the adult court.

A large percentage of the transfers to adult court were for non-violent offences. Provinces vary considerably in the number of transfers to adult court.

The transfer hearing was complex and caused significant delays. It was considered unfairbecause it took place before it had even been determined that the youth was guilty. Youth lostaccess to the procedural protections appropriate to youth and specially provided during theyouth judicial process.

Changes Made by the YCJA

The Youth Criminal Justice Act(YCJA) has eliminated the transfer hearing to adult court and theanomalies associated with it. Consideration of whether an adult sentence is warranted only takes

place after a finding of guilt and there are enhanced protections and notice requirements

throughout the process to ensure that the youths rights are fully safeguarded.The YCJA does not lower the age at which a young person may be subject to an adult sentence.While the age at which the presumption of an adult sentence applies is lowered to 14,

jurisdictions have the authority to set the age at 15 or 16. The effect is that if a province choosesto set the age at 16, there would be no change from the YOA.

Guidance in Applying Adult Sentences

While youth still remain at risk, under certain limited circumstances, to the longer terms and thecharacteristics of adult sentences that are less appropriate to youth, new sentencing principles

provide guidance to assist in ensuring that this exception to the youth sentencing regime is strictlyfocused on appropriate cases. The test for an adult sentence limits its use to cases where it can be

demonstrated that a youth sentence would not be of sufficient length to hold the young personaccountable, bearing in mind that the accountability of the young person must be consistent withthe greater dependency of young persons and their reduced level of maturity.

A young person under age 18 who receives an adult sentence is to be placed in a youth facilityunless it would not be in the best interests of the young person or would jeopardize the safety ofothers.


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YCJA Explained Adult Sentences : Explanatory Text

Adult Sentences

Background Overview of the YCJA Regime

Process Prior to Trial

Trial Process

Sentencing Stage: Features of the Process

Sentencing Stage: Determining the Sentence

Process Following Sentencing

Introduction

Young persons who have been arrested and charged with an offence may, in certaincircumstances, be at risk of receiving an adult sentence if they are found guilty. For this situation

to arise, the offence must have been one that would attract a penalty of more than two years ifcommitted by an adult and the young person must have been alleged to have committed it whenfourteen years or older. Of the offences that could fall into this category, some may carry a

presumption that an adult sentence would apply on conviction, unless the youth can persuade thecourt that it is not necessary. The presumption does not mean that there will be an automatic adultsentence. It means that the young person must persuade the court that he or she should receive ayouth sentence. With respect to the remainder of the offences in the category, the burden is on thecrown not only to apply to the court for an adult sentence to be considered but also to demonstrateto the court that it is necessary

Background

History

For nearly 100 years, under both theJuvenile Delinquents Actand the Young OffendersAct(YOA), the law allowed young persons who are 14 years of age or older to be transferred to theadult court under certain circumstances. If the young person was then convicted in adult court, thecourt could impose an adult sentence. Under the YOA, if a 16 or 17-year-old was charged withmurder, attempted murder, manslaughter or aggravated sexual assault, it was presumed that he orshe would be transferred to the adult court and, if convicted, he or she would receive an adultsentence. This meant that in relation to those offences, the young person had to persuade the courtthat he or she should remain in youth court.

Experience with the regime under the YOA has shown that:

Relatively few young persons are transferred to the adult court. (See Types of CasesTransferred to Adult Court.)

A large percentage of the transfers to adult court are for non-violent offences. For example, inthe last three years, about 40% of the transfers were for non-violent offences. (See Types ofCases Transferred to Adult Court.)

Provinces vary considerably in the number of transfers to adult court. For example, in 1998-99, Manitoba led the country with 29 transfers. Quebec was next highest with 23 transferswhich was nearly four times the number in Ontario (6 transfers) and more than twice thenumber in British Columbia (11 transfers). (SeeNumber of Youth Transfers to Adult Courts.)


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The transfer hearing can be complex and can cause significant delays. Many consider it to beunfair because it takes place before a court has determined whether or not the young person isguilty of the offence.

Youth lose access to the youth-appropriate procedural protections provided during the youthjudicial process.

The YCJA: Changes Relating to Adult Sentences

Changes included in the Youth Criminal Justice Act(YCJA) have eliminated the anomaliesassociated with the transfer hearing to adult court in the YOA. While youth still remain at risk,under certain limited circumstances, to the longer terms and less youth-appropriate characteristicsof adult sentences, new sentencing principles provide guidance to assist in ensuring that thisexception to the youth sentencing regime is strictly focused on appropriate cases.

The YCJA does not lower the age at which a young person may be subject to an adult sentence.The YCJA does contain some significant changes regarding adult sentencing:

The transfer process is eliminated. Instead, the youth court first determines whether or not theyoung person is guilty of the offence and then, under certain circumstances, the youth courtmay impose an adult sentence.[1]

A pattern of repeated, serious violent offences is added to the list of offences that give rise tothe presumption of an adult sentence.

The age at which the presumption of an adult sentence applies is lowered to 14. However,provinces have the authority to set the age at 15 or 16. The effect is that if a province choosesto set the age at 16, there would be no change from the YOA.

If the Crown notifies the youth court that it will not be seeking an adult sentence for apresumptive offence, the court must impose a youth sentence.

The test for an adult sentence requires the court to determine whether a youth sentence would

be of sufficient length to hold the young person accountable. The accountability of the youngperson must be consistent with the greater dependency of young persons and their reducedlevel of maturity. If a youth sentence would be of sufficient length to hold the young personaccountable, the court must impose a youth sentence.

A young person under age 18 who receives an adult sentence is to be placed in a youthfacility unless it would not be in the best interests of the young person or would jeopardizethe safety of others.

These changes in the YCJA set out two clear objectives with respect to decision- makingsurrounding a youths liability to an adult sentence. First, it requires that the consideration ofwhether an adult sentence is necessary be based on the sufficiency of the length of the sentence toachieve a fair and proportionate accountability appropriate to a youthful offender. Second, itstipulates that the youths potential liability to an adult sentence is subject to a full range of

enhanced procedural protections.

Adult sentences are a heavy-handed tool among the array of measures available to hold a youngperson accountable for his or her criminal conduct. Parliament has made them available inrelation to youth, but it is clear in the YCJA that this is an exception to the purpose, principles andcontent of the youth sentencing regime which is at the heart of the legislation. Parliament has setthe youth sentencing regime as the standard most appropriate for youth who have been foundguilty of criminal conduct. This regime includes sentences that are directly focused to respond toserious and violent conduct when committed by youth, such as the new intensive rehabilitativecustody and supervision order. Youth receiving adult sentences are deprived of access to suchsentences designed specifically to respond to the problems of severely troubled youth.


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Any departure from the youth sentencing regime, as in the limited case of adult sentences, mustfollow a rigorous examination of the necessity to extend sentence length in rare caseswherethe gravity of the conduct is so severe and the youths responsibility for it so extensive that onlyan adult sentence would be sufficient to hold the youth accountable. When courts apply adult

sentences to youth they must do so sparingly and fairly. Their application must observe the fullestprocedural protections available and be strictly targeted to cases where it is demonstrablynecessary. This is particularly important in approaching applications for adult sentences for non-

presumptive offences, which are a manifest exception to the rule of separate youth penalties. It isequally important as an approach to the presumptive offences. While the onus of rebutting this

presumption rests with the youth, the crown should be ready to demonstrate why the presumptionis justified in each particular case.

Overview of the YCJA Regime

When an Adult Sentence May Be Considered

Governing Principles

Categories of Offences that May Attract an Adult Sentence

When an Adult Sentence May Be Considered

Sections 61 to 81 of the Youth Criminal Justice Act(YCJA) describe the circumstances in which ayoung person convicted of an offence may be subject to an adult penalty. An adult sentence willnot apply automatically, even when it is an available sanction; the YCJA sets out the proceduresto be followed in determining whether an adult sanction is appropriate and the test that must bemet in applying this extraordinary measure.

Section 62 sets out the circumstances in which a court may consider an adult sentence:

The youth must have been found guilty of an offence for which an adult could receive asentence of more than two years and

He or she must have been at least 14 years old at the time the offence was committed.

With respect to certain particularly serious offences, a presumption is created by the legislationthat an adult sentence will result following a finding of guilt. Sections 61 permits jurisdictions todetermine the age (14, 15 or 16) at which this presumption will begin to arise. With respect to allother offences with a penalty of more than two years (for which no presumption arises), thecrown must apply to the court if it wishes an adult sentence to be considered. In either case, alltrials of young persons take place in youth court and, following a finding of guilt, the court isrequired to determine whether an adult penalty is sought or opposed by the parties. The court willdo so by holding a hearing to assess whether a youth sentence would be of sufficient length tohold the youth accountable for his or her conduct. Only if the court finds that a youth sentencewould not be sufficiently long may it go on to consider imposing an adult sentence.

Governing Principles

Informing the process are several statements of principle set out in the YCJA. Of particularrelevance are the statements of principle in section 3, which applies to theActas a whole, andsection 38, which governs the imposition of youth sentences and is material to the considerationof whether adult sentences are necessary.

Paragraph 3(1)(b) makes it clear that the youth justice system must be separate from that foradults and emphasize a fair and proportionate accountability consistent with the greaterdependency of young persons and their reduced level of maturity. It stresses the need forenhanced procedural protection to ensure fair treatment and the protection of youths rights, the


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importance of rehabilitation and reintegration as well as the need for timeliness of intervention inorder to reinforce the link between the offending behaviour and its consequences.Paragraph 3(1)(c) reinforces the requirement for fair and proportionate accountability anddescribes the goals to be achieved when taking measures against youth.

Section 38 principles set out guidance for determining a fair and proportionate youth sentence.These determine how the court will determine the quantum of youth sentence that would hold ayouth accountable and provide guidance on objectives the court should bear in mind instructuring the content of the sentence. This guidance is key to the question of determiningwhether a youth sentence would be of sufficient length to hold a young person accountable.

Categories of Offences that May Attract an Adult Sentence

A youth could be liable for an adult sentence if convicted of an offence for which an adult couldreceive a sentence of more than two years. Within this offence range, the youths liability and the

process to be followed vary according to the nature or type of offence. These variations fall intothree groups:

Presumptive a Offences: Specified Offences (murder, attempted murder, manslaughter,aggravated sexual assault)

In the case of young persons charged with one of the four presumptive offences named insubsection 2(1), presumptive offence, paragraph (a) (murder, attempted murder,manslaughter or aggravated sexual assault), it is presumed that an adult sentence will apply.These offences are those that attracted an adult penalty under the YOA; no changes have beenmade to this list ofspecified offences. Under section 61, jurisdictions may leave the age atwhich this presumption arises at 16 or may set it at 14 or 15 years of age.

Presumptive b Offences: Repeat Serious Violent Offence

When a youth with a history of violent activity is charged with an offence involving seriousviolence, a presumption of adult sentence may apply. This will happen in cases where on atleast two prior occasions the youth has been found guilty of an offence involving violenceand a court has made a judicial determination in each case that the offence is a serious violentoffence. This is a new category of offences to which a presumption in favour of an adultsentence has been attached by the YCJA, subsection 2(1), presumptive offence, paragraph(b). It is intended to permit the court to respond with a consideration of the necessity for alengthier sentence in cases of repeated, serious violent offenders beyond those found guilty ofan offence enumerated in subsection 2(1), presumptive offence, paragraph (a). Again,under section 61, jurisdictions may leave the age at which this presumption arises at 16 orthey may set it at 14 or 15 years of age.

Non-presumptive Offences

In addition to offences that may qualify as presumptive offences, as described above, there isa range of offences for which no presumption arises but for which the crown may apply to thecourt to consider an adult penalty. These are offences for which an adult could receive asentence of more than two years that were committed by a youth when 14 years of age orolder.


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Process Prior to Trial

Presumptive A Offences

Presumptive B Offences Non-presumptive Offences

In cases where a youth is at risk for an adult sentence, the YCJA ensures that the youth has accessto a range of procedural protections from the outset of the process. The youth is entitled to knowwhat he or she may be liable to following a finding of guilt. Certain obligations arise on the partof the court and crown to make sure this happens.

Presumptive A Offences

With respect to presumptive a offences, the crown is not required to make an application to thecourt for an adult sentence nor to give notice that it intends to seek one. To ensure that the youthis aware, at the earliest possible opportunity, of the penalty he or she may face if charged with

one of these four offences, the court is required, under paragraph 32(1)(d), to inform the youth atthe his or her first appearance, that an adult sentence will apply if the youth is found guilty, unlessthe court orders that a youth sentence should be imposed.

When charged with a presumptive a offence, the youth has the option, under section 63, toapply to the court for an order that a youth sentence would be imposed instead of an adultsentence. The youth may do this at any time prior to sentencing. The court will consider thisapplication as it proceeds to determine sentence, unless the crown has already indicated awillingness to forgo seeking an adult sentence. The crown may decide to do this by giving noticethat it will not oppose the youths application under section 63, in which case the court is requiredto order that a youth sentence would be imposed.

Even where a youth has not made an application for a youth sentence, under section 65, the

crown may choose not to pursue an adult sentence for a presumptive a offence. To do so, itgives notice to that effect to the court, which it may do at any stage of the proceedings. If thisnotice is unopposed by the youth, the court must order that a youth sentence would apply onconviction and that there will be a ban on publication of information about the youth.

Presumptive B Offences

For a presumption to arise under subsection 2(1), presumptive offence, paragraph (b), thecrown must apply to the court under subsection 42(9) for the opportunity to establish that theoffence of which the youth has just been found guilty is a serious violent offence. Where theyouth already has had at least two such prior judicial determinations relating to other seriousviolent offences for which he or she has been found guilty, a presumption may arise under section

2(b). Similar age restrictions apply to the operation of this presumption as they do to presumptivea offences. For an adult sentence to be possible, the offence must have been committed whenthe youth was 14 years or older and, for the presumption to attach to it, must have beencommitted within the relevant age range set by the jurisdiction.

However, the courts ability to designate offences as serious violent offences under section 42(9)is not subject to these age restrictions. As long as the offence was committed when the young

person was at least twelve years of age or older, the crown may request the offence be designatedas a serious violent offence. If the court does so, this could then count as one of the priordesignations needed to fulfill the requirements of a subsequent presumptive b application.


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The crown makes the application for a designation after there has been a finding of guilt. In orderto have the court consider this request, the crown must already have given notice, undersubsection 64(2), to the youth and the court, prior to the youths making a plea,[2] that it intendsto seek an adult sentence. When the court receives this notice, it must inform the youth at his or

her first appearance that an adult sentence may apply on conviction (para. 32(1)(c)). The crownmust also give the youth, but not the court in this instance, notice under subsection 64(4),[3] that itintends to ask the court to make a determination that the conduct constitutes a serious violentoffence and it intends to establish that this at least the third such determination made in respect ofthe youths conduct.

As with presumptive a offences, a youth charged with an offence that may be found to be apresumptive b offence has the option, under section 63, to apply to the court for an order that ayouth sentence would be imposed on a finding of guilt instead of an adult sentence. The youthmay do this at any time prior to sentencing. The crown may decide not to oppose the youthsapplication, in which case the court is required to order that a youth sentence would be imposed.

Non-presumptive OffencesThe crown must give notice under subsection 64(2) to the youth and the court, prior to the youthsmaking a plea,[4] that it intends to seek an adult sentence. When it has received such a notice, thecourt is required, under paragraph 32(1)(c), at the youths first appearance before it, to inform theyouth that an adult sentence may apply on conviction. The youth may, under subsection 64(5),give notice that he or she does not oppose the crowns application for an adult sentence. In thiscase, the court must order that an adult sentence would be imposed.

Trial Process

Electing Mode of Trial

All trials of young people now take place in youth court, whether a youth or an adult penalty is

sought. There is no transfer to adult court with its attendant delay, failure to provide the youthwith a process separate from the adult syst

YCJA Participant Overview

Documents

Transcript of YCJA Participant Overview