Provincial Offences: Youth Justice Act (2:IV): Difference between revisions

Latest revision as of 18:33, 21 August 2024

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 14, 2024.

The Youth Justice Act, SBC 2003, c 85 (“YJA”) is provincial legislation which imposes tougher sentences on young persons for gang activity, driving offences, and contraband activity within youth custody facilities. The YJA acts to narrowly expand custodial sentence options within the province, as well as create a small number of new offences. Under the YJA, young persons may face jail time for six different offences. This legislation rarely used, so only a brief overview is provided below.

A. Definition of Young Person

Under the YJA, “young person” is defined as "a person who has reached 12 years of age but is less than 18 years of age" (YJA s 1).

B. Notice to Parents/Guardians

Under section 1 of the YJA a parent is defined as:

a person who, in respect of a young person,

(a) is under a legal duty to support, maintain, or care for the young person, or

(b) has in law or fact, the custody or control of the young person,

but does not include a person who has the custody or control of the young person only because of proceedings under this Act or the federal Act

If a young person is charged with an offence and is required to appear in court, the person who initiated the process must immediately give written notice of the charge against the young person and of the young person’s court appearance to the young person’s parent, if a parent is available (YJA s 5(1)). This section does not apply where proceedings are commenced by way of a violation ticket (YJA s 5(2)).

If a young person is going to be detained pending bail, the officer in charge must give written or oral notice of the arrest to the young person’s parent as soon as possible, if a parent is available (YJA s 5(3)). The notice must state the place of detention and the reason for the young person’s arrest (YJA s 5(3)).

If notice is not given under YJA subsections 5(1) or (3), this does not invalidate the proceedings against the young person (YJA s 5(4)).

C. Sentencing

1. General

When a young person is found guilty, the Court must impose one or more of the available sentences provided within the YJA, and no others (YJA s 8(1)). The sentence is effective on the day it is imposed, unless the young person is already serving a custodial sentence, in which case the new sentence is effective when the previous custodial sentence expires (YJA ss 9(1) and (2)).

The sentences available to the court are:

Absolute or conditional discharge (YJA s 8(2)(a));
Fine of up to $1,000 (YJA s 8(2)(b));
Community service of up to 240 hours to be completed within a specified period no longer than one year (YJA s 8(2)(c));
Probation for up to 6 months (YJA s 8(2)(d));
Custodial sentence for up to 30 days for specified offences (YJA s 8(2)(e)) (for example, trespassing on school grounds under section 177(2) of the School Act);
Custodial sentence for up to 90 days for specified offences (YJA s 8(2)(f)) (for example, driving while prohibited or suspended under sections 95(1), 102, or 234(1) of the Motor Vehicle Act);
Driving prohibition for an offence under the Motor Vehicle Act (YJA s 8(2)(g)).

The Court must not impose a sentence that results in punishment being imposed on a young person that is greater than the maximum punishment that could be imposed on an adult convicted of the same offence (YJA s 8(5)).

Note: Custodial sentences under the YJA do not include a period of community supervision, unlike under the YCJA. However, the Court may order a period of probation to follow a custodial sentence if it thinks it appropriate.

2. Sentence Review

A young person, their parent, or Crown Counsel may apply for a review of the young person’s sentence if the Court deems it appropriate (YJA s 15(1)). The application may be made:

Any time after 3 months from when the sentence was imposed (YJA s 15(2)(a)(i)),
For a custodial sentence, any time after the greater of 15 days or one third of the sentence has been served (YJA s 15(2)(a)(ii)), or
At any other time with leave of the Court (YJA s 15(2)(b)).

Under a review, the Court may confirm the sentence, vary it, rescind it, or make a new sentence, but a new or varied sentence must not be more onerous than the original sentence (YJA ss 15(8) and (9)).

D. Special Concerns

1. Publication of a Young Person’s Identity

The provisions under Part 6 of the YCJA that ban the publication of a young person’s identity apply to the YJA (YJA s 4(1)). See Section III.K.2: Publication of a Young Person’s Identity above.

2. Records

The provisions of the YCJA governing the records of young persons apply to the YJA (YJA s 4(1)), specifically YCJA ss 114 to 116,ss 118 to 127, and s 129. See Section III.K.4: Records: Access and Disclosure above.

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+{{REVIEWED LSLAP | date= August 14, 2024}}
 {{LSLAP Manual TOC|expanded = youth}}
-The original ''Young Offenders (British Columbia) Act'', RSBC 1996, c 494 [“''YO(BC)A''”] was proclaimed on May, 1984 to complement the federal ''Young Offenders Act''. In April, 2004, the ''YO(BC)A'' was replaced with the ''Youth Justice Act'', SBC 2003, c 85 [“''YJA''”]. The ''YJA'' imposes tougher sentences on young persons for gang activity, driving offences, and contraband activity within youth custody facilities. The ''YJA'' updates the provisions of the ''YO(BC)A'' in order to reflect new practices within the youth criminal justice system, as well as to render the provincial  legislation  more  consistent  with  the  federal ''YCJA''.  The ''YJA''  acts  to  narrowly  expand  custodial sentence options within the province, as well as to create a small number of new offences. Under the previous ''YO(BC)A'', probation was the harshest sentence imposed on young persons, but under the new ''YJA'', young persons may face jail time for six different offences.
+The ''Youth Justice Act'', SBC 2003, c 85 (“''YJA''”)  is provincial legislation which imposes tougher sentences on young persons for gang activity, driving offences, and contraband activity within youth custody facilities.  The ''YJA'' acts to narrowly expand custodial sentence options within the province, as well as create a small number of new offences.  Under the ''YJA'', young persons may face jail time for six different offences.  This legislation rarely used, so only a brief overview is provided below.
-== A. Definition of Young Person and the Effect of Age on Proceedings ==
+== A. Definition of Young Person ==
-Under the ''YJA'', “young person” is defined as a person who has reached 12 years of age but is less than 18 years of age (s. 1).
+Under the ''YJA'', “young person” is defined as "a person who has reached 12 years of age but is less than 18 years of age" (''YJA'' s 1).
-=== 1. Minimum Age ===
+== B. Notice to Parents/Guardians ==
-Proceedings cannot be commenced against a person, nor can a person be found guilty, for any offence that person allegedly committed while under the age of 12 years (s. 2).
+Under section 1 of the ''YJA'' a parent is defined as:
+:a person who, in respect of a young person,
+::(a) is under a legal duty to support, maintain, or care for the young person, or
+::(b) has in law or fact, the custody or control of the young person,
+:but does not include a person who has the custody or control of the young person only because of proceedings under this Act or the federal Act
-=== 2. Proof of Age ===
+If a young person is charged with an offence and is required to appear in court, the person who initiated the process must immediately give written notice of the charge against the young person and of the young person’s court appearance to the young person’s parent, if a parent is available (''YJA'' s 5(1)).  This section does not apply where proceedings are commenced by way of a violation ticket (''YJA'' s 5(2)).
-The age of an accused can be proven by information recorded anywhere on a violation ticket (such as a traffic ticket) respecting the age of  the person alleged to have committed an offence (s. 19).
-=== 3. Young Person Turning 18 After Offence Committed ===
+If a young person is going to be detained pending bail, the officer in charge must give written or oral notice of the arrest to the young person’s parent as soon as possible, if a parent is available (''YJA'' s 5(3)). The notice must state the place of detention and the reason for the young person’s arrest (''YJA'' s 5(3)).
-The ''YJA'' applies to any offence alleged to have been committed by a young person, even if he or she turns 18 before or after proceedings have been commenced (s. 3(2)).
-=== 4. Effect of Incorrect Presumption of Age on Proceedings ===
+If notice is not given under ''YJA'' subsections 5(1) or (3), this does not invalidate the proceedings against the young person (''YJA'' s 5(4)).
-Where proceedings are commenced against someone who is alleged to have been a young person at the time the offence was committed but it is later determined, prior to sentencing, that the person was not in fact a young person at the time of the alleged offence, the proceedings must either be dismissed if the person was under 12 at the relevant time, or continued if the person was over 18 at the relevant time (s. 20(1)).  If proceedings are continued against an adult, they are valid regardless of the fact that the matter was dealt with under this Part of the ''YJA'' before the young person’s age was determined (s. 20(2)).
-If proceedings are commenced against someone who was not alleged to be a young person at the time the offence was committed, and it is determined at any time prior to sentencing that the person was a young person at the time of the alleged offence, the proceedings must be continued under the ''YJA'' (s. 20(3)). Any proceedings continued under section 20(3) are valid despite the fact that the matter was not dealt with under the ''YJA'' until the person’s age was determined (s. 20(4)).
-==== B. Jurisdiction of the Court ====
+== C. Sentencing ==
-The ''YJA'' applies to all offences under provincial legislation. All provincial offences are summary offences. In British Columbia, all youth offences are proceeded with in the Youth Justice Court.
-==== C. Judicial Proceedings - Excluded Provisions of the Offence Act ====
+=== 1. General ===
-Certain provisions of the ''Offence Act'', RSBC 1996, c 338, do not apply to proceedings under the ''YJA''(s. 4(1) of the YJA). These include:  ss. 57(2) (appearance of the defendant), 68(a) (absence of the defendant), 79 (costs), 88(2) (mandatory minimum fine for offences under the ''Motor Vehicle Act'', RSBC 1996, c 318), and 112 (costs upon dismissal or abandonment of appeal).
+When a young person is found guilty, the Court must impose one or more of the available sentences provided within the ''YJA'', and no others (''YJA'' s 8(1)).  The sentence is effective on the day it is imposed, unless the young person is already serving a custodial sentence, in which case the new sentence is effective when the previous custodial sentence expires (''YJA'' ss 9(1) and (2)).
-==== D. Specific Provisions ====
-=== 1. Notice to Parents ===
-If a young person is charged with an offence and is required to appear in court, the person who issued the process must immediately give written notice of the charge against the young person and the time and place of that young person’s court appearance to a parent of the young person, if a parent is available.  This section does not apply where proceedings are commenced by way of a violation ticket (s. 5(1) and (2)).
-If a young person is going to be detained until his or her court appearance, the officer in charge at the time of the young person’s detention must give written or oral notice of the arrest to a parent of the young person as soon as possible, if a parent is available. The notice must state the place of detention and the reason for the arrest of the young person (s. 5(3)).
-If notice is not given under sections 5(1) or (3), the proceedings are still valid (s. 5(4)).
-=== 2. Pre-trial Examination and Report ===
-Before a trial commences, the prosecutor is permitted to request that a youth probation officer examine the facts and circumstances, including the background of the young person. The probation officer must then submit a report to the prosecutor. This person is not compellable as a witness at trial (s. 6(1) - (4)).
-If it is the opinion of the youth probation officer that it is in the best interests of the young person, and not contrary to the public  interest, that an action other than prosecution is taken, then the officer must recommend it to the prosecutor. Where measures other than prosecution are taken, the young person may enter into an agreement with the officer who made the recommendation to help resolve his or her conflict with the law (s. 6(5) and (6)). These measures are similar to the extrajudicial sanctions under the ''YCJA''.
-=== 3. Pre-Sentence Report ===
+The sentences available to the court are:
-If a court considers it necessary, upon finding a young person guilty of an offence and before making a custody order, the court may require a youth probation officer to provide the court with a pre-sentence report respecting the facts and circumstances of the offence and the background of the young person. Alternatively, the court may dispense with a pre-sentence report if it is deemed unnecessary (s. 7(1) and (2)).
+*Absolute or conditional discharge (''YJA'' s 8(2)(a));
+*Fine of up to $1,000 (''YJA'' s 8(2)(b));
+*Community service of up to 240 hours to be completed within a specified period no longer than one year (''YJA'' s 8(2)(c));
+*Probation for up to 6 months (''YJA'' s 8(2)(d));
+*Custodial sentence for up to 30 days for specified offences (''YJA'' s 8(2)(e)) (for example, trespassing on school grounds under section 177(2) of the School Act);
+*Custodial sentence for up to 90 days for specified offences (''YJA'' s 8(2)(f)) (for example, driving while prohibited or suspended under sections 95(1), 102, or 234(1) of the ''Motor Vehicle Act'');
+*Driving prohibition for an offence under the ''Motor Vehicle Act'' (''YJA'' s 8(2)(g)).
-A youth probation officer is not a compellable witness unless it is for sentencing, a sentence review, or a sentence appeal in the particular case (s. 7(5)).
+The Court must not impose a sentence that results in punishment being imposed on a young person that is greater than the maximum punishment that could be imposed on an adult  convicted of the same offence (''YJA'' s 8(5)).
-== E. Sentencing ==
+'''Note:''' Custodial sentences under the YJA do not include a period of community supervision, unlike under the YCJA. However, the Court may order a period of probation to follow a custodial sentence if it thinks it appropriate.
-=== 1. General ===
-Once a young person is found guilty of an offence, the court must impose one or more of the  available sentences provided within the ''YJA'',  and no others (s. 8(1)). The sentence is effective as of the date it is imposed by the court, unless the young person is already serving a custodial sentence, in which case the new sentence will be imposed on the date of expiry of the previous custodial sentence (s. 9(1), (2)).
-The possible sentences available to the court are as follows:
-*an absolute or conditional discharge, if there is no minimum penalty required for an adult convicted of that offence, and if it is in the best interest of the young person and not contrary to the public interest;
-*a maximum fine of $1,000;
-*community work service hours to a maximum of 240 hours and to be completed within a specified period no longer than one year;
-*probation for a maximum of 6 months;
-*custody not exceeding 30 days for specified offences under s. 8(2)(e) (for example, 2-20 trespassing on school grounds under section 177(2) of the ''School Act'');
-*custody not exceeding 90 days for other offences specified under section 8(2)(f) (for example, driving while prohibited or suspended under sections 95(1), 102, or 234(1) of the ''Motor Vehicle Act''); and/or
-*a driving prohibition for an offence under the ''Motor Vehicle Act''.
-The court must not impose a sentence that results in punishment being imposed on a young person that is greater than the maximum punishment that could be imposed on an adult who has been convicted of the same offence (s. 8(5)).
 === 2. Sentence Review ===
-A young person, a parent of the young person, or the Attorney General may apply for a review of the young person’s sentence if the court deems  it appropriate (s. 15(1)). The application may be made at any time after three months after the date the sentence was given, or with leave of the court at any time. In the case of custodial sentences under section 8(2)(e) or (f), an application may be made once the greater of 15 days or 1/3 of the sentence has been served (s. 15(2)). Under a review, the court may vary, rescind, or confirm the sentence, or make an entirely  new sentence, but the new or varied sentence must not be more onerous than the sentence under review (s. 15(8) and (9)).
+A young person, their parent, or Crown Counsel may apply for a review of the young person’s sentence if the Court deems it appropriate (''YJA'' s 15(1)).  The application may be made:
+*Any time after 3 months from when the sentence was imposed (''YJA'' s 15(2)(a)(i)),
+*For a custodial sentence, any time after the greater of 15 days or one third of the sentence has been served (''YJA'' s 15(2)(a)(ii)), or
+*At any other time with leave of the Court (''YJA'' s 15(2)(b)).
-The court may only review a driving prohibition made under section 8(2)(g) or section 8(3) if its terms are adversely affecting the young  person’s opportunities to obtain counselling, medical treatment, education, or employment (s. 15(3)).
+Under a review, the Court may confirm the sentence, vary it, rescind it, or make a new sentence, but a new or varied sentence must not be more onerous than the original sentence (''YJA'' ss 15(8) and (9)).
-Before reviewing a sentence, the court may require a youth probation officer to prepare a progress report that describes the performance of the young person for the period since the sentence was made (s. 15(6)).
-If a sentence or finding of guilt is under appeal, the court must wait for the appeal to be disposed of before it may review the sentence (s. 15(10)).
+== D. Special Concerns ==
-=== 3. Transfer of Sentence ===
-If the young person, or his or her parent, becomes a resident of a different province than the one in which the sentence was given, the  Attorney General of the original province may make an application to the court, upon which the court may transfer the sentence to the Attorney  General of the reciprocating province (s. 16(1), (3) - (5)). A sentence cannot be transferred until the time for an appeal against the sentence, or any finding upon which that sentence was based, has expired, or until all proceedings in respect of any appeal that has been taken have been completed, or any appeal has been abandoned (s. 16(2)).
-== F. Appeals ==
-Appeals under the ''YJA'' are governed by the appeal provisions of the ''Offence Act'' (s. 18).
-== G. Special Concerns ==
 === 1. Publication of a Young Person’s Identity ===
-The provisions under Part 6 of the ''YCJA'' that ban the publication of a young person’s identity apply to the ''YJA'' (s. 4(1)). See [[Criminal Offences under the Youth Criminal Justice Act (2:III)#2. Publication of a Young Person’s Identity | Section III.J.2: Publication of a Young Person’s Identity]].
+The provisions under Part 6 of the ''YCJA'' that ban the publication of a young person’s identity apply to the ''YJA'' (''YJA'' s 4(1)). '''See Section III.K.2: Publication of a Young Person’s Identity''' above.
 === 2. Records ===
-The provisions of the ''YCJA'' governing the records of young persons dealt with under that Act are deemed to apply to the ''YJA'' (s. 4(1)). The sections of the ''YCJA'' which apply to the ''YJA'' are ss. 114 to 116, ss. 118 to 127 and s. 129. See [[Criminal Offences under the Youth Criminal Justice Act (2:III)#4. Records: Access and Disclosure | Section III.J.4: Records: Access and Disclosure]].
+The provisions of the ''YCJA'' governing the records of young persons apply to the ''YJA'' (''YJA'' s 4(1)), specifically ''YCJA'' ss 114 to 116,ss 118 to 127, and s 129. See '''Section III.K.4: Records: Access and Disclosure''' above.
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