Criminal Offences: Youth Criminal Justice Act (2:III)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.

A. Applicable Age

The YCJA primarily applies to criminal proceedings against a young person aged between 12 and 17 years, as set out under the following legislative provisions:

• Section 13 of the Criminal Code prohibits individuals from being convicted for an offence they committed when they were under 12 years old.
• Subsection 2(1) of the YCJA defines a “child” as “a person who is, or, in the absence of evidence to the contrary, appears to be less than twelve years old”.
• Subsection 2(1) of the YCJA defines a “young person” as “a person who is, or, in the absence of evidence to the contrary, appears to be, twelve years old or older, but less than eighteen years old”.
• Subsection 14(5) of the YCJA states that the YCJA also applies to “persons eighteen years old or older who are alleged to have committed an offence while a young person”.
• Subsection 14(4) of the YCJA states that “extrajudicial measures taken or judicial proceedings commenced against a young person” under the YCJA may be continued “after the person attains the age of 18 years”.

B. Applicable Court

Under subsection 2(5) of the Provincial Court Act, RSBC 1996, c 379, the Provincial Court is designated as the Youth Justice Court for the purposes of the YCJA, and a Provincial Court judge is a Youth Justice Court judge. Unlike adult charges, even indictable youth charges typically proceed in Provincial Court (YCJA s 142(1)(c)). The BC Supreme Court has concurrent jurisdiction as a Youth Justice Court where the Crown is seeking an adult sentence for a young person (YCJA s 67).

C. Declaration of Principle

Section 3(1) of the YCJA sets out a series of fundamental principles. The YCJA must be “liberally construed” so that the youth criminal justice system operates in accordance with these principles (s 3(2)):

3(1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

D. Right to Counsel

Under section 25 of the YCJA, “a young person has the right to retain and instruct counsel without delay… at any stage of the proceedings”. A police officer must inform young persons of their right to counsel upon their arrest or detention. Legal Aid BC provides legal services for young persons, regardless of their income or their parents’ income. Unlike adults, young people aged 12 to 17 have the right to have a lawyer and parent/adult present while giving a police statement or being interrogated by police, unless they waive that right (YCJA s 146). For more information on admissibility of a young person’s statements see Section G.7.a: Admissibility of Statements below.

A young person’s counsel must remember that their client is the young person, not their parent(s). Parents have the right to be informed about developments in the young person’s case, but not to access privileged information from the young person’s counsel without the young person’s consent. Section 8 of the YCJA recognizes this client-parent distinction by empowering the Youth Justice Court to ensure a young person is represented by counsel independent of their parent(s) if necessary.

E. Notice to Parents/Guardians

The YCJA defines a young person’s “parent” in subsection 2(1) as

…any person who is under a legal duty to provide for the young person or any person who has, in law or in 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 by reason only of proceedings under this Act.

Notice must be given to a young person’s parent as soon as possible in any of the following circumstances:

• The young person is dealt with by an extrajudicial sanction (YCJA s 11),
• The young person is arrested and detained in custody (YCJA s 26(1)),
• A summons or appearance notice is issued to the young person (YCJA s 26(2)),
• The young person is released on a promise to appear, undertaking, or recognizance (YCJA s 26(2)),
• A ticket is issued to a young person under the Contraventions Act, SC 1992, c 47 (YCJA s 26(3)), or
• Any other time a Youth Justice Court Judge or Justice directs notice should be given (YCJA s 26(5)).

When the whereabouts of a young person’s parents are unknown, or it appears no parent is available, notice may be given to another adult. The adult can be a relative of the young person or any other adult who is known by the young person and who is likely to assist them (YCJA s 26(4)).

When notice has not been given, the court may adjourn the proceedings until notice is given or may dispense with notice if the court thinks it appropriate (YCJA s 26(11)).

Notice is not required if the person is 20 years or older by the time of their first appearance before a Youth Justice Court (YCJA s 26(12)).

The court may, if necessary, order the attendance of a parent at proceedings against a young person. A parent who then fails to attend may be held in contempt of court (YCJA s 27).

F. Alternatives to the Court Process: Extrajudicial Measures and Sanctions

The YCJA provides the criminal justice system with various alternatives to laying criminal charges for dealing with young alleged offenders. Whereas adult alleged offenders can sometimes avoid prosecution through “Alternative Measures” (also known as “diversion”), the YCJA includes similar diversion options called “Extrajudicial Measures”. Extrajudicial measures may range from a warning or caution from a police officer (YCJA s 6) to a formal referral by the Crown to an “Extrajudicial Sanctions” program (YCJA s 10).

Under the YCJA, police must consider extrajudicial measures before recommending charges in a report to Crown Counsel (YCJA s 6(1)). Both summary and indictable offences (in exceptional circumstances) may be considered for extrajudicial measures.

Within the broader category of extrajudicial measures there is a subset of measures available which the YCJA terms “extrajudicial sanctions” (YCJA s 2(1)). While extrajudicial measures refer to any measures taken against a young person under the YCJA, “other than judicial proceedings”, extrajudicial sanctions are a set of specific measures available under s 10 of the YCJA with specific requirements for their use (YCJA s 2(1)). For more information on the BC Prosecution Service’s guidelines for extrajudicial measures and sanctions, see the Crown Counsel Policy Manual Youth Criminal Justice Act – Extrajudicial Measures.

1. Extrajudicial Measures

Section 4 of the YCJA sets out the principles which govern use of extrajudicial measures (“EJMs”) in the youth criminal justice system. Section 4 states that EJMs:

• “[A]re often the most appropriate and effective way to address youth crime” (YCJA s 4(a));
• “[A]llow for effective and timely interventions focused on correcting offending behaviour” (YCJA s 4(b));
• “[A]re presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence” (YCJA s 4(c)); and
• “[S]hould be used if they are adequate to hold a young person accountable for his or her offending behaviour,” even if the young person “has previously been dealt with by extrajudicial measures” or “previously been found guilty of an offence” (YCJA s 4(d)).

Section 4.1 of the YCJA governs how EJMs should be used when a young person fails to comply with a YCJA youth sentence pursuant to YCJA s 137, or where a peace officer (as defined in s 2 of the Criminal Code) has reasonable grounds, under s 496 of the Criminal Code, to believe a young person “has failed to comply with a summons, appearance notice, undertaking or release order to attend court”.

In both these circumstances, EJMs are “presumed to be adequate” to address these failures, unless the young person has a history of repeated failures, or has through their failure to comply, “caused harm, or a risk of harm,” to public safety (YCJA s 4.1(1)). If EJMs are inadequate for the above reasons, the Crown may proceed by issuing an appearance notice under Criminal Code s. 496 (judicial referral hearing) or by bringing an application for sentence review under YCJA s. 59(1) as an alternative to laying charges. The YCJA says these alternative processes should be used if deemed adequate (YCJA s 4.1(2)).

Section 5 of the YCJA outlines the objectives of EJMs, and specifies how they should be designed. EJMs should:

• “[P]rovide an effective and timely response to offending behaviour” (YCJA s 5(a));
• “[E]ncourage young persons to acknowledge and repair the harm caused” (YCJA s 5(b));
• Encourage young persons’ families and community “to become involved in the design and implementation of” the EJMs (YCJA s 5(c));
• Allow victims to receive reparation, and to participate in decisions regarding the EJMs selected (YCJA s 5(d)); and
• Be “proportionate to the seriousness of the offence”, while respecting young persons’ rights and freedoms (YCJA s 5(e)).

Section 6 of the YCJA requires police officers to consider EJMs “before starting judicial proceedings or taking any other measures” under the YCJA against a young person. The police must consider each of the following options before recommending charges (YCJA s 6):

• Taking no further action;
• Warning the young person;
• Administering a caution; or
• Referring the young person to a program or agency in the community (with the young person’s consent). In BC, these are called Community Accountability Programs (“CAPs”)

Despite the above requirements on police officers, subsection 6(2) of the YCJA clarifies that an officer’s failure to consider EJMs “does not invalidate any subsequent charges against the young person.”

Community Accountability Programs ("CAPs") are funded by the province of BC and offer alternatives to the traditional justice system by using restorative justice principles. Many CAPs accept criminal case referrals from the police as well as the community.

Restorative justice aims to address the harms caused by criminal acts and work towards a resolution for the offender, victim, and community. While approaches vary across programs, many use one-to-one facilitation, talking circles, and conferences to work towards a confidential resolution that does not result in a criminal record for the young person who has caused harm. The participation of other parties, such as victims, parents, and community members varies between each case and CAP.

Section 8 of the YCJA also grants Crown Counsel the ability to administer cautions to young persons rather than “starting or continuing judicial proceedings” under the YCJA.

Past EJMs taken against a young person are not admissible in future proceedings against them. Evidence that a young person received a warning or caution, was referred to a CAP, or that a police officer decided to take no further action against them “is inadmissible for the purpose of proving prior offending behaviour” (YCJA s 9).

2. Extrajudicial Sanctions

Extrajudicial sanctions (“EJSs”) are available under section 10 of the YCJA if the lesser EJMs mentioned above are not adequate to deal with a young person. EJSs can only be used when “the seriousness of the offence, the nature and number of previous offences committed by the young person, or any other aggravating circumstances” mean that a caution, warning, or referral under sections 6-10 of the YCJA would not adequately hold the young person accountable (YCJA s 10(1)).

An EJS may be used only if all the following conditions are met:

• It is a sanction authorized by the Attorney General (or other appropriate authority) within the province’s program of sanctions (YCJA s 10(2)(a));
• The sanction is appropriate, based on the young person’s needs, and society’s interests (YCJA s 10(2)(b));
• The young person is informed of the EJS, and “fully and freely consents to” being subjected to it (YCJA s 10(2)(c));
• The young person was advised of their right to counsel, and was “given a reasonable opportunity to consult with counsel” prior to consenting to be subjected to the EJS (YCJA s 10(2)(d));
• The young person accepts responsibility for conduct which underlies the offence they are alleged to have committed (YCJA s 10(2)(e));
• There is sufficient evidence to proceed with prosecuting the offence (YCJA s 10(2)(f)); and
• The law does not bar prosecution of the offence (YCJA s 10(2)(g)).

Subsection 10(3) of the YCJA further emphasizes that an EJS cannot be used if a young person “denies participation or involvement” in the offence or expresses that they want to have the charge dealt with by the Youth Justice Court (YCJA s 10(3)).

As the young person must admit responsibility for their conduct in order to be subjected to an EJS (and therefore, in most cases, avoid trial), this statement is a violation of the principle that admissions of guilt must be freely and voluntarily given. Consequently, subsection 10(4) of the YCJA holds that any admission of guilt which is a condition for being dealt with through an EJM (including an EJS) is inadmissible in any future civil or criminal proceedings against the young person.

Note: this protection does not apply to voluntary admissions made by a young person in the context of a lesser EJM, where making such an admission is not a condition of implementing the EJM against the young person. For more information on admissibility of statements in the youth context, see Section G.7.a: Admissibility of Statements below.

Using an EJS against a young person does not prevent judicial proceedings against the young person under the YCJA. However, a Youth Justice Court will dismiss any charges against the young person “if it is satisfied on a balance of probabilities” either that the young person “totally complied” with the EJS, or “partially complied” with it, and prosecuting the charge would be unfair in the circumstances (YCJA s 10(5)).

The EJS procedure commonly involves an interview with a youth worker (through the local probation office), who will recommend a plan to the prosecutor that may include conditions such as counselling, restitution, community service, victim-offender mediation, or an apology. If an EJS is imposed against a young person, the young person’s parents must be notified about the sanctions (YCJA s 11). Victims, upon request, are entitled to be informed of the young person’s identity and how the offence was dealt with (YCJA s 12).

G. Court Process

1. Compelling a Young Person’s Appearance in Court

The procedure to compel a young person to attend court is generally the same as for adults under the Criminal Code. A police officer may release a young person on either a Promise to Appear (an “Undertaking”) or an Appearance Notice. These documents will indicate a time, date, and location for the young person’s first court appearance.

In R v Oliveira, 2009 ONCA 219 the Ontario Court of Appeal explained that a Promise to Appear and an Undertaking serve two distinct and separate purposes. The purpose of a Promise to Appear is to secure the accused’s initial attendance in Court. In contrast, an Undertaking constitutes a promise by the accused to comply with certain conditions in exchange for their release from custody, pending the resolution of the charges.

If the Information is not laid prior to this first appearance, then the Appearance Notice or the Undertaking will be rendered null. If the Information is laid prior to this first appearance, the Undertaking will continue in force as long as the charges are before the Court (or until it is canceled or varied by a judge).

If the young person fails to appear or to comply with an Undertaking, they can be charged with failure to comply. If the original charge for which they made the Promise to Appear/Undertaking is dismissed, withdrawn, or stayed; or if the young person is acquitted; the Crown must review the charge for failure to comply to determine whether that prosecution should proceed (YCJA s 24.1).

Alternatively, after an Information has been laid, an accused young person will be compelled to appear in Court by either a Summons or a Warrant. Section 28 of the YCJA states that in this regard, Part XVI of the Criminal Code applies equally to youth as to adults, except where inconsistent or excluded by the YCJA. For more information on summons and warrants under the Criminal Code see Chapter 1: Criminal Law. The YCJA’s restrictions on pre-trial detention are addressed below in Subsection 4: Pre-Trial Detention and Conditions.

2. Time Limitations

The time limitation for commencing a prosecution is the same for both adults and youth. Time limitations vary depending on the nature of the offences and are set out in the Criminal Code. See Chapter 1: Criminal Law.

3. Proof of Age and Notice

The court must be satisfied that the young person was between 12 and 17 at the time of the offence, and that their parent or guardian is aware of the charges. This is usually done early in the proceedings. Age can be established by:

• A parent testifying as to young person’s age (YCJA s 148(1));
• Using a birth or baptismal certificate (YCJA s 148(2)),
• Defence counsel attesting to having spoken with a parent or guardian, and on that basis, admitting the age of the young person (YCJA s 149),
• Using any other information the court considers reliable to determine the young person’s age (YCJA s 148(3)), or
• the court inferring the age of a person from their appearance or statements (YCJA s 148(4)).

The court must also be satisfied that a young person’s parent or guardian has been notified of the charges against the young person. This is typically accomplished by the parent or guardian attending court with the young person and confirming their understanding of the charges on the record, or by defence counsel attesting to having advised the parent or guardian of the charges. For more information on notice to parents or guardians see Section E: Notice to Parents/Guardians above.

4. Pre-Trial Detention and Conditions

The rules of pre-trial detention are set out in sections 28 through 29 of the YCJA. A young person cannot be detained in custody or have conditions imposed in an undertaking or release order “as a substitute for appropriate child protection, mental health, or other social measures” (YCJA s 28.1).

A young person may only have conditions imposed in their release order if a judge is satisfied that:

• The condition is needed to ensure the young person attends court, or to protect the public, including any victims or witnesses (YCJA s 29(1)(a));
• The condition is reasonable within “the circumstances of the offending behaviour” (YCJA s 29(1)(b)); and
• “[T]he young person will reasonably be able to comply with the condition” (YCJA s 29(1)(c)).

A young person may only be detained in custody when:

• The young person has either been charged with a “serious offence” (defined in YCJA s. 2) or has “a history that indicates a pattern of either outstanding charges or findings of guilt” (YCJA s 29(2)(a));
• The Youth Court Judge or Justice is satisfied on a balance of probabilities that “there is a substantial likelihood that... the young person will not appear in court when required”; detention is needed to protect the public, including victims or witnesses; or (for serious offences) that there are exceptional circumstances which require detention (YCJA s 29(2)(b)); and
• The Youth Court Judge or Justice is satisfied on a balance of probabilities that no condition(s) would reduce the young person’s likelihood of failing to appear in court below substantial, adequately protect the public, and “maintain confidence in the administration of justice” (YCJA s 29(2)(c)).

Under section 30.1 of the YCJA and section 525 of the Criminal Code, a young person who is currently detained pending trial and who is not required to be detained for any other matter must have their detention reviewed within a specified period. If a youth is detained for summary offence(s), a judge must review their detention every 30 days. For indictable offences, the judge must review their detention every 90 days.

If a young person would otherwise be detained in custody, the Youth Justice Court must inquire whether there is a responsible person available to take the young person into their care (YCJA s 31(2)). A young person may be placed in the care of a responsible person instead of being detained, if the Court is satisfied that:

• The young person would otherwise be detained in custody (YCJA s 31(1)(a));
• “[T]he person is willing and able to take care of and exercise control over the young person” (YCJA s 31(1)(b)); and,
• “[T]he young person is willing to be placed in the care of that person” (YCJA s 31(1)(c)).

A responsible person who agrees to care for a young person under section 31 adopts a very serious responsibility. The responsible person must sign an undertaking that binds them to oversee and essentially police the young person’s bail order (YCJA s 31(3)(a)). This undertaking often includes a term that the responsible person will report any breaches of the bail conditions to the police and the bail supervisor. Wilful failure to comply with the terms of the undertaking may result in the responsible person being charged with an offence under section 139 of the YCJA and punished with up to two years imprisonment.

Section 30 of the YCJA governs where a young person can be detained. A young person must be detained in a “safe, fair and humane manner” (YCJA s 30(1)). They must be held in a youth facility which is separate from adults unless safety concerns require otherwise, or there is no youth facility “available within a reasonable distance” (YCJA s 30(3)). If a young person turns 18 while being detained, they can be moved to an adult facility if, after the young person has been given an opportunity to be heard, the Court considers doing so to be in the best interests of the young person or the public (YCJA s 30(4)). If a young person has already turned 20 (or older) when their detention begins, they must be placed in an adult detention facility (YCJA s 30(5)).

5. Pleas

Like adults, a young person may plead guilty or not guilty when charged with an offence (YCJA s 36). If a guilty plea is entered, and the Youth Justice Court is satisfied the facts support the charge(s), then the Court will find the young person guilty, and either immediately proceed with sentencing, or set a date for a sentencing hearing (YCJA s 36(1)). If the Court is not satisfied that the facts support the charges, then even if the young person pleads guilty, the Court must schedule a trial date (YCJA s 36(2)). If the young person pleads not guilty, then the Court will schedule a trial date (YCJA s 36(2)).

6. The Trial Process

The trial process is largely the same for young persons as for adults. However, there are a few differences in how the admissibility of statements are handled for accused youth, and in how the court deals with the evidence of young persons or children when they appear as witnesses.

a) Admissibility of Statements

The law relating to the admissibility of statements made by accused adults to persons in authority also applies to youths (YCJA s 146(1)). However, there are specific provisions under subsection 146(2) of the YCJA which further protect young persons suspected of committing an offence. These provisions state that a young person’s written or oral statement to a person in authority is only admissible when:

• “[T]he statement was voluntary” (YCJA s 146(2)(a));
• The person in authority clearly explained the young person’s rights to them (YCJA s 146(2)(b)), including:
  • their right to silence;
  • the risk that any statement could be used against them;
  • their right to speak with a lawyer and parent or appropriate adult; and
  • that a lawyer and parent or appropriate adult must be present while the young person gives their statement unless the young person waives this right.
• The young person had “a reasonable opportunity” to consult with counsel and a parent or guardian (YCJA s 146(2)(c)); and
• The young person had “a reasonable opportunity” to make the statement in the presence of the counsel, parent, or guardian with whom they consulted (YCJA s 146(2)(d)).

There is an important exception to the above requirements. If a young person spontaneously makes a voluntary oral statement to a person in authority before that person has a reasonable opportunity to comply with the above requirements, the statement is admissible (YCJA 146(3)).

Young persons can waive their rights to consult with counsel or with a parent or guardian. However, for the waiver to be valid, it must be either recorded by video or audio, or in a written statement signed by the young person (YCJA s 146(4)). If these requirements are not met due to a “technical irregularity,” a Youth Justice Court can still find that the waiver was valid if the Court is “satisfied that the young person was informed of his or her rights, and voluntarily waived them” (YCJA s 146(5)). If the Court is satisfied that the waiver occurred, then the Court may admit into evidence a statement made to a person in authority, if doing so “would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly, and their rights are protected” (YCJA s 146(6)).

Unique to the youth context, “persons in authority” under section 146 of the YCJA may include teachers, parents, or other authority figures in a young person’s life, depending on the circumstances: see for example R. v. G.F.D., B.A.S. and P.J.B., 2006 BCPC 240; R. v. S.(R.) et al, 2009 ONCJ 333. While subsection 146(9) under the YCJA holds that the parent or other adult who a young person consults with are not persons in authority, this presumption can be displaced by “evidence to the contrary”.

In R v AD, 2010 BCSC 1715 ("AD"), a 15-year-old accused’s statement was ruled inadmissible for non-compliance with section 146(2)(d) of the YCJA. At para 24, Justice Stromberg-Stein held that

[i]nforming a young person they are entitled to have a lawyer or third party with whom they have consulted present, rather than phrasing this as a requirement, is ‘deficient’ and ‘not completely accurate’, as s 146 draws an important distinction between the rights of the young person and the requirements placed upon the police [emphasis original; citations omitted].

In AD, counsel for the accused was out of town and unable to immediately come to the police station where the accused was detained. Although the police informed AD of his right to have his lawyer present during the interview, it was clear that they were going to interview him that same day, regardless of his lawyer’s availability.

The YCJA does not specify the standard of proof the Crown must meet to show compliance with section 146. In R v LTH, 2008 SCC 49 ("LTH") the Supreme Court of Canada stated each component of section 146 must be proven beyond a reasonable doubt. If a young person has been interviewed, Crown must prove the person taking the young person’s statement took reasonable steps to ensure the young person understood their rights (LTH, at para 6). Simply reading a standardized form will likely not fulfill the requirements of section 146(2)(b). The person in authority must make reasonable efforts to determine that young person’s level of comprehension to ensure their explanation is appropriate.

The majority in LTH found that the police officer, when reading the accused his rights, failed to consider that the accused had a learning disability. As a result, the statement was found inadmissible. The Court also noted that Crown Counsel does not have to prove the young person actually understood the rights explained to them. If the judge is satisfied beyond a reasonable doubt that the young person’s rights and options were explained as required by section 146, the judge may infer the young person understood those rights and the consequences of waiving them. The burden then shifts to the defence to point to evidence showing the young person did not, in fact, understand their rights or the consequences of waiving those rights (LTH, at para 48).

b) Children and Young Persons as Witnesses

Where a child (as defined under YCJA s 2) is a witness at a Youth Justice Court trial, the judge or justice must instruct that child on the duty to speak the truth and the consequences of failing to do so (YCJA s 151(a)). Where a young person (as defined under YCJA s 2) is a witness, the judge or justice must instruct the young person as to this duty only if “the judge or justice considers it necessary” (YCJA s 151(b)).

There are special protections under the Criminal Code for witnesses who are under the age of 18 years. Under section 486 of the Criminal Code, a justice or judge has the discretion to exclude members of the public from the courtroom if “such an order is in the interest of public morals, the maintenance of order or the proper administration of justice[.]” The “proper administration of justice” includes “safeguarding… the interests of witnesses under the age of 18 years” (Criminal Code s 486(2)(b)). A witness who is under the age of 18 years is entitled to have a support person present in the courtroom while testifying (Criminal Code s 486.1), to testify outside the courtroom (Criminal Code s 486.2), or to testify behind a screen (Criminal Code s 486.2), unless the accommodation(s) would interfere with the proper administration of justice. A witness under the age of 18 cannot be cross-examined by the accused personally (Criminal Code s 486.3)

A person under 14 years of age is presumed to have the capacity to testify (Canada Evidence Act s 16.1(1)). Any party which challenges such a witness’ capacity bears the burden of satisfying the Court that there is an issue as to the witness’ capacity to understand and respond to questions (Canada Evidence Act s 16.1(4)). If the court is satisfied that there is an issue, it must conduct an inquiry into the witness’ capacity before allowing them to give evidence (Canada Evidence Act s 16.1(5)).

7. Section 19 Conferences

Section 19 conferences are a proceeding unique to Youth Justice Court. Conferences can be an effective means of coordinating services, broadening the range of perspectives on a case, and arriving at more creative and appropriate resolutions. Conferences can be composed of several different people; including the victim, the accused, their parents, community resource professionals, and members of the justice system; including a judge or justice of the peace, police officer, and Crown Counsel. Conferences are non-adversarial and collaborative, and may elicit advice on decisions such as a suitable EJM, a condition for release from pre-trial detention, appropriate sentencing (see Section H: Sentencing below), and plans for reintegrating the young person back into the community after their release from custody (YCJA s 19(2)).

H. Sentencing

The sentencing process for a young person may begin with the Youth Justice Court Judge ordering the preparation of pre-sentencing reports and/or that a Section 19 Conference take place. Once the pre-sentencing preparations have been completed, the judge will proceed with either sentencing the offender under the youth sentencing regime (YCJA ss 41 – 60), or upon successful application from Crown Counsel, under the adult sentencing regime (YCJA ss 61 – 81).

1. Pre-Sentencing Reports and Section 19 Conferences

After a guilty plea is entered and accepted, or a guilty verdict is rendered at trial, a Youth Justice Court Judge may order one or more of the following:

• The preparation of a pre-sentence report (YCJA s 40);
• The preparation of a medical, psychiatric, and/or psychological report (YCJA s 34).
• The preparation of a Gladue Report for an Indigenous youth according to section 718(e) of the Criminal Code and the principles set out in R v Gladue, [1999] 1 SCR 688. For more information on Gladue Reports see Chapter 1: Criminal Law.
• A Section 19 Conference (see Section G.7: Section 19 Conferences above) to provide the court with insight on the young person’s circumstances, and recommendations on an appropriate sentence (YCJA s 41).

2. Youth Sentences

The youth sentencing regime builds upon the guiding principles set out in section 3 of the YCJA (see I. Introduction to Youth Justice above). Subsection 38(1) of the YCJA sets out the overarching purpose of youth sentences, which is:

to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

The sentencing principles for youth sentences are set out in subsection 38(2) of the YCJA. Youth sentences must be determined in accordance with the principles in section 3 of the YCJA, and the following principles (YJCA s 38(2)):

• A sentence cannot inflict a greater punishment than an appropriate adult sentence for the same offence in similar circumstances (YCJA s 38(2)(a));
• A sentence must be similar to those for similar young persons who commit the same offence in similar circumstances in the region (YCJA s 38(2)(b));
• A sentence must be proportionate to the offence’s seriousness and the young person’s degree of responsibility for the offence (YCJA s 38(2)(c));
• All non-custodial sentences which are reasonable in the circumstances should be considered for young persons, especially for Indigenous youth (YCJA s 38(2)(d));
• Subject to YCJA s 38(2)(c)’s proportionality requirement, a sentence must be “the least restrictive sentence… capable of achieving the purpose set out in [YCJA s 38(1)],” be the most likely sentence to rehabilitate and reintegrate the young person into society, promote the young person’s “sense of responsibility”, and “acknowledge the harm done to victims and the community” (YCJA s 38(2)(e));
• A condition within a sentence can only be imposed if it is necessary to achieve the purpose in YCJA s 38(1), the young person can reasonably comply with the condition, and the condition is not “a substitute for appropriate child protection, mental health or other social measures” (YCJA s 38(2)(e.1)):
• Subject to YCJA s 38(2)(c)’s proportionality requirement, a sentence can have the objective of denouncing unlawful conduct and deterring the young person from committing future offences (YCJA s 48(2)(f)).

Note: Unlike for adult offenders, general deterrence is not a sentencing objective under the YCJA.

Although all principles listed under section 38(2) must be considered during sentencing, the BC Court of Appeal has held that there is a limited hierarchy between them and cautioned that the youth sentencing regime “is not entirely ‘offender-centric’” ( R v SNJS, 2013 BCCA 379 [“SNJS”] at paras 27 to 29). In SNJS, the Court held that, to the extent there is any hierarchy within the principles, proportionality is at the top of that hierarchy (at para 27). The Court reviewed the relationship between subsections 38(2)(d) & (e) and subsection 38(2)(c), and held that s 38(2)(e) is subject to s 38(2)(c), and s 38(2)(d) cannot be read “independently from the other purposes and principles” in the YCJA (SNJS at paras 26 to 29). The Court also held that the three principles in subsection 38(2)(e) must be weighted equally, with no hierarchy between them. The judge must consider all of those requirements, along with the other principles in subsection 38(2) and section 3 of the YCJA, in determining a sentence (SNJS at para 27).

Subsection 38(3) of the YCJA lists the factors which the Youth Justice Court must consider when determining a youth sentence:

• The young person’s degree of participation in the offence (YCJA s 38(3)(a));
• “The harm done to victims, and whether it was intentional or reasonably foreseeable (YCJA s 38(3)(b));
• Any reparation the young person has made to the victim or community (YCJA s 38(3)(c));
• Any time the young person has spent in detention as a result of the offence (YCJA s 38(3)(d));
• Any previous findings of guilt (YCJA s 38(3)(e)); and
• Any other aggravating and mitigating circumstances (YCJA s 38(3)(f)).

Before imposing a youth sentence, the Youth Court Judge will consider any reports prepared for sentencing, any recommendations from a Section 19 Conference, parties’ submissions, and “any other relevant information before the court” (YCJA s 42(1)). The maximum duration of youth sentences is set out in YCJA subsections 42(14) to (16) (statutory mandatory minimum sentences do not apply to young persons).

Sentencing options are set out in subsection 42(2) of the YCJA and can be divided broadly into non-custodial and custodial sentences. A custodial sentence cannot be used “as a substitute for appropriate child protection, mental health or other social measures” (YCJA s 39(5)).

Section 39(1) of the YCJA provides that a young person cannot be committed to custody unless:

• The young person has committed a “violent offence” as defined in YCJA s 2 (YCJA s 39(1)(a));
• The young person was previously found guilty of failing to comply with multiple prior youth sentences (YCJA s 39(1)(b));
• The young person committed an indictable offence and has a pattern of prior EJSs or findings of guilt (YCJA s 39(1)(c)); or
• The case is exceptional, where the young person committed an indictable offence, and the aggravating circumstances make a non-custodial sentence “inconsistent with the purpose and principles set out in section 38 [of the YCJA]” (YCJA s 39(1)(d)).

If the court is imposing a sentence for breach under YCJA s. 137, or for a breach, escaping custody, or failing to attend court under Criminal Code subsections 145(2) to (5), one additional limitation applies. A custodial sentence may only be imposed in such cases if the young person caused or risked causing harm to the public in committing that offence, and they already have a youth criminal record for breaching multiple prior sentences (YCJA s 39(1)(b)).

Even if one of the first three above requirements are met, the Youth Justice Court cannot impose a custodial sentence unless it considers all reasonable non-custodial alternatives raised at the sentencing hearing and determines there is no reasonable alternative to custody (YCJA s 39(2)). The Court must consider submissions on the available alternatives, the young person’s likelihood of complying with a non-custodial sentence, and the non-custodial alternatives that have be used for similar offences in similar circumstances (YCJA s 39(3)). If the Court imposes a custodial sentence, the Court must state its reasons why it found a non-custodial sentence inadequate (YCJA s 39(9)).

Prior to committing a young person to custody, the Judge must consider a pre-sentence report (YCJA s 39(6)). This requirement can be waived, with the consent of the prosecutor and the young person, if the Youth Justice Court is satisfied that it is unnecessary (YCJA s 39(7)).

a) Non-Custodial Sentencing Options

The non-custodial youth sentences available to a Youth Justice Court are:

• Judicial reprimand (YCJA s 42(2)(a));
• An absolute discharge, so long as doing so is in the young person’s best interests and “not contrary to the public interest” (YCJA s 42(2)(b));
• A conditional discharge, so long as all conditions and reporting requirements are in accordance with YCJA s 38(2)(e.1) (YCJA s 42(2)(c));
• A fine up to $1000 (YCJA s 42(2)(d));
• Compensation to another person or persons, including:
  • For certain calculable losses resulting from commission of the offence (YCJA s 42(2)(e));
  • To a person whose property was obtained by the young person by committing the offence (YCJA s 42(2)(f));
  • To an “innocent purchaser” who bought the property because of the young person’s offence, when the property has been (or will be) returned to its original owner or another person (YCJA s 42(2)(g)); and
  • To any person, including through “personal services” (YCJA s 42(2)(h));
• Community service (YCJA s 42(2)(i));
• Order of prohibition, seizure or forfeiture (YCJA s 42(2)(j));
• Probation for up to 2 years (YCJA s 42(2)(k));
• Intensive Support and Supervision Program Order ("ISSO") (YCJA s 42(2)(l));
• Non-residential programs (YCJA s 42(2)(m)); and
• “[A]ny other conditions that the court considers appropriate”, as long as they meet the requirements set out in YCJA s 38(2)(e.1) (YCJA s 42(2)(s)).

The two-part test for discharges outlined in section 730 of the Criminal Code that applies to adult offenders (that a discharge must be in the best interest of the accused and not contrary to the public interest), only applies to absolute discharges for youths (R v RP, 2004 ONCJ 190). The test is not applicable when considering a conditional discharge for young persons (R v CSW, 2004 ABCA 352). Furthermore, unlike adult offenders, subsection 42(11) of the YCJA prohibits a probation order from being combined with a conditional discharge for youths.

Adult offenders who receive a conditional discharge are “deemed not to have been convicted” (Criminal Code s 730(3)). Youths are “deemed not to have been found guilty or convicted” once their sentence or order has “ceased to have effect” (YCJA s 82). This applies to any youth sentence, not only absolute or conditional discharges. Note however that prior findings of guilty may still be considered in some circumstances, such as future sentencing or bail hearings, subject to access periods. Under subsection 119(2) of the YCJA the records access period for a conditional discharge is longer than for an absolute discharge, but shorter than the access period for other sentences (for more information see Section K.4: Records: Access and Disclosure below).

Where a fine or order for compensation or restitution is imposed, the Youth Justice Court must consider the present and future means of the young person to pay (YCJA s 54(1)). If a fine is imposed, a percentage can be used to assist victims of offences (YCJA s 53(1)).

b) Custodial Sentencing Options

The custodial youth sentences available to a Youth Justice Court are:

• Custody and Supervision Order (“CSO”) (YJCA ss 42(2)(n) & (o)): The maximum duration of a CSO is two years, or three years if the adult maximum sentence is life imprisonment (YJCA s 42(2)(n)). For most offences, two-thirds of the sentence must be served in custody while the remaining one-third is served under a community supervision order (YJCA s 42(2)(n)).

A CSO works differently when a young person is convicted of attempted murder, manslaughter or aggravated sexual assault. In these circumstances a CSO can last up to 3 years, and there is no required division between serving the sentence in custody and under community supervision (YCJA s 42(2)(o)). The sentencing judge may split the two portions of the sentence as they see fit.

The level of custody (open custody or secure custody) must be specified by the Youth Justice Court (YCJA s 88 and Order in Council 267/2003). All CSOs must contain the conditions listed in YCJA s 97(1), and the provincial director may set additional conditions to the CSO under YCJA s 97(2).

• Deferred Custody and Supervision Order (“DCSO”) (YCJA s 42(2)(p)): This is a custodial sentence served in the community. It is not available where a young person has committed an offence during which they caused or attempted to cause serious bodily harm (YCJA s 42(5)(a)). The maximum duration of this sentence is 6 months (YCJA s 42(2)(p)). If the young person breaches a condition of the DCSO, a warrant may be issued and, after a hearing, the DCSO may be converted into a CSO under sections 106 to 109 of the YCJA.

• Custody and Conditional Supervision Order (YCJA s 42(2)(q)): This is a longer custodial sentence which is only available for youth convicted of murder.

A young person convicted of first-degree murder can serve a custodial sentence of 10 years, where up to 6 years are served in continuous custody, and the remainder is served under conditional supervision in the community (YCJA s 42(2)(q)(i)).

For second-degree murder, a custodial sentence of 7 years can be imposed, where up to 4 years are served in continuous custody, and the remainder is served under conditional supervision in the community (YCJA s 42(2)(q)(ii)).

• Intensive Rehabilitative Custody and Supervision Order (YCJA s 42(2)(r)): These orders are rare and can only be imposed when a young person has serious mental health issues and has been found guilty of either (i) a “serious violent offence” as defined in YCJA s 2, or (ii) an offence in which they caused or attempted to cause serious bodily harm (if they have a history of such offences) (YCJA s 42(7)). The maximum sentence is 2 years for most offences, and 3 years for offences where the adult maximum sentence is life imprisonment (YCJA s 42(2)(r)). Longer sentences are available for youth convicted of murder (YCJA ss 42(2)(r)(ii) & (iii)). The first portion of the sentence is served continuously in “intensive rehabilitative custody” and the remainder is served under conditional supervision in the community (YCJA s 42(2)(r)).

Subection 42(12) of the YCJA says a youth sentence comes into force on the date it is imposed, or any later date specified by the court. Unlike an adult sentence, a youth sentence cannot include “time served”. In R v RRJ, 2009 BCCA 580 ("RRJ"), the BC Court of Appeal confirmed that pre-sentence detention is not part of the sentence imposed. The Court explained that the judge must consider time already served in custody when sentencing a young person (as required by YCJA s. 38(3)(d)) but that the judge may still choose to impose the maximum period of custody and supervision available under the statute (RRJ at paras 48 and 49).

Once a young person is committed to custody, a youth worker is assigned to help the young person plan for their reintegration into the community (YCJA s 90(1)). This will include preparing and implementing “a reintegration plan that sets out the most effective programs for the young person to maximize his or her chances for reintegration in the community” (YCJA s 90(1)). The youth worker must continue to assist the young person with their reintegration when they serve a portion of their sentence in the community (YCJA s 90(2)).

Section 76(2) of the YCJA prohibits young persons under the age of 18 years from serving any portion of their custodial sentence in an adult correctional facility or penitentiary. A young person who is serving a youth custodial sentence may be transferred to an adult correctional facility after turning 18, if the Court considers it to be in the best interests of the young person or in the public interest (YCJA s 92). A young person who turns 20 years old while serving a custodial sentence will be transferred to an adult facility, unless the provincial director orders them to remain at the youth custody facility (YCJA s 93). If the young person is already 20 by the time the custodial youth sentence is imposed will be committed to a provincial correctional facility for adults (YCJA s 89(1)).

3. Adult Sentences

Crown Counsel may apply to the Youth Justice Court under YCJA s 64 for an order that a young person is liable to an adult sentence. To do so, the young person must have been found guilty of an offence for which an adult is liable to imprisonment for more than 2 years, and which was committed when the young person was at least 14 years old (YCJA s 64(1)).

• For an adult sentence to be imposed, Crown Counsel must satisfy the Youth Justice Court that: “[T]he presumption of diminished moral blameworthiness or culpability of the young person is rebutted” (YCJA s 72(1)(a)); and
• A youth sentence would not be of sufficient length to hold the young person accountable for their conduct (YCJA s 72(1)(b)).

Although young persons can have adult sentences imposed on them, the sentencing guidelines are not the same as those used when sentencing an adult. In R v Pratt, 2007 BCCA 206, the BC Court of Appeal held that, when determining the appropriate adult sentence for a youth, a sentencing judge must still apply the principles of sentencing set out in section 3 of the YCJA (at paras 54 to 59).

4. Reintegration Leave

The provincial director can authorize a young person to have temporary leave from the youth custody facility in which they are being held (YCJA s 91(1)). This applies equally whether the young person is serving a youth or adult sentence. There are two categories of leave:

• Reintegration Leave: This maximum 30-day leave is granted “for medical, compassionate, or humanitarian reasons, or for the purpose of rehabilitating the young person or reintegrating the young person into the community” (YCJA s 91(1)(a)).
• Day release: This leave is granted for specified days or hours, and allows a young person to attend an educational facility, look for or continue employment, assist their family, participate in other educational or training programs, or attend “an out-patient treatment program or other program” to address their needs (YCJA s 91(1)(b)).

5. DNA Records

When a young person is found guilty of certain designated offences (see Criminal Code, s 487.04), the young person may be ordered to provide samples of one or more bodily substances for forensic DNA analysis (Criminal Code s 487.051). The DNA data is stored in a national DNA databank maintained by the RCMP.

The DNA Identification Act, SC 1998, c 37 has special provisions relating to DNA samples taken from young persons. While adult convicted offenders may have their DNA retained “indefinitely” in the databank (DNA Identification Act s 9), a convicted young person’s DNA records and bodily substances must be destroyed when required under Part 6 of the YCJA (DNA Identification Act ss 9.1(1) & 10.1(1)). However, a young person’s DNA and bodily substances records can be held indefinitely if they relate to “a serious violent offence” as defined by subsection 2(1) of the YCJA, or if the young person later commits an offence as an adult (DNA Identification Act ss 9.1(2) & 10.1(2)). For more information on young persons’ records under the YCJA see Section K.4 Records: Access and Disclosure below.

I. Review of Sentences

1. Custodial Sentences

An annual review is mandatory for all custodial sentences lasting more than a year. This review must occur at the end of one year from when the most recent youth sentence was imposed for a single offence, or if the young person is serving youth sentences for more than one offence, from when the earliest youth sentence was imposed (YCJA ss 94(1) & (2)). Further reviews must be held at the end of every subsequent year from that date (YCJA ss 94(1) & (2)).

A young person may also be entitled to an optional review. When a youth sentence is less than one year, a young person may request a review 30 days after the sentence is imposed or after serving one-third of the sentence, whichever is longer (YCJA s 94(3)(a)). When the youth sentence exceeds one year, a young person may seek a review after serving six months of the sentence (YCJA s 94(3)(b)). For the review to occur, the Youth Justice Court must be satisfied that there are grounds for the review (YCJA s 94(5)). The Court must review the youth sentence if:

• “[T]he young person has made sufficient progress to justify a change in the youth sentence” (YCJA s 94(6)(a));
• “[T]he circumstances that led to the youth sentence have changed materially” (YCJA s 94(6)(b));
• There are new services or programs available that were unavailable at the time of the youth sentence (YCJA s 94(6)(c));
• The opportunities for rehabilitation in the community are now greater (YCJA s 94(6)(d)); or
• There is another ground which the Youth Justice Court considers appropriate (YCJA s 94(6)(e)).

For both optional and annual reviews, a progress report must be prepared for the Youth Justice Court before the review occurs (YCJA s 94(9)). After reviewing a youth sentence the Youth Justice Court will either confirm the sentence; release the young person from custody and place them on conditional supervision; or, if the youth was sentenced to an Intensive Rehabilitative Custody and Supervision Order, convert it to a Custody and Supervision Order (or to a Custody and Conditional Supervision Order, if the offence is murder) (YCJA s 94(19)).

2. Non-Custodial Sentences

Section 59(1) of the YCJA allows for non-custodial sentences to be reviewed any time after they are imposed if there are grounds for review. The application for review can be made by the provincial director, the young person, their parent, or by Crown Counsel (YCJA s 59(1)). The Court must review the youth sentence if:

• "[T]he circumstances that led to the youth sentence have changed materially” (YCJA s 59(2)(a));
• The young person is cannot comply with or “is experiencing serious difficulty in complying with” the terms of the youth sentence (YCJA s 59(2)(b));
• The young person has unreasonably contravened a condition of the youth sentence (YCJA s 59(2)(c));
• The terms of the youth sentence are adversely affecting the young person’s ability “to obtain services, education or employment” (YCJA s 59(2)(d)); or
• There is another ground the Youth Justice Court considers appropriate (YCJA s 59(2)(e)).

The Youth Justice Court can order that a progress report be prepared ahead of a review of a non-custodial youth sentence (YCJA s 59(3)). After conducting the review, the Court can either confirm the youth sentence, terminate it, vary it, or impose a new non-custodial sentence which the Court considers appropriate (YCJA s 59(7)). However, a varied or new youth sentence cannot be more onerous than the original sentence, unless:

• the young person has contravened their order, and more onerous conditions would better protect the public or assist the young person to comply with their existing conditions (YCJA s 59(10(a));
• the young person requires more time (up to 12 months) to comply with their sentence (YCJA s 59(9); or
• the young person otherwise consents (YCJA s 59(8).

J. Appeals

Young persons and the Crown have the same rights of appeal under the YCJA as adults do under the Criminal Code (YCJA ss 37(1) and (5)). However, a young person cannot appeal a sentence review decision, except when the court imposed more onerous conditions under YCJA s 59(10) (YCJA s 37(11)).

K. Special Concerns

1. Public Hearings

Youth Justice Court hearings are open to the public. However, the Court may exclude any person from all or part of the proceedings if it considers their presence to be unnecessary and that (YCJA s 132(1)):

• “[A]ny evidence or information presented to the court… would be seriously injurious or seriously prejudicial to” the young person the proceedings are dealing with, or to a child or youth witness or victim (YCJA s 132(1)(a)); or
• “[I]t would be in the interest of public morals, the maintenance of order, or the proper administration of justice to exclude any or all members of the public” (YCJA s 132(1)(b)).

2. Publication of a Young Person’s Identity

Section 110(1) of the YCJA prohibits the publishing of a young person’s name or any other information which would identify them as a young person being dealt with under the YCJA. This ban does not apply:

• To a young person who receives an adult sentence (YCJA s 110(2)(a)), or
• A publication “made in the course of the administration of justice” and not for the purpose of making the information known in the community (YCJA s 110(2)(c)).

Once a young person attains the age of 18 years, they alone can publish information which would identify themselves as having been dealt with under the YCJA, so long as they are not currently in custody under the YCJA (YCJA s 110(3)). Additionally, a young person may apply for permission to publish information that would identify them as having been dealt with by the YCJA. To allow the young person to do so, Youth Justice Court must be satisfied “that the publication would not be contrary to the young person’s best interests or the public interest” (YCJA s 110(6)).

3. Fingerprints and Photographs

The Identification of Criminals Act, RS 1995, c I-1, applies to young persons (YCJA s 113(1)). Fingerprints and photographs of a young person can only be taken in circumstances in which an adult would be subject to the same procedures (YCJA s 113).

4. Records: Access and Disclosure

Sections 114 – 129 of the YCJA govern how young person’s records are handled by the criminal justice system. These provisions restrict who may keep records of young persons charged under the YCJA, how those records are accessed, and how the information within them is disclosed.

A young person’s records may be kept by:

• A Youth Justice Court, review board, or any other court dealing with matters arising under the YCJA (YCJA s 114);
• An investigating police force who possesses records relating to an alleged offence committed by a young person, including any EJMs used (YCJA ss 115(1) & (1.1)); and
• Any government department or agency in Canada, for investigative purposes, use in proceedings against the young person, administering court orders and sentences, considering the young person for EJMs. They may also keep records resulting from the use of EJMs (YCJA s 116(1)).

Except as authorized by the YCJA, no person is to be given access to a young person’s record or the information within it, where doing so would identify the young person as having been dealt with under the YCJA (YCJA s 118(1)).

Subsection 119(1) of the YCJA lists the persons to whom access to records may be granted. During the period of access, individuals not expressly listed in subsection 119(1) can make an application under subsection 119(1)(s) to access a young person’s court records. A Youth Justice Court Judge may grant access upon being satisfied that they have a valid interest in the record, and that access is in the public interest for research or statistical purposes, or that it is otherwise “desirable in the interest of the proper administration of justice” (YCJA s 119(1)(s)). Records relating to EJMs, other than EJSs, have a more restricted list of individuals which can access them (YCJA s 119(4)).

The period of time during which access may be granted varies in duration depending on the type of offence and the treatment of the young person by the court, as set out in subsection 119(2) of the YCJA. Those time periods are:

• Extrajudicial sanctions (EJSs): the period ends 2 years after the young person consents to the EJS (YCJA s 119(2)(a)).
• Acquittals other than a verdict of NCRMD: the period ends 2 months after the appeal deadline, or if there is an appeal, 3 months after all appellate proceedings have ended (YCJA s 119(2)(b)).
• Charges dismissed, charges withdrawn, or the sentence was a reprimand: the period ends 2 months after the relevant resolution (YCJA s 119(2)(c)).
• Charges which are stayed: the period ends once no proceedings have been taken against the young person for one year (YCJA s 119(2)(d)).
• Peace bonds made under ss. 14(2) or 20(2) of the YCJA: the period ends 6 months after the order expires (YCJA s 119(2)(d.1)).
• Absolute discharge: the period ends 1 year after the young person is found guilty (YCJA s 119(2)(e)).
• Conditional discharge: the period ends 3 years after the young person is found guilty (YCJA s 119(2)(f)).
• Summary conviction: unless the young person is found guilty of another offence during this period of access, the period ends 3 years after the youth sentence has been completed (YCJA s 119(2)(g)).
• Indictable offence: unless the young person is found guilty of another offence during this period of access, the period ends 5 years after the youth sentence is has been completed (YCJA s 119(2)(h)).

If a young person is convicted of an offence during the period of access for records from a previous summary or indictable conviction, other than one for which a discharge was granted, the access period for their records changes in the following ways:

• If a young person is found guilty of a summary conviction offence during the access period for a previous conviction (per YCJA s 119(2)(g) or (h)), the access period will end e when the original access period ends, or 3 years after the new youth sentence ends, whichever is later (YCJA s 119(2)(i)).
• If a young person is found guilty of an indictable offence during the access period for a previous conviction (per YCJA ss 119(2)(g) or (h)), the access period will end 5 years after the new youth sentence ends (YCJA ss 119(2)(j)).
• If the young person is convicted of an offence committed when they were an adult during the access period for a previous conviction (per YCJA ss 119(2)(g) to (j)), then the youth convictions become part of the adult criminal record and the YCJA restrictions on access no longer apply (YCJA s 119(9)(b)).

After the applicable access period has ended, a person may access the record by applying to a Youth Justice Court Judge. The applicant must satisfy the judge that they have “a valid and substantial interest in the record”, that access is necessary for the proper administration of justice, and that no other statute prohibits disclosing the record. Alternatively, the person must demonstrate that providing access is “in the public interest for research or statistical purposes” (YCJA s 123(1)).

Not all records concerning young persons are governed by the same access rules. Under section 120(1) of the YCJA, RCMP records may only be accessed by a specified list of individuals. Periods of access for RCMP records differ in the following ways:

• Indictable offences: the access period ends 5 years after the period would normally end under YCJA ss 119(2)(h) or (j) (YCJA s 120(3)(a)).
• Serious violent offences where Crown sought an adult sentence: the access period continuous indefinitely after it would normally end under YCJA ss 119(2)(h) or (j) (YCJA s 120(3)(b)).

Sections 125 – 126 of the YCJA deal with disclosure of the information in a record. These rules restrict who may disclose information in their possession, to whom they may disclose the information, and when such disclosure is permitted. In certain cases, the Crown, provincial director, or a peace officer may apply to the court for an order permitting them to disclose “any information” to a specific person(s) when such disclosure is required to avoid a serious risk of harm (YCJA s 127(1)). Before the Court decides whether to permit such disclosure, the affected young person must have an opportunity to be heard unless reasonable efforts locate them have been unsuccessful (YCJA ss 127(2) – (3)).

5. Mental Health Provisions

Young persons who interact with the criminal justice system may suffer from mental health issues. The Criminal Code provisions regarding mental disorders apply equally to young persons except to the extent they are inconsistent with the YJCA (YCJA s 141).

Section 34 of the YCJA allows the Youth Justice Court to take into account the mental health of a young person and order a psychological report in certain circumstances. At any stage of proceedings, the Court may order a qualified person to assess a young person and report the results of the assessment in writing to the Court (YCJA s 34(1)). This can occur either with the consent of the young person and Crown (YCJA s 34(1)(a)), or on the Court’s own motion under YCJA s 34(1)(b) if the court believes the report is necessary, and:

• “[T]he court has reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability” (YCJA s 34(1)(b)(i));
• The young person has a historical pattern of repeated guilty findings (YCJA s 34(1)(b)(ii)); or
• The young person allegedly committed a serious violent offence as defined in s 2 (YCJA s 34(1)(b)(iii)).

Unless the young person and the Crown both consent, a court can only order a section 34 report for specific purposes (YCJA s 34(2)). These are:

• Considering a YCJA s 33 application to reverse a decision by a judicial justice of the peace to release or detain the young person (YCJA s 34(2)(a));
• Deciding whether to impose an adult sentence (YCJA s 34(2)(b));
• Making or reviewing a youth sentence (YCJA s 34(2)(c));
• Considering an application for continuation of custody (YCJA s 34(2)(d));
• Setting conditions for conditional supervision (YCJA s 34(2)(e));
• Making an order under YCJA s 109(2) after a breach of conditional supervision (YCJA 34(2)(f)); or
• Authorizing disclosure of a young person’s information under YCJA s 127(1) (YCJA s 34(2)(g)).

Bail hearings (YCJA ss 28 to 29) are not specifically listed as a purpose for which the court can order a s 34 report without the explicit consent of both the young person and the Crown. Sometimes, however, the Crown will unilaterally seek a s 34 report for the purpose of bail without the consent of the young person. This issue has been considered by the courts.

In R v KTJ, 2013 BCPC 195 ("KTJ"), the Crown sought a s 34 report to help determine appropriate release conditions on bail. The young person did not consent. The BC Provincial Court ruled that the Crown’s application was “beyond the scope of the legislation”, commenting however that it was a “curious omission” (KTJ at para 17).

In R v KM, 2015 MBPC 43, the defence argued “that the youth justice court has no jurisdiction to order a [s. 34 report] without the consent of a young person at the bail stage…” (at para 6). The Crown disagreed, arguing that the omission of bail in s 34(2) was a “technical defect” and “drafting oversight” by parliament. Manitoba’s Provincial Court agreed with the Crown, ruling that a court may, on its own motion or that of the Crown, order a s 34 report for the purpose of first instance bail.

Only the people described in subsection 119(6) of the YCJA can have access to s 34 medical and psychological reports.

For more information on mental illness and the law, see Chapter 14: Mental Health Law.

6. Victims

Amendments to the Criminal Code have aimed to enhance victim’s roles in the criminal justice system. The YCJA similarly aims to enhance the role of victims role. This is demonstrated by the references to victims’ rights in the YCJA’s principles under section 3 , and the sentencing requirement to consider harm done to victims (YCJA s 38(3)(b)).

BC’s victims’ rights legislation, the Victims of Crime Act, RSBC 1996, c 478, helps ensure victims’ views and concerns do not go unnoticed. The Canadian Victims’ Bill of Rights, SC 2015, c 13 guarantees victims’ rights across Canada. Refer to Chapter 4: Victims for more information.

7. Sex Offenders Information Registration Act

The Sex Offenders Information Registration Act, SC 2004, c 10 (“SOIRA”), helps police investigate sexual crimes by providing them with up-to-date information about convicted sex offenders. SOIRA imposes an ongoing reporting requirement for sex offenders to provide information regarding their residence, telephone numbers, employment, education, and physical description.

Section 490.011(2) of the Criminal Code provides that SOIRA applies to young persons only if they receive an adult sentence. Section 7 of SOIRA allows a sex offender who is under 18 years to choose an adult to be in attendance when they report to a registration centre where information is collected.

8. Forfeiture

Forfeiture amounts may have been set out in an undertaking, release order, or recognizance. Applications to follow through on the forfeiture are made to the Youth Justice Court (s 134 YCJA). A judge will arrange a hearing to decide if the forfeiture should be allowed or not.

© Copyright 2024, The Greater Vancouver Law Students' Legal Advice Society.