Difference between revisions of "Criminal Offences under the Youth Criminal Justice Act (2:III)"

A “Child” is defined in Section 2(1) of the ''YCJA'' as a person who is, or, in the absence of evidence to the contrary, appears to be less than 12 years old. The ''CC'' states in Section 13 that no person under the age of twelve years will be convicted of an offence.  

A “Young person” is defined in Section 2(1) of the ''YCJA'' as a person who is, or, in the absence of evidence to the contrary, appears to be, 12 years old or older, but less than 18 years old.

Section 14(5) states that the ''YCJA'' applies to persons 18 years old or older who are alleged to have committed an offence while a young person. Section 14(4) states that extrajudicial measures taken or judicial proceedings commenced against a young person may be continued after the person attains the age of 18 years.

== B. Applicable Court for Young Person ==

The ''YCJA'' contains a declaration of principle.  The principles that apply are set out in section 3 of the ''YCJA'', and must be used to interpret the entire Act.  The youth criminal justice system is intended to protect the public by:

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:  

 

#rehabilitation and reintegration,  

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

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

#timely intervention that reinforces the link between the offending behaviour and its consequences, and

# the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time.

 

Within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should:

#reinforce respect for societal values,  

#encourage the repair of harm done to victims and the community,  

#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  

# respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements.

 

Special considerations apply in respect of proceedings against young persons. In particular,

 

#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,

# 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,

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

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

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. The Legal Services Society of British Columbia provides legal services for young persons, regardless of their income or their parents’ income.

• the young person is arrested and detained in custody

• a summons or appearance notice is issued to the young person

• the young person is released on giving a promise to appear, or

• upon the young person entering into a recognizance (ss 26 (1) and (2))

Extrajudicial measures (EJM) are an alternative to the formal court process.  The principles applicable to the use of EJM’s are set out in section 4 of the ''YCJA''.  There is a presumption that EJM’s are 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.  However, it may also be appropriate even if there has been a prior use of EJM’s or a prior finding of guilt. Section 5 of the YCJA outlines the objectives of EJM's. EJM’s should be designed to:

* provide an effective and timely response to offending behaviour,

Forms of EJM available (s 6):

*To a police officer are:

*To Crown Counsel are:

**section 8 of the YCJA allows Crown Counsel to administer a caution.

EJS’s may be used only if:  

The rules for pre-trial detention are set out in Section 29 of the ''YCJA''. A young person cannot be detained in custody as a substitute for appropriate child protection, mental health or other social measures. A young person may only be detained in custody where the Crown has proven, on a balance of probabilities, that:

#*been charged with a serious offence (as defined in s 2 ''YCJA''), or

A person who agrees to care for a young person under section 31(3) adopts a very serious responsibility. Wilful failure to comply with the terms of the care order may result in the  responsible person being charged with an offence punishable with up to two years imprisonment (s 139).

Section 30 of the ''YCJA'' provides that a young person who has been detained in custody prior to being sentenced must be placed in a youth facility. When that person attains the age of 20 years he or she shall be placed in an adult facility.

A young person may plead guilty or not guilty (s. 36). The plea of not guilty by reason of mental disorder is also available. Pleas must be entered before a Youth Justice Court judge (not a judicial justice of the peace).

#a pre-sentence report (s. 40); or  

#a medical, psychiatric and/or psychological report (s. 34).

The law relating to the admissibility of statements made by adult accused persons to persons in authority also applies to youths (s 146(1)).  There are, however, specific provisions that ensure a young person both understands the consequences of making such a statement and is given the opportunity to seek and/or consult counsel (s 146(2)).  The right to counsel may be waived but must be done so either by a signed written statement or a recorded statement (s 146(4) and (5)).  A judge may rule inadmissible any statement given by a young person if satisfied that it was given under duress (s 46(7)).  Voluntary statements can be admitted into evidence, even where there has been a technical irregularity in complying with a young person’s statutory protection, provided that the Youth Justice Court is satisfied that the admission of the statement would not offend the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and that their rights are protected (s 146(6)).

In ''R v AD'', 2010 BCSC 1715, the statement of the 15-year-old accused was found inadmissible for non-compliance with s 146(2)(d) of the ''YCJA''. In that case, Justice Stromberg-Stein notes 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.” In that case, 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 A.D. 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 s 146. In ''R v LTH'', 2008 SCC 49 at paragraph 6,the Supreme Court of Canada stated each component of s 146 must be proved 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 her or his rights.  Simply reading a standardized form will likely not fulfill the caution requirement of s 146(2)(b). The person in authority  must  make  reasonable  efforts  to  determine the  level  of  comprehension  of  the specific young person to ensure their explanation is appropriate.  

Where a child is a witness at a Youth Court trial the Judge or Justice must instruct that child as to the duty to speak the truth and the consequences of failing to do so.  Where a young person is a witness the Judge or Justice may instruct the young person as to this duty “if he/she considers it necessary” (s 151).  

*f. The sentence may have the objective to denounce unlawful conduct and deter the young person from committing offences.  

Sentencing options are set out in s 42(2) of the ''YCJA''. Non-custodial sentence options include:

*b. The young person has failed to comply with non-custodial sentences,

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

Crown Counsel may make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than 2 years and that was committed after the young person attained the age of 14 years (s 64(1)). Where a young person, over the age of 14 years, commits a serious violent offence (murder, attempt murder, manslaughter or aggravated sexual assault) Crown Counsel must consider whether it would be  appropriate to seek an adult sentence and if he/she chooses not to make such an application he/she is required to advise the court of that decision (s 64(1.1)). Provinces can choose to fix an age greater than 14 years but not greater than 16 years for the purpose of this requirement to consider an adult sentence.  

When a young person is found guilty of certain designated offences (see s.487.04 of the ''CC''), an order may be made for the young person to  provide samples of one or more bodily substances for the purpose of forensic DNA analysis, under ss. 487.051 and 487.052. The resulting DNA data is stored in a DNA databank, which is maintained by the RCMP.  

The ''DNA Identifications Act'', SC 1998, c 37, has been amended so as to limit the retention of DNA samples taken from a young person. DNA samples taken from young persons can be retained for shorter periods of time than those taken from adults (s. 9.1) and shall be promptly destroyed when the record relating to the offence is expunged (s. 10.1).

A young person may be entitled to an optional review. When the youth sentence is for 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 greater (ss 94(3)(a)(i) and (ii)). When the youth sentence exceeds one year a young person may seek a review after serving six months of the sentence (s 94(3)(b)). In either case the review will only take place where the Youth Justice Court is satisfied that there are grounds for such review (s 94(5)). Possible grounds for review are as follows:

*The young person has made sufficient progress to justify a change in the sentence,

*The circumstances that led to the youth sentence have changed materially,

*There are new services or programs available that were not available at the time of the youth sentence,

A progress report must be prepared for the purposes of review (s 94(9)). A Youth Justice Court, after review, may confirm the sentence or it may release the young person from custody and place the young person on conditional supervision (s 94(19)). The terms of the condition supervision will be imposed by the youth justice court in accordance with section 105.

Non-custodial sentences may be reviewed six months after they are imposed or earlier with permission of the Court. The application for review can be made by the provincial director, the young person, the young person’s parent or by Crown Counsel (s 59(1)). The grounds for review are:

A progress report may be ordered for the purposes of such a review (s 59(3)). A Youth Justice Court, after conducting a review, may confirm the youth sentence, terminate the youth sentence or vary the youth sentence (s 59(7)). The varied sentence cannot be more onerous than the original youth sentence, unless the young person consents (s 59(8)). The time to complete a community work service order or a restitution order may be extended for up to 1 year (s 59(9)).

Youth Justice Court hearings are open to the public. A justice may, however, exclude any person from all or part of the proceedings if the Justice consider that the person’s presence is unnecessary to the conduct of the proceedings and the justice is of the opinion that:

*Where the information relates to a young person who has received an adult sentence,  

*Where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the ban, and 

Pursuant to section 34, at any stage of the proceedings the Court may order an assessment of a young person by a qualified person who is required to report the results of the assessment in writing:  

*ii) on its own motion or on application of the young person or the Crown if the court believes a report is necessary

and if:  

*a) the Court has reasonable grounds to believe that the young person is suffering from a physical or mental illness or disorder, a  psychological disorder, an emotional disturbance, a learning disability or a mental disability,  

An assessment report can be ordered under YCJA s. 34(2) for a limited number of designated purposes, i.e. if the Youth Justice Court is:  

*deciding whether to impose an adult or youth sentence under s. 71,  

*considering an application for continuation of custody (s. 104(1)),  

*setting conditions for conditional supervision (s. 105(1)),  

*making an order after a review of a breach of conditional supervision (s. 109(2)), or  

*authorizing disclosure of information about a young person (s. 127(1)).

Only the people described in s 119 of the ''YCJA'' can have access to the medical and psychological reports outlined in s 34. For more information on mental illness and the law, see [[Introduction to Mental Health and Capacity (14:I) | Chapter 14: Mental Health Law]].

Amendments have been made to the ''CC'' to enhance the role of the victim in the criminal trial process. The ''YCJA'' also aims to enhance the victim’s role. This is demonstrated by the references to victims’ rights in the general principles of section 3 and the fact that consideration of the harm done to victims and reparations are relevant in youth sentencing (s 38(3)).