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

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The purpose and principles of sentencing under the ''YCJA'' are set out in sections 3 and 38 of the Act.  The purpose of sentencing 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 (s 38(1)).  The principles of sentencing are set out in section 38(2) and include:
The purpose and principles of sentencing under the ''YCJA'' are set out in sections 3 and 38 of the Act.  The purpose of sentencing 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 (s 38(1)).  The principles of sentencing are set out in section 38(2) and include:


*a. The sentence must not result in a punishment greater than would be appropriate for an adult convicted of the same offence committed in similar circumstances,
<ol type="a">
*b. The sentence must be similar to that which would be imposed in other regions,
<li>The sentence must not result in a punishment greater than would be appropriate for an adult convicted of the same offence committed in similar circumstances,</li>
*c. The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence,
<li>The sentence must be similar to that which would be imposed in other regions,</li>
*d. All available sanctions other than custody should be considered, with particular attention to the circumstances of Aboriginal young persons,
<li>The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence,</li>
*e. Subject to paragraph (c) the sentence must:
<li>All available sanctions other than custody should be considered, with particular attention to the circumstances of Aboriginal young persons,</li>
**i. be one that is the least restrictive, the most likely to rehabilitate and that will promote a sense of responsibility in the young person and an acknowledgement of the harm done to the victim(s) and society. None of these factors should be considered in isolation from each other, the other principles in 38(2), or the purposes and objectives of the act as a whole.
<li>Subject to paragraph (c) the sentence must:
**e.1. Any condition imposed as a part of the sentence can only be imposed only if it is necessary to achieve the purpose set out in s 38(1), if the young offender would reasonably be able to comply with  it, and if it is not used as a substitute for appropriate child protection, mental health or other social measures. (in force on December 18, 2019.)
*be one that is the least restrictive, the most likely to rehabilitate and that will promote a sense of responsibility in the young person and an acknowledgement of the harm done to the victim(s) and society. None of these factors should be considered in isolation from each other, the other principles in 38(2), or the purposes and objectives of the act as a whole.
*f. Subject to paragraph (c), the sentence may have the objective to denounce unlawful conduct and deter the young person from committing offences.
*e.1. Any condition imposed as a part of the sentence can only be imposed only if it is necessary to achieve the purpose set out in s 38(1), if the young offender would reasonably be able to comply with  it, and if it is not used as a substitute for appropriate child protection, mental health or other social measures. (in force on December 18, 2019.)</li>
 
<li>Subject to paragraph (c), the sentence may have the objective to denounce unlawful conduct and deter the young person from committing offences.</li>
</ol>
General deterrence is not a sentencing principle under the ''YCJA''.  
General deterrence is not a sentencing principle under the ''YCJA''.  


In determining a youth sentence, section 38(3) requires a Youth Justice Court consider:
In determining a youth sentence, section 38(3) requires a Youth Justice Court consider:
 
<ol type="a">
*a. The degree of participation of the young person in the offence,
<li>The degree of participation of the young person in the offence,</li>
*b. The harm done to victims,
<li>The harm done to victims,</li>
*c. Any reparation made by the young person,
<li>Any reparation made by the young person,</li>
*d. The time the young person has already spent in detention as a result of the offence,
<li>The time the young person has already spent in detention as a result of the offence,</li>
*e. Any previous findings of guilt of the young person, and
<li>Any previous findings of guilt of the young person, and</li>
*f. Any other aggravating and mitigating circumstances.  
<li>Any other aggravating and mitigating circumstances.</li>
</ol>
A Youth Justice Court shall, before imposing a youth sentence, consider a pre-sentence report prepared by a youth worker, representations made by the parties, other relevant information and recommendations submitted as a result of a section 19 Conference (s 42(1)). Mandatory minimum sentences under adult or provincial statutes do not apply to young persons. The maximum duration of youth sentences is set out in section 42(14) to (16).  A custodial sentence cannot be used as a substitute for appropriate child protection, mental health or other social measures (s 39(5)).
A Youth Justice Court shall, before imposing a youth sentence, consider a pre-sentence report prepared by a youth worker, representations made by the parties, other relevant information and recommendations submitted as a result of a section 19 Conference (s 42(1)). Mandatory minimum sentences under adult or provincial statutes do not apply to young persons. The maximum duration of youth sentences is set out in section 42(14) to (16).  A custodial sentence cannot be used as a substitute for appropriate child protection, mental health or other social measures (s 39(5)).


Sentencing options are set out in section 42(2),''YCJA''. Non-custodial sentence options include:
Sentencing options are set out in section 42(2),''YCJA''. Non-custodial sentence options include:
*a. A judicial reprimand,
<ol type="a">
*b. An absolute discharge,
<li>A judicial reprimand,</li>
*c. A conditional discharge,
<li>An absolute discharge,</li>
*d. A fine to a maximum of $1000,
<li>A conditional discharge,</li>
*e. Compensation and restitution,
<li>A fine to a maximum of $1000,</li>
*f. Community work service,
<li>Compensation and restitution,</li>
*g. Probation,
<li>Community work service,
*h. An Intensive Support and Supervision Program Order (ISSO), and  
<li>Probation,</li>
*i. Non-residential programs
<li>An Intensive Support and Supervision Program Order (ISSO), and</li>
<li>Non-residential programs</li>
</ol>
Where a fine or an order for compensation or restitution is imposed, a court must consider the present and future means of the young person to pay. If a fine is imposed, the ''YCJA'' allows for the lieutenant governor in council of the province to order a percentage of any fine imposed on a young person to be used to assist victims of offences (s 53(1)). In B.C., an Order in Council has set this at 15%. Where a conditional discharge, probation or ISSO is imposed, the court must ensure that any conditions included complying with the requirements in s 38(2)(e.1) of the YCJA.
Where a fine or an order for compensation or restitution is imposed, a court must consider the present and future means of the young person to pay. If a fine is imposed, the ''YCJA'' allows for the lieutenant governor in council of the province to order a percentage of any fine imposed on a young person to be used to assist victims of offences (s 53(1)). In B.C., an Order in Council has set this at 15%. Where a conditional discharge, probation or ISSO is imposed, the court must ensure that any conditions included complying with the requirements in s 38(2)(e.1) of the YCJA.


Section 39(1) of the ''YCJA'' provides that a young person cannot be committed to custody unless:
Section 39(1) of the ''YCJA'' provides that a young person cannot be committed to custody unless:
 
<ol type="a">
*a. The young person has committed a violent offence,
<li>The young person has committed a violent offence,</li>
*b. The young person has previously been found guilty of an offence under section 137 in relation to more than one sentence and, if the court is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or section 137, the young person must have caused harm, or a risk of harm, to the safety of the public in committing that offence,   
<li>The young person has previously been found guilty of an offence under section 137 in relation to more than one sentence and, if the court is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or section 137, the young person must have caused harm, or a risk of harm, to the safety of the public in committing that offence,</li>    
*c. The young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than 2 years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt, or
<li>The young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than 2 years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt, or</li>
*d. In exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.
<li>In exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.</li>
 
</ol>
The Youth Justice Court under section 39(2) of the YCJA is required to consider all alternatives to custody that are reasonable in the circumstances and, if custody is imposed, reasons must be given as to why the Court found a non-custodial sentence inadequate to achieve the purpose of sentencing as set out in section 38(1) (s 39(9)).
The Youth Justice Court under section 39(2) of the YCJA is required to consider all alternatives to custody that are reasonable in the circumstances and, if custody is imposed, reasons must be given as to why the Court found a non-custodial sentence inadequate to achieve the purpose of sentencing as set out in section 38(1) (s 39(9)).


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Custodial sentence options include:
Custodial sentence options include:
*a. '''Deferred Custody and Supervision Order (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 that causes or attempts to cause serious bodily harm.  The maximum duration of this sentence is 6 months.  If the young person breaches a condition of the DCSO, a warrant may be issued and, after a hearing, the DCSO may be converted to a Custody and Supervision Order.
<ol type="a">
 
<li>'''Deferred Custody and Supervision Order (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 that causes or attempts to cause serious bodily harm.  The maximum duration of this sentence is 6 months.  If the young person breaches a condition of the DCSO, a warrant may be issued and, after a hearing, the DCSO may be converted to a Custody and Supervision Order.</li>  
*b. '''Custody and Supervision Order (s 42(2) (n))'''. The maximum duration of a CSO is two years, or three years if an adult maximum sentence is life imprisonment.  Two thirds of the sentence must be served in custody while the remaining one-third is served under a community supervision order.  The level of custody (open custody or secure custody) must be specified by the youth justice court (s 88 and Order in Council 267/2003).  The provincial director sets the mandatory and optional condition of the community portion of the CSO (s 97).  In [http://canlii.ca/t/273vr ''R v RRJ'', 2009 BCCA 580], the British Columbia Court of Appeal held 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 but that the judge may still choose to impose the maximum period of custody and supervision available under the statute.  


*c. '''Custody and Supervision Order (s 42(2) (o))''':  A custody term of a maximum of three years can be imposed where a young person is convicted of either attempted murder, manslaughter or aggravated sexual assault.  There is no minimum time period that must be spent in custody.  The time spent in custody is left up to the Judge’s discretion.   
<li>'''Custody and Supervision Order (s 42(2) (n))'''. The maximum duration of a CSO is two years, or three years if an adult maximum sentence is life imprisonment.  Two thirds of the sentence must be served in custody while the remaining one-third is served under a community supervision order.  The level of custody (open custody or secure custody) must be specified by the youth justice court (s 88 and Order in Council 267/2003).  The provincial director sets the mandatory and optional condition of the community portion of the CSO (s 97).  In [http://canlii.ca/t/273vr ''R v RRJ'', 2009 BCCA 580], the British Columbia Court of Appeal held 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 but that the judge may still choose to impose the maximum period of custody and supervision available under the statute.</li>  


*d. '''Custody and Supervision Order (s 42(2) (q))''':  Young persons convicted of murder can be committed to custody for longer periods of time.  A young person convicted of 1st degree murder can serve a custodial sentence of 10 years (no more than 6 years can be served in continuous custody).  In the case of 2nd degree murder a sentence of 7 years can be imposed (no more than 4 can be served in continuous custody).   
<li>'''Custody and Supervision Order (s 42(2) (o))''':  A custody term of a maximum of three years can be imposed where a young person is convicted of either attempted murder, manslaughter or aggravated sexual assault.  There is no minimum time period that must be spent in custody.  The time spent in custody is left up to the Judge’s discretion.</li>  


*e. '''Intensive Rehabilitative Custody and Supervision Order (s 42(2) (r) and 42(7))''': These orders are rare and are usually imposed when a young person has serious mental health issues. 
<li>'''Custody and Supervision Order (s 42(2) (q))''': Young persons convicted of murder can be committed to custody for longer periods of time.  A young person convicted of 1st degree murder can serve a custodial sentence of 10 years (no more than 6 years can be served in continuous custody).  In the case of 2nd degree murder a sentence of 7 years can be imposed (no more than 4 can be served in continuous custody).</li>  
The ''YCJA'' allows for a delay in the imposition of a custody order where appropriate.  In these instances, the probation order commences prior to the custody order and stipulates that the custody sentence begin immediately after the designated period of delay (s 42(12)).   


<li>'''Intensive Rehabilitative Custody and Supervision Order (s 42(2) (r) and 42(7))''': These orders are rare and are usually imposed when a young person has serious mental health issues. 
The ''YCJA'' allows for a delay in the imposition of a custody order where appropriate.  In these instances, the probation order commences prior to the custody order and stipulates that the custody sentence begin immediately after the designated period of delay (s 42(12)).</li> 
</ol>
While in custody a young person, with the assistance of a youth worker, must plan for his or her reintegration into the community, including the preparation and implementation of a reintegration plan that sets out the most effective programs for the young person in order to maximize his or her chances for reintegration in the community (s 90(1)).
While in custody a young person, with the assistance of a youth worker, must plan for his or her reintegration into the community, including the preparation and implementation of a reintegration plan that sets out the most effective programs for the young person in order to maximize his or her chances for reintegration in the community (s 90(1)).


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The Youth Justice Court shall order that an adult sentence be imposed if Crown Counsel has satisfied the Court that:
The Youth Justice Court shall order that an adult sentence be imposed if Crown Counsel has satisfied the Court that:
*a. The presumption of diminished moral blameworthiness or culpability of the young person is rebutted (s 72(1)(a)), and
<ol type="a">
*b. A youth sentence would not be of sufficient length to hold the young person accountable for his or her behaviour (s 72(1)(b)).
<li>The presumption of diminished moral blameworthiness or culpability of the young person is rebutted (s 72(1)(a)), and</li> 
 
<li>A youth sentence would not be of sufficient length to hold the young person accountable for his or her behaviour (s 72(1)(b)).</li>
</ol>
Although youths can be sentenced as adults the sentencing guidelines are not strictly the same as those that would be utilized in sentencing an adult. In [http://canlii.ca/t/1r1sv ''R v Pratt'', 2007 BCCA 206], the British Columbia Court of Appeal recognized that the court must consider the principles of sentencing in section 3 YCJA when sentencing a youth, including a youth who receives an adult sentence.
Although youths can be sentenced as adults the sentencing guidelines are not strictly the same as those that would be utilized in sentencing an adult. In [http://canlii.ca/t/1r1sv ''R v Pratt'', 2007 BCCA 206], the British Columbia Court of Appeal recognized that the court must consider the principles of sentencing in section 3 YCJA when sentencing a youth, including a youth who receives an adult sentence.


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The Provincial Director may, subject to any terms or conditions that they consider desirable, authorize a young person committed to custody in a youth facility the opportunity to have leave from the facility. There are two categories of leave:  
The Provincial Director may, subject to any terms or conditions that they consider desirable, authorize a young person committed to custody in a youth facility the opportunity to have leave from the facility. There are two categories of leave:  
<ol type="a">
<li>'''Reintegration Leave''': This 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. The maximum length of time is 30 days (s 91(1)(a)).</li>


*a. '''Reintegration Leave''': This 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. The maximum length of time is 30 days (s 91(1)(a)).
<li>'''Day release:''' This leave is to allow a youth to attend an educational facility, to attend work, to assist their family, to participate in programming related to school and/or work or to attend an outpatient treatment program or other program that provides services to address the needs of the young person (s 91(1)(b)).</li>
 
</ol>
*b. '''Day release:''' This leave is to allow a youth to attend an educational facility, to attend work, to assist their family, to participate in programming related to school and/or work or to attend an outpatient treatment program or other program that provides services to address the needs of the young person (s 91(1)(b)).
 
Reintegration leaves are also available to a young person serving an adult sentence in a youth facility.
Reintegration leaves are also available to a young person serving an adult sentence in a youth facility.


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