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

A. Who does the act apply to?

1. Applicable Age

“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. Section 13 of the CC states that no person under the age of twelve years will be convicted of an offence.

“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.

2. Effect of Young Person Turning 18

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.

3. Applicable Court for Young Person

Under section 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. The superior court of British Columbia has concurrent jurisdiction as a youth justice court where the Crown is seeking an adult sentence for a young person.

B. Declaration of Principle

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: 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.

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 2-4 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.

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.

Special considerations apply in respect of proceedings against young persons. 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.

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

D. Right to Notice

Notice must be given to the parents as soon as possible in any of the following circumstances: i) the young person is arrested and detained in custody; ii) a summons or appearance notice is issued to the young person; iii) the young person is released on giving a promise to appear; or iv) upon the young person entering into a recognizance (s. 26 (1) and (2)). When the whereabouts of the parents of a young person are unknown, notice may be given to an adult relative or to any other adult, who is known by the young person and who is likely to assist the young person (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 would be appropriate (s. 26(11)).

Notice is not required if the person has attained the age of 20 at the time of his or her first appearance before a youth justice court (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 (s. 27).

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

1. Extrajudicial Measures

Extrajudicial measures are an alternative to the formal court process. The principles applicable to the use of extrajudicial measures are set out in section 4 of the YCJA. There is a presumption that extrajudicial measures 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 extrajudicial measures or a prior finding of guilt. Extrajudicial measures should be designed to i) provide an effective and timely response to offending behaviour; ii) to encourage young persons to acknowledge and repair the harm caused; iii) to encourage families of the young persons and the community to become involved in the design and implementation of those measures; iv) to provide an opportunity for victims to participate in decisions; and v) to respect the rights and freedoms of young persons and be proportionate to the seriousness of the offence.

Both summary and indictable offences (in exceptional circumstances) may be considered for extrajudicial measures.

Forms of extrajudicial measures available:

• To a Police Officer are: i) to take no further action; ii) to warn the young person; iii) to administer a caution; or iv) to refer the young person to a program or agency in the community.
• To Crown Counsel are: section 8 of the YCJA allows Crown Counsel to administer a caution.

2. Extrajudicial Sanctions

Extrajudicial sanctions may be used where the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances make a warning, caution, or referral inadequate (s. 10).

Extrajudicial sanctions may be used only if:

• a. they are part of a program of sanctions authorized by the Attorney General;
• b. the sanctions are considered appropriate having regard to the needs of the young person and the interests of society;
• c. the young person, having been informed of the extrajudicial sanction, fully and freely consents to be subject to it;
• d. the young person has, before consenting to be subject to the extrajudicial sanction, been advised of his or her right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
• e.the young person accepts responsibility for the act or omission that forms the basis of the alleged offence;
• f.there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence.

This 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. Section 10(3) precludes extrajudicial sanctions in circumstances where the young person denies culpability or expresses a desire to have the charges proceed against him or her in youth justice court. Statements accepting responsibility, made as a condition of being dealt with through extrajudicial sanctions, are not admissible in evidence in any subsequent civil or criminal proceedings (s. 10(4)). If extrajudicial sanctions are imposed, the person who administers the program must inform the parents of the young person about the sanctions (s. 11). Victims, upon request, are entitled to be informed of the identity of the young person and how the offence was dealt with when an extrajudicial measure is used (s.12).

F. Court Process

1. Compelling a Young Person’s Appearance in Court

The procedure for compelling a young person to attend court is generally the same as that for adults as set out in the CC. A Police Officer may release a young person on either an Appearance Notice or a Promise to Appear (and Undertaking). These documents will indicate a time, date and location for the Young Person’s first appearance in Court. If the Information is not laid prior to this first appearance the Appearance Notice or the Promise to Appear will be rendered a nullity. The Undertaking, however, will continue in force as long as the charges are before the Court.

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

Alternatively, and after an Information has been laid, a young person will be compelled to Court by either a Summons or a Warrant. A Warrant is issued where: i) Crown Counsel is either seeking the Detention of the young person or conditions of release for the young person; or ii) the whereabouts of the young person are unknown.

2. Time Limitations

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

3. Proof of Age

The age of the young person must be established. This is usually done at the early stages of the proceedings. There are a number of ways that this can be accomplished: a parent can testify as to the age of the young person (s. 148(1) YCJA), a birth or baptismal certificate can be evidence of the age of a young person (s. 148(2) YCJA), Defence Counsel may attest to having spoken with a parent or guardian, and on that basis, admit the age of the young person (s. 149 YCJA) , or the Court may act on any other information it considers reliable to determine the age of a young person (s. 148(3) YCJA).