Criminal Offences: Youth Criminal Justice Act (2:III): Difference between revisions
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Criminal Offences: Youth Criminal Justice Act (2:III) (view source)
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*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 | *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 | ||
*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. | *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. | ||
The youth justice court 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)). | |||
Prior to committing a young person to custody, the judge must consider a pre-sentence report (s. 39(6)). This requirement can be waived, with the consent of the prosecutor and the young person, and if the youth justice court is satisfied that it is unnecessary (s. 39(7)). | |||
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. | |||
*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 ''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 he/she 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. | |||
*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). | |||
*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. | |||
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)). | |||
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)). | |||
Section 76(2) ''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)). | |||
''Section 19 Conferences'' | |||
A youth justice court may convene a conference under section 19 for recommendations as to an appropriate sentence (s. 41 and 19). 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 a number of different people, including the victim the accused, his or her parents, members of the justice system, and community resource professionals. The conference may elicit advice on decisions such as a suitable extrajudicial measure, a condition for release from pre-trial detention, appropriate sentencing and plans for reintegrating the young person back into the community after release from custody. | |||
=== 2. Adult Sentences === | |||
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. | |||
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 | |||
*b. A youth sentence would not be of sufficient length to hold the young person accountable for his or her behaviour (s. 7291)(b)). | |||
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 ''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. | |||
=== 3. Reintegration Leave === | |||
The Provincial Director may, subject to any terms or conditions that he or she considers 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: | |||
*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)). | |||
*b. '''Day release:''' This leave is to allow a youth to attend an educational facility, to attend work, to assist his or her 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. | |||
=== 4. DNA Sample === | |||
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). | |||
== H. Review of Sentences == | |||
=== 1. Custodial Sentences === | |||
An annual review is mandatory for all custodial sentences over one year. This review is to take place without delay at the end of one year from the date of the earliest youth sentence imposed and the end of every subsequent year from that date (s. 94 (1) and (2)). | |||
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 (s. 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. 95). 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, | |||
*The opportunities for rehabilitation are now greater in the community, or | |||
*Any other grounds the youth justice court considers appropriate (s. 94(6)). | |||