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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*The opportunities for rehabilitation are now greater in the community, or | *The opportunities for rehabilitation are now greater in the community, or | ||
*Any other grounds the youth justice court considers appropriate (s. 94(6)). | *Any other grounds the youth justice court considers appropriate (s. 94(6)). | ||
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. | |||
=== 2. Non-Custodial Sentences === | |||
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: | |||
*The circumstances that led to the youth sentence have changed materially, | |||
*The young person is unable to comply with or is experiencing serious difficulty in complying with the terms of the youth sentence, | |||
*The young person has contravened a condition of an order without reasonable excuse, | |||
*The terms of the youth sentence are adversely affecting the opportunities available to the young person to obtain services, education or employment, or | |||
*Any other ground that the youth justice court considers appropriate (s. 59(2)). | |||
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 that the original youth sentence (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)). | |||
== I. Appeals == | |||
Under the ''YCJA'', young persons and the Crown have the same rights of appeal as adults under the CC (s. 37(1) and (5)). However, a young person cannot appeal a sentence review decision, whether mandatory or optional (s. 37(11)). | |||
== J. Special Concerns == | |||
=== 1. Public Hearings === | |||
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: | |||
*Any information presented to the justice would be seriously injurious or seriously prejudicial to the young person, a witness or a victim, or | |||
*It would be in the interest of public morals, the maintenance of order or the proper administration of justice to exclude any member of the public (s. 132). | |||
=== 2. Publication of a Young Person’s Identity === | |||
Section 110(1) ''YCJA'' states that no person shall publish the name of a young person, or any other information that would result in the identification of a young person. This ban does not apply: | |||
*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 | |||
*Where the publication of information is made in the course of the administration of justice and not for the purpose of making the information known in the community. | |||
Once a young person attains the age of eighteen years he or she may apply to lift the ban on publication for the purpose of permitting that person to publish information that would identify him or her as having been dealt with by the ''YCJA''. The ban will only be lifted if the youth justice court is satisfied that the publication would not be contrary to the young person’ best interests or the public interest (s. 110(6)). | |||
=== 3. Fingerprints and Photographs === | |||
The ''Identification of Criminals Act'', RS 1995, c I-1, applies to young persons. 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 to 129 of the ''YCJA'' govern the records relating to young people which are kept in relation to the youth justice court process. These provisions set out who may keep records in relation to a young person who is charged under the Act, and restrict access and control the disclosure of information contained within these records. | |||
Records that arise out of proceedings under the ''YCJA'' may be kept by: | |||
*A youth justice court, a review board or any court dealing with matters arising out of proceedings under the ''YCJA'' (s. 114), | |||
*An investigating police force may keep a record relating to any alleged offence or any offence committed by a young person (s. 115(1)), | |||
*An investigating police force may keep a record of any extrajudicial measures that they use to deal with young persons (s. 115(1.1)), | |||
*A department or an agency of any government in Canada for the purpose of investigation, use in proceedings against the young person, sentencing, and considering the young person for extrajudicial measures (s. 116(1)). | |||
Who has access to these records is set out in sections 117 to 124 ''YCJA''. Except as authorized by the ''YCJA'' no person is to be given access to a record, kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person as a person dealt with under the Act (s. 118(1)). Sections 119(1-2) list the persons to whom access to records may be granted and the time limits within which access can be granted. These time limits vary in length depending on the treatment of the young person by the court. After the applicable access period has ended a person must apply to a youth justice court judge to gain access to the records and the application must meet the requirements set out in s. 123(1). The group of persons to whom access will be granted with respect to extrajudicial sanctions has special limitations (s. 119(4)). | |||
Not all records concerning young persons are governed by the same rules with respect to access. Under section 120 ''YCJA'' RCMP records may be accessed by: | |||
*the young person to whom the record relates, | |||
*the young person’s counsel, | |||
*a government of Canada employee for statistical purposes, | |||
*any person with a valid interest in the record if a judge is satisfied that access is desirable in the public interest for research or statistical purposes, | |||
*the Attorney General or a peace officer for the purpose of investigating an offence, | |||
*the Attorney General or a peace officer to establish the existence of an order in any offence involving a breach of an order, and | |||
*any person for the purposes of the Firearms Act. | |||
Sections 125 to 127 of the Act deals with disclosure of the information in a record. These rules outline who may disclose information which is in their possession, to whom they may disclose the information, and when such disclosure will be permitted. Before any information is disclosed, the young person must have an opportunity to be heard unless reasonable, but unsuccessful, efforts have been made to locate the young person. | |||
=== 5. Mental Health Provisions === | |||
Young persons who come into contact with the criminal justice system may suffer from mental health issues. The ''CC'' provisions regarding mental disorders apply to the ''YCJA'' except to the extent they are inconsistent with the ''YJCA'' (s. 141). Section 34 of the ''YCJA'' allows the court to take into account the mental health of a young person and order a report in certain circumstances. | |||
Pursuant to s. 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: i) with the consent of the young person and the crown, or ii) on its own motion or on application of the young person or the crown if the court believes a report is necessary and: | |||
*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, | |||
*b) the young person has a history indicating a pattern of offences, or | |||
*c) the young person is alleged to have committed a serious violent offence. | |||
An assessment report can be ordered for a limited number of designated purposes, i.e. if the youth justice court is: | |||
*considering an application under s. 33 (release from or detention in custody), | |||
*deciding whether to impose an adult or youth sentence, | |||
*making or reviewing a youth sentence, | |||
*considering an application for continuation of custody, | |||
*setting conditions for conditional supervision, | |||
*making an order after a review of a breach of conditional supervision, or | |||
*authorizing disclosure of information about a young person (s.34(2)). | |||