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

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

Revision as of 19:35, 19 August 2018

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→‎1. Youth Sentences
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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:


*a. The degree of participation of the young person in the offence,
*a. The degree of participation of the young person in the offence,
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*e. Any previous findings of guilt of the young person, and
*e. Any previous findings of guilt of the young person, and
*f. Any other aggravating and mitigating circumstances.  
*f. Any other aggravating and mitigating circumstances.  
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 s 42(2) of the ''YCJA''. Non-custodial sentence options include:
Sentencing options are set out in s 42(2) of the ''YCJA''. Non-custodial sentence options include:
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*h. An Intensive Support and Supervision Program Order (ISSO), and  
*h. An Intensive Support and Supervision Program Order (ISSO), and  
*i. Non-residential programs
*i. Non-residential programs
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(2)). In B.C., an Order in Council has set this at 15%. Where a conditional discharge, probation or ISSO is imposed, a court may include whatever reasonable conditions it considers advisable in the interest of the young person and the public.
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, a court may include whatever reasonable conditions it considers advisable in the interest of the young person and the public.


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:
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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)).
The Youth Justice Court under s. 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)).


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)).
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:
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.   
*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.   
*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.   
*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.   
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====Section 19 Conferences====
====Section 19 Conferences====


A youth justice court may convene a conference under section 19 for recommendations as to an appropriate sentence (ss 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.
A Youth Justice Court may convene a conference under section 19 for recommendations as to an appropriate sentence (ss 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 ===
=== 2. Adult Sentences ===
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