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)

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== A. Applicable Age ==
== A. Applicable Age ==
A “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". The ''CC'' states in Section 13 that no person under the age of twelve years will be convicted of an offence.  
A “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". The ''CC'' states in section 13 that no person under the age of twelve years will be convicted of an offence.  


A “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".
A “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".


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" under the Act may be continued "after the person attains the age of 18 years".
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" under the Act may be continued "after the person attains the age of 18 years".
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=== 5. Pre-Trial Detention ===
=== 5. Pre-Trial Detention ===
The rules for pre-trial detention are set out in Sections 28 and 29 of the ''YCJA''. A young person cannot be detained in custody as a substitute for appropriate child protection, mental health or other social measures. Section 28 will be altered by Bill C-75 on December 18, 2019, so that both pre-trial detention and conditions would not be allowed as a substitute for appropriate child protection, mental health or other social measures.  
The rules for pre-trial detention are set out in sections 28 and 29 of the ''YCJA''. A young person cannot be detained in custody as a substitute for appropriate child protection, mental health or other social measures. Section 28 will be altered by Bill C-75 on December 18, 2019, so that both pre-trial detention and conditions would not be allowed as a substitute for appropriate child protection, mental health or other social measures.  


Moreover, starting December 18, 2019, a young person may be subjected to a condition only if the judge/justice is satisfied that (s 29(1)):
Moreover, starting December 18, 2019, a young person may be subjected to a condition only if the judge/justice is satisfied that (s 29(1)):
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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),''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,
*a. A judicial reprimand,
*b. An absolute discharge,
*b. An absolute discharge,
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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 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)).
 
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)).


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)).
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=== 2. Non-Custodial Sentences ===
=== 2. Non-Custodial Sentences ===
As of December 18, 2019, s 59(1) of the ''YCJA'' will allow for non-custodial sentences to be reviewed at any time after they are imposed and no longer require leave from a PCJ for a review in the first 6 month period. 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:
As of December 18, 2019, section 59(1) of the ''YCJA'' will allow for non-custodial sentences to be reviewed at any time after they are imposed and no longer require leave from a PCJ for a review in the first 6 month period. 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 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 is unable to comply with or is experiencing serious difficulty in complying with the terms of the youth sentence,  
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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.  
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:  
Pursuant to section 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
*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:  
*ii) on its own motion or on application of the young person or the Crown if the court believes a report is necessary and:  
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*c) the young person is alleged to have committed a serious violent offence.   
*c) the young person is alleged to have committed a serious violent offence.   


An assessment report can be ordered under ''YCJA'' s 34(2) for a limited number of designated purposes, i.e. if the Youth Justice Court is:  
An assessment report can be ordered under ''YCJA'' section 34(2) 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),
*considering an application under s 33 (release from or detention in custody),
*deciding whether to impose an adult sentence under s 71,  
*deciding whether to impose an adult sentence under s 71,  
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*authorizing disclosure of information about a young person (s 127(1)).
*authorizing disclosure of information about a young person (s 127(1)).


Only the people described in s 119 of the ''YCJA'' can have access to the medical and psychological reports outlined in s 34.
Only the people described in section 119 of the ''YCJA'' can have access to the medical and psychological reports outlined in section 34.


For more information on mental illness and the law, see [[Introduction to Mental Health and Capacity (14:I) | Chapter 14: Mental Health Law]].
For more information on mental illness and the law, see [[Introduction to Mental Health and Capacity (14:I) | Chapter 14: Mental Health Law]].


=== 6. Victims ===  
=== 6. Victims ===  
Amendments have been made to the ''CC'' to enhance the role of the victim in the criminal trial process. The ''YCJA'' also aims to enhance the victim’s role. This is demonstrated by the references to victims’ rights in the general principles of s 3 and the fact that consideration of the harm done to victims and reparations are relevant in youth sentencing (s 38(3)).  
Amendments have been made to the ''CC'' to enhance the role of the victim in the criminal trial process. The ''YCJA'' also aims to enhance the victim’s role. This is demonstrated by the references to victims’ rights in the general principles of section 3 and the fact that consideration of the harm done to victims and reparations are relevant in youth sentencing (s 38(3)).  


B.C. is at the forefront when it comes to victim rights’ legislation, particularly in relation to the enactment of the ''Victims of Crime Act'', which helps to ensure victims’ views and concerns will not go unnoticed. In 2015, Parliament enacted the ''Canadian Victims’ Bill of Rights'', which guarantees victims’ rights throughout the criminal justice system across Canada. Refer to [[Introduction to Law for Victims of Crime (4:I) | Chapter 4: Victims]] for more information.  
B.C. is at the forefront when it comes to victim rights’ legislation, particularly in relation to the enactment of the ''Victims of Crime Act'', which helps to ensure victims’ views and concerns will not go unnoticed. In 2015, Parliament enacted the ''Canadian Victims’ Bill of Rights'', which guarantees victims’ rights throughout the criminal justice system across Canada. Refer to [[Introduction to Law for Victims of Crime (4:I) | Chapter 4: Victims]] for more information.  
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