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

The purpose and principles of sentencing under the ''YCJA'' are set out in sections 3 and 38 of the Act.  The purpose of sentencing is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public (s. 38(1)).  The principles of sentencing are set out in section 38(2) and include:

Although all elements listed under 38 \(2) should be taken into consideration during sentencing the B.C. Court of Appeal has indicated that there is a hierarchy within that section. R v. S.N.J.S., [2013] B.C.J. No. 1847, the court noted that “to the extent that there is any hierarchy within the principles laid down in s. 38(2), it is (c) which is at the top of that hierarchy”. In S.NJ.S. at paragraphs 26 – 29 the Court reviewed the interplay between s.38(2)(d) and (e) with s. 38(2)(c) and indicated that s. 38(2)(e) is subject to s. 38(2)(c) and the need to impose a sentence proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence is at the top of the hierarchy. Further the court indicated that in respect of the criteria within 38(2)(e) there is no hierarchy between the three principles, and there is no reason for a judge to treat (e)(i) as trumping (e)(ii) or (iii). The judge must consider all of those requirements, along with the other principles laid down in s. 38(2), and the principles set out in s. 3, in determining a sentence. Additionally the court opined that the YCJA is not entirely “offender-centric”(para 28)

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)).

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, the court must ensure that any conditions included complying with the requirements in s. 38(2)(e.1) of the YCJA.

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)).

<li>'''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.</li>   

<li>'''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 [http://canlii.ca/t/273vr ''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 that the judge may still choose to impose the maximum period of custody and supervision available under the statute.</li>   

<li>'''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.</li>   

<li>'''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).</li>   

<li>'''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)).</li>   

While in custody a young person, with the assistance of a youth worker, must plan for their 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 their 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)).