Youth Criminal Justice Act
The Youth Criminal Justice Act (YCJA; French: Loi sur le système de justice pénale pour les adolescents) is a Canadian statute, which came into effect on April 1, 2003. It covers the prosecution of youths for criminal offences. The Act replaced the Young Offenders Act, which itself was a replacement for the Juvenile Delinquents Act.
Youth Criminal Justice Act
SC 2002, c. 1
2002-02-19
Bill C-7, 37th Parliament, 1st Session
Anne McLellan
2001-02-05
2001-03-26
2001-05-29
2001-05-30
2001-09-25
2001-12-18
Definition of youth[edit]
The Act governs the application of criminal and correctional law to those 12 years old or older, but younger than 18 at the time of committing the offence (Section 2 of the YCJA). Youth aged 14 to 17 may be sentenced as adults under certain conditions, as described later on in the Act. The Criminal Code, section 13, states "No person shall be convicted of an offence in respect of an act or omission on their part while that person was under the age of twelve years."
Preamble[edit]
The preamble of the Act recognizes that youth have rights protected by the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the United Nation's Convention on the Rights of the Child.
Section 18(1)[29] of the Youth Justice Committees (YJCs) help in the administering of the Act by devolving power to the community. YJCs facilitate interaction between the victim and offender, and recommend appropriate programs/services to treat their situation. Each committee is a group of trained volunteers from the local community. Their main activities include the following:
a. for the youth charged with an offence:
b. Reporting to the federal and provincial governments on whether protective measures of the act are followed
c. Advising the federal and provincial governments on policies and procedures related to the youth criminal justice system
d. Informing the public in respect of the YCJA and the youth criminal justice system;
e. Setting up conferences
f. Any other task assigned by The Attorney General of Canada or a provincial minister
Operating under the paradigm of restorative justice,[30] YJCs aim to "strike the right balance between accountability and community intervention"[31] YJCs are used extensively in Manitoba, Alberta and New Brunswick. A committee's activity largely depends on volunteer efforts from its community.[30] Trained members work to create extrajudicial measures for young people, but failure to comply with measures given ultimately results in return to the formal justice system.[30]
Right to counsel[edit]
General[edit]
The Act in Section 25(1) gives a youth the right to retain and instruct counsel without delay,[32] which was amended by the Canadian Charter of Rights and Freedoms. This means that young persons who are arrested or detained for any reason must be told of their right to obtain a lawyer before any lawful procedures are conducted.[33] The youth must also be given the opportunity to obtain this counsel. If the youth does not have a lawyer present at the first court date, the judge must inform the youth of their right of counsel. Before accepting a plea, the court must
Notice to parents[edit]
Under the Act, in case of the arrest or detention of a young person, the officer in charge must give notice to a parent either orally or in writing as soon as they possibly can under section 26(1).[55] The notice must include under section 26(6) the following information: (a) the name of the young person (b) the charge against the young person and (c) a statement that the young person has the right to be represented by counsel.[56] In addition, if summons, appearance of notice or promise to appear is issued in respect of a young person, the parent must be given notice in writing in person or via mail under section 26(2).[57] Both sections 26(1) and 26(2) are subject to subsection 26(4), which states that if the whereabouts of the parents of the young person are not available, notice may be given to an adult who the person giving the notice considers appropriate.[58] If there is a failure to give notice to a parent upon the arrest of a young person all proceedings continue and are not considered invalid under this act.[59]
Arrest and detention[edit]
Youths may be arrested by the police for more serious offences. The rights expressed in the Canadian Charter of Rights and Freedoms apply to youths and adults.
Youths and adults have the right to obtain immediate legal counsel of their own choice upon arrest or detention. The Youth offender also has the right to have their parent(s) or guardian(s) present during questioning. Upon arrest or detainment, these rights must be explained in clear and understandable language.
If the police have violated the above rights, the charges may be dismissed by a judge or any statements made to the police may be ruled inadmissible by the judge in court.
Presumptive offences were found to be unconstitutional and are no longer included in the Act. A presumptive offence is an offence committed or alleged to have been committed by a young person who has attained the age of fourteen years.[60] An adult sentence can be imposed on a young person who is found guilty of an offence for which an adult can be sentenced to imprisonment for more than two years if the offence was committed after a young person is fourteen years of age.[61]
Presumptive offence may be used under one of the following charges: first-degree or second-degree murder, attempt to commit murder, manslaughter or aggravated sexual assault.[62] Other serious offences can fall within presumptive offence if it is the third conviction for such an offence.[63]
The age of fourteen may sometimes be raised in a province where the Lieutenant Governor in council has fixed the age greater than fourteen.[62]
Youths who are 12 or 13 at the time of the offence may be sentenced in the same way, only for the following: first degree or second degree murder or manslaughter.
Trial procedures[edit]
Trials for both adults and youths follow the same rules for evidence and are equally formal.
Section 110 of the Act outlines privacy in relation to the identity of young offenders, access to their criminal records, and disclosure of their personal or trial information.[64]
The Act trial information can be published in media or print but identifying information (i.e., name) about young offenders cannot.[64] This publication ban exists to prevent stigmatization of young offenders, which has been found to hinder the rehabilitation of youth.[65] Furthermore, the identity of youth victims cannot be published for the same reasons.[64]
Breaking the publication ban is a criminal offence.[66] It is unknown whether publication of identifying information on social networking sites like Facebook is a violation of the ban, which has been the source of controversy.[67]
The ban is lifted in respect to any adult sentences the young person receives, and can be otherwise lifted only under exceptional circumstances, including:
Youth criminal records cannot be viewed by anyone other than criminal justice officials (e.g. lawyers) and only within particular time frames from the offence.[65]
Disclosure ("the communication of information other than by way of publication"[68] of youth information is banned under the Act.[65] Communicating information about youth offenders through disclosure is a criminal offence[69]
Detention prior to sentencing section 29[edit]
Under the Act, prior to conviction, detention is prohibited and deemed unnecessary.[70] One of the new provisions of the Act is to limit the use of pre-trial detention and to promote alternatives to incarceration.[71] Under the Youth Offenders Act, pre-trial detention was on the rise and Canada, out of the western countries, had one of the highest youth incarceration rates.[72] Not only was the use of pre-trial detention high, it also varied widely across the provinces.[71] Pre-trial detention is not meant to be punitive, but research found negative outcomes associated with it as well, such as depravity of freedom and seclusion from the outside world. Many youth in custody prior to their sentencing were also found guilty more often than youths not in custody.[72] The inconsistent use of pre-trial detention and negative connotations were cause enough for revision.
Purpose of sentencing[edit]
Purpose[edit]
The fundamental purpose in the sentencing of young persons pursuant to the Act is to strike the best possible balance between the interests of the young person and the interests of society. The sentencing judge will also endeavour to impose a sentence that encourages the youth to take responsibility for the consequences of their actions.[s.3, s.38 YCJA]
Canadian appellate courts and the Supreme Court of Canada have repeatedly affirmed the principle that young persons convicted of crimes must be sentenced differently from adults. A notable example is the Ontario decision of R v D.T. '2006 OJ 112' (Citation is wrong) where the Court asserted that a separate youth sentencing process is fundamental to Canadian societal notions of justice.
In R v C.D. / C.D.K[2005 SCC 78], the Supreme Court of Canada confirmed that youths will receive the most favourable interpretation available of the Act's sentencing provisions . In C.D / C.D.K., the Court ruled that 'violent crime' as defined in s.39 of the Act did not include arson; the offender was thereby entitled to a more lenient disposition.[ibid, 85]
Since the enactment of the Act in 2003, a greater number of young persons charged with criminal offences have received the benefit of diversion that was the practice under the former Young Offenders Act.[Bala (2007), 7]. Diversion refers to the broad range of non-criminal sanctions, including community service that if satisfactorily completed by the youth, the subject charge is withdrawn.
Committal to custody[edit]
Section 39 (1) of the Act maintains that a custodial sentence should not be imposed on young offenders unless certain mandatory conditions outlined in the section are satisfied.[73] The purpose of this section is to provide specific guidance to judges who are considering imposing a custodial sentence with the principal focus of reducing Canada's "over-reliance on the incarceration of non-violent young persons".[58] Section 39 (1) (a) specifically places restrictions on the use of custodial sentences for non-violence offences[74] unless the offender has a history of failing to comply with noncustodial sentences and has created a risk to public safety with those violations, has an extensive pattern of non-violent offending, or other exceptional circumstances.[58] In addition to satisfying at least one of the conditions of section 39(1), the courts must also ensure the balance of section 39 when considering a custodial sentence of a non-violent offence. Also, the judges must take into account any rehabilitative concerns that would alter the nature and reduce the severity of the sentence by mitigating factors.[58] For an example, courts must be certain to not impose a severe sentence in situations of rehabilitative of child welfare concerns. For an example, a custodial sentence should not be imposed to achieve rehabilitation purposes or to tackle such social circumstances such as lack of housing or an abusive home environment.
Section 39 of the Act restricts the use of custodial sentences for young persons[75][76] This means that the young person should not be taken into custody unless the young person or their offence meet certain criteria. Subsection (1) (d) defines one of these criteria and states that custodial sentences may be used in those exceptional cases where the youth has committed an indictable offence. Further, the nature of the indictable offence must be such that imposing a non-custodial sentence would not fulfil the purpose and principles of sentencing as outlined in section 38 of the Act.[77] Section 38 of the Act states that the young person is to be held accountable for their actions and rehabilitated into society.[75] Thus, as defined in 39 (1) (d), custodial sentences and imprisonment and to be used only in response to offences that are indictable and when non-custodial sentences are inappropriate with regards to the circumstances and the nature of the offence.Overall the YCJA is an effective program used for the youths.
Alternatives to custody[edit]
39.(2) "If any of 39(1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.[78]
39.(3) "In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to:
(a) the alternatives to custody that are available;
(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account their compliance with previous non-custodial sentences; and
(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.[78]
The above entails that even though a 'serious offence' was committed by a youth, it does not automatically equate to time in custody. The presiding official in a youth justice court must review all options other than custody by utilizing the factors outlined in 39 (3).[79] Specifically section 39 (2) prohibits the court from imposing custody unless all alternatives have been considered.[80] The reason for said sections within the Act is to reduce the use of custody as a sentencing option, and consequently the number of youth in custody, and to ensure that the most intrusive response to youth offending is only used in serious cases.[81] The inclusion of these sections displays a stark difference between the Young Offenders Act and the Youth Criminal Justice Act as the former did not have such clear preconditions that had to be satisfied prior to the imposition of a custodial sentence and thus large numbers of youth were incarcerated under the Young Offenders Act.[75]
Reports for sentencing hearings[edit]
Reports for sentencing hearings are used in more serious cases in order to assist in determining an appropriate sentence. The most frequently used report for sentencing hearings is the pre-sentence report which is outlined in section 40. The judge ultimately decides whether a report is necessary, though the crown may request the report and the defence counsel may argue against the issuing of a pre-sentence report. All custodial sentences require a pre-sentencing report. A pre-sentencing report is conducted by a government employee who interviews the youth and any significant influences including family members, peers and other important persons who may contribute to their report. This report is a historical outline which may include information regarding the youth's family background, school history, attitude toward their offence, willingness to engage in available community services, interview with the victim and potentially a suggestive sentence. The pre-sentence report is given to the judge, prosecutor and defence lawyers as well as the youth and any involved parent or guardian before the sentencing hearing.[58]