Youth Criminal Justice Act (YCJA)
ELO: Assess how the judicial branch and the Youth Criminal Justice Act show justice, mercy and humility to young offenders. Analyze how we seek justice, humility and mercy through Canada’s justice system, focusing on the Youth Criminal Justice Act.
The YCJA was created to:
prevent young people from committing crimes by looking at the reasons they commit crimes and finding ways to help them change this behaviour;
Rehabilitate young people and help them back into society so they become law abiding members of the community; and
protect the public long-term by ensuring young people breaking the law receive meaningful consequences for their actions.
Terminology
Advocacy
Citizen
Community Service
Criminal Record
Equitable
Fair
Justice
Justice System
Legislation
Rehabilitate
Reintegrate
Sentence
Helpful Links
Principles of the Act:
Youth aged 12-17 who commit offences are treated differently than adults.
The objectives of the youth justice system are crime prevention, rehabilitation and reintegration, and meaningful consequences. These objectives taken together will promote the long-term protection of the public.
Measures to deal with youth crime should be meaningful to the youth, encourage the repair of the harm done to victims and the community and should be responsive to the needs and circumstances of Aboriginal youth and youth with special requirements.
Measures must be fair and in proportion to the seriousness of the offence.
Youth have due process rights, which include the right to be heard and participate in the decisions that affect them.
The youth, his or her parents, the victim and the community all play an important role when addressing the youth’s criminal behaviour.
The YCJA gives rehabilitation and reintegration special emphasis and recognizes the importance of timely intervention.
Legal Rights of Youth
The police have the right to stop a youth and do a search if they have objective reasons.
The police must advise a youth that has been arrested of his/her rights and make sure that the youth understands his/her rights.
The rights to remain silent, to know the reason for the arrest, and to retain counsel are important protections for youth.
Youth are generally entitled to have counsel and a parent or a responsible adult present when questioned by the police.
Youth can waive their rights under the YCJA.
Youth charged with an indictable offence can be fingerprinted and photographed.
Youth are entitled to pre-trial release with the exception of public safety issues, failure to appear concerns or unless the youth commits a serious offence, or has a pattern of outstanding charges or findings of guilt.
Youth are entitled to legal counsel at arrest, at trial and when an extra-judicial sanction is being used.
Youth have the right to be dealt with in a timely manner.
Youth have the right to a trial to determine guilt before an adult sentence is considered.
Sentences should respond to the needs of Aboriginal youth and youth with special requirements.
The province may set up a program to recover costs of legal counsel from the youth or his/her parents.
Extra Judicial Measures
There is a presumption that extrajudicial measures (non-court responses) should be considered before formal court proceedings are initiated.
Principles of Extrajudicial Measures
Extrajudicial measures are often the most appropriate and effective way to address youth crime.
Allow for effective and timely interventions focused on correcting offending behaviour.
They are presumed to be adequate to hold a young person accountable if the young person has committed a non-violent offence and has not previously been found guilty of an offence.
Extrajudicial measures should be used in every case where they are adequate to hold a young person accountable, even if the young person has previously been dealt with by extrajudicial measures or has previously been found guilty of an offence.
Objectives of Extrajudicial Measures
Extrajudicial measures provide an effective and timely response to the offending behaviour.
Encourage the repair of harm caused to the victim and the community.
Encourage the involvement of families, victims and the community.
Respect the rights of young persons.
Extrajudicial measures must be proportionate to the seriousness of the offence.
Types of Extrajudicial Measures
If there are reasonable grounds to charge a youth with an offence, then the police or Crown may consider using extrajudicial measures.
Police may take no further action, warn, caution (not done in BC) or refer youth to community programs.
Crown may caution or use extrajudicial sanctions.
The police or Crown may convene or cause to convene conferences to obtain advice on appropriate measures.
Records of Extrajudicial Measures
Police forces must keep records of all extrajudicial measures used to deal with a youth (Section 115 (1.1) of YCJA) These may be used by Crown as a pattern of behaviour when arguing for detention of a youth.
Extrajudicial Sanctions
Extrajudicial sanctions can only be used if:
The youth accepts responsibility for the act or omission that forms the basis of the offence
There is enough evidence to proceed with a prosecution
The youth has given informed consent, there is a program in place
No other measures will hold the youth accountable
The young person has been informed of his or her right to obtain counsel, and has been given a reasonable opportunity to do so.
If the youth complies with an extrajudicial sanction, the charge(s) will be stayed.
If the youth does not comply, the Crown will decide whether to proceed with the prosecution.
Parents need to be notified if an extrajudicial sanction is being used.
Victims are entitled to know the name of the youth and receive information about the extrajudicial sanction.
A history of extrajudicial sanctions will be included on pre-sentence reports if a youth is later convicted of a criminal offence and will form a record that can be accessed for a period of time.
Conferences
A conference means getting together a group of people with some responsibility or knowledge of the offending youth to discuss what measures might assist that youth.
Conferences are informal and can take the form of family group conferences, community accountability panels, sentencing or healing circles and multi-disciplinary or integrated case management conferences.
Conferences provide for a wide range of perspectives on the case, more creative solutions, better coordination of services, and increased involvement of the victim and other community members in the youth criminal justice system.
The conference could be restorative in that the solution focuses on repairing the harm done to the victim of the offence.
Section 19 of the YCJA sets out who may call conferences, the purposes of conferences, and the authority to establish rules for them.
A youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor or a youth worker can convene a conference.
The conference may be convened to give advice on appropriate extrajudicial measures, conditions for judicial interim release, sentences, review of sentences and reintegration plans.
The advice is given to a police officer, judge, justice of the peace, prosecutor, provincial director, or youth worker who is required to make a decision under the YCJA.
Provincial or territorial governments can establish rules for convening and conducting conferences called by the police, the provincial director, prosecutors, and youth workers.
Conferences must be guided by the principles set out in the YCJA in respect to extrajudicial measures, pre-trial detention, sentencing, custody, and reintegration.
A youth justice committee is a group of citizens appointed by the government to assist in the administration of the YCJA or any programs or services for youth.
Websites
Victims and Youth Justice
The YCJA clearly recognizes the interest and the needs of victims to have a role of involvement at different stages of the youth justice process.
The considerations of the victim include:
Being notified about the proceedings
Being given an opportunity to participate in the proceedings
Being given an opportunity to be heard
Having a role in formal or informal community-based measures
The right to request information about measures or sanctions used for the offender that do not involve going to court
The right to submit a victim impact statement at the time of sentencing
The right to request access to certain youth records
Extrajudicial measures not only encourage the youth to acknowledge their actions but also to repair the harm done to the victim
The victim can be directly involved in decisions made about the consequences for the youth and also in the reparations by the youth
The victim must be told about a compensation order and must agree to it.
If the youth agrees to participate in a community justice conference, the victim and others who have been affected by the youth’s actions will be there
If the youth has been found guilty of the offence in court proceedings, he or she may have to listen to a victim impact statement
Sentencing Principles
Principles guide judges in deciding on a fair and appropriate sentence.
The purpose of sentencing is to hold the youth accountable through "just sanctions" that ensure meaningful consequences for them and which promote their rehabilitation and reintegration into society.
Sentences should not be more severe than what an adult would receive for the same offence and should be similar to youth sentences in similar youth cases.
Sentences should be proportional to the seriousness of the offence and the degree of responsibility of the youth.
The sentence should be the least restrictive alternative most likely to rehabilitate and reintegrate the youth and should also promote in the youth a sense of responsibility and an acknowledgement of the harm done.
Before custody is considered, all reasonable alternatives that will hold the youth accountable should be used.
Sanctions other than custody should be considered for all young persons, with particular attention to the circumstances of Aboriginal youth.
A youth cannot be committed to custody unless:
the youth committed a violent offence,
the youth failed to comply with non-custodial sentences,
the youth has committed an indictable offence (for which an adult is liable to imprisonment for more than two years) and the youth has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt, or
in exceptional cases, where a non-custodial sentence would be inconsistent with the purpose and principles as set out in the YCJA.
Approximately one-third of custodial sentences are served and supervised in the community.
Youth Sentencing Options
Sources of Information
When sentencing, the judge must consider the principles of sentencing in the YCJA as well as the principles of protection of the society, the rehabilitation of the offender, general deterrence, specific deterrence and denunciation.
A judge may want additional information about the presence or absence of a criminal record, the lifestyle of the offender, attitude and history of the offender, the impact on the victim, the gravity of the offence and the circumstances concerning the commission of the offence.
Sources of information come from the facts of the case, a pre-sentence report, a medical or psychological report, a conference recommendation and/or a victim impact statement.
A pre-sentence report includes the previous offending history of the youth and previous measures or sentences given as well as detailed information about the youth.
The judge shall consider the victim impact statement during the sentencing process.
Youth Sentences
Absolute Discharge - no record after one year.
Conditional Discharge - no record after three years if conditions met.
Judicial Reprimand - stern lecture by the judge.
Fine - up to $1000.00 based on time needed and ability to pay.
Restitution - return of goods to the victim.
Compensation - repayment for loss suffered by the victim.
Community Service - work hours done without pay in the community.
Probation - period of supervision with conditions.
Intensive Support and Supervision Program (ISSP) - closer monitoring than probation.
Intermittent Custody - non-continuous custody.
Custody
Custody and Supervision - custody always to be followed by supervision in the community.
Intensive Rehabilitation Custody and Supervision (IRCS) - greater control and guaranteed treatment for serious violent offenders.
Adult Sentences for Youth
Deciding if an adult sentence is appropriate only takes place after a finding of guilt in youth court.
If the offence is first or second degree murder, attempted murder, manslaughter or sexual aggravated assault an adult sentence can be ordered by the judge.
Adult sentences should only be used in cases where the youth sentence would not be of sufficient length to hold the youth accountable, bearing in mind the reduced level of maturity and the greater dependency of youth.
The Crown must give notice to the youth and the court that it is seeking an adult sentence. The burden is on the Crown to prove that an adult sentence is appropriate.
The Crown may choose at any time during the proceedings not to pursue an adult sentence.
If an adult sentence is being sought and a conviction may attract a penalty of five or more years, then the youth may elect the mode of trial.
If a youth sentence is sought, then there is no election - except in the case of first or second degree murder where the youth penalty could be 10 and 7 years respectively.
During elections, youth may elect :
A trial by a youth justice court judge without a jury
A trial by judge without a jury, following a preliminary inquiry
A trial by judge and jury, following a preliminary inquiry
The court must hold a hearing to determine whether a youth or adult sentence should be imposed and must state its reasons for the decision.
Corrections have more flexibility under the YCJA with regard to the placement of the youth who have been given an adult sentence.
A youth under the age of 18 would serve the adult sentence in a youth facility unless it would not be in the best interests of the youth or the youth would jeopardize the safety of others.
Publication of Identity of Offender
The basic rule is that there will be no publication of the youth’s identity as that identity should be protected.
Publication of the name of the youth would impede the rehabilitation efforts and it would detrimentally affect the youth.
The youth’s name may be published if:
The youth has been found guilty of an offence and is given an adult sentence
The youth has been found guilty of a presumptive offence and is given a youth sentence and certain conditions are met
The youth is at large and is a danger to others
The youth is 18 or older, is not serving a custodial sentence, and either chooses to publish or gives consent to publish his or her name.
Youth and Adult Records
A youth record includes the criminal history of offences and extrajudicial sanctions.
Courts, review boards, people dealing with youth and the police can keep a youth record.
A youth record can have consequences regarding schooling, travel and employment.
A youth record will usually be open from 3-5 years after a sentence for an offence is complete.
A youth record can be used in court during the sentencing process.
The police, the prosecutor, a youth worker, the judge, the victim, the youth, the parents or guardians, the youth’s lawyer, the Attorney-General of the province, the director of a correctional facility, and the youth’s school may have access to information about the youth, depending on why the information is being sought.
Periods of access to youth records vary, depending on the record, the severity of the offence, the sentence imposed and the youth’s subsequent behaviour.
A record created from extrajudicial measures will be closed after two years if the youth does not commit another offence during that period.
Youth records are not automatically destroyed when the youth turns 18.
If a further offence is committed within the access period and after the youth turns 18, the youth record may be attached to the adult record and will be subject to the adult record provisions.
If the youth is given an adult sentence for a very serious crime, his or her record is treated as an adult record.
Adult records remain open for life, unless the person receives a pardon.
If there are no further offences following a sentence, then the youth record will be destroyed at the end of the access period, generally 3-5 years after the sentence.
Once a youth record is closed, it is either destroyed or sent to the National Archives of Canada or the Provincial Archives to be stored.
Study Questions:
- How is justice often portrayed? Why?
- What are root causes of crime?
- How can a youth record affect someone in the future?
- How is the YCJA different from the Criminal Code of Canada?
- The YCJA
o The 4 main objectives
o Who is it for?
o What are the consequences – possible consequences (flowchart)
o What factors determine the consequences young offenders face?
- How has the YCJA affected youth crime?
- What is jury duty?
o What is the role
o Why is it considered a responsibility?
- How do citizens and organizations participate in Canada’s justice system?
- What is the role of advocacy groups?
o Such as the John Howard Society & Elizabeth Fry Society